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Employment Law Midterm

Employment Law Midterm 1. DePeters, Co. is sued for sex discrimination on the grounds that too few women are hired because fewer women than men achieve passing scores on a required manual dexterity and physical strength test.

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DePeters, Co. offers in its defense that even though fewer women score high enough on the test, a greater percentage of the passing women are hired. The company maintains that, as a result, the percentage of women in the workforce mirrors the percentage of available women in the labor pool. A group of women who took the test and failed file suit.

Explain the basis for the cause of action, and analyze the merits of the cause of action, employer defenses, and likely outcome. Support your response with applicable law. (Chapter 6) The women would file suit, alleging a violation of Title VII of the Civil Rights Act of 1964, alleging that the test has a disparate impact upon women. Even though a greater percentage of the passing women are hired, the employer’s process of arriving at the bottom-line figures should be scrutinized for disparate impact. This situation is similar to the case of Connecticut v.

Teal, 457 U. S. 440 (1982), in which the Supreme Court held that the “bottom-line” result does not preclude employees from establishing a prima facie case, nor does it provide the employer with a defense. Although the percentage of the women in the workforce mirrors the percentage of available women in the labor pool, the test still results in fewer women passing it than men. Therefore, the test has a disparate impact upon women. The employer’s defense to this suit would be that passing the test is a bona fide occupational qualification (BFOQ).

DePeters would argue that the job required manual dexterity and physical strength similar to that which is tested. If they were able to show that passing the test was reasonably necessary to their particular business, they may have a valid defense against the claim. The burden of proof would be on DePeters to show the similarity between the positions and the test, and that the dexterity and strength were bona fide occupational qualifications. If they were unable to meet that burden, the women would likely be successful in their claim. 2. Shaun, a woman of Hispanic origin, waits tables at Mongomey’s Restaurant.

Phil, an African-American local businessman who frequently brings clients to Mongomey’s for lunch, dislikes Hispanics. As a result, he lies to the owner of the restaurant and tells the owner that Shaun referred to him by an ugly racial epithet. Once this complaint is brought to Shaun’s attention, she is demoted from waitress to dishwasher. Shaun filed a Title VII claim against Phil, even though Shaun works for Mongomey’s, not for Phil. Analyze the basis for the cause of action, the company exposure, steps that could have been taken by the company to reduce exposure, the outcome, and support for the outcome.

Utilize applicable law in your analysis. Title VII is applied to employer-employee relationships. If a customer made it a hostile environment, then the employer would be liable towards the employee, but in this instance, the employee has sued the customer. Phil is a customer, not an owner or operator of Shaun’s establishment. Title VII states that “(a) It shall be unlawful employment practice for an employer… ” Here, we have to stop. Phil is not an employer of Shaun and cannot be held accountable under Title VII since this encompasses employment, not general discrimination.

Shaun would need to investigate local state laws and ordinances to see what action she could take against Phil. Most likely, she has a slander charge against Phil rather than any kind of Title VII ruling. Though Phil brings clients to this restaurant frequently, this by no means makes him an employer of Shaun. That would make an unreasonable burden on everyone who encounters a waiter or waitress since the customers could now be considered that person’s employer. Phil does not pay employment taxes for Shaun nor places her on his payroll, and any tips he has left have been for her services and do not constitute any kind of salary.

Also, Phil’s office may contain less than 15 employees and not even under the realm of Title VII. No, Shaun needs to chase her employer, not Phil, the customer. Again, Shaun should investigate local ordinances and state laws to see what is out there to use against Phil. 3. Pugh worked for See’s Candies, Inc. for 32 years. He had started out as a dishwasher, worked his way up to vice president of production, and was also on the Board of Directors. When he was hired, he was told by the president and general manager, “If you are loyal and do a good job, your future is secure.  The president had a policy of only terminating employees for good cause, and that policy was continued by his successor. During the entire period of Pugh’s employment, his performance had never been formally evaluated or criticized, and he was never denied a raise or bonus. After the company had set sales records for the Christmas and Valentine’s Day seasons, Pugh was called into the president’s office and told that he was fired. He was not given a reason for his discharge, but he suspects that he was fired because he objected to the sweetheart relationship that the company had with the union representing its workers.

Does Pugh have a cause of action for wrongful discharge? If so, what could the company have done to minimize exposure? The court held that Pugh had stated a cause of action for wrongful discharge under an implied contract. The president’s statement and the policy of discharging only for good cause created a contract offer that he accepted by continuing his employment with See’s. One of the exceptions to at-will-employment is an implied covenant of good faith and fair dealing. This covenant is an implied contractual obligation to act in good faith in the fulfillment of each party’s contractual duties.

Under this exception, both employer and employee enter into a contractual relationship in which the particulars of why and when an employee can be terminated are not specifically addressed in the agreement. When Pugh was hired, he was told that if he does a good job, his future is secure. Pugh could argue that he understood this statement as a promise by the company to continue employing him as long as he remained a good performer. The next factor to consider is the company’s policy for termination. The company appears to have a very specific and well understood policy that states that it will only terminate employees for good cause.

Although this policy may not be in writing in an employee handbook, Pugh could argue that this policy is implied and relates to all employment relationships, including his own. Given these facts, it appears that Pugh could prove that his termination was not in compliance with the company’s policy for terminations. Since the company would not give him a reason for his discharge, this further proves that he most likely was not terminated for good cause. Also, since Pugh’s performance had never been evaluated or criticized in 32 years, it does not appear that the company could prove that he was terminated due to poor performance.