What is employment at-will?
Employment at-will is a term that appears in most employment contracts. It implies that either party is entitled to terminate the agreement without notice for any reason, unless the termination violates federal or state laws or public policy. A notice period may be specified by company policy, for example, in the Employee Handbook, and this could affect at-will status.
Can an employer reject an applicant based on work experience?
An employer may reject an applicant based on work experience as a valid relevant job requirement as long as it relates to the successful performance of the job. An employer may also reject an applicant based on work experience as a valid relevant job requirement if it is a recognized business necessity.
Can an employer use arrest and criminal records to reject an applicant?
With regards to blanket requirements of no previous arrest or criminal records, the EEOC has considered cases unlawful against Afro-Americans because of disproportionate impact, unless it can be shown that such requirement is necessary to the operation of the employer`s business. When refusing to hire, the employer should be able to show that they first considered the circumstances surrounding the particular case and the employment of such an applicant would be inconsistent with the safe and efficient operation of the business.
Can an employer use religion as a reason to reject an applicant?
If it is not a bona fide qualification for the job, an employer must make reasonable accommodations to the religious needs of prospective employees and may not reject them from employment because of their religious needs unless such accommodations would create an undue hardship on the conduct of the employer`s business.
What is sexual harassment?
Sexual harassment is a form of sexual discrimination when there are unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature is made a condition of employment. This is conduct that interferes with an individual`s work performance or creates an intimidating, hostile or offensive work environment.
Hostile Work environment and Sexual Harassment
A hostile work environment and sexual harassment occurs when there is conduct that creates an offensive or hostile working environment. Such conduct includes unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature that has the purpose or effect of interfering with an employee`s work performance or creating an intimidating, offensive or hostile work environment. In order to determine if a work environment is ôhostileö to support a claim of sexual harassment, the courts have developed the use a ôreasonable personö standard. The Ninth Circuit has interpreted this to be the perspective of a reasonable woman.
Liability to Employers for Sexual Harassment
The employer is not always strictly liable for sexual harassment by its supervisors and employees. Nevertheless, under the quid pro quo theory, an employer is strictly liable for conduct of its supervisors who have authority over hiring, advancement, dismissal, and discipline. Under the hostile work environment theory, an employer is only liable for conduct of its supervisors if the act took place in the scope of the supervisor`s employment. This requires an examination of factors such as when and where the act took place, and whether it was foreseeable. Under either theory, an employer can be held liable for non-supervisory employees if the employer knew or should have known of the conduct and failed to take corrective action within a reasonable time period. An employer will be held liable for retaliatory action against an employee if it takes such action because of a complaint of sexual harassment.
What are defenses for Sexual Harassment?
Conduct only constitutes unlawful sexual harassment if it is unwelcome. If the employer can prove that the conduct was indeed welcome, the employer can absolve itself from liability. The courts will look at the totality of the circumstances, including provocative speech, dress or actions that might have encouraged advances. One must distinguish between unwelcome and voluntary. If an employee engages in a voluntary act that is unwelcome, the employer may still be liable. Voluntary behavior is not in itself a defense to a sexual harassment claim. The employer must prove that it was welcome. Also, under certain circumstances, the employer can avoid respondeat superior liability for a hostile work environment by its supervisors if it has a grievance procedure and policy against discrimination in the work place.
What is employment discrimination?
Discrimination generally occurs when an employee is intentionally treated differently because of the employee`s race, color, religion, national origin, disability, gender, sexual orientation (depends on state) or age because of the employer`s system, such as its hiring process, has a negative effect on people in the protected categories or classes.
To prove unlawful discrimination, employees must be able to show that an action affecting employment was based on the fact that the employee belongs to a protected class. If the action is intentionally discriminatory, it is called disparate treatment. If the operation of the employer`s system had an unintentional discriminatory effect, it is said to have a disparate impact.
Even if the employee`s evidence is sufficient to show discrimination, an employer may be able to justify this action by proving that there was a ôbusiness necessityö for it or that a legitimate job qualification required consideration of a factor that had an unintentional discriminatory effect. When the employer makes such a legitimate justification, the employee must show that discrimination, not the employer`s justification, was the true reason for the action.
I received a charge from the EEOC that says my business violated federal law. How can the EEOC say this before anyone has even t
While there are a few rare exceptions, ordinarily the charge must be filed by a member of the public who has contacted EEOC and alleged that a company has discriminated against him or her. The fact that the EEOC has taken a charge does not mean that the government is accusing you of discrimination. The charging party has alleged that your company has discriminated against him or her and it is the EEOC`s job to investigate the matter to determine whether there is reasonable cause to believe that discrimination has occurred.
How will I know if a charge of discrimination has been filed against my company?
The EEOC will notify the employer within 10 days of receiving a charge. Notification normally includes a copy of the charge briefly identifying the charging party, the basis (e.g., race, religion, sex, etc.) and issue(s) (e.g., hiring, promotion, discharge, etc.) of the allegation, and the date(s) of the alleged discrimination. Ordinarily, a plain language explanation of the EEOC charge process will be included, as well as explanations of the employer`s obligation to retain records pertaining to the charge and of the non-retaliation provisions of the EEOC laws. An invitation to mediate the charge may also be included in the notification package.
What can I expect to happen in an EEOC investigation?
After a charge is filed, you may be asked to provide a statement of position responding to the allegations in the charge. You may also be asked to provide documents or information related to the subject of the EEOC`s investigation. Additionally, the EEOC may ask to visit your worksite or to interview some of your employees. Cooperation with EEOC requests for information is helpful to the EEOC in investigating charges. When an employer refuses to provide information, or does not do so in a reasonably timely manner, the EEOC may issue a subpoena. You may retain an attorney to represent you during the EEOC`s handling of the charge but you are not required to do so.
What does the Age Discrimination in Employment Act (ADEA) govern?
It is unlawful for an employer, employment agency or Labor Union to discriminate in employment against anyone because of his or her age. This includes refusing to hire an individual or firing an employee. It also includes an individual`s compensation, terms, conditions or privileges of employment and all employee benefits.
Who is covered by the Age Discrimination in Employment Act?
The ADEA applies only to persons who are over 40. There is no upper age limit. The ADEA applies to employment practices in both the private and the public sector, including employment agencies and Labor Unions. Using age is not unlawful where age is a bona fide occupational qualification reasonably necessary to the normal operation of the job. Also, state and local governments may use age as a basis for hiring and retiring law enforcement officers, prison guards and firefighters.
How is an employee protected from age discrimination?
Under the Federal Age Discrimination in Employment Act (29 U.S.C. 621 to 634), a worker over the age of 40 is protected against discrimination for age reasons, including being forced to retire. The Act is enforced by the EEOC. The employee must have been performing their job in a way that met their employer`s expectations up until the point of alleged discrimination.
