·      3 elements that form contracts

o   offer, acceptance, consideration

§  if one is flawed, contract is subject to a defense

·      Contract defense

o   Situation, term, or event that makes an otherwise valid contract invalid

§  defenses, capacity, misrepresentation, fraud, illegality, duress, undue influence

ú  defenses ensure that the parties enter into contracts voluntarily and on the basis of accurate information

o   Includes both age and mental capacity, both parties to a valid contract must have capacity

§  means that the parties to the contract are at least the age of majority, in more states that age is 18

ú  before the time a party reaches age of capacity his/her contracts are voidable

Voidable contract

Allows the minor (sometimes called INFANT) to choose to honor the contract, in which case the other party to the contract will have no remedy

  Necessaries

Minors contracts for necessities, such as food and clothing

·      still voidable, but courts do hold minors liable for the reasonable value of those necessities

·      exception known as the doctrine of necessaries, minor may not avoid a contract for goods or services necessary for his health and sustenance

o   contracts are binding even if entered into during minority

- the ability to understand that contracts are enforceable, that legal documents have significance, and that contracts involve costs and obligations

- contracts of those lacking mental capacity are voidable

 Mental Capacity

*Void contract*

o   Occurs when one party to a contract is not given full or accurate information by the other party about the contract subject matter

o   Rescission

-Means the contract is set aside

-  Happens when there has been misrepresentation in the formation of a contract  

   “innocent misrepresentation”

 1. Misstatement of a material fact (or failure to disclose a material fact)

  2. Reliance by the buyer on that material misstatement or omission

  3. Resulting damages to the buyer

   Material fact

§  The type of information that would affect someone’s decision to enter into the contract 

o   Puffing

-Is opinion or “sales hype” about the contract’s subject matter

-  Ex: makeup rep says bronzer will make you “glow”– that Is an opinion

-  Misrepresentation cannot be based on this

o   The knowing and intentional disclosure of false information or the knowing failure to disclose relevant information

o   Same elements of proof as misrepresentation with added element of  scientor

o   Scientor

  Knowledge that the information given is false

o   Estate transactions

  Most states have some form of disclosure statues

-  Some states, the history of criminal activity on property must be disclosed, in other states, there are prohibitions against certain disclosure such as whether an occupant of the property died of AIDS 

o   Occurs when a party is physically forced into a contract or deprived of a meaningful choice when decided whether to enter into a contract

- Party who experienced duress has right to rescind the agreement, but rescission is a choice

- the law does not make the contract illegal or unenforceable because duress was present

o   Occurs when one party uses a close personal relationship with another party to gain contractual benefits 

o   Confidential relationship

-Relationship of trust and reliance that exists between parties

-Ex: attorneys and clients & elderly parents who rely on a child or children for their care 

o   To establish undue influence

 Abuse of confidential relationship must occur

Defenses are voidable

-  Can be honored if party who experienced the influence chooses to honor the contract 

o   A contract that violates a statue or the general standards of public policy is void and cannot be enforced by either party

-  To enforce contracts that violate statues would encourage commission of illegal acts 

o  4 types of contracts that would be illegal or in violation of public policy

1. contracts in violation of criminal statutes

2. contracts in violation of licensing statutes

3. contracts in violation of usury laws

4. contracts in violation of public policy

 “there is a contract out on his life”

·      cannot have contract to kill someone

·      beneficiary for a life insurance policy will not collect the proceeds if death has been arranged

  contract for a legal act to be done by one not authorized to perform such services

·     a lawyer must be admitted to the bar before  representing clients

·      an architect may be required to pass a competency screening to be initially licensed in a state and after may be renewed by a fee 

  credit contracts that charge interest in excess of the state’s limits 

  do not violate any criminal laws but do violate certain standards of fairness or encourage conduct that violates public policy

·      exculpatory clauses 

o   contracts that hold firms completely blameless for any accidents occurring on their premises

·      covenants not to compete

o   restrict trade or employment

- ex: when business is sold, part of purchase price is paid for the business’s goodwill

o   can be included in contracts if they are reasonable in time and geographic scope

·      Unconscionable

o   Contract that gives all the benefits to one side and all the burdens to the other 

·      once parties have contracted, they have the obligation of performance

o   Due according to the times provided in the contract 

contract performance

o   Conditions

  When prescribed events must occur before performance is required

Exist in every contract; benefits are exchanged at the same time. One is willing to perform because the other side does

contract performance

Standards for performance

o   Contract details what the parties are required to do for complete performance 

o   Substantial performance

  Applies in construction contracts, and it means that the constructed building is for practical purposed just as good as the one contracted for 

o    Parties are excused from performance if performance has become impossible 

When performance is excused

  Impossibility 

-  Means that the contract cannot be performed by the parties or anyone else

·      ex: purchase and sale of land that has been washed away into a lake 

o   Commercial impracticability

  Excuses performance is the basic assumptions the parties made when they entered into the contract have changed   (UCC 2-615)

- In effect commercial impracticability usually means nothing more or less than the common law standard of impossibility

-  Often the obligation to perform is discharged by agreement of the parties 

o   Novation

  When parties substitute someone else for the obligation in an agreement

o   Accord and satisfaction

-  When parties reach an agreement for payment in full on a contract 

Contract Remedies 

·      4 Types of contract damages

o   Compensatory damages

o   Incidental damages

o   Liquidated damages

o   Consequential damages

o   Compensatory damages

-If performance is not excused and there is a valid contract the nonbreaching party can recover for damages fro nonperforming party 

o   Incidental damages

  In addition to compensatory damages, nonbreaching parties are entitled to collect the extra damages involved because of the breach

  Ex: if seller must run an ad in newspaper to sell a car a buy has refused to buy, costs of ad are incidental 

o   Liquidated damages

 Damages agreed upon in advance, are enforceable as long as they are not excessive and compensatory damages have not been paid in addition 

o   Consequential damages

  Damages that result because of the breach and generally involve lost business, lost profit, or late penalties

  Ex: contractor must pay a penalty of $2,000 every day after completion date if not finished 

Third-Party Rights in Contracts

·      Contract

o   A relationship between or among the contracting parties and is not enforceable by others who happen to benefit 

Third-Party Rights in Contracts

     Assignment

o   Gives the plumber the right to collect the contract amount from the buyer

  Ex: in sales contracts for homes, homebuilder is the seller, buyer’s purchase monies will go to the homebuilder. However, the homebuilder could assign payment rights to the plumber as a means of satisfying debt, process called assignment 

Third-Party Rights in Contracts

·      Delegation

o   The transfer of contractual duties and obligation

- Generally a delegation of duties carries with it an assignment of benefits  

-  Delegation does not release the original contracting party 

- Some items have titles, some do not. Personal property is transferred by a bill of sale.  A bill of sale provides all the proof necessary to establish ownership of personal property that does not have a title document

Identify and list five different forms of intangible/intellectual property

-        Intangible property or intellectual property, include patents, copyrights, trademarks, trade names, and trade dress.

-         Intellectual property is protected by federal, international, and common law

-        Article 1, Section 8 provides patent protection

o   1. Utility or Function Patents- cover machines, processes, and improvements to existing devices…20  years

o   2. Design Patents- those that protect the features of a product… 14 years

o   3. Plant Patents- protect new forms of plants and hybrids… 20 years

What changed in 1995? What was the basis for the change in 1995? 

(regarding patents)

-        In 1995, the utility or function patent length was lengthened from being valid for 17 to 20 years.. provoked by GATT provisions. 

-        During the exclusive rights periods of 14 and 20 years, the patent holder has the sole rights for profits on sales

   What is infringement and what does it entitle a patent holder to? 

-        Infringement entitles the patent holder to a statutory action for damages

-        Patents protect inventors

-        Copyrights protect the authors of books, magazine articles, plays, movies, songs, dances, recordings, and so on… protects the expansion of ideas. 

-        After 1989, copyrights are automatically existing. The copyright sign designates a copyright, but is not required. 

-        The copyright owner must have copyright registration in order to bring suit

How long do copyrights for businesses last? Identify any limitation on the length of copyright protections and what limits them? 

-        A copyright for business runs 120 years from the time of creation or 95 years from the publication of the work, whichever is shorter

-        Time limits were extended from 50 to 70 years

What types of damages are associated with infringement actions? 

-        Damages for copyright infringement include the profits made by the infringer, actual costs, attorney fees, and any other expenses associated with the infringement action. 

-        A court can order all illegal copies to be destroyed and issue an injunction that halts distribution of the illegal copies

-        Federal criminal penalties for copyright infringement can be imposed when the infringement was willful and was for “commercial advantage or private financial gain”

-        Digital Millennium Copyright Act- criminalizes the circumvention protection technology in order to make copies of copyrighted materials as well as assisting others, providing expertise, or manufacturing products to circumvent protection technology… enacted in 1998

a.      What does the Computer Software Copyright Act of 1980 permit to be copyrighted? 

-        Under the Computer Software Act of 1980, all software can be copyrighted, whether it is written in ordinary language (source code) or machine language (object code). Although software copyrights do not cover methods of operations (such as menus), they do cover the underlying programs themselves

- fair use is occasional and spontaneous use of copyrighted materials… amended in 1976

- 1. Is the use for commercial or nonprofit/educational use?

            - 2. Is the work large, small, song, poem, book? Using a sentence from a book is different than using a sentence from a poem

            - 3. What is the effect of the use on the copyrighted work? If you copy a book, the author and publisher lose sales. If you use a clip from a film, folks may rent or buy the fim and you may actually increase sales

  What part of the U.S. Constitution requires balancing of fair use and copyright protection?

Trademarks are words, pictures, designs, or symbols that businesses place on goods to identify those goods as their product

What is the foundation of Federal law on trademarks and what year was it enacted? 

The Lanham Act of 1946 is the foundation of federal law on trademarks

Trademarks protect a company’s goodwill.. become associated with that company and is used as a means of identifying that company’s goods or services

            - a trademark must be unique and nongeneric

What must a trademark holder do once the trademark is registered and what must the owner take care that the trademark not fall into? 

- a trademark holder must self-enforce the unique nature of that trademark once it is registered

            - owner must take care so that the trademark does not fall into common use by the public as a descriptive or generic term

- if the plaintiff can show a willful infringement, the Lanham Act allows the plaintiff to recover the treble damages

trade libel is the written form of product disparagement

            - slander of title is the oral form of product disparagement

Are the elements for disparagement the same as those for another business tort? What, then, are the elements for disparagement? 

-        - the elements for disparagement are the same as those for defamation covered in Chapter 8…5 elements for defamation are 1. A statement about a person’s reputation, honesty or integrity that is untrue, 2) publication, 3) a statement that is directed at a particular person, 4) damages 5) in some cases, proof of malice

What is palming off, what is it one of the oldest of, and when does it occur? 

- palming off is one of the oldest unfair methods of competition, and it occurs when one company sells its product by leading buyers to believe it is really another company’s product

If a trade secret does not qualify for Federal patent or copyright protections, does any protection exist, and, if so, what is it? 

-        From the earliest times, landowners have enjoyed the protections of the courts and various doctrines to prevent bad smells, noises, and emissions

-        A nuisance exists when the activities of one landowner interfere with the use and enjoyment of their properties by other landowners or by members of the community in which the nuisance occurs

-        Courts have the power to issue injunctions 

     Identify five types of nuisances that can be enjoined. 

-        These can be enjoined- bad smells, ongoing damage to paint on buildings, excessive noise, polluted air, and the operation of facilities that present health problems

-        The first legislation dealing with the problem of air pollution , the Air Pollution Control Act, was passed in 1955, but it lacked enforcement teeth

What did the Clean Air Acant, amended in 1970, constitute

-        Clean Air Act (1970)- constituted the first federal legislation with any real authority for enforcement… the EPA was authorized to establish air quality standards; once those standards were developed, states were required to adopt implementation plans to achieve the federally developed standards

-        Lack of technology could not have been used as a defense to air pollution

-        In 1977 with amendments came authority  for the EPA to regulate business growth in an attempt to achieve air quality standards 

-        Nonattainment areas as originally defined under these amendments, included those areas with existing, significant air quality problems, the so-called dirty areas

-        PSD areas are clean areas designated under the amendments

-        The emissions offset policy was developed for nonattainment areas… required 3 elements

o   1. The new plant must have the greatest possible emissions control

o   2. The proposed plant operator must have all its other operations in compliance with the standards

-        Plans that are major sources of toxic emissions must use maximum achievable control technology (MACT)

. What was the first legislation dealing with water quality standards and what year was it passed? 

-        In 1965, the first federal legislation on water quality standards was passed—the Water Quality Act… required states to to establish quality levels for the waters within their boundaries

-        The Rivers and Harbors Act of 1899 prohibited the release of “any refuse matter of any kind or description” into navigable waters in the US without a permit from the Army Corps of Engineers

-        For setting Federal Standards, conventional, nonconventional, and toxic pollutants have been the three categories of pollutants developed by the EPA

-        The best conventional treatment (BCT)- if a discharger is going to release a conventional pollutant, the EPA can require it to pretreat the substance with the BCT

What was renamed the Clean Water Act in 1977 and when was it first enacted? Describe a major change brought about by this act.

-        The Federal Water Pollution Control Act of 1972 was amended in 1977 to allow extensions and flexibility in meeting the goals and was renamed the Clean Water Act…one of the major changes brought about by the act was the move of water pollution regulation from local to federal control

-        If the pollutant to be discharged is either toxic or nonconventional, the EPA can require the best available treatment (BAT)

-        In 1986, Congress Passed the Safe Drinking Water Act( 42 U.S.C. SS 300f) which provides for the EPA to establish national standards for contaminant levels in drinking water. States are primarily responsible for enforcement and can have higher standards than the federal standards, but they must at least enforce the federal standards for their drinking water standards

-        The Oil Pollution Act (OPA) of 1990 was passed in response to large oil tanker spills, such as the one resulting from the grounding of the Exxon Valdez in Prince William Sound. 

-        The OPA applies to all navigable waters up to 200 miles offshore and places the federal government in charge of oils spills. Once full liability for cleanup is imposed on the company responsible for the spill, the federal government may step in and clean up a spill and then demand compensation for the costs incurred

-        In 1978, Love Canal- 80,000 tons of hazardous waste were found in the ground in an area that was primarily residential and included an elementary school… Also in Sheppardsville, Kentucky an area came to be called “Valley of the Drums” 17,000 drums of toxic waste leaked chemicals into ground and water supply

-        The Toxic Substances Act (TOSCA) of 1976 was authorized the EPA to control the manufacture, use, and disposal of toxic substances. Under the act, the EPA is authorized to prevent the manufacture of dangerous substances and stop the manufacture of substances subsequently found to be dangerous

-        The comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) authorized the president to issue funds for the cleanup of areas that were once disposal sites for hazardous wastes

-        The Hazardous Substance Response Trust Fund was set up to provide funding for cleanup… often called the Superfund… approximately 700 hazardous substances are now covered 

o   The present owners and operators of a contaminated piece of property comprise one group

o   The owners and operators at the time the property was contaminated form the second group

o   Those who transport hazardous materials hazardous materials

o   Those who arrange for the transportation of hazardous materials

brownfields are defined by the EPA as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance of a hazardous substance, pollutant, or contaminant.”… as of 2002 there were 450,000

As a result, what application do EPA rules now provide a brownfields developer who wants an exemption from CERCLA liability? 

As a result, the Small Business Liability Relief and Brownfields Revitalization Act was passed to allow 75 federal agencies to work together in the Federal Partnership Action Agenda to provide funding for proposals to clean up and use these brownfields 

-        The National Environmental Policy Act of 1969 (NEPA) was passed to require federal agencies to take into account the environmental impact of their proposed actions and to prepare an environmental impact statement (EIS) before taking any proposed action

-        Surface Mining and Reclamation Act of 1977

-        Noise Control Act of 1972

-        Federal Environmental Pesticide Control Act

-        OSHA- Occupational Safety And Health Administration

-        Asbestos Hazard Emergency Response Act of 1986

-        Endangered Species Act of 1973- Secretary of the interior is responsible for naming those who are responsible for naming endangered terrestrial species, and the secretary of  commerce identifies endangered marine species. Once a species is on the list, its critical habitat cannot be disturbed by development, noise, or destruction

 In addition to Federal law, what have all States enacted? 

-        Federal environmental laws can be enforced through criminal sanctions, penalties, injunctions, and suits by private citizens. In addition to federal enforcement rights, certain common-law remedies, such as nuisance or trespass, exist for the protection of property rights

-        The EPA is the agency responsible for the major environmental issues of water pollution, air pollution, solid waste disposal, toxic substance management, and noise pollution

-        In many cases, private suits have had the most effect either in terms of obtaining compliance with environmental regulations or in terms of abating existing nuisances affecting environmental quality. The reason for the success of these units may be the ultimate outcome of litigation—possible business shutdowns and, at the least, tremendous damages and costs

- Protections against employment discrimination are strictly statutory

-        Common Law afforded employees no protection against discrimination

-        Common law viewed the entire employment relationship as a private contractual matter that should be subject to judicial interference

-        Title VII is the basis for discrimination law and judicial decisions that is the employment part of it… purpose is to prohibit discrimination in employment on the basis of race, color, religion, sex, or national origin

-        Title VII was amended in 1975 with the Pregnancy Discrimination Act which defined sex discrimination in employment on the basis of race, color, religion, sex, or national origin

-        Title VII does not apply to all employers but is limited to

o   1. Employers with at least 15 workers during each working day in each of 20 or more calendar weeks in the current or preceding year (state antidiscrimination statutes may apply to employers with fewer than 15 employees

o   2. Labor Unions that have 15 members or more or operate a hiring hall that refers workers to covered employees

o   3. Employment agencies that procure workers for an employer who is covered by the law

o   4. Any labor union or employment agency, provided it has 15 or more employees

o   5. State and local agencies

    What employment procedures are covered by Title VII? 

-        Hiring, compensation, training programs, promotion, demotion, transfer, fringe benefits, employer rules, working conditions, and dismissals are all covered by Title VII

List the three basic theories of discrimination under Title VII 

-        Three basic theories of discrimination under Title VII include disparate treatment, disparate impact, and pattern or practice of discrimination 

-        The most common type of discrimination at the time Title VII was passed was treating employees of one race or sex differently from employees of another race or sex… results in unlawful discrimination 

-        1973 U.S. Supreme Court case McDonnell Douglas Corp. v. Green established disparate treatment

o   1. The plaintiff belongs to a protected class (identified groups under Title VII)

o   2. The plaintiff applied for and was qualified for a job with the employee

o   3. The plaintiff, despite job qualifications was rejected

o   4. After the plaintiff’s rejection, the job remained open and the employer continued to seek applicants

Who has the burden of proof to show a nondiscriminatory reason for an employment decision? 

-        The employer has the burden of proof in showing that it had a nondiscriminatory reason for its employment decision

-        Disparate impact is a theory for establishing discrimination; involves using statistical analysis to demonstrate that a particular practice or an employer’s hiring practices have a greater impact on protected classes. 

-        Employment practices do not have to be intentionally discriminatory in order to be unlawful discrimination

-        Ex. Dothard v. Rawlinson 433 US 321 (1977) minimum height of 5’2 and weight of 120 lbs… discriminatory towards women

-        “Pattern or practice” theory involves discrimination not against one person but rather, against a group or class of persons ex. African Americans. 

-        Generally, a party bringing a pattern or practice suit tries to show that a particular minority group is underrepresented in an employer’s workforce as compared with that group’s representation in the population base

 After 1991 what must a plaintiff show between the practice of the employer and the disparate impact? 

-        After 1991, a plaintiff must show causation between the practice of the employer and the disparate impact

-        The difference between sex and race discrimination is that the issue of rejection, firing, or demotion is based on sex rather than race

-        Requires same proof as Green case

-        Sexual harassment cases take two forms: quid pro pro  and atmosphere of harassment

o   In quid pro, an employee is required to submit to sexual advances in order to remain employed, secure a promotion, or obtain a raise

o   In atmosphere of harassment cases, the invitations, language, pictures, or suggestions become so pervasive as to create a hostile work environment

although women, on average, live longer than men, could an organization require women to contribute more to their pension plans? Why or why not? 

-        After City of LA department of water v. Manhart (1978), the supreme court upheld that employers could not require female employees to contribute more to their pension plans than males

-        Pregnancy Discrimination Act revolutionized maternity issues in the employment world

What six specific acts does it prohibit?

(pregnancy discrimination act)

o   1. Forcing a resignation due to pregnancy

o   2. Demoting or limiting an employee’s job upon her return to work

o   3. Refusing to allow a mother to return to work after pregnancy

o   4. Providing different sick leave rules for pregnancy and other medical ailments

o   5. Providing different medical insurance benefits or disability leave for pregnancy or other ailments

o   6. Refusing to hire or promote on the basis of pregnancy or family plans

-        Employers are required to make reasonable efforts to accommodate an employee’s religious practices, holidays, and observances

-        1972 amendments to Title VII defined religion to include “all aspects of religious observance and practice, as well as belief”

-        The accommodation of religion is required unless an employer is able to establish that allowing the employee such an accommodation would result in “undue hardship on the conduct of the employer’s business”

-        Title VII requires only reasonable accommodation

-        Employees are not necessarily entitled to the accommodation they desire

What are employees expected to do with their employers in making an accommodation?

-        Employees are expected to cooperate with their employers in making an accommodation, such as finding a fellow employee to take a shift 

-        Affirmative Action is a remedial step taken to ensure that those who have been victims of discrimination in the past are given the opportunity to work in positions they would have attained had there not been discrimination

-        Affirmative Action plans cannot be quotas, or actual percentage figures that mandate hiring certain numbers of protected class members 

o   1. Employers who, pursuant to consent decree or court order, must implement plans to compensate for past wrongs

o   2. State and Local agencies, colleges, and universities that receive federal funds

o   3. Government contractors

o   4. Businesses that work on federal projects (10 percent of their subcontract work must employ minority businesses)

- if a program is too much like a quota, it can be upheld under the U.S. Constitution because of having many factors other than just race

- if a students’ race was but one factor in a group of many other factors used to gain diversity in the classroom, it would be okay under the Supreme Court 

Is there any time limit for the use of race in school admission processes? If so, what is the time limit? 

- US Supreme Court placed a limit of 25 years on the use of race in the school admission process

-        A bona fide occupational qualification (BFOQ) is a job qualification based on sex, religion, or national origin that is necessary for the operation of a business.

-        An employer must establish that the job qualification is carefully formulated to respond to public safety, privacy, or other public needs; and the formulation of the policy must not be broader than is necessary to preserve the safety or privacy of individuals involved for a discriminatory qualification to fall within the BFOQ exception

What must an aptitude test be related to in order to be a valid BFOQ? 

-        Validity means that the tests are related to successful job performance and that a test does not have the effect of eliminating certain races from the employment market

-        Title VII is an enabling act that created the Equal Employment Opportunity Commission (EEOC) for the purpose of administration and enforcement. The EEOC is a 5-member commission whose members are appointed by the president with the approval of the senate

-        An EEOC complaint can be filed by an employee or by the EEOC. An employee has 180 days (in some cases up to 300 days) from the time of the alleged violation to file a complaint

-        Once a complaint has been filed, the EEOC has 10 days from that time to notify the employer of the charges

-        After the complaint is filed, the EEOC has 180 days from that time to take action in the case before the complaining party can file suit on the matter. During this time, the EEOC can use its investigatory powers to explore the merits of the charges. EEOC could have access to all information in an employee’s file- even evaluation letters in which evaluators were promised confidentiality. During this conciliation period the EEOC may also try to work out a settlement between the employer and the employee

-        A right-to-sue letter is a certification from the EEOC that the employee has exhausted available administrative remedies. An employee can demand it if the EEOC has not settled its complaint within 180 days from the time of its filing 

-        An employee has the right to this letter regardless of the EEOC’s findings

-        Remedies available under Title VII- injunctions, back pay, punitive damages, and attorney’s fees

-        An injunction usually requires an employer to stop the illegal discrimination and then institute a plan to hire or promote minorities

-        Back Pay awards are limited to two years under Title VII. Section 706(b) of the act permits successful parties to recover “reasonable attorney’s fees” 

-        Age Discrimination in Employment Act (ADEA) of 1967 covers all employers with 20 or more employees and prohibits age discrimination in the hiring, firing, and compensation of employees

-        The elements in an age discrimination case are similar to those in other discrimination cases—simply substitute that the terminated employee was replaced with a younger employee

-        The intent of the Americans with Disabilities Act (ADA) was to eliminate discrimination against individuals with disabilities 

-        Under the ADA, employers of 15 or more employees cannot discriminate in hiring, promotion, and selection criteria against a “qualified individual with a disability” 

-        “Qualified” means that the individual, with reasonable accommodation, can perform all “essential functions” of the job. Excluded are gambling, kleptomania, pyromania, illegal drugs, and sexual disorders

-        A disability is defined by the ADA  as a physical or mental  impairment that substantially limits one or more major life activities such as seeing, hearing, walking, breathing, learning, or self-care

-        the 1998 U.S. Supreme Court case Bragdon v. Abbott considered HIV to be an impairment for purposes of the ADA

-        pre-employment medical examinations are prohibited under the ADA, as are specific questions about a protected individual’s disabilities

-        employers must make “reasonable accommodations” for disabled individuals to enable them to perform essential functions. Ex. Providing employee facilities that are readily accessible to and usable by disabled individuals, job restructuring, allowing part-time or modified work schedules, reassigning disabled individuals to vacant positions, acquiring or modifying equipment, and providing qualified readers or interpreters 

-        Employers can refuse employment if an ADA-protected individual cannot perform necessary job functions.. also can refuse to hire individuals who pose a threat to the health and safety of others in the workplace

-        The ADA is enforced through the EEOC and carries the same rights and remedies provided under Title VII

-        Family and Medical Leave Act (FMLA) requires companies with 50 or more employees to provide 12 weeks leave each year for medical or family reasons

-        Pay is not required during the leave, but medical benefits must continue

What must be available for the employee upon return from leave?

-        The same or an equivalent job must be available for the employee upon return from leave