Shared Flashcard Set

Details

Management 271 #3
Final
186
Management
Undergraduate 2
03/09/2010

Additional Management Flashcards

 


 

Cards

Term

·      3 elements that form contracts

Definition

o   offer, acceptance, consideration

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

Term

·      Contract defense

Definition

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

Term
Capacity
Definition

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

Term
Age Capacity
Definition

§  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

Term

Voidable contract

Definition

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

Term

  Necessaries

Definition

Minors contracts for necessities, such as food and clothing

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

Term
Yale Diagnostic Radiology v. Estate of Fountain
Definition

·      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

Term
Mental Capacity
Definition

- 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

Term

 Mental Capacity

*Void contract*

Definition
One the courts will not honor, and neither party is obligated to perform under that agreement 
Term
Misrepresentation
Definition

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

Term

o   Rescission

Definition

-Means the contract is set aside

 

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

Term

   “innocent misrepresentation”

Definition

 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

Term

   Material fact

Definition

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

Term

o   Puffing

Definition

-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

Term
Fraud
Definition

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

Term

o   Scientor

Definition

  Knowledge that the information given is false

Term

o   Estate transactions

Definition

  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 

Term
Duress
Definition

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

Term
Undue influence
Definition

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

Term

o   Confidential relationship

Definition

-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 

Term

o   To establish undue influence

Definition

 Abuse of confidential relationship must occur

 

Defenses are voidable

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

Term
Illegality and Public Policy
Definition

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 

Term

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

Definition

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

Term
contracts in violation of criminal statutes
Definition

 “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

Term
contracts in violation of licensing statutes
Definition

  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 

Term
contracts in violation of usury laws
Definition

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

Term
contracts in violation of public policy
Definition

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

Term

·      exculpatory clauses 

Definition

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

Term

·      covenants not to compete

Definition

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

Term

·      Unconscionable

Definition

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

Term
 Contract Performance
Definition

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

Term
When performance is due
Definition

o   Due according to the times provided in the contract 

Term

contract performance

o   Conditions

Definition

  When prescribed events must occur before performance is required

Term

contract performance

o   Conditions concurrent

Definition

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

Term

contract performance

Standards for performance

Definition

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

Term

o   Substantial performance

Definition

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

Term
When Performance is Excused
Definition

o    Parties are excused from performance if performance has become impossible 

Term

When performance is excused

  Impossibility 

Definition

-  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 

Term

o   Commercial impracticability

Definition

  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 

Term

o   Novation

Definition

  When parties substitute someone else for the obligation in an agreement

Term

o   Accord and satisfaction

Definition

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

Term

Contract Remedies 

·      4 Types of contract damages

 

 

Definition

o   Compensatory damages

o   Incidental damages

o   Liquidated damages

o   Consequential damages

Term

o   Compensatory damages

Definition

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

Term

o   Incidental damages

Definition

  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 

Term

o   Liquidated damages

Definition

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

Term

o   Consequential damages

Definition

  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 

Term

Third-Party Rights in Contracts

·      Contract

Definition

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

Term

Third-Party Rights in Contracts

     Assignment

Definition

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 

Term

Third-Party Rights in Contracts

·      Delegation

Definition

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 

Term
Define what is meant by tangible property
Definition
tangible property is the type of property we can see and touch
Term
Identify different ways tangible property in transferred
Definition

- 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

Term

Identify and list five different forms of intangible/intellectual property

Definition

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

 

Term
What types of laws protect intellectual (intangible) property
Definition

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

Term
What do patents provide and when
Definition
Patents provide exclusive use rights when registered with the U.S. Patent Office
Term
What part of the U.S. Constitution provides Congress the authority to provide patent protection?
Definition

-        Article 1, Section 8 provides patent protection

Term
Identify, list and define the three basic types of patents including the length of time each type is valid and what specifically the patent covers/protects
Definition

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

Term

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

(regarding patents)

Definition

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

Term
What does a patent holder have during the exclusive rights periods for patents
Definition

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

Term

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

Definition

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

Term
Who is protected by patents
Definition

-        Patents protect inventors

Term
Who do copyrights protect
Definition

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

Term
After 1989, what is necessary for a copyright to exist? Identify any special symbol used to designate a copyright. Is use of a symbol required
Definition

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

Term
What must a copyright owner do in order to bring a suit for copyright infringement? 
Definition

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

Term
How long does a copyright run? 
Definition
A copyright runs for the life of the creator plus 70 years
Term

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

Definition

-        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

 

Term

What types of damages are associated with infringement actions? 

Definition

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

 

Term
Can a court order anything else? 
Definition

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

Term
When can Federal criminal penalties be imposed?
Definition

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

Term
What is the Digital Millennium Copyright Act and what year was it enacted? What does it criminalize?
Definition

-        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

Term

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

Definition

-        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

Term
What is fair use and when was this change to copyright laws amended
Definition

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

Term
What are the three key questions for fair use? 
Definition

- 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

Term

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

Definition
the first amendment requires balancing of fair use and copyright protection
Term
What are trademarks
Definition

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

Term

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

Definition

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

Term
What must a trademark be?
Definition

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

Term
Is the word “cola” a trademark? 
Definition
- the word cola is not a trademark, but rather it is a generic term. 
Term

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

Definition

- 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

Term
 What does the Lanham Act allow a plaintiff to recover for willful infringement? 
Definition

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

 

Term
What is product disparagement
Definition
Product disparagement is when an untrue statement is made about a business product or service, the defamation is referred to as disparagement. 
Term
What are trade libel and slander of title?
Definition

trade libel is the written form of product disparagement

            - slander of title is the oral form of product disparagement

Term

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

Definition

-        - 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

 

Term

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

Definition

- 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

Term
What are trade secrets
Definition
trade secrets are chemical formulas, procedures, customer lists, data, or devices unique to them
Term

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

Definition
If a trade secret does not qualify for Federal patent or copyright protections, federal statutory protections have the tort of misappropriation protects them
Term
What protections have landowners enjoyed “from the earliest times?” 
Definition

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

Term
When does a nuisance exist
Definition

-        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

Term
What power do courts have against nuisances
Definition

-        Courts have the power to issue injunctions 

Term

     Identify five types of nuisances that can be enjoined. 

Definition

-        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

Term
What was the first legislation dealing with the problem of air pollution and what year was it passed into law?
Definition

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

Term

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

Definition

-        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

 

Term
Could a lack of technology be used as a defense to air pollution
Definition

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

 

Term
What authority came to the EPA in 1977? 
Definition

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

Term
What are nonattainment areas
Definition

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

Term
What are PSD areas
Definition

-        PSD areas are clean areas designated under the amendments

Term
What is the emissions offset policy and what three elements does it require before a new facility can begin operations in a nonattainment area
Definition

-        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

3. The new plant’s emissions must be offset by reductions from other facilities in the area

Term
What is maximum achievable control technology and who must use it
Definition

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

Term

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

Definition

-        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

 

Term
What did the River and Harbors Act of 1899 prohibit and, for a time, what was it used to do
Definition

-        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

 

Term
For setting Federal standards, what three categories of pollutants have been developed by the EPA? 
Definition

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

Term
What is the best conventional treatment and when can the EPA require it? 
Definition

-        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

Term

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

 

Definition

-        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

 

Term
What is the best available treatment and when can the EPA require it
Definition

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

Term
What does the Safe Drinking Water Act provide for the EPA to establish and when did Congress pass it?
Definition

-        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

Term
What is the Oil Pollution Act, what was it in response to, and what year did Congress pass it into law? 
Definition

-        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. 

Term
Under the OPA, who is in charge, what does it apply to, what may happen after liability is imposed
Definition

-        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

 

Term
Identify and describe two toxic waste debacles that resulted in a new Federal regulatory scheme for toxic waste disposal. 
Definition

-        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

Term
What did the Toxic Substances Act authorize the EPA to control and prevent and what year was it passed into law
Definition

-        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

Term
What does the Comprehensive Environmental Response, Compensation, and Liability Act authorize and what year did Congress pass it into law? 
Definition

-        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

Term
Why was the Hazardous Substance Response Trust Fund set up and what is this fund often called
Definition

-        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 

Term
Identify and describe the four classes of parties that can be held liable under CERCLA. 
Definition

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

Term
What are brownfields
Definition

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

Term
What do brownfields often contribute to
Definition
brownfields often contribute to urban blight and are barriers to economic development and revitalization
Term

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

Definition

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 

Term
What year did Congress pass the National Environmental Policy Act and what does the act require Federal agencies to take into account and prepare? 
Definition

-        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

Term
Identify and list six additional Federal environmental regulations, including, if possible, what year the regulations were passed into law
Definition

-        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

 

Term

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

Definition
In Addition to federal law, all the states have enacted some form of environmental regulation and have established their own environmental policies and agencies
Term
What four ways can Federal environmental laws be enforced? 
Definition

-        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

Term
Identify five major environmental problems that require enforcement and the Federal agency responsible for them
Definition

-        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

Term
. In many circumstances, what has had the most effect in terms of obtaining compliance with environmental regulation? What is the reason for this? 
Definition

-        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

Term
What is the basis of protections against employment discrimination
Definition

- Protections against employment discrimination are strictly statutory

Term
What protection did the common law afford employees against discrimination
Definition

-        Common Law afforded employees no protection against discrimination

Term
How did the common law view the entire employment relationship
Definition

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

Term
What is the basic purpose of Title VII of the Civil Rights Act of 1964
Definition

-        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

Term
How was Title VII amended in 1975? 
Definition

-        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

Term
Does Title VII apply to all employers? Identify any types of employers it does apply to
Definition

-        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

Term

    What employment procedures are covered by Title VII? 

Definition

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

Term

List the three basic theories of discrimination under Title VII 

Definition

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

 

Term
How common a form of discrimination was this at the time Title VII was passed
Definition

-        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 

Term
What did the 1973 U.S. Supreme Court case McDonnell Douglas Corp. v. Green establish
Definition

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

Term
Identify the four elements of a disparate treatment discrimination case. 
Definition

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

Term

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

Definition

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

Term
What is disparate impact
Definition

-        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. 

Term
Does a particular employment practice have to be intentionally discriminatory in order to be unlawful discrimination
Definition

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

Term
Describe an example of disparate impact on the basis of sex (gender). 
Definition

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

Term
What does the pattern or practice theory of discrimination involve? 
Definition

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

Term
What does a party bringing a suit based on pattern or practice theory try to show?
Definition

-        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

Term

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

Definition

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

 

Term
How is sex (gender) discrimination different from race discrimination
Definition

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

Term
Does it require any different proof than that required under McDonnell Douglas Corp. v. Green
Definition

-        Requires same proof as Green case

Term
What two forms do sexual harassment cases take? 
Definition

-        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

Term

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

Definition

-        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

Term
What did the Pregnancy Discrimination Act revolutionize
Definition

-        Pregnancy Discrimination Act revolutionized maternity issues in the employment world

Term

What six specific acts does it prohibit?

(pregnancy discrimination act)

Definition

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

Term
Regarding religious discrimination, what are employers required to make regarding an employee’s religious practices, holidays, and observances? 
Definition

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

Term
How did the 1972 amendments to Title VII define religion
Definition

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

Term
What must an employer establish in order to avoid the requirement to accommodate religion
Definition

-        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”

Term
What type of accommodation does Title VII require
Definition

-        Title VII requires only reasonable accommodation

Term
Are employees entitled to any accommodation they desire
Definition

-        Employees are not necessarily entitled to the accommodation they desire

Term

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

Definition

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

Term
What is affirmative action
Definition

-        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

Term
Does Title VII mandate affirmative action for all employers
Definition
Title VII does not mandate such programs, but employers may legally institute them
Term
What are quotas and can affirmative action plans use them
Definition

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

Term
 Identify four types of employers who are required to have affirmative action programs
Definition

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)

Term
But, if a program is too much like a quota, can it be upheld under the U.S. Constitution? Why or why not
Definition

- 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

Term
What if students’ race was but one factor in a group of many other factors used to gain diversity in the classroom? 
Definition

- 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 

Term

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

Definition

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

Term
What is a bona fide occupational qualification
Definition

-        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.

Term
What must an employer establish for a discriminatory qualification to fall within the BFOQ exception
Definition

-        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

Term

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

Definition

-        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

Term
What created the Equal Employment Opportunity Commission, what is its purpose, how many members does it have, and how are they appointed? 
Definition

-        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

Term
 Who can file an EEOC complaint? How long does an employee have to file a complaint? 
Definition

-        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

Term
How long does the complaining party have before a [law] suit can be filed [in court]? 
Definition

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

Term
What can the EEOC do during this time, what type of information can the EEOC have access to, and what can the EEOC try to work out
Definition

-        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

Term
What is a right-to-sue letter and when can an employee demand it? 
Definition

-        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 

Term
 Does an employee have a right to the letter even if the EEOC has determined that the complaint has no merit?
Definition

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

Term
Identify four types of remedies available under Title VII.
Definition

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

Term
What do Title VII injunctions usually require an employer to do?
Definition

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

Term
Are there any limits to awards of back-pay? What are they? What section of the act permits the recovery of “reasonable attorneys’ fees?” 
Definition

-        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” 

Term
What types of employers does the Age Discrimination in Employment Act of 1967 cover and who does it protect? 
Definition

-        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

Term
What elements must be established in an age discrimination case? 
Definition

-        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

Term
What is the intent of the Americans with Disabilities Act
Definition

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

Term
 What types of employers does the act affect and what can they not do
Definition

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

Term
Define what is meant by a “qualified individual with a disability.” 
Definition

-        “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

Term
How is a disability defined by the ADA
Definition

-        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

Term
By way of example, what did the 1998 U.S. Supreme Court case Bragdon v. Abbott consider to be an impairment for purposes of the ADA?
Definition

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

Term
How are pre-employment procedures affected by the ADA
Definition

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

Term
What kind of accommodations must employers make for disabled individuals and identify six types of them.
Definition

-        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 

Term
When can an employer refuse employment to and/or refuse to hire an ADA-protected individual?
Definition

-        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

Term
Who enforces the ADA? 
Definition

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

Term
 What types of companies does the Family and Medical Leave Act affect and what does it require them to provide?
Definition

-        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

Term
Are pay and/or medical benefits required during the leave?
Definition

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

Term

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

 

Definition

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

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