Specifically agency law so the first thing we will do is to define an agency and agency we have a

principle who is directing an agent to act for him or her and in this case it is consensual there is
an agreement between the two parties that the principle will direct the agent and that the
agent will act on behalf of the principle so the principle is the person who is the employer or
the boss and the agent is the employee the person who is being directed act and their
relationship their legal relationship is called an agency so here in an agency I already described
a principle as an employer and an agent as an employee so here in an agency the most common
type of agency relationship we have is that an employer employee relationship there are other
agency relationships though if you hire an attorney to work for you that is an agency
relationship in that case you are the principle the person who is hired the attorney the agent to
act on your behalf so agency relationships can take a few different forms but we'll be looking at
and focusing on the employer employee relationship so with an agency you need to determine
if the person the agent is an employee or an independent contractor now independent
contractors act as employees and they look like and seem to be employees but there are some
key differences the main difference is and the difference that we're most concerned about from
a legal perspective is the fact that an employer is liable for the actions of an employee but not
for the actions of an independent contractor so there is less liability with an independent
contractor if you're an employer if you're a principle so we need to determine if someone is an
employee or an independent contractor that's important to know for liability purposes so an
independent contractor a definition for that would be a person who works for and receives
payment from an employer so they sound like an employee at this point right but who's
working conditions and methods are not controlled by the employer and for whose accent or
and omissions the employer is not liable as i've already mentioned so it sounds like an
employee but the working conditions and methods …

Employment law here in this lecture will be focusing on employment discrimination and so will
be focusing specifically on title 7 and it's also known as the Civil Rights Act of 1964 that law
prohibits discrimination in the workplace and it prohibits discrimination on the basis of the five
protected classes and the five protected classes are race color sex or gender national origin and
religion and what I mean by it prohibits discrimination based on those protected classes is that
you can't be discriminated against in the workplace on the basis of your race the basis of your
color the basis of your sex the basis of your national origin or the basis of your religion so let's
say that you feel that you have been discriminated against in the workplace based on your save
gender your sex you can Sue under one of two different legal theories you can Sue Ann argue
desperate treatment or you can Sue and argue desperate impact so first we'll start with
disparate treatment in desperate treatment cases that's when you're arguing that your
employer has intentionally discriminated against you because you are the member of a
protected class and I had started by saying that we'll focus here as an example on sex
discrimination so we're going to say that you are a woman so you're the member of a protected
class your woman by the way by sex discrimination I mean that you can be discriminated
against based on either gender either being a woman or being a man but here in this case will
say that the the person that's being discriminated against as a woman and it doesn't cover you
just if you're an employee it also covers you it being the Civil Rights Act of 1964 the law also
covers you if you are a job applicant so you are arguing intentional discrimination by your
employer against you the employee or job applicant on the basis of being a member or
protected class in this case X in this case it's because you're a woman not because your man but
you can Sue like I said based on sex discrimination as a man or a woman so prevail and win on a
disparate treatment claim in a desperate treatment case the plaintiff the employee the person
suing must prove a few different things and this is covered under the McDonald Douglas
Corporation versus green case that case sets out what you have to prove in order to win just for
a treatment case so if you're the plaintiff you have to prove four things initially after proof first
that you remember protected class have to prove second that you applied for and were
qualified for or you are already employed in the position in question third you have to prove
that you suffered a negative employment condition you were rejected you were demoted you
were fired by the employer and Lastly #4 the employer subsequently filled the position with the
person not in a protected class and really I should say a person not in your protected class so in
this example if the position is filled by another woman you don't have a case but if the position
is filled by a man then your case can continue you might continue to have a case so this is pretty
easy to prove it's easy to prove that you're in a protected class it's easy to prove that you were
either employed in the position or qualified for the position it's easy to prove that you suffered
a negative employment condition and it's easy to prove that someone not in a protected class
got the position instead so if you prove all of these things then the case is allowed to go
forward because you as the plaintive have proved your prima facie case that means that on its
face if nothing else was said on its face it looks like you were discriminated against prima feixa
is spelled PRIMA first word second word FACIE prima feixa so then the burden of proof would
shift to the defendant employer to prove that even though the plaintiff made a prima facie case
of discrimination discrimination did not occur because the employer dependent had a
legitimate nondiscriminatory reason for that negative employment condition so the employer
has to show that the reason that the person did not get the job for instance was not
discriminate Tori or the reason the person was fired was not just nondiscriminatory so
nondiscriminatory reasons could be that the person didn't have the required experience that
the person didn't have the required qualifications they can argue well Jane only had one year of
experience but Bob had two years of experience or Jane got her degree from Harvard but Bob
got his degree from North tech University which is a much better school and so we wanted to
give the job to Bob instead of Jane so the defendant employer has to have to give some kind of
legitimate nondiscriminatory reason for that negative employment condition the defendant can
also use a defense here such as BFOQ or business necessity and talk about that later That
reason given by the defendant was not actually legitimate but was actually a pretext to cover
up discrimination in other words the plaintiff has to say the defense lying so that's why it's hard
to prove so then if the plaintiff convinces the fiber of fact the either judge or jury that the
defendant was lying then the point of wins if the plaintiff is not able to convince them that the
defendant is lying or giving a pretext to cover up discrimination complaint that can't prove that
the defendant employer would win the case so that is a desperate treatment case in a
desperate impact case we are looking at discrimination resulting from practices or procedures
which although not discriminatory on its face had the effect or discriminate Tori on its face has
the effect or have the effect of discriminating against members of a protected class so in
disparate impact it's unintentional discrimination rather than intentional discrimination so you
have something an employment test practice or procedure that looks neutral on its face is
nondiscriminatory on its face it seems neutral in practice initially but then once you actually
start applying that employment test practice procedure etc it has the effect of discriminating
against members of a protected class so if you have a test an employment test that is passed by
90% of men but only 10% of women even though it look neutral on its face and maybe the test
even has a connection or at least it should have a connection right to the job in question even
with the connection to the job question if more men than women will pass the test then
women are being burdened there's a heavier burden on women members of protected class as
a result of that test and so under desperate impact the employer might lose and not be allowed
to continue with those tests might then have to hire members of the protected class even if
they had not passed the test etc and these cases what usually used to prove and show that in
your case are statistics you would just have to show statistics within the company within the
industry within the community society and job applicant job hiring pool so those are the legal
theories that you would Sue under so let's go back to those protected classes so you've got race
color religion sex national origin and race you can't discriminate on the basis of race with regard
to any employment condition race discrimination is illegal brace cannot be a bona fide
occupational qualification defense it can't be a BFOQ will talk about that later and the reason
for that is race gets what we call strict scrutiny the highest level of scrutiny so if you feel like
you've been discriminated against on the basis of race and then courts are going to try to
protect you as the employee as much as possible and to the fullest extent of the wall gender or
sex discrimination is intermediate scrutiny so that gets the second tier the second level of
scrutiny there so with general discrimination the two things I wanted to talk about there are
pregnancy discrimination and the equal pay act so pregnancy discrimination is considered sex
discrimination be cause at least for the most part and at least biologically for right now until
technology and science changes sometime in the future only one sex one gender becomes
pregnant so only women become pregnant so pregnancy discrimination becomes a sex
discrimination gender discrimination issue so there is the pregnancy Discrimination Act and
that's a federal wall that requires employers to treat women who are pregnant have recently
given birth or have any medical condition related to giving birth order the pregnancy they have
to treat those women the same as any other employee who is temporarily disabled temporarily
unable to perform some or all of their job functions so the pregnancy Discrimination Act says
that you can't discriminate against women on the basis of pregnancy and then Secondly the
equal pay act that's a federal law that prohibits gender based differences in wages so you have
to be paid the same wages for equal work on jobs where the performance requires equal skill
effort responsibility an requires and under similar conditions so basically men and women doing
the same work have to be paid the same that's equal pay act you have to be at the same
establishment in order to be able to Sue the employer for a violation those you have to work in
the same office the same establishment to be able to Sue if a man at a different establishment
is making more money than you then you can't Sue you have to have the same employer to be
able to Sue even if you are doing the same job you are not liable if you're the boss of your the
employer if that wage differences based on a legitimate reason such as seniority such as such as
a merit system such as a system based on amount of production a quantity system mirror
system would be a quality system so again based on merit based on quality if the difference is
based on anything like that then it's fine then it's legal and job content not job description
controls so if you have a small difference in job content that wouldn't justify higher pay for men
versus women so you don't look at how the job is described you look at how it's actually done
and performed and if men and women are performing the same job they have to be paid the
same unless you meet one of those exceptions which I just discussed equal pay as well as equal
work doesn't mean identical it means substantially equal so again small differences in pay
would be fine and small differences in job content would not justify pain men more than
women and again pointing to a job description is not a defense you look at what work is
actually being done this is all based on this idea there used to be a theory called comparable
worth theory stating that women should receive equal paperwork of comparable skill and
responsibility because in the past it was thought that women weren't of comparable worth as
men but now we know and should have always known but now we know another wall is forcing
everyone to accept that men and women are comparable worth so their work is also a
comparable worth so men and women should be paid the same when they're doing the same
job so that is what society believes that is what the law requires so the equal pay access the
men and women should be paid the same and this is interesting what happened initially when
this law was first passed is employers tried to then lower the wages of men to meet the wages
of women an import said no you can't do that you can't reduce men's wages to compete with
women's wages to make them the same as women's wages you have to raise women's wages
instead of reducing Mens wages to make them both the same so two more things regarding the
equal pay act there is now the paycheck fairness act of 2009 the paycheck fairness act of 2009 it
strengthens the equal pay act and makes it harder for employers to discriminate based on
gender in wage payment and then the Lilly ledbetter fair pay act of 2009 that wall that act
responded to a 2007 US Supreme Court case an now under that act a plaintiff doesn't have to
file their complaint within 180 days like they had to do before within 180 days of the wage of
the last descriminatory wage So what that means is is that if you were discriminated against in
your wages then under the old law you only had 180 days to file but you might not have found
out about the difference in your wages for not just 180 days but you might not have found out
for two years three years five years 10 years Even so you can't keep it being the port system
can't keep throwing out cases saying oh you violated this 180 day rule under this Lilly ledbetter
fair pay act so in the past they could throw out those cases saying we didn't fall within 180 days
but now under this new act this new law you have not 180 days from the time your first
discriminated against but each paycheck is a new separate discrimina Tori act so then you have
180 days triggered after each paycheck so after each discriminatory paycheck you have 180
days that's triggered in which you have to file your lawsuit but if you don't file within the first
180 days you get another paycheck you get 180 days after that paycheck and after the next one
after the next one so basically that statute of limitations is continually triggered by each new
paycheck as long as you're still working there so I guess technically the way to read this is you
would have 180 days to file within 180 days of your last paycheck so if you would be paid
January 1st and then quit the company you would have 180 days from January 1st to file
because then you're not getting a new paycheck every 180 days every well would be every
what week or month right you will be getting a new paycheck every time period in order to
have that statue of limitations triggered you would have to file within 180 days after last
paycheck is basically what that law without law means so that's the Lilly ledbetter fair pay act
you now have more time in order to file your lawsuit and argue unequal pay so now the last
couple of things that I wanted to talk about here in this chapter first I want to talk about
another protected class so we have the five protected classes under the Civil Rights Act of 1964
but we have another law federal law called the Americans with Disabilities Act which was
amended announced called the Americans with Disabilities Act amendment fact and that law
protects you from discrimination in the workplace based on your disability so we actually have
almost a 6 protected class and that would be disability so the jda the Americans with Disabilities
Act now the adaa that's a federal law that prohibits discrimination in hiring firing and
promotion persons with disabilities you have to make accommodations in hiring and application
practices too now with the adaa and response to the narrowing of the disability definition by
decisions of the US Supreme Court that new law the ADAA broadened the definition of thus
broaden coverage so the new law makes it easier to prove that you're disabled and that your
boss can't discriminate against you basically is what that means football does not require
employers though to hire or keep applicants or employees whose disabilities constitute a direct
threat to the health and safety of their coworkers or customers but if an otherwise qualified
disabled job applicant or employee can with reasonable accommodation perform their
essential job functions then the employer must make accommodations and while making these
accommodations the employer has to ask the employees preference regarding this type of
accommodation that they would prefer so some accommodations that kaslo has given us is
installing wheelchair Rams establishing flexible work hours modifying Java Simons reassigning
nonessential functions creating and improving training materials and training methods and and
the boss would have to do any of this unless doing so would create an undue hardship for the
employer so the employer is not required to accommodate a particular employees or job
applicants disability if doing so would cause the employer undue hardship but if they could
accommodate without undue hardship hardship so if they could reasonably accommodate then
the boss has to do so so finally the last topic that I want to talk about here in this chapter are
the potential defenses available to the employer and two I've already mentioned so once once
a plaintiff once an employee establishes the that discrimination has occurred the bird
approaches to the employer to justify the discriminate Tori policy or practice and so two
common defenses I've already mentioned our business necessity and bona fide occupational
qualification also known as BFOQ so business necessity that's when the discriminate Tori policy
or practice is related to job performance so you can require that an attorney have a lottery then
a law degree is a business necessity that's fine even if that is is causing a burden on protected
class or classes is still OK to require the law degree if you're hiring an attorney you can argue
business necessity you're allowed to make employment decisions based on the skill and abilities
of employees that are necessary for the job the qualifications have to be related to the ability
to do the job so if you have an employment test required they have to be directly related to the
employees or job applicants ability to actually do the job so it has to literally be necessary a
necessity for the employee to do the job in order for you to be able to argue that a certain
qualification a certain test or policy or procedure was a business necessity the second defenses
bona fide occupational qualification or BFOQ that's when you have certain characteristics such
as gender national origin or religious belief either that are reasonably necessary to the normal
operation of your business race can never be a bit BFOQ race can never be a VFX you and that's
why I didn't mention race and only mentioned gender national origin religion so you can for
instance if you're hiring a minister for your Baptist Church you can require the job applicants be
Baptist and not Catholic or Jewish in if you are going to have a runway show modeling clothing
that men typically wear you can require that men be the models in your runway show and all
women you could discriminate against women in that case so you're allowed to require certain
classifications to do your job to do that job if it is reasonably necessary to the normal operation
of your business and of the job in question you can legally base the job qualification again on
sex religion or national origin again and not race if the practice is reasonably necessary to the
normal operation of that particular business so it has to be related to primary job duties to the
primary operation of the business to what that company is in business to do for instance I
already mentioned the race is never a BFA Qi mentioned examples where gender religion could
be BF accuse you also can use national origin as I said as a BFOQ and that that usually is covered
by English only policies that can also be a business necessity as well right so you can argue that
if you're hiring someone to do customer service and Cincinnati where your customers primarily
speak English then the person who is dealing with those customers dealing with the public has
to be able to speak English that would be national origin discrimination basically but it would be
allowed under the business necessity or be FA Q mere inconvenience or just because it would
be more costly would not justify the FA Q so if it's expensive to install restrooms for women in
your office because you've only had restrooms for men it doesn't matter if it's costly you still
have two install the womans restroom and can't argue be FA Q to keep from hiring women in
that case and to keep from having to pay for and install the womans restroom so mere
inconvenience or cost can be can be a poke you an you also can't argue customer preference so
if your customers would prefer to see men in those positions doing those jobs you can argue I
can only hire men you have to hire women as well if it's just based on customer preference
that's not a valid argument the final defense available to employers would be after acquired
evidence of employee misconduct that will limit liability but won't totally shield or absolving
employer from liability so let's say that once the employee argues that the employer has
discriminated against him or her the employer finds out that the employee had initially lied on
their resume that will limit the amount of money that the employee can win and will limit the
employers liability but it won't completely absolve the employer of liability in that case so after
acquired evidence of employment conduct limits employer liability but doesn't completely
cancel out employer liability so that is all I wanted to say here in this lecture on employment
discrimination please let me know if you have any questions thank you