Employment Discrimination

Title VII of the Civil Rights Act of 1964 and its amendments prohibit job discrimination against em­ployees, applicants, and union members on the basis of race, color, national origin, religion, and gen­der at any stage of employment.  Nearly any employer with fifteen or more employees is covered.

The Equal Employment Opportunity Commission (EEOC) issues guidelines interpreting the law.  Also, complaints about violations are registered first with the EEOC.  If it is unable to resolve a situation and chooses not to sue to enforce the law, the victim may sue.  The EEOC has established a priority as to which cases it will pursue.

Intentional Discrimination

In a disparate-treatment employment discrimination case, a plaintiff must initially show only that he or she is a member of a protected class,

  • he or she applied and was qualified for the job in question,
  • he or she was rejected by the employer, and
  • the employer continued to seek applicants for the position or filled the position with a person not in a protected class.

Once this prima facie case is shown, an employer who cannot offer a legitimate defense loses.  If the employer offers a legitimate defense, however, the plaintiff, to succeed, must show that the de­fense is a pretext and that discriminatory intent was the real motivation.

Unintentional Discrimination

If a plaintiff challenging an employment practice or procedure having a discriminatory im­pact on a protected class can show a connection between the practice and the impact, he or she makes out a prima facie case, and no evidence of discriminatory intent is necessary. The burden shifts to the employer to show that the practice or procedure is justified.

  • A plaintiff can prove disparate impact by comparing the employer’s work force to the pool of qualified members of a protected class available in the local labor market and relating any disparity to the employer’s practice or procedure.
  • A plaintiff can also prove disparate impact by comparing the employer’s hiring rates for members of the majority class and members of a protected class. Disparate impact is shown if the rate for the latter is less than four-fifths of the rate for the former.

Discrimination Based on Race, Color, and National Origin

If a company’s standards or policies for selecting or promoting employees have the effect of dis­criminating against employees or job appli­cants on the basis of race, color, or national origin and do not have a substantial, demonstrable relationship to realistic qualifications for the job in question, they are illegal.  Discrimination against these protected classes in regard to employ­ment conditions and benefits is also illegal. Discrimination on the basis of race in regard to employment conditions and benefits can also take the form of reverse discrimination against the members of a majority

Discrimination Based on Religion

Title VII prohibits government employers, private employers, and unions from discriminating against persons because of their religion.  Employers must “reasonably accommodate” the religious practices of their employees.

 Discrimination Based on Gender

Employers may not discriminate against employees on the basis of gender.  In a gender discrimination suit, a plaintiff must show that gender was a deter­mining factor in an employer’s decision to hire, fire, or promote.

  • The Equal Pay Act of 1963 prohibits gender-based discrimination in wages paid for equal work when a job requires equal skill, effort, and responsibility under similar conditions.

The Pregnancy Discrimination Act of 1978 expanded Title VII to include discrimination based on pregnancy. An employer must treat an employee temporarily unable to perform her job due to a pregnancy-related condition the same as the employer would treat others similar in ability to work.

Constructive Discharge

Constructive discharge occurs when an employer causes working conditions to be so intolerable that a reasonable person in an employee’s position would feel compelled to quit. An employee must show that the employer caused the intolerable conditions, and knew, or had reason to know, of the intolerable conditions and failed to correct them within a reason­able time. An employee can seek damages for loss of income, including back pay.

Sexual Harassment

Sexual harassment can take two forms: quid pro quo harassment and hostile-envi­ronment har­assment. The former occurs when job opportunities, promotions, and the like are doled out on the basis of sexual favors. The latter occurs when an employee is subjected to sexual comments, jokes, or physical contact perceived to be offensive.

To be liable for sexual harassment, an employer must have taken a tangible employment action against an employee. Employers have an affirmative defense, however, if they they took “reasonable care to prevent and correct promptly any sexually harassing behavior” (by establishing effective harassment policies and complaint procedures, for example), and the employee suing for harassment failed to follow these policies and procedures.

Plaintiffs in retaliation cases do not have to prove a challenged action adversely affected their workplace or employment. Instead, the challenged action must have been one that would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.

An employer is liable only if it knew, or should have known, about the harassment, and failed to act. In a case involving a nonemployee, an employer may be liable if it knew, or should have known, about the harassment, could exert control over the nonemployee, and failed to act.

Same gender harassment is covered by Title VII.

“Hostile or Offensive Environment”

In 1974, Mechelle Vinson began working at Meritor Savings Bank.  Vinson later sued the bank, claiming that she had “constantly been subjected to sexual harassment.”  She claimed that Sidney Taylor, a vice president and branch manager, made sexual advances toward her, to which she acqui­esced out of fear of losing her job.  She testified that Taylor fondled her in front of other employees and forcibly raped her.  Taylor denied the charges.  The trial court concluded that any sexual rela­tionship between Vinson and Taylor had no relationship to Vinson’s continued employment and ruled in favor of the bank.  Vinson appealed, and the appellate court ruled in her favor, finding that she had made out a case of harassing-environment discrimination.  The bank appealed.

In one of the early and often-cited cases involving charges of sexual harassment—Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)—the United States Supreme Court affirmed the appellate court’s decision.  The Supreme Court rejected the bank’s ar­gument that in prohibiting discrimination under Title VII, Congress was con­cerned with “tangible loss” of “an economic character” and not “purely psychological aspects of the workplace environment.”  The Court pointed out that courts have uniformly held that “a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environ­ment. .  .  . ‘Sexual ha­rassment which creates a hostile or offensive environ­ment for members of one sex is every bit the arbi­trary barrier to sexual equality at the workplace that racial harassment is to racial equality.’”  Requiring an individual to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and discon­certing as the harshest racial epithets.”  Holding that the bank’s liability for the actions of its supervi­sory employ­ees should be determined ac­cording to common law principles of agency, the Court remanded the case to the district court for further proceedings.

“Equal Opportunity” Harassment

The prohibition against sexual harassment in the workplace is an extension of Title VII’s prohibi­tion against gender-based discrimination.  This means that there can be no sexual harassment if no gender-based discrimination is involved.  It also means, among other things, that Title VII does not protect employees from “equal opportunity” harassers—those who harass both sexes equally—because such persons are not discriminating on the basis of gender.

This point was made clear to Steven and Karen Holman, a married couple who worked for the Indiana Department of Transportation, when they sued their employer for sexual harassment.  The Holmans alleged that their supervisor had sexually harassed each of them individually on separate occasions and that the supervisor retaliated against them—by denying them certain privileges and pay—when they rejected his advances.  In evaluating their claim, the court looked at the letter of Title VII, which states, “It shall be an unlawful employment practice for an employer to .  .  . dis­criminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s .  .  . sex.”  The court observed that in the Holmans’ case, there was no discrimination “because of .  .  . sex” because the supervisor harassed both of them.  Thus, concluded the court, the Holmans could not maintain a Title VII action against their employer. Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).

 The Bottom Line

Harassment in the workplace takes many forms, including harassment based on gender, race, national origin, religion, age, and disability.  In cases alleging sexual harassment, however, the har­assment must be on the basis of sex (gender), or Title VII will not apply.

Remedies under Title VII

A plaintiff may obtain reinstatement, back pay, retroactive promotions, and damages.  Compen­satory damages are available only in cases of intentional discrimination.  Punitive damages may be recovered in some cases, but the sum of compensatory and punitive damages is limited to specific amounts against specific employ­ers.

 E-Mail in the Workplace and “Universal Standards of Behavior”

Many employers today establish and implement policies that specify permissible and impermissi­ble uses of the Internet in the workplace.  Yet what if employees who violate such a policy claim that they did not “knowingly” do so?  In this situation, if the employer discharges the employees for violat­ing the policy, can the employees successfully claim that they were discharged without “just cause” and thus entitled to unemployment compensation?   This question recently came before a Utah appel­late court in Autoliv ASP, Inc. v. Department of Workforce Services. 29 P.3d 7 (Utah App. 2001).

Autoliv’s Harassment and E-Mail Policies

Autoliv ASP, Inc., a supplier of auto-safety products, gives each of its more than six thousand employees an employee handbook.  Among other things, the handbook states that Autoliv will not “tolerate or permit illegal harassment or retaliation of any nature within our workforce.”  The hand­book also states that the use of e-mail “for reasons other than transmittal of business-related informa­tion” is prohibited and that violations of company policies can result in any of several disciplinary ac­tions, including termination.

In 1999, Autoliv learned that an employee had received offensive and sexually harassing e-mail from other Autoliv employees.  The company immediately investigated and learned that two employ­ees had, on numerous occasions, sent messages containing jokes, photos, and short videos that were sexually explicit and clearly offensive in nature.  Shortly thereafter, Autoliv terminated the two em­ployees for “improper and unauthorized use of company e-mail.”  When the employees applied for un­employment benefits, a threshold question was whether they had been fired for just cause.  If so, they would not be entitled to unemployment benefits.  If not, they would be entitled to such benefits—and Autoliv would ultimately have to pay higher unemployment taxes as a result.

Were the Employees Fired for “Just Cause”?

Under the relevant state statute, to be fired for “just cause,” employees had to have “knowledge of the conduct which the employer expected.”   The two employees testified that they had not “know­ingly” engaged in misconduct.  Further, if Autoliv concluded that they were engaging in misconduct, Autoliv should have warned them and allowed them to change their conduct. The agency agreed, not­ing that because abuse of the company’s e-mail system was common among Autoliv employees, Autoliv should have notified the employees that their misconduct would not be tolerated before firing them.  Because Autoliv had not done so, the termination was without “just cause.”

Autoliv appealed the agency’s decision to a state appellate court, asserting on appeal that it was “incomprehensible” for the agency to hold that a worker could be unaware of the dangers of sending sexually offensive materials to co-workers through a company’s computer network.  The court agreed with Autoliv, stating that “[s]uch materials in the workplace could have subjected the employer to sexual harassment and sex discrimination lawsuits.”  The court reversed the agency’s decision, con­cluding that “in today’s workplace, the e-mail transmission of sexually explicit and offensive jokes, pictures, and videos constitutes a flagrant violation of a universal standard of behavior.”

Perceiving Conduct as Harassment

Sexual harassment is a major problem in the workplace.  Over 40 percent of female federal em­ployees, for example, reported incidents of sexual harassment in 1980 and roughly the same number reported incidents in 1987.  Sexual harassment cost the federal government $267 million between May 1985 and May 1987 for losses in productivity, sick leave costs, and employee replacement costs.  According to the United States Merit Systems Protection Board, victims of sexual harassment “pay all the intangible emotional costs inflicted by anger, humiliation, frustration, withdrawal, dysfunction in family life, as well as medical expenses, litigation expenses, job search expenses, and the loss of valu­able sick leave and annual leave.”

Sometimes, a person questions whether conduct he or she perceives as offensive should instead be viewed only as bad taste, poor manners, a lack of social grace, or an off-color sense of humor.  It has been suggested that if a person feels belittled by an actor’s conduct, it is harassment.  If the person feels that the actor treated the person as an equal, it is not harassment.

Because women are disproportionately victims of rape and sexual assault, many women who are victims of mild forms of sexual harassment may worry whether a ha­rasser’s conduct is merely a prelude to violent sexual assault.  Men, who are rarely victims of sexual as­sault, may view sexual conduct without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.

Paramour Liability

When, because of a romantic relationship, an employer hires, promotes, or otherwise favors some­one (a “paramour”), an applicant or employee who is better qualified may believe that the employer should be held liable under Title VII on the ground of sex discrimination.

In King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985), a nurse filed a discrimination claim against her employer because her supervisor had promoted another nurse allegedly on the basis of their romantic re­lationship.  The plaintiff proved that kissing, embracing, and other “amorous behavior” played a part in the promotion decision.  The court stated that Title VII is violated if a romantic relationship is a sub­stantial factor in an employment decision.  The court ordered the employer to promote the nurse who had been overlooked.

The Equal Employment Opportunity Commission (EEOC) has rejected claims of discrimination based on consensual romantic relationships.  According to the EEOC, “[a]n isolated instance of fa­vor­itism toward a ‘paramour’ (or a spouse, or a friend)” may be unfair, but it does not constitute discrim­ination on the basis of sex.  The reason is that when preferential treatment is based on a romantic re­la­tionship, other employees—both men and women—are equally disadvantaged for reasons other than their gender.

For example, Jane promotes Wallace, her fiancée, over Dora, who believes she is better qualified for the promotion.  Dora was not denied the promotion because she is a woman, nor would she have re­ceived the promotion if she were a man.  Thus, under the EEOC’s guidelines, there would be no li­ability.

Most courts agree with the EEOC.  For example, in DeCintio v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986), the court held that voluntary, romantic relationships cannot form the ba­sis of a sex discrimination suit under Title VII.  In that case, in April 1982, the West­chester County Medical Center (WCMC) opened a neonatal intensive care unit for the treatment of critically ill newborn children.  The WCMC decided to add to the staff of the new unit a respiratory therapist with supervi­sory responsibilities at a salary higher than those of other staff respiratory therapists.  One of the re­quirements for the position was certification by the National Board of Respiratory Therapists (NBRT).  This had not previously been a requirement for members of the staff, none of whom had NBRT certifica­tion.  On April 26, Jean Guagenti, a respiratory therapist with NBRT certification, was hired for the new position on the recommendation of James Ryan, the program administrator of the respiratory ther­apy department.  In May, Anthony DeCintio, a staff respiratory therapist, filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging the WCMC with sex discrimination in violation of Title VII arising from the hiring of Guagenti.  He alleged that the certification requirement was created to exclude him from consid­eration for the new position and that the new position was cre­ated specifically for Guagenti.  Six other male staff respiratory therapists also filed complaints.  Eventually, the EEOC dismissed the complaints, and the therapists took their case to court.  Finding, among other things, that Ryan and Guagenti had been in a consensual romantic relationship at the time Guagenti was hired and that the certification requirement was a pretext on Ryan’s part to obtain the position for Guagenti, the court ruled in favor of DeCintio and the others.  The WCMC appealed.

The U.S. Court of Appeals for the Second Circuit reversed.  The court acknowledged that in the context of Title VII, “sex” refers to “membership in a [protected] class delineated by gender.”  The court could find no reason for extending Title VII’s reference to “sex” “so broadly as to include an on­going, vol­untary, romantic engagement.”  Under the circumstances, “[a]ppellees were not prejudiced because of their status as males; rather, they were discriminated against because Ryan preferred his paramour.  Appellees faced exactly the same predicament as that faced by any woman applicant for the promotion.”

 What remedies are available under Title VII of the Civil Rights Act of 1964, as amended? Remedies under Title VII include job reinstatement, back pay, retroactive pro­motions, and damages. (Compensatory damages are available only in cases of intentional discrimination. Punitive damages may be recovered against a pri­vate employer only if the employer acted with malice or reckless indif­ference to an individual’s rights. The sum of the amount of compensatory and punitive damages is limited by the statute to specific amounts against specific employers.)

 State Employees Not Covered by the ADEA

In the late 1990s, suits against state agencies by state employees for age discrimination were dismissed because, under the Eleventh Amendment, a state is immune from a suit brought by a private individual in federal court unless the state consents to the suit.

Federal Employees Explicitly Covered by the ADEA

The ADEA expressly covers federal employees.

 Discrimination Based on Disability

The Americans with Disabilities Act (ADA) of 1990, which was designed to eliminate discriminatory hiring and firing practices that prevent otherwise qualified dis­abled workers from fully participating in the national labor force.  Essentially, an employer must reasonably accommodate disabled persons unless to do so would constitute an undue hardship. States are immune from suits by state government employees.

Procedures under the ADA

The EEOC may bring a suit against an employer even if the employer has agreed with the employee to submit a claim to arbitration.

What Is a Disability?

ADA’s definition of a disability is an impairment that “substantially limits” major life activi­ties and outlines its boundaries (how a person functions on medication or with corrective de­vices).  A plaintiff must prove that he or she has a disability.  Some conditions are specifically excluded.

How to Interview Workers with Disabilities — Many employers have been held liable under the Americans with Disabilities Act (ADA) of 1990 simply because they asked the wrong questions when interviewing job applicants with disabilities. If you are an employer, you can do several things to avoid violating the ADA.

As a preliminary matter, you should become familiar with the guidelines on job interviews issued by the Equal Employment Opportunity Commission (EEOC).  These guidelines indicate the kinds of questions that employers may—and may not—ask job applicants with disabilities. Often, the line be­tween permissible and impermissible questions is a fine one. Consider these examples:

Ability to perform the job.  As an employer, you may ask a job applicant, “Can you do the job?” You may also ask whether the applicant can perform specific tasks related to the job. You may not ask the candidate, “How would you do the job?”—unless the disability is obvious, the appli­cant brings up the subject during the interview, or you ask the question of all applicants.

Absenteeism. You may ask, “Can you meet our attendance requirements?” or “How many days were you absent last year?” You may not ask, “How many days were you sick last year?”

Drug use. Generally, employers may ask about the current or past use of illegal drugs but not about drug addiction. Therefore, as an employer, you may ask, “Have you ever used illegal drugs?” or “Have you done so in the last six months?” You may not ask, “How often did you use il­legal drugs?” or “Have you been treated for drug abuse?”

Alcohol use. Generally, employers may ask about a candidate’s drinking habits but not about al­coholism. Therefore, you may ask, “Do you drink alcohol?” or “Have you been arrested for driving while intoxicated?” but you may not ask, “How often do you drink?”

History of job-related injuries. Employers may not ask a job candidate with a disability any ques­tions about the applicant’s previous job-related injuries or about workers’ compensation claims submitted in the past.

Once you have made a job offer, though, you may ask the applicant questions concerning his or her disability, including questions about previous workers’ compensation claims or about the extent of a drinking problem. You may also ask for medical documents verifying the nature of the applicant’s disability. Generally, though, you should ask such questions only if you ask them of all applicants or if they are follow-up questions concerning information about the applicant’s disability that she or he already disclosed during a job interview.

Reasonable Accommodation

An employer cannot refuse to hire a disabled person who is otherwise qualified for a particular position.  That the employer may have to make some reasonable accommodation for a disabled applicant, such as installing ramps for a wheelchair, will not cause the applicant to be consid­ered unqualified.

  • Employers who do not wish to make such accommodations must show that the accommoda­tions will cause “undue hardship.” This is subject to a case-by-case determination.
  • The job application process, including questions and medical exams, must not be discrimi­natory. There must also be reasonable accommodation for disabled applicants.

 Defenses to Employment Discrimination

Defenses to charges of employment discrimination include the following.

Business Necessity

An employer may defend against a claim of disparate-impact discrimination by asserting that a practice that has a discriminatory effect is a business necessity.  If there is a definite connection between the practice and business, the practice may stand.

Bona Fide Occupational Qualification (BFOQ)

A trait must be essential to a job to qualify as a BFOQ if discriminating against those who do not have the trait amounts to otherwise illegal employment discrimination. 

Seniority Systems

If no present in­tent to discriminate is shown, and promotions or other job benefits are distributed according to a fair seniority system, an employer has a good defense against some employment-discrimination suits, including those brought under the ADA.

After-Acquired Evidence of Employee Misconduct

After-acquired evidence of the plaintiff’s wrongdoing cannot shield employers from liability for employment discrimination, though it may limit the amount of damages. 

Affirmative Action

Affirmative action programs have caused much controversy.

QUOTA SYSTEMS

The United States Supreme Court applied a strict scrutiny analy­sis in an equal-protection challenge to an affirmative-action program in the granting of federal high­way construction contracts. Such programs cannot make use of quotas or prefer­ences for unqualified persons.

Court Decisions on Race and Ethnicity

Among recent affirmative-ac­tion cases, most notably for employment the United States Supreme Court has held that once a program has succeeded, it must be changed or dropped. Some states have ended state-government -sponsored programs.

State Statutes

Generally, states prohibit the same kinds of discrimination prohibited under federal legislation.  States also often provide protection for some individuals who are not protected under Title VII and may provide for additional damages. Some states have ended state-government -sponsored affirmative action programs.

Exceptions to the employment-at-will doctrine. 

Contract Theory Exceptions.  Some courts have held that an implied employment contract exists between employer and employee under an em­ployer’s handbook, personnel bulletin, or the like if the document states that workers will be dismissed only for good cause, and an employer who fires a worker contrary to this promise is liable for breach of contract.  In a few states, all employment contracts are considered to contain an implied covenant of good faith, and an employee can claim breach of this covenant, if the employee is fired ar­bitrarily.

Public Policy Exceptions.  An employer may not fire a worker in violation of a fundamental public policy (firing a worker for taking time to serve on a jury, for instance).  In most states, firing workers who refuse to perform il­legal acts violates public policy.  Whistleblowers may be protected for public policy reasons.  

Tort Theory Excep­tions.  In a few cases, discharge may give rise to a tort cause of action (for example, an abu­sive discharge may result in in­tentional infliction of emotional distress or defamation).

What are some important provisions of the Fair Labor Standards Act? 

The Fair Labor Standards Act (FLSA) of 1938, which covers employers engaged in interstate commerce, regulates child la­bor, maximum hours, and minimum wages.  Children under sixteen years of age cannot work full-time ex­cept for a parent under certain circumstances.  Children between sixteen and eighteen cannot work in haz­ardous jobs or in jobs detrimental to their health and wellbeing.  Employees who agree to work more than forty hours a week must be paid no less than one and a half times their regular pay for hours over forty.  Certain employees are exempt.  A minimum wage must be paid to employees in certain in­dustries.  Effective July 24, 2009, the federal minimum wage increases to $7.25 per hour. This change reflects the third and final federal minimum wage increase as amended under the Fair Labor Standards Act (FLSA).

Wage includes the reasonable cost to furnish em­ployees with board, lodging, and other facilities if the em­ployer customarily furnishes them.

Do federal labor laws cover all workers?  No.  Although coverage of the federal labor laws is broad and extends to all employers whose business activity either involves or affects interstate commerce.  However, some workers are specifically excluded from these laws due to either the existence of industry-spe­cific legisla­tion.  Other workers such as farm laborers and domestic servants are excluded from most federal labor laws but are not covered by other legislation.

What protection do employees have from the financial impact of retirement, disability, death, hospital­ization, and unemployment?  Federal and state governments participate in insurance programs designed to offer protection in this area.  The Social Security Act of 1935 provides for old-age re­tirement, sur­vivors, disabil­ity, and hospital insurance (OASDI).  Employers and employees contribute under the Federal Insurance Contributions Act (FICA).  Medicare is a federal health insurance program adminis­tered by the Social Security Administration for people sixty-five years of age and older and for some under sixty-five who are dis­abled.  Under the Employee Retirement Income Security Act (ERISA) of 1974, the Labor Management Services Administration of the Department of Labor regulates operators of private pen­sion funds (which employers are not required to establish).  Employee contributions to pension plans vest immediately, and employee rights to employer contributions vest after five years of employment.  Pension managers are required to invest cau­tiously and refrain from investing more than 10 percent of a fund in an employer’s securities.  Under the Federal Unemployment Tax Act of 1939, employers pay quarterly taxes to the states.  The states deposit them with the federal government, which maintains an Unemployment Insurance Fund. 

Why should immigration be permitted?  Currently, immigrants revitalize nations and their economies, as well as enriching their cultures. In many countries, including the United States, the populations would grow increasingly older, resulting in, among other things, fewer workers to support those who are retired. Immigrants contribute to economies in other ways, too, often doing work that citizens reject, for example, and paying taxes without fully participating in the benefits that those taxes help to bestow. Immigrants are often responsible for a disproportionate number of the innovations, inventions, and other achievements that can improve a nation’s life. Immigrants often follow different customs, or religions, or artistic traditions, which can enhance and diversify a culture. Why should immigration be restricted?  Immigration should be restricted in some way because a nation might find itself otherwise overwhelmed. There could be too many persons seeking too few jobs, for example, or too many persons fleeing a temporarily discomfiting situation. There might be a movement of too many persons hostile to a nation, or its government, into its borders. There might be a large number of criminals who would seek refuge across international borders with too much ease. 

Is penalizing employers the best approach to take in attempting to curb illegal immigration?  Yes, because employment is the primary motivation for those who would immigrate illegally.  (Why else would anyone voluntarily leave their home to live where they know nearly no one, likely do not speak the language or understand much of the culture, and would be unable to participate in the government?)  Sanctioning those who would employ illegal immigrants would reduce the employers’ willingness to hire the immigrants, thus eliminating the reason for the immigration. No, because penalizing employers puts the onus on those who are only taking economic advantage of a situation not of their making.  In some cases, those employers might not be able to fill the jobs that they have available.

What is disparate-im­pact discrimination and how is it proved?  Disparate-impact discrimina­tion is caused by a practice or prac­tices that have an unintended discriminatory impact on a protected class (that is, as a result of a practice, an employer’s work force may not reflect the same percentage of members of protected classes that characterizes qualified individuals in the local labor market).  A prima facie case is made out if a connection between the practice and the disparity is shown; proof of discriminatory intent is unnecessary.

What are some defenses available in employment discrimination cases?  In a disparate-impact case, an employer may assert a busi­ness necessity defense (a business reason for a practice—against proof that requiring a high school diploma has a discriminatory effect, for instance, an employer might assert that doing a good job requires a high school education).  Another defense is that a specific trait is a bona fide oc­cupational qualification (BFOQ).  Race cannot be a BFOQ; gender may be, but only if it is essential to a job.  Another de­fense protects bona fide seniority systems (for example, in a suit seeking promotion of minorities ahead of oth­ers to compensate for past discrimination, an employer has a good defense if a present intent to discriminate is not shown, and promotions or other benefits are shown to be distributed according to a fair seniority system). 

What is sexual harassment and under what circumstances might an employer be liable?  Sexual harassment happens when promotions and so on are parceled out for sexual favors or when, in an em­ployment environment, a worker must put up with com­ments or physical contact that is perceived as sexually offensive.  An employer may be liable when an em­ployee does the harassing, if the employer knew, or should have known, about the harassment and failed to take corrective action, or if the employee was in a supervisory position.

How is it possible for jurors and judges to overcome their own prejudices in deciding cases in which gender or another protected trait plays a key role? Bias can be subtle, unconsciously influencing the deci­sions of even the most pro­fessedly unbiased decision makers. It is the task that these in­dividuals are given, after undergoing questioning to determine and challenge their biases and being reminded not to let prejudice sway their judgment. Jurors can be given instructions that set out considerations for them to evaluate the circumstances of a case and avoid undue prejudices. Is it possible to fully protect employees from discrimination in the workplace? No, because bias can be subtle, unconsciously influencing the actions of even the most avowedly unbiased individuals. Also, “fully protect” is a somewhat vague notion. Yes, if it remains a legal and moral goal, because over time, people are capable of overcoming even the most entrenched, rationalized prejudices.

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CONSUMER PROTECTION

Pursuant to the common law doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. Caveat emptor is Latin for let the buyer beware. Both Congress and state legislatures have enacted consumer protection laws intended to limit abuses inherent in the common law approach that would have the buyer beware. A person violating the provisions of a consumer protection statute is generally liable even though there was no intention to violate the law. Liability also exists even though the breach was a single occurrence rather than a pattern of repeated conduct

Proof of Consumer Status

A consumer claiming that there has been a violation of the consumer protection statute has the burden of proving that the statutory definition of consumer has been satisfied. The word consumer refers to individuals or households that use goods and services generated within the economy.

Action by Consumer

Some consumer protection statutes provide that a consumer who is harmed by a violation of the statutes may sue the business or organization that acted improperly. The consumer may sue to recover a specified penalty or may bring an action on behalf of consumers as a class. Consumer protection statutes are often designed to rely on private litigation as an aid to enforcement of the statutory provisions. In such an action, a consumer must show that the defendant engaged in misconduct of the kind prohibited by the applicable consumer protection statute.

Advertising

Consumer protection statutes commonly prohibit fraudulent advertising. Most advertising regulations are entrusted to an administrative agency, such as the Federal Trade Commission (FTC). The FTC is authorized to issue orders to stop false or misleading advertising. Statutes prohibiting false advertising are liberally interpreted. A business is liable for false advertising when it advertises a reduced price sale of a particular item, but that item is out of stock at the time the sale begins. It is no defense to the store that the pre-sale demand was greater than usual.

Under consumer protection statutes, deception rather than fraud, is the significant element. There can be a breach of a consumer protection statute even though there is no proof that the wrongdoer intended to defraud or deceive anyone. Instead of basing the law in terms of fault of the actor, the law is concerned with the problem of the buyer who is likely to be misled. The good faith of an advertiser or the absence of intent to deceive is immaterial. The purpose of false advertising legislation is to protect the consumer rather than to examine the advertiser’s motives.

The FTC requires that an advertiser maintain a file containing the data claimed to support an advertising statement as to safety, performance, efficacy, quality, or comparative price of an advertised product. The FTC can require the advertiser to produce this material, If it is in the interest of the consumer, the FTC can make this information public, except to the extent that it contains trade secrets or material that is privileged.

Corrective Advertising

When an enterprise has made false and deceptive statements in advertising, the Federal Trade Commission may require that new advertising be made in which the former statements are contradicted and the truth stated. This corrective advertising required by the Federal Trade Commission is also called retractive advertising.

Seals of Approval

Many commodities are sold or advertised with a sticker or tag stating that the article has been approved or is guaranteed by some association or organization. Ordinarily, when a product is sold in such a way, it will in fact have been approved by some testing laboratory and will probably have proven adequate to meet ordinary consumer needs. Selling with a seal of approval of a third person makes, in effect, a guarantee that the product has been so approved. A seller is liable if the product was, in fact, not approved.

Labeling

Closely related to the regulation of advertising is the regulation of labeling products. Various federal statutes are designed to give the consumer accurate information about the product, while others require warnings about dangers of use or misuse. Consumer protection regulations prohibit the use in the labeling of products with such terms as jumbo or giant which tend to exaggerate and mislead.

Selling Methods

Consumer protection statutes prohibit the use of improper and deceptive selling methods. These statutes are liberally construed to protect consumers from improper practices.

Deceptive Practices

Consumer protection statutes and deceptive trade practice acts are violated when the statements or the business methods of the defendant are deceptive. It is not necessary to prove that the defendant was guilty of fraud. It is immaterial that the defendant who misrepresented the facts did not intentionally do so.

 Disclosure of Transaction Terms

Contract on Two Sides

To be sure that the consumer sees disclosures required by federal law, special provision is made for the case when the terms of the transaction are printed on both the front and back of a sheet or contract. In such a situation, both sides of the sheet must carry the warning: NOTICE: see other side for important information.  Also, the page must be signed at the end of the second side.

Particular Sales and Leases

The Motor Vehicle Information and Cost Savings Act requires a dealer to disclose to the buyer various elements in the cost of an automobile. The act prohibits selling an automobile without informing the buyer that the odometer has been reset below the true mileage. A buyer who is caused actual loss by odometer fraud may recover from the seller three times the actual loss or $1,500, whichever is greater. There is a breach of this statute when the seller has knowledge that the odometer has turned at 100,000 miles but the seller then states that the mileage is 20,000 miles instead of 120,000. The Consumer Leasing Act of 1976 requires that persons leasing automobiles and other durable goods to consumers make a full disclosure to the consumer of the details of the transaction.

Although the statute imposes liability only when the seller knowingly violates the statute, it is not necessary to prove actual knowledge. For example, an experienced auto dealer cannot claim lack of knowledge that the odometer was false when that conclusion was reasonably apparent from the condition of the car.

Referral Sales

The technique of giving the buyer a price reduction for customers referred to the seller is theoretically lawful. In effect, it is merely paying the buyer a commission for the promotion of other sales. In actual practice, however, the referral sales technique is often accompanied by fraud or by exorbitant pricing. Therefore, consumer protection laws condemn referral selling in various ways. As a result, the referral system of selling has been condemned as unconscionable under the Uniform Commercial Code (UCC), and is expressly prohibited by the Uniform Consumer Credit Code (UCCC) which has been adopted by a number of states.

Contract with Consumers

Contracts with consumers are affected by consumer protection legislation in various ways.

Form of Contract

Consumer protection laws commonly regulate the form of the contract, requiring that payments under the contract to be itemized and allocation to such items as principal, interest, and insurance are to be clearly indicated; Generally, certain portions of the contract or all of the contract must be printed in type of a certain size, and a copy must be furnished to the buyer. Such statutory requirements are more demanding than the statute of frauds section of the UCC. It is frequently provided that the copy furnished the consumer must be completely filled in.

Contract Terms

Consumer protection legislation does not ordinarily affect the right of the parties to make a contract on whatever terms they choose. It is customary, however, to prohibit the use of certain clauses that are believed to unconscionable to the debtor or that have too great a potential for abuse by a creditor.

Acceleration Clauses

An acceleration clause is a contractual provision which allows the holder to declare the remaining balance due and payable immediately upon the occurrence of a default in the obligation. Parties to a credit transaction may agree that payment should be made in installments but that if there is a default with respect to any installment, the creditor may declare the entire balance due at once. This cancels or destroys the schedule for payments by making the entire balance immediately due. Such acceleration of the debt can cause the debtor great hardship. Because of this, some statutes limit or prohibit the use of acceleration clauses.

Price Gouging

Some consumer protection statutes are aimed at preventing price gouging with respect to goods or services for which the demand is abnormally greater than the supply. The New York statute provides: During any abnormal disruption of the market for consumer goods and services vital and necessary for the health, safety, and welfare of consumers, resulting from stress of weather, convulsion of nature, failure or short age of electric power or other source of energy . . . no merchant shall sell or offer to sell any such consumer goods or services for an amount which represents an unconscionably excessive price. Consumer goods and services are defined as “those used, bought, or rendered primarily for personal, family, or household purposes.” Such a statute protects, for example, purchasers of electric generators for home use during a hurricane-caused blackout.

Credit Cards

The credit card permits the cardholder to buy on the credit or reputation of the issuer of the card.

Unsolicited Credit Cards

The unsolicited distribution of credit cards to persons who have not applied for them is prohibited.

Surcharge Prohibited

According to some consumer protection statutes, a seller cannot add any charge to the purchase price because the buyer uses a credit card instead of paying with cash or a check.

Unauthorized Fee

A card holder is normally not liable for more than $50 for the unauthorized use of a credit card.

 Payments

Consumer legislation may provide that when a consumer makes a payment on an

open charge account, the payment must be applied toward payment of the earliest charges. The result is that, should there be a default at a later date, any right of repossession of the creditor is limited to the later, unpaid items.

Product Safety

The health and well-being of consumers is protected by a variety of statutes and rules of laws. Most states have laws governing the manufacture of various products and establishing product safety standards. The federal Consumer Product Safety Act provides for research and the setting of uniform standards for products in order to reduce health hazards. This act also establishes civil and criminal penalties for the distribution of unsafe products. It also recognizes the right of a person to sue for money damages and to obtain an injunction against the distribution of unsafe products.  The Act also creates a Consumer Product Safety Commission to administer it.

The federal Anti-Tampering Act makes it a federal crime to tamper with consumer products.

Credit, Collection and Billing Methods

The Equal Credit Opportunity Act (ECOA) was passed in order to make sure that consumer credit was awarded based on an applicant’s credit worthiness rather than the applicant’s age, sex, color, religion, or national origin.  For example, a lender cannot consider the following when making a loan: race; marital status; receipt of public assistance income; receipt of alimony or child support; or future plans for children. Spouses have rights to individual credit application and consideration. The other spouse’s income does not have to be disclosed unless the applicant is relying on that income to qualify for credit.

The penalties for violating the ECOA are the actual damages and the possibility of punitive damages of up to $10,000.  If there is a pattern or practice of violations, a class action may be filed which can result in damages up to $500,000 or 1% of the net assets of the defendant, whichever is less.

The Truth-in-Lending Act (TILA) is part of the Federal Consumer Credit Protection Act.  The purpose of the TILA is to make full disclosure to debtors of what they are being charged for the credit they are receiving. The Act merely asks lenders to be honest to the debtors and not cover up what they are paying for the credit.  Regulation Z is a federal regulation prepared by the Federal Reserve Board to carry out the details of the Act.

TILA applies to consumer credit transactions.  Consumer credit is credit for personal or household use and not commercial use.  TILA applies to both open end and closed end transactions.  Examples of open -end transactions are credit cards, lines of credit, and revolving charge accounts.  Closed-end transactions involve a fixed amount to be paid back over a period of time such as a note or a retail installment contract.  Open-end disclosure requirements include: finance charges (including interest), the dates that bills will be sent and what, if any, security interest is being taken.  Bills must contain the following information:

  • balance from last statement;
  • payments and credits;
  • new charges made since last statement;
  • finance charges on unpaid balance;
  • the billing period covered by the bill;
  • the time period in which payment can be made in order to avoid a finance charge (e.g., 30 days); and
  • information regarding billing errors — what to do and where to inquire about billing errors.

When an organization solicits consumer to use its credit card, the solicitation must include the following disclosures:

  • fees for issuing the card;
  • APR for the card;
  • minimum or fixed finance charges;
  • any transaction charges;
  • grace periods (if any);
  • how the daily balance is computed;
  • when payments will be due;
  • what the late payment will be; and
  • any charges that will be assessed for going over the credit limit.

Disclosures regarding closed-end credit must include:

  • amount being financed;
  • finance charges
  • annual percentage rate;
  • number of payments and when due;
  • total cost of financing (price of goods plus all finance charges);
  • any penalties for prepayment or late payment;
  • any security interest or lien in the goods sold or used as collateral; and
  • any credit insurance cost.

In advertisements that include part of the credit terms, all the credit terms must be disclosed.  If payments are disclosed, the creditor must disclose the annual percentage rate (APR), the down payment, and the number of payments.

Regulation Z gives a three-day cooling-off period for certain credit contracts.  This cooling-off period applies in a credit situation when the debtor’s home is given as security for the loan or a home solicitation sale is involved. The Home Equity Loan Consumer Protection Act of 1988 applies to home equity loans and provides for additional disclosures, e.g., that the debtor can lose his home in the event of a default.

The penalties for violation of the TILA include an amount equal to two times the amount of the finance charges with a minimum recovery of $100 and a maximum recovery of $1000 plus any punitive damages.  In a class action law suit the maximum amount of damages is $500,000 or 1% of the creditor’s net worth, whichever is less.

The Fair Credit Billing Act requires monthly statements on open-end credit transactions.  The bill must contain an address for the debtor to write in order to report errors in the bill.  Any such notification must be sent within 60 days of the bill’s receipt. The creditor then has thirty days in which to acknowledge the notification and ninety days to take action.  The debtor does not have to pay the protested amount during this period of time.  Once the matter is resolved, the debtor must pay the correct amount owed.  If the creditor does not comply with the time limits of the Act the debtor does not have to pay the disputed amount, even if it is correct.

The Fair Credit Reporting Act regulates the use of information on a consumer’s personal and financial condition.  The most typical transaction which this Act would cover would be where a person applies for a personal loan or other consumer credit.  Consumer credit is credit for personal, family, or household use, and not for business or commercial transactions.  Also, this Act can apply when a person applies for a job or even a policy of insurance when certain investigations are made of the applicant.

The purpose of the Act is to insure that consumer information obtained and used is done in such a way as to insure its confidentiality, accuracy, relevancy and proper utilization.  Under the Act, consumer reports are communications in any form by which furnishes informa­tion on consumers to potential creditors, insurers or employers.

Upon request, a credit bureau must tell a consumer the names and addresses of persons to whom it has made a credit report on that consumer during the previous six months.  It also must tell, when requested, what employers were given such a report during the previous two years.

Some information obtained by credit reporting bureaus is based on statements made by persons, such as neighbors who were interviewed by the bureau’s investigator.  Needless to say, these statements are not always correct and are sometimes the result of gossip.  In any event, such statements may go on the records of the bureau without further verification and may be furnished to a client of the bureau who will regard the statements as accurate.  A person has the limited right to request an agency to disclose the nature and substance of the information possessed by the bureau to see if the information is accurate.  If the person claims that the information of the bureau is erroneous, the bureau must take steps within a reasonable time to determine the accuracy of the disputed items.  If no correction is made, the debtor can write a 100 word statement of clarification which will be included in future credit reports, even it the agency disagrees with clarification.

The FCRA requires that a credit reporting agency follow reasonable procedures to assure accuracy of the information it gathers.  Adverse information obtained by investigation cannot be given to a client after three months unless it is verified to determine that it is still valid.

Credit reporting bureaus are not permitted to disclose information to persons not having a legitimate use for this information.  It is a federal crime to obtain or to furnish a credit report for an improper purpose. Under the FCRA, agencies can only disclose information to the following:

  • a debtor who asks for his own report;
  • a creditor who has the debtor’s signed application for credit;
  • a potential employer; and
  • a court pursuant to a subpoena.

The Consumer Leasing Act is an amendment to TILA and provides disclosure protection for consumers who lease goods.  Basically, these disclosures fall into three categories:

  • how much is paid by the consumer over the life of the lease;
  • how much, if any, is owed by the consumer at the end of the lease; and
  • whether or not the lease can be terminated.

The Fair Debt Collection Practices Act (FDCPA) prohibits harassment or abuse in collecting a debt such as threatening violence, use of obscene or profane language, publishing lists of debtors who refuse to pay debts, or even harassing a debtor by repeatedly calling the debtor on the phone.  Also, certain false or misleading representa­tions are forbidden, such as representing that the debt collector is associated with the state or federal government, or stating that the debtor will go to jail if he does not pay the debt. This Act also sets out strict rules regarding communicating with the debtor.

The FDCPA applies only to those who regularly engage in the business of collecting debts for others — primarily to collection agencies.  The Act does not apply when a creditor attempts to collect debts owed to it by directly contacting the debtors.  It applies only to the collection of consumer debts and does not apply to the collection of commercial debts.  Consumer debts are debts for personal, home, or family purposes.

When a collector contacts a debtor, if the debtor asks for verification of the debt, the collector must provide this verification in writing.  The debtor must include the amount of the debt, the name of the creditor, and the debtor’s right to dispute the debt.

The collector is restricted in the type of contact he can make with the debtor.  He can’t contact the debtor before 8:00 a.m. or after 9:00 p.m.  He can contact the debtor at home, but cannot contact the debtor at the debtor’s club or church or at a school meeting of some sort.  The debtor cannot be contacted at work if his employer objects.  If the debtor tells the creditor the name of his attorney, any future contacts must be made with the attorney and not with the debtor.  The debtor can call off the collection contacts at any time.  The collector would then have to use other collection means like filing suit.

The Act prohibits contacting other people about the debtor’s debts, with the exception of the debtor’s spouse and parents.  Another exception is that third parties can be contacted in order to get the debtor’s address, phone number and place of employment.  Contact with the debtor by postcard is prohibited because someone other than the debtor may see the contents of the postcard.

When a collection agency violates the Act, it is liable to the debtor for damages, and it is no defense that the debtor in fact owed the money that the agency was seeking to collect.  Debtors can collect up to $1,000 in actual damages in addition to actual damages.  Also the Federal Trade Commission can get a cease and desist order to stop any unlawful practices.

If a creditor files a civil suit for the debt and gets a judgment, he will have to execute on that judgment unless the defendant voluntarily pays the judgment.  One way of execution is garnishment where a judgment creditor serves a writ of garnishment on the debtor’s employer.  The employer is then required to withhold part of the debtor’s wages for payment to the creditor in satisfaction of the judgment.  The Consumer Credit Protection Act limits the amount that can be garnished to 25% of the debtor’s net wages.  A judgment creditor can also garnish a debtor’s bank account or an account receivable due to the debtor.  Basically, any debt due to the debtor can be garnished.

Privacy and Information Law

Protect Your Online Information and Avoid Being Scammed

OnGuardOnline.gov provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information. The Federal Trade Commission (FTC) maintains OnGuardOnline.gov. Much of the following information in this section came from the  OnGuardOnline.gov website.

Protect your personal information.

To an identity thief, your personal information can provide instant access to your financial accounts, your credit record, and other assets. Anyone can be a victim of identity theft. There are almost 10 million victims every year. Some cases start when online data is stolen. You can go to www.ftc.gov/idtheft to learn what to do if your identity is stolen.

When it comes to crimes like identity theft, you can’t entirely control whether you will become a victim. But following these tips can help minimize your risk while you’re online:

If you’re asked for your personal information (e.g., your name, email or home address, phone number, account numbers, or Social Security number) find out how it’s going to be used and how it will be protected before you share it. If you have children, teach them to not give out your last name, your home address, or your phone number on the Internet.

If you get an email or pop-up message asking for personal information, do not reply or click on the link in the message. The safest course of action is not to respond to requests for your personal or financial information. If you believe there may be a need for such information by a company with whom you have an account or placed an order, contact that company directly in a way you know to be genuine. In any case, do not send your personal information via email because email is not a secure transmission method.

If you are shopping online, do not provide your personal or financial information through a company’s website until you have checked for indicators that the site is secure, like a lock icon on the browser’s status bar or a website URL that begins “https:” (the “s” stands for “secure”). Unfortunately, no indicator is foolproof; some scammers have forged security icons.

Read website privacy policies. They should explain what personal information the website collects, how the information is used, and whether it is provided to third parties. The privacy policy also should tell you whether you have the right to see what information the website has about you and what security measures the company takes to protect your information. If you do not see a privacy policy, or can not understand it, consider doing business elsewhere.

Know with whom you’re dealing.       

It is remarkably simple for online scammers to impersonate a legitimate business, so you need to know whom you’re dealing with. If you’re shopping online, check out the seller before you buy. A legitimate business or individual seller should give you a physical address and a working telephone number at which they can be contacted in case you have problems.

Phishing is the act of sending an e-mail to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft. The e-mail directs the user to visit a website where they are asked to update personal information, such as passwords and credit card, social security, and bank account numbers, that the legitimate organization already has. The Web site, however, is bogus and set up only to steal the user’s information.

For example, in 2003 there was a phishing scam in which users received e-mails supposedly from eBay claiming that the user’s account was about to be suspended unless he clicked on the provided link and updated the credit card information that the genuine eBay already had. Because it is relatively simple to make a website look like a legitimate organizations site by mimicking the HTML Code, the scam counted on people being tricked into thinking they were actually being contacted by eBay and were subsequently going to eBay’s site to update their account information. By spamming large groups of people, the “phisher” counted on the e-mail being read by a percentage of people who actually had listed credit card numbers with eBay legitimately.

Phishers send spam or pop-up messages claiming to be from a business or organization that you might deal with, for example, an Internet service provider (ISP), bank, online payment service, or even a government agency. Again, the message usually says that you need to “update” or “validate” your account information. It might threaten some dire consequence if you do not respond. The message directs you to a website that looks just like a legitimate organization’s, but is not. The purpose of the bogus site is to trick you into divulging your personal information so the operators can steal your identity and run up bills or commit crimes in your name. Do not take the bait. Never reply to or click on links in email or pop-ups that ask for personal information. Legitimate companies do not ask for this information via email. If you are directed to a website to update your information, verify that the site is legitimate by calling the company directly, using contact information from your account statements.

Every day, millions of computer users share files online. File-sharing can give people access to a wealth of information, including music, games, and software. You download special software that connects your computer to an informal network of other computers running the same software. Millions of users could be connected to each other through this software at one time. Often the software is free and easily accessible. But file-sharing can have a number of risks. If you do not check the proper settings, you could allow access not just to the files you intend to share, but also to other information on your hard drive, like your tax returns, email messages, medical records, photos, or other personal documents. If you decide to use file-sharing software, set it up very carefully. Take the time to read the End User Licensing Agreement to be sure you understand and are willing to tolerate the side effects of any free downloads.

Many free downloads come with potentially undesirable side effects. Spyware is software installed without your knowledge or consent that adversely affects your ability to use your computer, sometimes by monitoring or controlling how you use it. To avoid spyware, resist the urge to install any software unless you know exactly what it is. Your anti-virus software may include anti-spyware capability that you can activate, but if it does not, you can install separate anti-spyware software, and then use it regularly to scan for and delete any spyware programs that may sneak onto your computer.

Use anti-spyware software, as well as a firewall, and update them all regularly.

Firewalls help keep hackers from using your computer to send out your personal information without your permission. While anti-virus software scans incoming email and files, a firewall is like a guard, watching for outside attempts to access your system and blocking communications to and from sources you don’t permit. Some operating systems and hardware devices come with a built-in firewall that may be shipped in the “off” mode. Make sure you turn it on. For your firewall to be effective, it needs to be set up properly and updated regularly.

If your operating system does not include a firewall, get a separate software firewall that runs in the background while you work, or install a hardware firewall — an external device that includes firewall software.

Be sure to set up your operating system and Web browser software properly, and update them regularly.                                                                                        

Hackers also take advantage of Web browsers (like Internet Explorer or Netscape) and operating system software (like Windows or Linux) that are unsecured. Lessen your risk by changing the settings in your browser or operating system and increasing your online security. Check the “Tools” or “Options” menus for built-in security features. If you need help understanding your choices, use your “Help” function.

Your operating system also may offer free software patches that close holes in the system that hackers could exploit. In fact, some common operating systems can be set to automatically retrieve and install patches for you. If your system does not do this, bookmark the website for your system’s manufacturer so you can regularly visit and update your system with defenses against the latest attacks. Updating can be as simple as one click. Your email software may help you avoid viruses by giving you the ability to filter certain types of spam.

If you are not using your computer for an extended period, turn it off or unplug it from the phone or cable line. When it’s off, the computer doesn’t send or receive information from the Internet and isn’t vulnerable to hackers.

  • Protect your passwords. Keep your passwords in a secure place, and out of plain view. Don’t share your passwords on the Internet, over email, or on the phone. Your Internet Service Provider (ISP) should never ask for your password. In addition, hackers may try to figure out your passwords to gain access to your computer. You can make it tougher for them by:       
  • Using passwords that have at least eight characters and include numbers or             symbols.
  • Avoiding common words: some hackers use programs that can try every word in       the dictionary.
  • Not using your personal information, your login name, or adjacent keys on the           keyboard as passwords.
  • Changing your passwords regularly (at a minimum, every 90 days).
  • Not using the same password for each online account you access.

Internet fraud

If a scammer takes advantage of you through an Internet auction, when you’re shopping online, or in any other way, report it to the Federal Trade Commission, at ftc.gov. The FTC enters Internet, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

Deceptive Spam If you get deceptive spam, including email phishing for your information, forward it to spam@uce.gov. Be sure to include the full header of the email, including all routing information. You also may report phishing email to reportphishing@antiphishing.org. The Anti-Phishing Working Group, a consortium of ISPs, security vendors, financial institutions and law enforcement agencies, uses these reports to fight phishing.

Divulged Personal Information                                                                                       

If you believe you have mistakenly given your personal information to a fraudster, file a complaint at ftc.gov, and then visit the Federal Trade Commission’s Identity Theft website at www.ftc.gov/idtheft to learn how to minimize your risk of damage from a potential theft of your identity.

 

Religious Discrimination in Employment

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It was amended in 1972 by the Equal Employment Opportunity Act. This Act created the Equal Employment Opportunity Commission which is commonly referred to as the EEOC. If you are the victim of employment discrimination, you can file a charge with the EEOC if you employer or prospective employer has 15 or more employees. The EEOC will then investigate the charge and can file suit on behalf of the employee if it believes that the charge has merit. Title VII prohibits discrimination in employment based upon religion – either its practices or beliefs.

While litigation on the basis of religious discrimination does not occur as frequently as some of the other categories, or may not have as high a profile, it is just as important a concern for employers. Discrimination against Muslims and Middle Easterners has increased dramatically since 9/11 and involve issues such as females wearing of head scarves at work, Sikhs wearing turbans at work, having a place to perform pre-prayer ablutions at work for Muslims, Muslims needing breaks and a place to say their religiously-mandated prayers several times per day.

Federal and state constitutional guarantees of due process, equal protection, and freedom of religion also provide protection for federal, state and local government employees. If the employer is a governmental entity, the employer must avoid workplace policies which have the effect of tending to establish or of interfering with the practice of the employee’s religion. Title VII is the only legislation specifically prohibiting religious discrimination in employment and there is consideration given to constitutional issues where necessary.

To a great extent, religious organizations are exempt from the prohibitions in Title VII.
As a general rule, they can discriminate so that, for instance, a Catholic church may legitimately refuse to hire a Baptist minister as its priest. That is, religion is recognized as a possible basis for a BFOQ reasonably necessary to the normal operation of that particular business or enterprise under section 703 (e)(1) of Title VII. If the church has sectarian activities such as running a day care center, bookstore or athletic club, which in no way involves religion, it may not enjoy the same broad type of freedom to discriminate since these activities do not necessarily have religion or propagation of the religion as an integral part of their activity.

What is “Religion”?
Title VII originally provided no guidance as to what it meant by the word “religion”. In the 1972 amendments to Title VII, Congress addressed the issue. In section 701 providing definitions for terms within Title VII, section (j) states that “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
The question frequently arises “What if I never heard of the employee’s religion? Must I still accommodate it?” The answer is based upon two considerations: whether the belief is closely held and whether it takes the place of religion in the employee’s life. The latter requirement means that even atheism has been considered a “religion” for Title VII purposes. The religious belief need not be a belief in a religious deity as we generally know it. However, courts have determined that groups like the Ku Klux Klan are not religious organizations even though their members have closely held beliefs.

The employer need not previously know of, or have heard of, or approve of the employee’s religion in order to be required to accommodate it for Title VII purposes. The employer cannot question the sincerity of the belief merely because it may appear to the employer to be unorthodox.

The duty to accommodate the religious conflict arises whenever the conflict arises. It does not matter that the employee did not have the conflict when hired.

Religious Conflicts
Workplace conflict between an employee’s religious beliefs and workplace policies is probably the most frequent type of religious discrimination case. For instance, the employer may have a no-beard policy and the employee’s religion forbids shaving his beard.

The conflict can also come about because of the employer’s religious beliefs; like an atheist employee being required to attend workplace religious services at the manufacturing plant at which he worked. As more and more different types of employees come into the workplace, this conflict can become more frequent and employers must be attuned to them.

Once an employer is aware of a religious conflict, the employer must make a good faith attempt to accommodate the conflict and the employee must assist in the attempted accommodation. If no accommodation can be worked out without undue hardship on the part of the employer, the employer has fulfilled his or her Title VII duty and is not liable if the religious conflict cannot be accommodated.

The Employer’s Duty to Reasonably Accommodate
Unlike the other categories under Title VII, the prohibition against religious discrimination is not “absolute.” An employer can discriminate against an employee for religious reasons if to not do so causes the employer undue hardship. When the employer discovers a religious conflict between the employer’s policy and the employee’s religious belief, the employer’s first responsibility is to attempt accommodation. If it happens that accommodation is not possible, the employer can implement the policy even though it has the effect of discriminating against the employee on the basis of religion.

Due to the nature of religious conflicts and the fact that they can arise in all types of contexts and in many different ways, there is not one single action an employer must take in order to show that she or she has reasonably accommodated conflicting religious considerations. It depends upon the circumstances and will vary from situation to situation. For example, say an employer owns a sandwich shop. The employer’s policy is that employment entitles employees to eat all the restaurant food they wish during their lunch break. Employee’s religion does not allow eating meat. Aside from the meat used for sandwiches, the employer has little else other than sandwich trimmings like lettuce and tomatoes. The employee alleges it is religious discrimination to provide as part of employment benefits lunch the employee cannot eat for religious reasons while other employees receive as a benefit full free lunches they can eat because there is no religious prohibition. The duty to accommodate may be as simple as the employer arranging to have peanut butter and jelly, eggs, or a variety of vegetables available for the employee.

Say the employer requires employees to work six days per week. One employee cannot work on Saturdays due to a religious conflict. The accommodation may be that the employee switches days with an employee who does not wish to work on Sundays – a day that the employee with the religious conflict is available to work.

Another example: Employer grocery store has a policy requiring all counter clerks to be clean-shaven in order to present the employer’s view of a “clean cut” image to the public. Employee cannot shave for religious reasons. The accommodation may be that the employer switches the employee to a job the employee can perform which does not require public contact, such as stocking shelves or handling paperwork.

Employee’s Duty to Cooperate in Accommodation
The U.S. Supreme Court has held that in attempting to accommodate the employee all that is required is that the employers make any reasonable accommodation and this need not necessarily be the most reasonable accommodation available. The employee must also be reasonable in considering accommodation alternatives.

The employer’s only alternative may involve demoting the employee. This is not forbidden if all other alternatives present the employer with an undue hardship.

EEOC and courts will look to the following factors in determining whether the employer has successfully borne the burden of reasonably accommodating the employee’s religious conflict. Each factor will be considered and weighed as appropriate for the circumstances. If on balance the employer has considered the factors appropriate for the employer’s particular circumstances and accommodation is not possible, there is usually no liability for religious discrimination. The factors include:
• whether the employer made an attempt at accommodation;
• the size of the employer’s workforce;
• the type of job in which the conflict is present;
• the employer’s checking with other employees to see if anyone was willing to assist in the accommodation;
• the cost of accommodation; and
• the administrative aspects of accommodation

What Constitutes Undue Hardship?
What constitutes undue hardship also varies from situation to situation and will be addressed by the EEOC and the courts on an individual basis. There are no set rules as to what constitutes undue hardship since each employer operates under different circumstances. The accommodation the employer rejects as undue hardship may not be a mere inconvenience to the employer.

EEOC has provided employers with guidelines as to what factors it will consider in answering the question of whether the employer’s accommodation would cause undue hardship. Such factors include:
• the nature of the employer’s workplace;
• the type of job needing accommodation;
• the cost of the accommodation;
• the willingness of other employees to assist in the accommodation;
• the possibility of transfer of the employee and its effects;
• what is done by similarly situated employers;
• the number of employees available for accommodation; and
• the burden of accommodation upon the union

Generally speaking, EEOC’s interpretation of what constitutes undue hardship and reasonable accommodation has been more stringent than the interpretation of undue hardship by the courts. Since EEOC’s guidelines are not binding, and court decisions are, employers must look to the interpretation by courts in their own jurisdictions.

Among other things, courts have found that it would be an undue hardship if an employer had to:
• violate the seniority provision of a valid collective bargaining agreement;
• pay out more than a de minimis cost (in terms of money or efficiency) to replace a worker who has religious conflicts; and
• force other employees who do not wish to do so to trade places with the employee who has a religious conflict.

Religion as a BFOQ
Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer’s particular normal business operations. Title VII specifically permits educational institutions to employ those of a particular religion if they are owned in whole or substantial part by a particular religion.

Religious Harassment
This area has gotten more active lately, including the workplace display of crosses or other religious artifacts in their work space, religious study groups during the workday, handing out religious tracts to co-workers, and preaching, “witnessing,” or “testifying” about their religious beliefs to co-workers. Activity in the religious harassment area is due, in part, to matters relating to various religious issues in the past several years.

In 1990 the U.S. Supreme Court rejected Native Americans’ argument that they should be permitted the ritual use of peyote in their tribal religious ceremonies as part of their First Amendment right to freedom of religion.

In 1993 Congress passed the Religious Freedom Restoration Act (RFRA) to ensure the free exercise of religious practices. The law had tremendous support from many quarters. RFRA was an attempt to restore the previous status quo under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated, and advanced in the least restrictive manner. In 1997, the U.S. Supreme Court overturned RFRA as giving a governmental preference for religion, in violation of the First Amendment.

Though not directed toward religious practices in the workplace, per sé, national attention and debate about these issues, along with a growing religious presence in political forums extended the religious practices into the workplace by extrapolation. When the religious practices were challenged, religious harassment claims arose.

It is often the non-religious employees who allege they are being harassed by religious employees. For example, information systems manager Rosamaria Machado-Wilson filed a case in 1998 alleging that she was fired after less than six months on the job, after reporting religious harassment to her employer, BSG Laboratories. Machado-Wilson said that a simple walk to the coffee pot sometimes meant “weaving past prostrate, praying co-workers and stopping for impromptu ceremonies spoken in tongues.” Machado-Wilson alleged she was forced to attend company prayer meetings and be baptized; employees were subjected to inquiries into and comments about their religious beliefs, and those found to be nonbelievers were fired.

Since Title VII prohibits religious discrimination, it also prohibits religious harassment.
The EEOC issued guidelines on liability for harassment in 1999, explicitly covering religious harassment.

On August 14, 1997, President Clinton issued guidelines for religious freedom of federal employees. The purpose is to accommodate religious observance in the workplace as an important national priority by striking a balance between religious observance and the requirements of the workplace. Under the guidelines, employees:
• should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression;
• should be permitted to engage in religious expression with fellow employees, to the same extent they may engage in comparable nonreligious private expression, subject to reasonable restrictions; and
• be permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome.

To best prevent religious harassment liability, employers should be sure to protect employees from those somewhat zealous religious employees who attempt to proselytize others who do not wish to be approached about religious matters, as well as protect employees with permissible religious practices who are given a hard time by those who do not follow such practices. It is also important that employees are given comparable opportunities to use workplace time and resources for religious practices if given for secular activities.

There has been a marked increase in religious harassment of Muslims, Sikhs and other Middle Eastern religions since the events of September 11, 2001, leading the EEOC to reiterate its rules in this area. There is also the recent issue on the horizon of religious backlash in response to workplace diversity policies that may be at odds with an employee’s religious beliefs.

Union Activity and Religious Discrimination
At times the religious conflicts that arise between the employee and the employer are caused by collective bargaining agreement provisions rather than policies unilaterally imposed by the employer. It has been determined that even though Title VII defines the term “religion” with reference to an employer having to accommodate, unions are also under a duty to reasonably accommodate religious conflicts. The most frequent conflicts are requirements that employees be union members or pay union dues. Union membership, payment of union dues, or engaging in concerted activity such as picketing and striking conflicts with some religious beliefs.

Employees have also objected to the payment of union dues as violating their First Amendment right to freedom of religion and Title VII’s prohibition against religious discrimination. Unions have claimed that applying the religious proscription of Title VII violates the Establishment Clause of the First Amendment to the U.S. Constitution insuring government neutrality in religious matters.

Courts have ruled that union security agreements requiring that employees pay union dues within a certain time after the effective date of their employment or be discharged does not violate an employee’s First Amendment rights. However, it violates Title VII for an employer to discharge an employee for refusal to join the union because of his religious beliefs. Employees with religious objections must be reasonably accommodated, including the possibility of the alternative of keeping their job without paying union dues.

The union could prove undue hardship if many of the employees chose to have their dues instead paid to a non-union, non-sectarian charitable organization chosen by the union and the employer, since the impact on the union would not be insubstantial.

Whether the objection under Title VII is directed toward the employer or the union, a government employer still has a duty to reasonably accommodate the employee’s religious conflict unless to do so would cause undue hardship, excessive entanglement with religion or violate the Establishment Clause.