STRUCTURED INTERVIEW

Employment Law

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Judicial Pecking Order

• U.S. Constitution
• 5th Amendment (federal government)
• 14th Amendment (state & local governments)
• Federal Laws (CRA, ADA, ADEA, FMLA, EPA)
• Executive orders (Executive Order 11246 – Federal Contractors)
• Federal case law (interprets Constitution and federal laws)
• U.S. Supreme Court
• Circuit Courts of Appeal (12 circuits, Virginia is 4th)
• U.S. District Courts
• Federal administrative guidelines
• EEOC
• OFCCP

Federal Circuit States

1 ME, MA, NH, RI, Puerto Rico

2 NY, CT, VT

3 DE, NJ, PA, Virgin Islands

4 MD, NC, SC, VA, WV

5 LA, MS, TX

6 KY, MI, OH, TN\

7 IL, IN, WI

8 AR, IO, MN, MO, NE, ND, SD

9 AK, AZ, HI, CA, ID, MT, NV, OR, WA, Guam

Northern Mariana Islands

10 CO, KS, NM, OK, UT, WY

11 AL, FL, GA

D.C. District of Columbia

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Problem Scope

*in millions

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Potential Legal Problems

• Disparate treatment (intentional discrimination)
• Disparate impact (adverse impact)
• Invasion of privacy
• Illegal search

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Employee Complaint Process

• Alleged discriminatory act
• Internal investigation
• Internal resolution process
• Essential to have a formal policy
• Options
• Dictate a decision
• Mediate a solution
• Arbitrate a decision
• Appeal procedure is important
• External resolution process
• State agencies in deferral states
• EEOC
• Law suit

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Alternative Dispute Resolution

• Mediation
• Neutral third party
• Disputants reach agreement
• Arbitration
• Neutral third party
• Arbitrator makes decision
• Binding
• Nonbinding
• Dictation
• Third party makes decision

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EEOC Complaint Process

1. Alleged discriminatory act

• Complaint filed

a. 180 days for nondeferral states

b. 300 days for deferral states

3. Employer notified within 10 days

4. Investigation (goal is to complete in 120 days)

a. Reasonable cause found

1) attempt to reach agreement

2) if no agreement, EEOC can file suit

b. Reasonable cause not found

1) right to sue letter issued to employee

2) employee has 90 days to file suit

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Civil Rights Act – Title VII

• Who is Covered
• Private employers with at least 15 employees
• Federal, state, and local governments
• Employment agencies
• Unions
• Americans working abroad for American companies

• Who is Exempt
• Bona fide tax exempt private clubs
• Indian tribes
• Individuals denied employment due to national security concerns
• Publicly elected officials and their personal staff

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Title VII Court Ordered Remedies

• Disparate Impact Cases
• Reinstatement
• Back pay
• Seniority
• Front Pay
• Affirmative Action
• Attorneys’ Fees

• Disparate Treatment Cases

Same as disparate impact +

• Compensatory damages
• psychological damage
• actual expenses
• damage to reputation
• Punitive damages (private sector only)
• Damage Limits (no limit for race)

Employees Limit

15-100 $ 50,000

101-200 $100,000

201-500 $200,000

>500 $300,000

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Employment Decisions

• Hiring
• Placement
• Promotion
• Assignment (shift, patrol zone)
• Salary
• Discipline
• Training opportunities

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Does requirement directly refer to member of federally protected class?

Has case law, state law, or local law expanded definition of protected class?

Does requirement have adverse impact?

Is requirement subterfuge for discrimination?

Is requirement job related?

Were alternatives with less adverse impact considered?

Probably

Legal

Probably

Illegal

Probably

Illegal

Probably

Illegal

Probably

Illegal

Probably

Legal

BFOQ?

yes

no

yes

no

yes

yes

yes

yes

no

no

yes

no

no

no

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Does Requirement Directly Refer to a Member of a Federally Protected Class?

• Sex (Civil Rights Act)
• Male
• Female
• Race (CRA)
• African American
• Asian American
• White
• Native American
• National origin (CRA)

• Color (CRA)
• Age (over 40; ADEA)
• Religion (CRA)
• Disability (ADA)
• Current
• Previous
• Regarded as such
• Qualified veteran
• Pregnant female

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Federally Protected Classes
Exercise 3.1

Question	Answer	Reason
A	Yes	Recently retired veterans are qualified veterans
B	Yes	Religion (Civil Rights Act)
C	Yes	Potential disability (ADA)
D	No	Sexual preference is not a federally protected class
E	Yes	Sex (Civil Rights Act)
F	No	Only people over the age of 40 are protected
G	Yes	National Origin (Civil Rights Act)
H	Yes	Color (Civil Rights Act)
I	No	Education level is not a federally protected class
J	No	This is a grooming standard