Federal Anti-Discrimination Laws: Kayte Clarke - Case Study Example

Federal Anti-Discrimination Laws: Kayte Clarke Kayte Clarke can invoke any of the following federal laws against her employer: the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). To successfully bring a case of discrimination against her employer under ADEA, there are certain things that Kayte Clarke must prove. In the case of Palasota v Haggar Clothing Co., 342 F.3d 569 (5th Cir. 2003), the Court outlined what the plaintiff must prove to show that indeed there was discrimination that is actionable under ADEA. Citing the earlier case of Bodenheimer v PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993), the Court enumerated the following: the plaintiff was discharged; he was qualified for the position; he belongs to the protected class at the time of the termination; the employer did any of the following to him (a) replaced him with another who is not within the protected class, or (b) replaced him with a younger person, or (c) simply discharged on account of his age. Applying the aforesaid in Kayte’s case, she must provide proof that she is 40 years old or above at the time of her termination and therefore within the protected class under s. 631(a) of the 29 USC Chapter 14 (or ADEA), proof of her termination and her qualifications to the position and the fact that she was discharged on account of her age. Moreover, ADEA requires that the employer must have at least 20 employees to bring the case within its ambit under s. 630(b). An act of employment discrimination may be proved either directly or indirectly. Indirect proof is conducted using the “pretext” method prescribed in the case of McDonnell Douglas Corp. v Green, 411 US 792 (1973). In that case, which involves discrimination under Title VII of the Civil Rights Act, the Court held that prima facie evidence from which it can be inferred that there was discrimination may be offered in lieu of direct proof. The employer is then given an opportunity to rebut it with contrary evidence, to which the plaintiff must counter-prove as a mere “pretext,” because the real reason was actually discrimination-based. On the other hand, if Kayte is to bring a suit under the ADA, she must prove the threshold requirements of the law, which are: she has a disability within the ADA context; she is a qualified individual under ADA, and; she has suffered an adverse employment action because of such disability (Huber 267). Section 12102(1) of Title 42 of the USC (known as ADA) defines disability as: physical or mental impairment significant enough to interfere with major life activities; is recorded, and; seen or regarded by others as such. Legal blindness is defined by the American Medical Association as an eye condition in which a person can see details only at a distance of 20 feet or less using the best conventional correction as opposed to the normal 200 feet vision reach of persons with 20/20 vision or can detect objects only at a field of 20° degrees or less (Corn & Koenig 6). In the case of Sutton v United Airlines 527 US 471 (1999), the Court ruled that a person who is legally blind, but whose vision impairment is correctable, is not disabled under the ADA. Under the ADA Amendments Act of 2008, the mitigating factor established in Sutton and similar cases was specifically rejected under s. b(2) thereof, but not the use of eyeglasses or contacts that “correct visual acuity or eliminate refractive error” which is now incorporated as s 12102(4)(E)(ii) and (iii)(I) of ADA. The implication of this is that Kayte may not qualify if her vision impairment is correctable by eyeglasses or contacts, but may qualify if instead of eyeglasses and contacts, the impairment is correctable by low vision devices under 12102(4)(E)(i). Reliefs that may be awarded under ADEA include employment, payment of loss fringe benefits, back pay, reinstatement and promotion. The courts may also award front pay, in cases where reinstatement is not possible (Monk 214). On the other hand, possible reliefs in ADA aside from those already stated in ADEA are compensatory and punitive damages (BLR 11). II ERISA Kayte Clarke can also file a complaint under the Employee Retirement Income Security Act (ERISA) for failure of Danskin Inc. to abide by its provisions. ERISA governs all voluntary private retirement benefit plans and Danskin’s must be scrutinized to show that it abides by the ERISA terms. Moreover, the Older Worker’s Benefit Protection Act (OWBPA), which amended ADEA prohibits discrimination in retirement benefits of older workers. Danskin’s retirement package offered to Kayte did not extend “normal retirement benefits,” insurance coverage and pay her social security until the age of 59, but under s 203(a) of the law, vestment of normal retirement benefits to the employee is full upon reaching the normal retirement age, which should be lower than that set by the employer in the plan or the later between the standard retirement age of 65 and the 5th anniversary from the time the participant entered the plan. Moreover, giving Kayte only one day to consider the company’s retirement package is contrary to the provisions of OWBPA, which amended ADEA, requiring employers to give employees ample time to consider the options offered by the employer. This was reinforced in the case of Oubre v Energy Operations, Inc. 112 F.3d 787 (1998), where the Court assailed the defendant employer’s manner of procuring release from ADEA claims. Three violations were observed by the Court: failure to give the plaintiff ample time to consider her options; failure to give her at least seven days to reconsider her earlier waiver, and; failure of the release to specify claims under ADEA. Reliefs that may be awarded under ERISA includes injunctive and other equitable relief, but not legal relief unless money can be considered an equitable relief in cases involving right to a specified item or property as was held in Great West Life and Annuity Co v Knudson 534 US 204 (2002). III NLRB Kayte may also resort to the National Labor Relations Board, which enforces the provisions of the National Labor Relations Act. The NLRA protects, among others, employees’ right to form, or attempt to form, a union in the workplace, join a union, whether recognized or not by the employer, assist a union in organizing employees and refuse to do any of the previously cited rights. Although the protection under NLRA extends only to employees, a statutory exception exists favouring those holding supervisory positions (and by implication, management positions), where such position is used by the employer to interfere with the rights of the employees under the NLRA. In Lewis v Whirlpool Corporation, 6th Cir, No. 09-4231 (2011), the Court, although deciding against the plaintiff, pointed out that persons holding supervisory positions are implicitly protected by the NLRA when he/she is discharged for refusing to perform an unfair labor practice. In the present case, Kayte’s termination stem from her failure to keep out union organizers from the company, which would have constituted violation of the NLRA provision had she did. Reliefs that may be awarded by the NLRB include reinstatement, back pay, and informational remedies, but it cannot assess penalties (NLRB). III State Torts Kayte’s termination is a case of wrongful dismissal, which would allow her to recover damages. The at-will employment doctrine, allows such recovery under three exceptions: termination in breach of a prior promise, even if implicit, of employment security; proof under the public policy tort theory, and; violation of good faith and fair dealing (Perritt 1.5). In Collins v Rizkana 73 Ohio St.3d 65 (1995), the following constitutes prima facie evidence of breach of the public policy tort theory: existence of a clear public policy in statutes and laws; the termination breaches such public policy; the termination was underpinned by breach of that policy, and; absence of overriding legitimate excuse for the termination. Under the third exception, the following must be proven: employment relationship; termination; unfairness or bad faith attendant to the termination (Perritt 1.5). Together with a wrongful discharge suit, Kayte can assert intentional and negligent infliction of emotional distress or the tort of “outrage” (Ford et al 258) or ethic discrimination under the case of Perez v Pavex Corporation 510 F.Supp.2d 755 (2007). The IIED tort, which is the subject of Hall v May Department Stores Co 637 P2d 126 (Or 1981), must prove the following: intention to inflict severe mental or emotional stress; the act did in fact, caused severe emotional or mental stress on the employee, and; the employer’s action must either be of a nature that goes beyond the limits of socially tolerable conduct or surpasses reasonable bounds of social toleration. In the present case, Kayte can assert and offer evidence that the collective conduct of the employer after she permitted the union organizers to communicate with company employees were so outrageous that it caused her severe emotional and mental trauma. Works Cited Age Discrimination in Employment Act 1967 (ADEA). American with Disabilities Act (ADA). BLR. The New ADA: What You Need to Know Now. Business & Legal Reports, 2008. Bodenheimer v PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). Collins v Rizkana 73 Ohio St.3d 65 (1995). Corn, Anne Lesley & Koenig, Alan. Foundations of Low Vision: Clinical and Functional Perspectives. American Foundation for the Blind, 1996. Great West Life and Annuity Co v Knudson 534 US 204 (2002). Hall v May Department Stores Co 637 P2d 126 (Or 1981). Lewis v Whirlpool Corporation, 6th Cir, No. 09-4231 (2011). McDonnell Douglas Corp. v Green, 411 US 792 (1973). Monk, Abraham. The Columbia Retirement Handbook. Columbia University Press, 1994. National Labor Relations Act Older Worker’s Benefit Protection Act (OWBPA) Oubre v Energy Operations, Inc. 112 F.3d 787 (1998) Palasota v Haggar Clothing Co, 342 F. 3d 569 (2003). Perez v Pavex Corporation 510 F.Supp.2d 755 (2007) Perritt, Henry. Employee Dismissal Law and Practice, 5th Edition Aspen Publishers Online, 2006. Sutton v United Airlines 527 US 471 (1999). The Employee Retirement Income Security Act of 1974 (ERISA) Title VII of the Civil Rights Act Read More