Ethics, Disability, and Age Discrimination - Essay Example

Final Examination Ethic Discrimination Kayte was a victim of ethic discrimination. In the court case Perez vs. Pavex Corporation, the Prima Facie was established to determine if the plaintiff had been ethically discriminated against. The plaintiff must prove: (1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) complainant must have caused the injury; and (4) the suffering must have been severe. The first requirement is that she must have mental suffering that was deliberately caused. The company gave her an ultimatum to retire; this was a deliberate way to make her suffer. They wanted her to give in by putting pressure on her. They also threatened to tell other employees of what she had done. If this happened, then she knew that she would lose her job. For the second requirement, management showed outrageous conduct by terminating Kayte’s contract for following established laws. For the third requirement, management was the complainant. For the fourth requirement, her suffering was severe because she knew that she was going to lose her job for what she had done. Disability Discrimination The American Disabilities Act defines disabilities as “affecting a major life activity,” The areas of coverage are: vision, mental, motor skills, the ability to care for one’s self, and to commute to employment. Kayte has problems with her vision. For Kayte to prove disability discrimination, she must first prove that she has a disability. The definition of a disability is “a physical or mental impairment that substantially limits one or more of the major life activates of such an individual and a record of such impairment, or being regarded as having such impairment.” Kayte is physically impaired by her vision and it affects her major life activities. The McDonnell Douglas vs. Green case applies to the situation that Kayte is facing. The following needs to be proven in order to shift burden to the employer for discrimination: 1. Affects a member of a protected class 2. Applied for the position and was qualified, but was subsequently rejected and the position remained open 3. If an inference of discrimination is met, the employer must show that the rejection was not a hidden pretext for discrimination (This allows clients to get evidence behind the scenes, but cannot be done before this point) This is the rule that applies to the McDonnell Douglas vs. Green case: “such a complaint must state and contain a short and plain statement of the claim showing that the pleader is entitled to relief.” The standard of proof in Green’s case is an evidentiary requirement and not one of correct pleading techniques. Sutton vs. United Airlines The Sutton vs. United Airlines case helps define how a visual disability should be treated. Kayte was discriminated against previously because she was able to perform her job excellently, but the company was not willing to accommodate her and allow her the opportunity to grow. The test that can be used is that if her vision were corrected, would she have been promoted? The obvious answer is yes, she would have been promoted. Age Discrimination (Steps and Elements) For Kayte to prove that age discrimination has occurred, she must use the four steps given in the O’Connor vs. Consolidated Coin Caterers case and the McDonnell Douglas vs. Green case, which are: 1. Member of a protected class 2. Employee is qualified for position 3. Employer terminated or refused employment 4. An adverse decision was made in regard to age or was replaced by a younger worker The first element is satisfied because she is an older individual that is approaching retirement (53 years old). The second element is achieved because she is qualified for the position. The third element is also fulfilled because she was terminated. The fourth element was met because she was not given any help with retirement. A victim of age discrimination must file a claim with the EEOC within two years of the incident. This statute of limitations extends to three years if the employer acted with intent. Also, under title VII, a separate suit may be commenced only when the EEOC’s determination is not preceded. In the case of Carlton vs. Mystic Transportation, age discrimination is also covered. ERISA and Oubre vs. Energy Operations, Inc. Also, in the Oubre vs. Energy Operations, Inc. case, age discrimination occurred in terms of payments made to the individual. Kayte was offered a package to leave the company, but it was only available for one day. An employee should have at least two weeks to review the programs that he or she has been given. No one can make an informed decision after one day. After making a decision, Kayte should also have another seven days to change her mind. This meets the standards for The Employee Retirement Income Security Act of 1974 (ERISA). ERISA establishes the minimum pension and benefit plans that should be offered to an employee. Age Discrimination in Employment Act (ADEA) The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are aged 40 or older from employment discrimination based on their age. ADEA’s protections apply to both employees and job applicants. Under ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any terms, conditions, or privileges of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. ADEA permits employers to favor older workers based on age, even when doing so adversely affects a younger worker. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age, or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. ADEA applies to employers with 20 or more employees, and includes state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government. I think that this Law Employment Act definitely applies to Kayte since all this facts mentioned are part of the situation that she was facing by being discriminated against. Forcing older employees to accept retirement packages is another form of age discrimination. Retirement must not be mandatory; otherwise, an employer will be in violation of ADEA. A retirement package must be accepted voluntarily and without coercion. Kayte was forced into making a decision very quickly, and this is in clear violation of age discrimination. Labor Unions Kayte was abiding by the law when she allowed the labor union to speak with her former employees. If she had of rejected the labor union’s request, she would have been fired for doing so. The National Labor Relations Act allows employees to meet with a labor union without the fear of being termination. A company cannot take down the labor unions because laws were previously passed to prevent Yellow Dog Contracts. Also, the NLRB (Nation Labor Relations Board) was established to prevent unfair labor practices within organizations. These are some of the mandatory areas of negotiation: “wages, hours, benefits, and work conditions, unless the NLRB administrative court states you that you must negotiate.” However, agreements can override individual rights; a move to remove private voting is currently under review by the Obama Administration. The following examples are different sections that clearly apply to Kayte, and they also show the laws behind the scenes as well as the rights and privileges that can be obtained by those sections. Section 7 defines protected activity as “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.” Section 7 applies to a wide range of unions and collective activities. Section 8 of the National Labor Relations Act (NLRA) contains five types of conduct that are illegal: “employer interference, restraint, or coercion directed against union or collective activity; 8(a)(1)) employer domination of unions; (Section 8(a)(2)) employer discrimination against employees who take part in union or collective activities; (Section 8(a)(3)) employer retaliation for filing unfair labor practice charges or cooperating with the NLRB; and (Section 8(a)(4)) employer refusal to bargain with union representatives in good faith. Once an “inference of improper action or possible discrimination is found, then a violation is found.” Section 9 “provides that unions, either certified or recognized, are the exclusive representatives of bargaining unit members.” It prohibits the adjustment of employee grievances unless a union representative is given an opportunity to be present, and also establishes procedures to vote on union representation. “Collective bargaining requires patience, listening skills, and to place one’s ego or arrogance in the closet. Remember that most of the issues discussed are not moral issues, so compromise is critical by both sides.” “(Section 8(a)(5)) Threats, warnings, and orders to refrain from protected activities are forms of interference and coercion that violate Section 8(a)(1). Disciplinary actions, such as suspensions, discharges, transfers, and demotions, violate Section 8(a)(3). Failure to supply information, unilateral changes, refusals to hold grievance meetings, and direct dealings violate Section 8(a)(5).” Most employers do not realize that many of their normal control techniques over employees violate the act.” Tort Definition and Types A tort is an “act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs as opposed to criminal ones (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties).” If a victim of harassment decides to sue the offender, which was intended in the case, he or she would proceed under tort law in a state court. I think that Kayte will have the benefits that she deserves. This is because everything that happened to her was the fault of the company, which did not appreciate her for her committed effort towards the company. Damages If I were a judge, I would compensate her for the damages that the company has placed on her. The damages are capped at an amount specified by the Civil Rights Act. “The amendment to the Civil Rights Act made compensatory and punitive damages available to Title VII plaintiffs, including those victimized by sexual harassment the damages are capped at $300,000.” There are damages for each of type of discrimination (ethic discrimination, disability discrimination, and age discrimination), and these are explained below. Ethic Discrimination There should be punitive damages placed on the company for threatening Kayte. She was affected negatively and thus should be compensated for this. Kayte was offered a retirement package that she was supposed to sign on the same day. She should be awarded a retirement package that is standard for most people. Disability Discrimination She should be awarded the salary that she would have received if she had been promoted. Katye was not accommodated in the workplace, so she should also receive punitive damages from the company. Age Discrimination The damages that she should receive include reinstatement, back pay, differential in pay due to seniority, and pension-benefit contributions. Since this was an intentional discharge, lost wages must be doubled. Also, interest and attorney’s fees should be awarded. Judge’s Decision/Remedies Ethic Discrimination Kayte was a victim of ethic discrimination. The Prima Facie was established so she receives the damages that are associated with this form of discrimination. The court will reward her with a fair retirement package that would be the norm for people in her position. She will also be given counseling to help her enter the workforce again, but this is done at the cost of the employer. Disability Discrimination Because Kayte has been discriminated due to her disability, she was not allowed to move up the corporate ladder. The damages that she should receive should be twice the difference in the salary that she would have received had she been promoted. This is to punish the company for not accommodating her situation. Age Discrimination Kayte was discriminated against because of her age—she was terminated and given a bad retirement package. No retirement package should be pressed on an employee through coercion. The company should be punished for attempting to do this. The company also forced her to make a decision about this within one day. She should have been given three full weeks to make a decision. The company should reward her with all attorney and interest fees. The package that she should have received should be doubled according to other discriminations that occurred. Read More