Term Paper on "Employment Law Part a Ms. Riyadh"

Term Paper 8 pages (2063 words) Sources: 0 Style: APA

[EXCERPT] . . . .

Employment Law

Part a Ms. Riyadh has a claim for discriminatory employment practices based on her gender. Essentially, her main argument is that she is treated differently than other employees of equal stature due to the fact that she is female. Her evidence lies in the fact that other men have been promoted and in her employer's admission that she was not promoted because of her characteristics that can be associated with her gender.

The case at hand is an equal protection case because it involves the use of an employment practice that treats a person or class of persons differently than others. Village of Willowbrook v. Grace, 528 U.S. 562 (2000). Further, because this case specifically involves discrimination based on gender, which the court considers an intermediate class, intermediate scrutiny must be used. Korematsu v. United States, 323 U.S. 214 (1944). Under such a standard of review, the burden is on the Employer to show that the use of the law is necessary to achieve a compelling or overriding employment purpose. Further, the court must consider whether less burdensome means of accomplishing the employment goal are available.

Further, the employment practice must be shown to have the intent to discriminate. However, discriminatory effect and discriminatory intent are not two separate factors. Instead, intent can be shown in one of three ways: facial discrimination, discriminatory application or discriminatory motive. Facial discrimination is simply that the employment is discriminatory on its face as it makes explicit distinctions between classes of persons. Discriminatory application occurs where the employment practice is neutral on its face but is applied in a different manner to different classes of persons.

If a person can show that their employer is applying the employment practice with a discriminatory purpose, the practice will be invalidated.

Discriminatory motive occurs when the employment practice is neutral on its face and in its application but will have a disproportionate impact on a particular class of persons. Although statistical studies alone are not enough to prove discriminatory motive, when combined with other evidence it can suffice. McCleskey v. Kemp, 481 U.S. 279 (1987).

In the case at hand Ms. Riyadh will argue that ABC Advertising's failure to promote her despite her credentials was based on her gender. According to her claim, Ms. Riyadh will argue that specifically ABC Advertiser's employment practice of only promoting people who "fit the image that is right for higher positions" is inherently discriminating in that it favors the promotion of males over females. This claim can be supported by ABC Advertising's assertions that in order to succeed in an executive level position the employee must be able to handle extensive travel, increased client contact and making presentations before corporate professional groups. Further, ABC's statement that "Ms. Riyadh is a very plain women, that she refuses to wear make-up or adornments of any kind" prevent her from being able to complete the executive requirements goes to show the discriminatory intent of the ABC employment practice. Finally, the history of ABC only promoting males is further evidence of the discriminatory purpose of this particular employment practice.

ABC's best defense is to argue that Ms. Riyadh was not promoted not because she is female but because of the way she presents herself. This argument would most likely work because there is little to no laws that hold one cannot base hiring decisions off of looks. However, this argument would be weakened as a result of ABC's history of only promoting males.

Even if Ms. Riyadh failed in her claim for gender discrimination, she could bring an action for sexual harassment. ABC's statement that Ms. Riyadh could only be promoted if she wore make-up and adornments is a way of saying that she needs to look sexier. This could make a claim for sexual harassments, although the claim would be weak due to the fact that this information was never actually communicated directly to her.

A final claim that Ms. Riyadh could bring against her employer is one for discrimination based on her religious beliefs. The standard for a discrimination case based on religious beliefs or practices is the same intermediate scrutiny used in evaluating a claim for gender discrimination. Ms. Riyadh's claim would be that she was not promoted because her religious beliefs, which included her refusal to drink alcoholic beverages and eat certain foods, along with needing to take a prayer and meditation break during her lunch break.

Employer ABC Advertising's best defense would be that their decision to not promote Ms. Riyadh was not because of her religious beliefs but because of her inability to do the essential job requirements. However, this defense is weak, at best, because it needs to be shown that her religious beliefs in fact prevented her from doing the job requirements of an executive position. Since her prayer breaks were done during her lunch breaks, this would not interfere with her ability to do a job. Further, her apprehension against eating certain foods and drinking alcoholic beverages does not prevent her from socializing or attending business meetings. Thus, a court will most likely find that these arguments brought forth by the employer are a sham defense against not promoting Ms. Riyadh due to her religious beliefs.

In conclusion, it is clear that Ms. Riyadh has been unfairly discriminated against by her employer, ABC Advertising. Because of her exceptional and lengthy history of work at ABC, she should have been eligible for employment. Further, co-workers who have worked just as long and with less success have been promoted. The explanation given by ABC for why Ms. Riyadh was not promoted tend to show that it was because of her gender and religion. Thus, Ms. Riyadh has a claim for both discrimination based on her sex and her religious beliefs.

Part B

Question One:

The Road Hog terminal manager's plan to have Candy submit herself to a polygraph test and ask her questions as to the actions of her co-workers is not legal. First and foremost, in order to require someone to submit to a polygraph test one needs to have probable cause. The Road Hog terminal manager states that he has no suspicion of Candy doing any of the stealing. Thus, he lacks probable cause. Second, requiring Candy to submit to a polygraph test is an invasion of her privacy. Third, requiring Candy to submit to a polygraph test only to be asked about the actions of others will do nothing in terms of gathering evidence against the other employees because this is circumstantial evidence. Finally, unless the Road Hog terminal manager is properly trained and qualified to administer a polygraph test, any results he gets from it will not stand up in the Court of law. Thus, unless Candy voluntarily submits herself to the polygraph test, the Road Hog terminal manager's actions are not legal.

Even if the Road Hog terminal manager's actions were legal and he could force Candy to submit to a polygraph test, any evidence gained and used against another employee would not be allowed in Court. According to the Federal Rules of Evidence, a polygraph test is not credible evidence because it is not a valid scientific procedure and therefore is considered untrustworthy.

Question Two:

The U.S. District Court should grant Saturn's request and overrule the arbitrator's decision requiring Saturn to reinstate Bob. The fact that Bob's vehicle was not working properly is of no concern to Saturn. The only concern they have is that Bob come to work on time.

This would not be the case if this was an isolated incident. However, Bob has a lengthy history of absenteeism and being tardy. Further, Saturn has detailed records documenting this history of bad employee practice by Bob. If this was an isolated incident, then the court should uphold the arbitrator's decision. Yet, because Saturn has gone through the proper procedure of documenting all of Bob's incidences of absenteeism and tardiness and have followed the correct disciplinary procedure of issuing him warnings, Saturn has every right to fire him for yet another incident of unaccounted tardiness.

Furthermore, Bob failed to take the proper steps to prevent this situation himself. The proper thing for him to have done would have been to call his employer and inform them of his vehicle problems and that he was going to be late. This would have given him a valid excuse for his tardiness and would have been following basic company rules and regulations. Thus, for the aforementioned reasoning, the U.S. District Court should grant Saturn their motion and overrule the decision of the arbitrator.

Question Five

Plato's decision to post a notice on the lunchroom bulletin board stating that anyone found to b sympathetic with unions will be terminated is not a permissible strategy to discourage unions. The reason this practice is not permissible is that it is intimidating, harassing and untrue.

Posting this sign is intimidating because it threatens someone with immediate termination based on their personal beliefs on an issue. Regardless… READ MORE

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