Question

How can an employee prove that a violation under the Equal Pay Act has occurred?

What elements are needed to prove sex discrimination?

Name and explain 7 of the classifications of persons protected by Title VII.

According to the Uniform Trade Secrets Act, what is a trade secret?

Identify what an employer should do to select the most-qualified applicants while still maintaining fairness to applicants of protected classifications.

Answer 1

A) Some examples of EPA violations may include:

• Paying an employee less than another employee who performs the same work, based on that person’s gender.
• Treating one group of employees differently than another group in terms of pay, based only on gender (for instance, treating one group better than the other).
• Denying an employee insurance or other benefits based on gender.
• Refusing to pay or issue pension benefits due to the employee’s gender.
• Various other discrepancies in pay or company benefits based on the employee’s gender or gender identification

B) Elements To prove sex discrimination

• Race
• Color
• Sex
• Religion
• National Origin

C) 7 of the classifications of persons protected by Title VII

1.  See Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Where membership in a protected group is shown to have been "a cause" for the employment action being challenged, the issue of liability under Title VII, but not damages, is established. Despite the finding of liability in mixed motive cases, a defense can still be mounted on the issue of damages.

2.See also, Foster v. University of Arkansas, 938 F.2d 111, 114 (7th Cir. 1991) where it was held that to establish Title VII liability under a mixed motive theory, the plaintiff must show that a protected status, such as race, played a motivating factor in the adverse employment decision at issue.

3.While hostile work environment cases are most often based on allegations of sexual harassment, similar principles are applicable for analyzing discrimination based on race, national origin, or religion. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399 (1986); Harris v. Forklift Sys., Inc. 510 U.S. 17 (1993)

4. See also, Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir. 1986) for the proposition that a plaintiff, who is relying on retaliation, must set forth a prima facie case. To establish a prima facie case of retaliation, the plaintiff must show:

1. That he was engaged in a statutorily protected activity;
2. That the employer has taken an adverse employment action; and
3. That a causal connection exists between his participation in a statutorily protected activity in the adverse employment action taken by the employer.

5.  McDonnell Douglas v. Green, 411 U. S. 792, 802, 93 S.Ct. 1817 (1973). Once the above elements have been established, a prima facie case (or an inference of) discrimination exists. It is then up to the employer to present evidence of a legitimate reason for the adverse employment action. This is a burden of production, and not a burden of proof. At all times, the burden of proof remains upon the charging employee. If the employer satisfies its burden of production, and shows that the adverse employment action was based on a legitimate, non-discriminatory reason, the charging employee must then show that the employer's stated non-discriminatory reason for the employment action was a mere pretext. To prove disparate treatment under Title VII, the employee must show that the employer acted with discriminatory purpose.

6.Meritor Savings Bank v. Vincent, 477 U. S. 57, 65, 106 S.Ct. 2399 (1986).

In the Supreme Court's view, the issue was whether or not the alleged misconduct was "unwelcome." Thus, if an improper and welcomed sexual advance was made, and the victim voluntarily responded to it and engaged in some sexual conduct, the employer could still be liable for the unwelcome initial conduct. In other words, the employee's voluntary participation in the ultimate or sexual relationship did not bar a cause of action so long as the initial conduct had been unwelcome.

7.Quid pro quo harassment occurs when an employee or prospective employee is forced to choose between an employment detriment and submitting to sexual demands. See Burlington Ind., Inc. v. Ellerth 542 US 742 (1998.) To establish a prima facie case of quid pro quo sexual harassment, the plaintiff must show:

D)Trade Secrets

Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.

The subject matter of trade secrets is usually defined in broad terms and includes sales methods, distribution methods, consumer profiles, advertising strategies, lists of suppliers and clients, and manufacturing processes. While a final determination of what information constitutes a trade secret will depend on the circumstances of each individual case, clearly unfair practices in respect of secret information include industrial or commercial espionage, breach of contract and breach of confidence.

E)5 Steps to maintain faireness when selecting employee

1. Embrace diversity from the get-go.

  Diversity is important in the workplace because it builds a company with a unique dynamic and a strong ability to adapt. It can also result in creative solutions for problems, and in increased productivity.

Your mindset from the beginning of the hiring process should be simple -- find the best candidate for the job. Race, gender, age and the like should not affect the decision-making process. And yet these issues still crop up: Hiring discrimination still occurs today.

2. Create a values-based process.

A simple way to avoid discrimination during the hiring process is to take a values-based approach to hiring. Once a company establishes values, the hiring manager can make a decision based on those values. The first step toward doing this is to translate values into behaviors.

Look closely at the company’s core values and define them specifically. For example, what does a word like “integrity” mean to the company? If it means honesty, then write that into an action for the position, like “provide customers with a clear understanding of budgeting and time allotment.” Hiring based on values -- and the behaviors that follow those values -- can help combat discrimination during the hiring process.

3. Level the playing field.

To avoid the appearance of discrimination, the interviewer should ask each candidate the same set of questions. While the follow-up question may differ based on the candidate’s response, the list for each person should be the same. Questions should be written to assess the applicant’s ability in general areas, like interpersonal and communication skills. This is a fair method for identifying whether the applicant is capable of performing the general skills that the position may require.

Involving other employees or managers on a panel interview is another good strategy. It not only secures multiple, possibly different, opinions on each applicant, but also makes interviewers accountable for fair practices. Ultimately, providing a consistent interview experience is an effective way to avoid discrimination and gather information from each candidate in an unbiased way.

4. Identify disqualification reasons.

Companies should rethink this inaction: If a company identifies and captures the reasons why it did not hire a particular candidate, it can better ensure that its hiring process is EEOC-compliant.

If the hiring manager then informs the candidates of the reason, both parties can be assured that race, gender, age, disabilities and the like did not play a role in the decision.

5. Continue to review and improve the process.

  As with all business practices, there is never a “set it and forget it” method, especially with a hiring process. The workplace is in a constant state of change, and the hiring process should reflect that.

It’s important to constantly review the hiring process and consistently collect candidate feedback. So, systemize your own feedback process by using surveys and questionnaires to measure the candidate's experience. Use this information to write policy and improve the overall experience in order to avoid discrimination and unethical behavior and make your business truly an "equal opportunity" employer.