What You Don’t
Know Can Hurt You
Selected Employment Law Topics
Gerard Solis
Associate General Counsel
1
2
Title VII – Civil Rights Act of 1964
Prohibits discrimination on the basis of:
• Gender
• Race
• Color
• National Origin
• Religion
• Age (ADEA)
• Disability (ADA)
3
Florida Civil Rights Act
Prohibits discrimination on the basis of:
• Title VII’s protected categories
• Age
• Handicap
• Marital Status
4
Title VII – Gender (cont’d)
Sexual Orientation
• Not protected under Title VII or state laws
• University does extend protection
• Same-sex sexual harassment is actionable
under Title VII
5
Liability Theories
1. Disparate Treatment
2. Disparate Impact
6
Disparate Treatment (cont’d)
 Based on intent – employer’s actions must be
motivated by discriminatory intent
 2 methods of proof
• “Direct Evidence”
7
Disparate Treatment (cont’d)
• “Circumstantial Evidence”
Evidence does not directly establish
discriminatory motive, but allows a
jury to infer discriminatory motive
8
Disparate Impact
• No discriminatory intent required
• Employer has neutral policy or practice
that adversely impacts one group more
than another
• Available defense – policy or practice is
job-related and justified by business
necessity
9
Employment Actions That May
Trigger Discrimination Claims
• Application
• Interviewing
• Hiring
• Promotions
• Termination
• “Constructive” discharge
• Other
10
Other Potentially Actionable
Employment Actions
 Harassment
 Discipline
 Retaliation
11
Retaliation
 Discrimination statutes prohibit
retaliating against an employee for
engaging in “protected activity,” which
is:
•Complaining about,or filing a charge
or lawsuit due to, discrimination
•Assisting, cooperating, or testifying in
another employee’s charge or lawsuit
12
Why document evaluations,
disciplinary/performance issues and
discharges?
• Employers do not have to rely upon
memories
• Provides proof of the logic and equity of
personnel decisions
• Juries believe if it is not written, it didn’t
happen
13
 Documentation can be more harm
than help unless it is:
 Consistent
 Authenticated
 Timely
14
Evaluations
 To refute claims that an employment
decision was made for, or based on a
discriminatory motive;
 To accurately measure an employee’s
performance; and
 To notify the employee of areas that
requirement improvement.
15
An effective employee evaluation will
include:
 A frank analysis and evaluation based on
specific criteria relevant to the position;
 Notice to the employee of job standards;
 Constructive advice on how to improve
performance;
16
Written Warnings Should Include:
 Purpose of the warning;
 A statement of the problem or the
violation;
 A statement explaining how the
employee’s behavior negatively
impacted the employer’s business
operations;
17
Written Warnings (cont’d)
 A statement of the employer’s policy or
customary practice and how this incident
was inconsistent with it;
 Any prior verbal or written warnings about
the same or related problems;
 A summary of the agreement with the
employee on corrective actions the
employee will take; and
18
Written Warnings (cont’d)
 Some employers also include a statement
about what actions management will take,
i.e., additional training. Employers should
only make promises they will keep.
19
The Fair Labor Standards Act
 The Fair Labor Standards Act (“FLSA”)
addresses minimum wage and the
payment of overtime.
 The Act is administered and enforced by
Wage and Hour Division of the
Department of Labor
20
The Fair Labor Standards Act
 The Act establishes a minimum wage
to be paid to all covered employees.
 The Act generally requires the
payment of overtime wages (time(+) a
1/2) to all covered employees.
The Act prohibits use of oppressive
child labor.
21
The Act regulates wages and hours of
work of those employees in both the
private and public sector who are covered
by the Act.
•The Act prohibits employers from
discriminating between employees
with respect to wages on the basis of
sex (EPA) for substantially equal
work.*
•The Act requires every covered
employer to maintain certain records.
22
Exemptions
• Executive exemption
• Administrative exemption
• Professional exemption
• Outside sales exemption
• Computer-related occupations
24