Another 30-page chapter! Yee-haw!

This chapter revolves around laws regarding discrimination in hiring and firing of employees. There are a lot of protections in regular job postings to ensure the position is fairly and appropriately advertised and interviewed but when it comes to top positions a lot of the criteria are subjective and it is easy for bias to seep in.

The Rooney Rule is namedropped here, some states are adopting versions of it.

The Civil Rights Act includes Title VII, which handles employment discrimination:

• Scope
  • Employers with:
    • At least 15 employees
    • Has interstate commerce
    • Employees work at least 20 calendar weeks of the year
  • Not applicable to independent contractors
  • Exempt:
    • Tribes
    • Religious orgs
    • Bona fide orgs (country clubs/other memberships)
• Protected classes:
  • Race/ethnicity
  • Sex
    • Sexual orientation and gender are not protected but there is movement towards adding it
  • Religion
  • National origin
    • Not citizenship
  • Color
• Administration
  • The EEOC (Equal Employment Opportunity Commission) issues regulations and the courts uphold these in legal cases
  • Also releases guidelines (not legally binding)
• Remedies
  • Back pay
  • Front pay (lost future earnings)
  • Reinstatement (in case of unlawful discriminatory termination)
  • Retroactive seniority
  • Injunctive relief (block employer from illegal actions)
  • Attorney fees
  • Compensatory and punitive damages

When determining whether discrimination has occurred, the court uses two theories: disparate treatment relating to intentional discrimination, and disparate impact relating to unintentional enforcement of rules or decisions that are discriminatory in results.

• Disparate treatment
  • Direct evidence of intent
    • Must be directly related to the hiring/etc
  • Inference from circumstantial evidence comparing treatments of different employees
    • Uses the four-pronged test from the McDonnell Douglas test involved a shifting of burden between plaintiff and defendant
      • First, plaintiff must establish a prima facie case that discrimination has occurred
        • Must establish with a preponderance of evidence
      • Then, defendant must answer that it happened for some legitimate nondiscriminatory reason (SLNDR)
      • Then it falls back on the plaintiff to show that the SLNDR is a pretext
• Disparate Impact
  • Similar mechanics but must show the neutral business practice has an outsize impact on protected classes
  • Difficult to secure a victory by this route
  • Additional defense: bona fide occupational qualification
    • Theory being the protected class will not be able to do the job as well
    • Very difficult to secure such a defense
      • A BFOQ is most likely to work in a religious context

Title IX: Educational institutions that receive federal funds must make activities available to all on the basis of sex

• Three levels to determining if the Equal Protection Clause (from the 14th amendment) is being purposefully violated by the federal government
  • Strict Scrutiny: reserved for suspect classifications, and requires the court to scrutinize the law in question. Essentially if the law specifically names a protected class such as race or national origin, there has to be an overwhelmingly compelling reason for this law.
  • Intermediate Scrutiny: assumption that occasionally there may be a valid reason for differentiation based on sex or gender. Often exposes archaic notions on differences between the sexes.
  • Rational Basis Review: All other groups (not protected ones) and so long as there is any valid reason it will pass this review.

Age discrimination is also covered by the ADEA and is litigated in the same manner as the McDonnell Douglas method. A defense against this litigation is reasonable factors other than age (even if correlated with age, such as salary based on years of experience).

Disabilities are also protected by the ADA in the same manner as the previous. The ADAAA was passed recently so now case laws relating to this maybe outdated.

• Elements of an ADA claim:
  • Plaintiff has a covered disability
    • Includes physical, psychological, and infectious impairments
    • Now also covers perceived disabilities that could be discriminated against even without actually being disabled (e.g. cancer survivor)
  • Disability substantially limits a major life activity
  • Plaintiff was discriminated against on the basis of that disability
  • No reasonable accommodation was made

The “significant risk” exception means that if the disability actually (not just apparently) poses a threat to completing the job and/or the health of others it can be grounds for termination.

To defend, an employer need not show that the disability played no part but only that it did not play the entire part. The accommodation can also be an out if it is an undue burden.

In cases of sex discrimination for pay, suits can be brought for Title VII, Title IX, and the Equal Pay Act, depending on the particulars. The pay has to be equal for equal work, however, and if a male coach is more accomplished then he is entitled to a higher pay.

The weakness of these cases is when a male coach of a women’s sport team is less compensated than the coach of the men’s team, he has little recourse except to try and win through Title VII and Title IX. Also, if the men’s team generates more revenue but the university is marketing the men’s team more than the women’s team, that removes the university’s ability to argue that the pay discrimination is based on outside factors.

Leave discrimination takes many forms but the strongest is pregnancy leave discrimination. The Pregnancy Discrimination Act requires pregnancy to be treated the same as any other leave.

FMLA exists. lol.

The whole chapter basically revolves around the legal theory of respondeat superior which is also known as vicarious liability. Essentially, if an employee or whoever is doing something on behalf of an organization, that organization bears some liability for mishaps that occur as a result of doing the thing. These are some examples of places where it does or does not apply:

• Road mayhem
  • If your employee is conducting business for you on a journey, but on their off hours they create mayhem, you are not at fault
• Ratification
  • If you egg on one of your employees for doing shady stuff and then bad things happen, you are at fault
• Negligent hiring
  • If you hire someone shady without doing due diligence and shady things happen you are at fault
• Negligent retention
  • If one of your employees is doing bad things and you don’t stop it you are at fault
• Independent contractors
  • If you have an independent contractor and you are not exercising specific control over them, you are not at fault
  • Unless you didn’t do your due diligence in contracting them, then you are at fault (negligent selection)
• Volunteers
  • If your volunteer is doing something specifically under your control and shady stuff happens you are at fault
• Collegiate athletes
  • If you are a university and your student athlete punches someone you are not at fault (unless there was some patten you ignored maybe?)

So yeah that was fun.

Alriiiiight.

Contract law is concerned with clarifying and enforcing the will of the parties in determining agreements. The principles of how contracts are normally interpreted are called canons of interpretation. Some of these are:

• Interpret the contracts as integrated wholes in a way that makes an overarching sense
• In the event of an ambiguity, the document will be interpreted most strictly against the party that drafted the document

When writing a contract, consider the worst case scenario. But we already knew that.

The four fundamental aspects of a contract:

• Agreement
  • A contract begins with an offer, which can be accepted or counteroffered
• Consideration
  • The exchange of value (money, goods, services, etc)
  • The courts do not litigate the value of each side, or adjudicate whether a deal is unfair in the relative value of each side
• Capacity
  • The legal competence to enter into the contract
  • Minors, the intoxicated, and the mentally incompetent are not eligible for entering contracts
• Legality
  • The enforceability depends on the legality of the terms

Oral contracts are difficult to enforce, and are not permitted for the following sport-related contracts due to statutes of fraud:

• Agreements for the sale of land or interest in land
• Contracts for $500 or more
• Contracts that cannot be completed within one year

When a contract is not fulfilled, it is a breach of contract, and the injured party may attempt to get their remedy through the court through contract damages. Here is some more contract vocab:

• Compensatory damages are moneys paid to allow the individual injured by the contract breach to help them fulfill the contract elsewhere
  • Mitigation of damages is obligatory within reason, that one must go to another reasonable length to complete the deal elsewhere rather than automatically get the maximum possible payout
    • A difficult example is in a university coach. If the university breaches its contract with the coach, through mitigation of damages the coach is obligated to seek employment elsewhere, but cannot be compelled to take a job that is inferior in compensation, geography, status, etc.
• Specific performance is when the courts compel someone to fulfill a contract because the property involved is unique and no amount of money can remedy the breach
  • Not applicable to personal service contracts, as one cannot enforce intention to complete a task (such as play a sport) effectively
• Contracts may contain liquidated damages provision in the case that the cost of a breached contract cannot be determined
  • Courts do not uphold penalty provisions in contracts that charge money for breach without the money being a remediation for the contract
• Rescission is a tool to undo a contract, as in repairing fraud, and restitution is returning the goods/services of the contract.
  • Very short paragraph, doesn’t really give a lot of info but these are probably just for undoing fraudulent contracts
• Promissory estoppel is what can happen when one party relies on the promise of another and is injured in the subsequent happenings. The three parts of the P.E. are:
  • A promise is made that should reasonably be expected to induce reliance
  • The reliance occurs based on the promise
  • Some detriment occurs to the party that relied upon the promise
    • This is how verbal promises that put someone into a bad position can be made whole
• A contract may be unenforceable if there exists an unconscionable disparity of bargaining power (e.g. one party dictated all terms)
  • The NLI (National Letter of Intent) for collegiate sports may represent a huge disparity of power
• Organizations act through their representatives. The organization is the principal and the person acting on behalf of the principal is the agent.
  • Agents have actual authority provided by the principal to engage in certain transactions and these powers are provided by and limited by the principal.
  • If the agent goes beyond their limitations and conveys more powers than they have, this is called apparent authority.
• Contracts for employment must delineate duties and responsibilities
  • Collegiate coaches must have NCAA stuff in their contracts
• A reassignment clause gives the employer the right to transfer the employee to a different position
  • If an employee is reassigned so that they cannot complete their duties, this is called constructive discharge which is equivalent to termination
• Compensation has to be clearly spelled out in contracts
  • Compensation can include perquisites (perks) and these can include shares of profits from all kinds of things.
• Contracts can include a rollover clause in that the contract will automatically renew if notified every year.
  • Contracts also have language that defines what is just cause for termination and can include morals clauses.
• Contracts can contain restrictive covenant or non-compete clauses to protect the interests of the employer.
• Other contract stuff
  • Athletically related income: NCAA coaches must report all income outside the university
  • Arbitration clause: yup
  • At-will employee: gross
• Even an at-will employee cannot be fired for certain things related to public policy:
  • Discrimination on basis of race, ethnicity, gender, age
  • Whistleblowing
  • Cooperating with an investigation
  • Filing unfair labor practice charges
  • Complaining about or reporting OSHA violations

WHEW.

There’s more though. Tort relates to employment as well:

• Defamation: truth is a complete defense to a defamation claim, so companies usually just say true things.
  • Qualified privilege allow protection to employers providing references for employees
• Negligent misrepresentation
  • making offers you can’t back up can be costly
• Fraud
  • Failure to disclose dirt on a predator is fraud if you only say nice things but not if you say nothing at all
• Tortious interference with contract relations
  • Poaching clients

CHRIST.

Introduction: THIS CHAPTER WILL NOT MAKE YOU A LAWYER

Some handy vocab, much of which I already knew but is handy anyway:

• Constitution: foundational document that sets the basic operating principles of a government including limitations
• Statute: written law created by legislation body (congress, etc)
• Regulation: rules built to enforce (“operationalize”) the statutes created
  • Example: Title IX is one paragraph, but to enforce it the US Dept of Education has written pages of regulations
• Common law/case law: the application of existing laws to particular cases, established by jurisprudence
• Jurisdiction: the authority of a particular court to resolve a dispute
  • Diversity of citizenship jurisdiction escalates a state law dispute to federal level (e.g. if residents of different states, or resolving an excess of $75,000)
• Concurrent jurisdiction: the fact that state courts can also have jurisdiction on resolving federal cases
• Certiorari: the appeal to the supreme court (denial of certiorari means the lower court’s decision stands)
• Appeals can only be made in the case of legal error, in that the existing law was not properly applied to the case

Criminal court is for crimes, while civil court is for non-crimes (though I think the book is really skipping over defining what a crime is). A tort is a civil wrong other than a breach of contract. This is usually for causing body or property harm, or harming someone’s ability to make money e.g. slander.

In criminal court, guilt must be established beyond reasonable doubt, while in civil court guilt is established by a “preponderance of evidence” which is a lower legal threshold to clear.

A civil case follows the following steps:

1. Bad thing happens
2. Plaintiff files complaint with the appropriate court
3. Defendant answers each charge with innocence or guilt, or motions to dismiss
4. If not dismissed, period of discovery occurs
   • Depositions: oral testimony under oath
   • Interrogatories: written testimony under oath
5. Due to deposition, one of the following may occur:
   • Out-of-court settlement
   • Summary judgment
     • Compensatory damages to cover loss/medical bills/etc
     • Punitive damages if malfeasance is determined
   • Trial on the merits
6. A trial may be concluded in many ways:
   • Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted
   • Motion for summary judgment
   • Petition for a preliminary injunction
     • Granted if all the following are met:
     • Plaintiff has a strong case
     • Plaintiff will suffer in the absence of a preliminary injunction
     • The injunction will not injure the defendant worse than not doing so will injure the plaintiff
     • The injunction will not have an adverse effect on the public interest
7. In a trial on the merits, the court generally uses canons of statuatory construction to reach a conclusion in interpretation of the laws
   • Many canons exist and they are a suite of tools, so using them is like using “thrusts” and “parries”
   • Interpretations must be made of regulations, constitutions, and common law
   • If a higher court makes a decision, it is binding to the lower courts, but persuasive to other courts not obligated to follow precedent
8. Stare decisis and precedents are supposed to make an orderly, uniform predictability to the rule of law. Not sure what country the authors think they live in but at least it’s a nice idea.

Alternative dispute resolutions (ADR):

• Arbitration
  • Final and binding
• Mediation
  • Nogiation the settlement of the dispute
• Ombudsperson

Legal resources:

• Primary legal resources
  • Laws (statutes and regulations)
  • Court decisions
• Secondary legal resources
  • Legal encyclopedias
  • Law dictionaries
  • Case summaries
  • Restatements
  • Treatises & hornbooks
  • Law reviews
  • Case digests
  • Websites & databases

Steps to doing legal research:

1. Identify the issue
2. Find the relevant law
3. Read & summarize the relevant law
4. Update the relevant law (check the latest precedents, e.g. in Shepard‘s)
5. Organize your information

Read case studies to get an idea for how existing law is applied. Boy talk about a chain of logic!

Also in the case law hypothetical examples it uses the term “transsexuals”, uh the book was published in 2014 but I bet that example was written in the first edition and people forgot to update it ^_^;

AKA the chapter that’s not in the 4th edition (but the material probably is)

Steps in preventative law (essentially an audit):

• Risk identification
  • Identifying possible sources of legal danger
• Risk assessment
  • Determining relative probability of resulting legal danger resulting from inaction
    • Use previous history
    • Use statistics and trade journal case studies
• Risk evaluation
  • Determine whether retaining this risk is in line with the mission of the organization (i.e. whether it’s worth it to keep the risk in place)
• Development of preventative law plan
  • Four possible options:
    • Risk elimination
      • Go away from the service that is causing the legal danger
      • Only done if the service is peripheral to the mission of the org
    • Risk retention
      • Live with the risk and eat the loss if it happens
    • Risk transfer
      • Insurance or other way to have a third party bear the legal risk
    • Risk control
      • Mitigate the risk with possible solutions that lower the risk without removing the service
• Implementation of the preventative law plan
  • Be sure the entire org understands these possible legal risks and why the steps proscribed to mitigate those risks are important
    • Use effective policies & procedures
    • Use contract law to your advantage
    • Develop effective training programs
    • Develop evaluation procedures

Hopefully I can start and finish strong this semester, baybeeee

Managerial Law: a perspective of focusing on legal events that occur within the framework of day-to-day management, hence the rationale for the textbook

Four commonly acknowledged business functions that intersect with law:

• Human resource management
  • Hiring/disciplining/firing employees
  • Contract law, tort law, and discrimination law
  • Liability
  • Labor relations
• Strategic management – governance
  • Governance
  • Regulatory issues in different settings
• Operations management
  • Legal issues related to facility management
  • Development of events
  • Safety of spectators
  • Exculpatory agreements
• Marketing management
  • Trademark/copyright
  • False advertising & ambush marketing
  • Civil/constitutional rights

Knowledge of the law and legal risk management can serve as competitive advantages (the idea of selling the need for this material seems a bit far-fetched, it’s pretty obvious that knowing this stuff is a huge advantage but I guess some people are so incurious they need it spelled out for them to care)

Strategic management and governance will be a major part of the book, including managing the working conditions, dealing with the dreaded NCAA, etc.

Negotiation includes interpersonal skills (not covered) and legal information (covered throughout the book).

Book includes a glossary, do NOT forget to check it!

Some repeats from previous courses but a lot of potentially valuable material!