CH-20-22 Laws Governing Labor-Management Relations – The Legal Environment of Business: A Critical Thinking Approach : Book Guide

This Document Contains Chapters 20 to 22 Chapter 20 Laws Governing Labor-Management Relations Introduction Chapter Twenty addresses these questions: • What is the structure of the primary U.S. Labor Legislation and the mechanisms that enforce it? • How does labor law regulate union organizing activities? • How does labor law regulate collective bargaining? • What legal rules restrict the use of strikes, picketing, and boycotts? • What are the global dimensions of labor–management relations? Chapter Twenty is significant because it explains major pieces of legislation that affect the employer-employee relationship. Managers need to be aware of these legal rules because they must be loyal to the employer, and they also benefit from some of these legislations. Achieving Teaching Excellence Are Our Students Consumers? In NLRB v. Yeshiva University, 444 U.S. 672 (1980) the Supreme Court considered whether faculty members are managerial employees, and hence not protected by the NLRA. In reaching its decision that faculty members are managerial, the court presents an analogy between what faculty members and students do on a college campus, and what a business can do in the market place. The Court says, “The controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any other context unquestionably would be managerial. [Then the Court gives examples—faculty decide what courses will be offered, grading policies, which students will graduate, etc.] When one considers the function of a university, it is difficult to imagine decisions more managerial than these. To the extent the industrial analogy applies, the faculty determines within each school the product to be produced, the terms upon which it will be offered, and the customers who will be served.” The idea that the students are customers and the instructors are managers of a product they create seems to be expressed frequently these days on college campuses. Perhaps this metaphor is raised in efforts to make the campuses “total quality” organizations. While reviewing the Yeshiva case, many instructors start thinking about whether the “students as consumers” metaphor is a good one. Understanding whether the students are or are not consumers can help instructors achieve Teaching Excellence. Understanding one’s goals as professors helps instructors figure out how best to do their jobs. In “Students as Consumers-A Tainted Metaphor,” Professors M. Neil Browne and John H. Hoag explain the significance of metaphors. They explain that metaphors “guide professors as they select their teaching behaviors.” The consumer metaphor of education suggests that faculty should be “responsive to the expressed preferences of their students in a manner similar to that used by any successful commercial enterprise.” Browne and Hoag suggest the student as consumer metaphor is tainted. Learners have different short and long run desires. They might want to learn as much as possible in the long run, but in the short run they might decide to select faculty members the students themselves claim create ineffective learning environments. Browne and Hoag explain that the customer metaphor does make some sense. Students want instructors to demonstrate certain behavior—enthusiasm, punctuality, and clarity. Students value these traits. However, Browne and Hoag explain that when students choose and evaluate instructors, other factors may be more important. Browne and Hoag conducted a study to determine the link between student selection of instructors and student opinion concerning expected learning in instructor's classrooms. The study concluded that students were most likely to choose instructors who, in the student’s eyes, created the least productive learning environments. The consumer metaphor does not recognize the influence of students’ short run decision-making processes. Browne and Hoag conclude that a review of the consumer metaphor reminds them that “(1) students may not always have their own long-run interests in mind when they choose or evaluate an instructor and (2) students, like most of us, commonly make decisions based more on immediate than long-run considerations.” They suggest that an instructor’s focus should not be so much on pleasing their customers, but instead on meeting the long-run needs of their students. This textbook will help instructors meet the long-run needs of their students, but it might not make all customers happy. Engaging in critical thinking is difficult and requires energy. Instructors should be prepared to explain why customer satisfaction is not their guiding force in an educational setting. References • M. Neil Browne & John H. Hoag, "Students as Consumers - A Tainted Metaphor," COLLEGE STUDENT JOURNAL 274 (September, 1990). Chapter Overview, Topic Outline, and Discussion Questions Chapter Overview The first section of this chapter outlines the structure and enforcement of the NLRA and the Landrum–Griffin Act. The next three sections discuss areas of labor–management relations governed by the NLRA—organizing, collective bargaining, and the collective activities of striking, picketing, and boycotting. This chapter concludes with a consideration of the international dimensions of labor law. One of the primary strengths of this chapter is that it presents a contemporary view of labor law. Many textbooks present labor law in a way that makes students ask why labor law is relevant to them because most of the legal environment students will not work in unionized places of employment. This text does an excellent job of making the material relevant, even to students who will not work in heavily unionized industries. Most of the material in the chapter is easy for students to understand after instructors work with them on the material. Students will find some of the ideas the chapter presents difficult to grasp, so this chapter of the Instructor’s Manual presents discussion questions that focus on some of the more difficult concepts the chapter presents. Topic Outline I. Structure of the Primary U.S. Labor Legislation and the Mechanisms for its Enforcement A. The Wagner Act of 1935 B. The Taft–Hartley Act of 1947 C. The Landrum–Griffith Act of 1959 D. The National Labor Relations Board Structure Jurisdiction Procedures in Representation Cases Procedures in Unfair Labor Practice Cases II. Labor Organizing A. Board Rules B. Unfair Labor Practices by Employers Interference with Organizing Progressive Electric, Inc. v. National Labor Relations Board Domination or Support of Labor Organizing Discrimination Based on Union Activity Gaetano & Associates, Inc. v. National Labor Relations Board C. Unfair Labor Practices by Employees D. Organizing the Appropriate Unit Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Petitioner III. The Collective Bargaining Process A. Subjects of Bargaining IV. Strikes, Boycotts, and Picketing A. Strikes Lawful Strikes Unlawful Strikes B. Boycotts C. Picketing V. Global Dimensions of Labor–Management Relations VI. Summary Discussion Questions for Chapter Twenty 1. Explain relationships between the Wagner Act and the Taft-Hartley Act. The Wagner Act and Taft-Hartley Act together are referred to as the National Labor Relations Act, or NLRA. The Wagner Act was passed first and gave employees the right to form labor unions. The Taft-Hartley Act was passed later to curtail perceived excesses of power that unions had been able to acquire under the Wagner Act. 2. What impact does the President have on the decisions of the National Labor Relations Board (NLRB)? The President appoints the five members of the NLRB with the advice and consent of the Senate. Members serve staggered five-year terms. Also, the President appoints the general counsel of the NLRB. The President chooses people who agree with him about labor law. Over time, the President can ensure that everyone on the NLRB will share his political views about labor law issues. 3. Evaluate this statement: The National Labor Relations Act (NLRA) protects all American workers. This statement is flawed because the NLRA does not protect some categories of workers, including federal, state and local government employees, employees in the transportation industry, those workers covered under the Railway Labor Act, independent contractors, agricultural workers, household domestics, and persons employed by a spouse or parent. The NLRA also excludes supervisors and managers from protection. Finally, the NLRB places additional limits on who it will protect because it has limited resources. The NLRB decides based upon whether a firm does a significant amount of business. 4. Explain why someone might think this statement is true: The National Labor Relations Act (NLRA) attempts to balance employer and employee rights in organizing campaigns. This statement is true because NLRA decisions and rules show they consider the rights of workers to unionize, and the rights of employers to run an orderly business. For instance, employers are allowed to give certain kinds of speeches and force their employees to attend. However, they are not allowed to make speeches to captive audiences within twenty-four hours of an election. Have students give additional examples of how the NLRA attempts to balance employer and employee rights in organizing campaigns. 5. Evaluate this statement: Nonemployee union organizers enjoy extensive rights. The statement is inadequate because nonemployee union organizers enjoy few rights. They have fewer rights than employees. For instance, they may be prohibited from entering the employer’s property, including parking lots. 6. Explain why someone might think this statement is true: The National Labor Relations Act (NLRA) assumes an adversarial relationship between employers and employees. Have students look at the list of employer unfair labor practices, and the list of employee unfair labor practices. The book reviews these rules in tables 20-2 and 20-3. The NLRA assumes employees are driven to maximize their pay and rights, and that employers are driven to keep employees from getting more money and benefits. The law also assumes that rules are needed to keep the behavior of both sides in line. 7. Explain why someone might think this statement is true: Courts are trying hard to support some kinds of cooperative programs in companies today. The National Labor Relations Board and a few appellate courts have created exceptions to the general rule that participatory committees constitute labor organizations. One exception is when all workers in a bargaining unit or plant participate in the program. Another exception is when employees carry out a traditional management function. When considering whether a committee is structurally independent from management, some courts are willing to ask whether the employer had good motives when establishing the plan. Also, the court might be willing to ask whether employees are satisfied with the plan. 8. Evaluate this statement: It really does not matter to unions which employee groups are in the bargaining unit. The statement is flawed because unions want the bargaining unit to consist of employees with similar concerns and interests. They want to avoid having a bargaining unit that does not present a united force to management. 9. Explain why someone might think this statement is true: The duty to bargain in good faith requires little of employers. This statement is true because the duty to bargain in good faith does not require employers and employees to reach an agreement. Instead, it means the parties must meet at reasonable times and confer in good faith, sign a written agreement if one is reached, meet certain requirements about terminating existing contracts, give notice if there are pending disputes, and neither strike nor engage in a lockout during the sixty-day notice period. 10. Explain relationships between mandatory and permissive subjects of bargaining. One relationship is that mandatory subjects require parties to bargain about them, while permissive subjects do not. An example of a mandatory subject is wages. Failure to bargain over wages would constitute an unfair labor practice. An example of a permissive subject would be a managerial decision, such as whether the company should build a new building. This kind of decision need not be bargained over. 11. Explain relationships between strikes and boycotts. A strike is a temporary, concerted withdrawal of labor. A boycott is a refusal to deal with, purchase goods from, or work for an employer. Both are means used to prohibit an employer from carrying out his or her business so he or she will accede to union demands. 12. Explain relationships between economic strikes and unfair labor practice strikes. An economic strike is a nonviolent work stoppage for the purpose of obtaining better terms and conditions of employment under a collective bargaining agreement. An unfair labor practice strike is a nonviolent work stoppage in protest against an employer’s commission of an unfair labor practice. One relationship between the two is that the unfair labor practice striker is in a better position at the end of the strike compared to the economic strike. The unfair labor practice strikers are entitled to return to their jobs at the end of the strike, while economic strikers have to wait to be rehired until the permanent replacements leave and create vacancies. This makes the economic strike less potent than the unfair labor practice strike. 13. Explain relationships between primary and secondary boycotts. Primary boycotts are legal, and secondary ones are not. Primary boycotts occur when a union boycotts an employer with whom it has a dispute. Secondary boycotts occur when unionized employees who have a labor dispute with their employer boycott another employer to force it to cease doing business with their employer. 14. Explain relationships between informational and jurisdictional picketing. Informational picketing is designed to truthfully inform the public of a labor dispute between the employer and employee. Jurisdictional picketing, like jurisdictional strikes, occurs when two unions are in dispute over which union’s workers are entitled to do a particular job. Informational picketing is legally protected. Jurisdictional picketing may or may not be protected, depending on the specific facts of the case. Have students give examples of protected and unprotected strikes. Answers to Critical Thinking about the Law Questions, Case Summaries, Answers to Review Questions, Review Problems, and Case Problems Suggested Answers to Critical Thinking about the Law Questions 1. Unions protect employees from mistreatment by employers. They provide security. They keep employees safe from employer interference with rights. See whether students can explain how unions strive for justice also. 2. When thinking about labor legislation, paying attention to personal ethical norms benefits employers more than employees. Unions count on employees acting collectively; establishing collective norms. If people pay attention to personal ethical norms, the cohesiveness of union work will be diminished, thereby benefiting employers. 3. Union activity costs employees. They must pay dues. Also, unions decrease inequality of wage distribution within a firm. If an employee is relatively well paid, union activity might not help him or her get a raise. Case Summary—Progressive Electric, Inc. v. National Labor Relations Board This case deals with strikes in a non-union workplace. Progressive is a non-union electrical contractor that hired two men involved in unions—Cousins, who did not disclose that he was a union worker, and Randall, who had a discussion about it with the president, Neeman. Both were hired. During the job, a foreman made comments that the president did not want unionized workers because the company would lose business. Randall walked off the job site and called for a strike. At a meeting, Neeman informed Randall that he voluntarily quit when he walked off site, not strike. Neeman called an employee meeting and was very anti-union. A suit was filed with the NLRB and they won. Progressive appealed. The appeal went in favor of the NLRB because Randall’s firing coupled with the speech could be construed to coerce employees and cause them to believe that if they joined a union they would lose their jobs. Suggested Answers to Critical Thinking about the Law Questions 1. Because it seemed as though the meeting was called in response to Randall’s call for a strike and his termination, employees were made to believe that Randall’s attempts for unionization was the reason he was not at work. The comments would have been more ambiguous had the incident taken place well before the meeting. 2. They were not protected, as opinion because Hildreth told the employees that Neeman did not want any unions at Progressive. Therefore, he was leading the employees to believe that their jobs could be in danger if they belonged to a union. Case Summary—Gaetano & Associates, Inc. v. National Labor Relations Board This case deals with firing union workers. Gaetano & Associates Inc. (the Company) worked in NYC developing properties. They hired some carpenters to work on a property. The Carpenters Union came in and started organizing these workers. On April 16, 2003, the Company was notified by the union that many of the workers were represented and they requested an election to be held. The hearing was set for April 25. On April 16, many of the carpenters were laid off and replaced. Much of the work could have been easily done by the fired carpenters. The union brought suit against the Company and won. The decision was appealed and upheld because the company exhibited anti-union sentiments and fired the workers just because they were members of a union. Case Summary—Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, Petitioner This case deals with creating an appropriate unit for collective bargaining. The plaintiff in this case represented a unit of 53 CNAs, who had to be certified by the State of Alabama. This certification course included several components that an individual would have to complete in order to receive it. Apart from that they would have to take up specialized training on a regular basis to maintain their certification. The employer believed that the only appropriate unit consists of its approximately 86 non-supervisory, nonprofessional service and maintenance employees, along with the CNAs. CNAs’ wages started at $8.50 per hour, whereas all the other employees the employer wanted to group with them had starting wages ranging from $7 to $ 10 per hour. The Regional Director found that a petitioned-for bargaining unit of certified nursing assistants (CNAs) was appropriate under a traditional community-of-interest analysis. The employer requested a review of the decision. The employer argued that because the CNAs in acuter care facilities included in bargaining units with all nonprofessional and maintenance employees, they should be similarly grouped in nursing homes. Answers to Review Questions 20-1. This question gives students the opportunity to review Table 20-1, which explains the two faces of unions. This table could also serve as the basis for a short writing assignment. Have students explain which face they agree with more. Then, have them pick the opposite face of unions, and write an essay in which they present the best argument possible in favor of the face of unions they do not prefer. 20-2. Section 7 of the NLRA explains employees’ rights under the NLRA. Section 8(a) of the Act identifies specific employer behaviors, called unfair labor practices that are prohibited. It also protects Section 7 rights. It prohibits specific acts of “employer unfair labor practices.” Employee unfair labor practices are set out in Section 8(b). 20-3. Section 8(a)2-5 presents specific ways in which employers might interfere with employees’ Section 7 rights. Arguably, these sections are unnecessary because employees could just charge the employer with violating the general prohibition against interfering with Section 7 rights found in Section 8(a)1. Many cases charge the employer with both 8(a)1, and a more specific subsection. 20-4. The National Labor Relation Board’s three primary functions are: • Monitoring the conduct of the employer and the union during an election to determine whether or not workers want to be protected by a union • Preventing and remedying unfair labor practices by employers or unions • Establishing rules and regulations interpreting the act The general counsel of the NLRB, appointed by the president with the advice and consent of the Senate, oversees the investigation and prosecution of unfair practice charges before the board. If a board decision is subsequently challenged in court, it is the general counsel who represents the board before the appellate court. 20-5. Violating a board rule (such as the twenty-four-hour rule) means the employer or employee has gone against a policy enacted by the National Labor Relations Board (NLRB). The NLRB has the power to take appropriate corrective action. Unfair labor practices are outlined by the statute itself, not the NLRB, although the NLRB interprets the statute. All unfair labor practices are also considered violations of the board’s election rules. The procedures for resolving unfair labor practices are extensive. In organizing campaigns, a violation of board rules may result in the Board’s setting aside the results of the election and ordering a new election. If an unfair labor practice is committed, the Board may ignore the election and require the employer to bargain with the union without a new election. 20-6. The employer should make sure all employees in a bargaining unit or plant participate in the program. Also, employees should be carrying out a traditional management function. The employer should make it clear its motives are good, and that the employees are satisfied with the plan. Answers to Review Problems 20-7. This case is similar to the Lechmere, Inc. v. National Labor Relations Board case, in which a nonemployee union was not allowed to have access to the employees in the employer’s parking lot. Now, in this case, the union was probably not allowed to distribute the handbills on the company lot. The burden would be on the union to show they could not communicate in any other way. However, they could have put a sign up on the highway, or contacted the employees by mail. 20-8. No, United Technology’s (UT) decision to refuse to bargain over the relocation of work was not a violation of the National Labor Relations Act. That decision was a managerial one, and not a mandatory subject. However, UT would be required to bargain about the consequences of its managerial decision. For instance, UT would have to bargain about which and how employees would be given the opportunity to transfer, and what their severance pay would be if they lost their jobs. 20-9. If there is no dispute between employer and employee, picketing seems unfair. All the definitions of different kinds of picketing assume a dispute between the employer and employee. Raley maintained a neutral position, so it seems unfair to allow the Retail Clerks to make it appear there is a dispute. Therefore, Raley’s could obtain an injunction that would prohibit picketing. 20-10. It is not known why the employees are calling in sick. Perhaps they are protesting an employer’s unfair labor practice. Here, however, it appears that the employees are engaging in an unlawful strike, which means the employer can discharge them. 20-11. In this case the picketing would be illegal. This is because is illegal when another union has already been recognized as the exclusive representative of the employees, and the employer and employees are operating under a valid collective bargaining agreement negotiated by that union, a need for a new union does not arise. Answers to Case Problems 20-12. The NLRB found in favor of the plaintiffs. They stated that Costco could not enforce such broad rules regarding social media. Additionally, even though the employees damaged the employer’s reputation positing the personal statements online regarding their employer was not a punishable offense. 20-13. The court ruled that the newspaper did not have grounds for reconsideration. The union was allowed to stop work while negotiations were underway. Moreover, further strikes cannot be prevented as long as the terms and conditions of the agreement that the two parties have arrived at has not been breached. 20-14. The court ruled in favor of the union and insisted that the board review its rules regarding collective bargaining. The union did not clearly waive its claim to protection from unilateral change so the board has the right to explain the rule it has adopted or adopt a different rule with a reasoned explanation to explain it. 20-15. The appellant court reversed the board’s decision and found in favor of the WSNA. Sacred Heart was unable to prove that the messages on the nurses’ pins disturbed the patients. No patients had complained about the pins and the potential for harm caused by the pin is minor. Therefore, Sacred Heart’s ban was an unfair labor practice. 20-16. The second proposal falls under collective bargaining. Here, the subjects are not primarily about conditions of employment and, therefore, need not be bargained over. 20-17. The court ruled that some of the Venetian’s actions were protected under the First Amendment even though they were intended to interfere with a lawful demonstration. However, the Venetian’s recording stating that the protestors were trespassing on private property and their attempt to arrest a union officer were not protected by the First Amendment because the demonstration was lawful and on public property. Therefore, these actions constituted an unfair labor practice. The court ordered the National Labor Relations Board to address whether the Venetian’s summonsing of the police was protected under the First Amendment. 20-18. Tartaglia’s actions were not protected because she was only assisting herself and not others. The union only picketed because she wanted them to and she wanted to receive better benefits. Because a single striker is not protected, she was legally terminated. Thinking Critically About Relevant Legal Issues 1. The issue here is that strikes do not work. Not only do they hurt the worker who is striking, they also hurt those who depend on those workers. These factors lead employers to find alternatives to settling the strike and very little is accomplished. In conclusion, strikes are outdated and ineffective. Workers need to make changes from within the work place. 2. One needs to know if strikes do work. The author gives a few examples of when they did not work but does not disclose any instances where they have. This missing information would greatly help one make a balanced conclusion. 3. The section about making up for lost wages is very ambiguous. One cannot be sure exactly what the author means. It seems illogical that strikers would want to make up for the salary that they lost by striking. The logical progression is that the workers strike to make the future better, not rectify the past. With that in mind, it seems the author is not making verifiable claims and is instead speculating in a way that is hard to understand. 4. The opposition would hold that strikes do work. They force employers to treat their workers more equally and with more respect. Also, the prospect of a strike solves many problems because employers do not want to deal with a full-blown strike, so instead they come to agreements with the workers that benefit both sides. Lastly, strikes that affect more people than just the workers brings attention to the cause and also forces the employer to make an agreement faster and one that is favorable for the workers. Strikes are not meant to harm businesses. At their core, strikers do not want extreme changes, they just want to be treated fairly and be compensated accordingly for they work they do. Chapter 21 Employment Discrimination Introduction Chapter Twenty-One addresses these questions: • What is the employment-at-will doctrine, and how does it help or hurt employers and employees? • How do constitutional provisions relate to employment discrimination? • How does the Civil Rights Acts of 1866 and 1871 protect some employees from employment discrimination? • How does the Equal Pay Act of 1963 protect some employees from employment discrimination? • What is the Civil Right Act of 1964, and how did the Civil Rights Act of 1991 modify the 1964 Act? • How does the Age Discrimination in Employment Act of 1967 respond to one of the most important discrimination issues of the 1990’s? • How do the Rehabilitation Act of 1973 and Americans with Disabilities Act of 1991 protect handicapped workers from employment discrimination? • How do affirmative action plans protect certain workers from employment discrimination? • What are the global dimensions of employment discrimination legislation? Achieving Teaching Excellence Using a Role-Play Activity as a Way to Tie Major Course Themes Together Near the End of the Term Peter Frederick, in his article, “Active Learning in History Classes,” presented some ideas about role-playing in class that could easily be modified for use in the legal environment of business classroom. One idea he presented was that he sometimes gives students time to research historical characters and bring them together for a panel, press conference, or debate. He brings together characters such as Benjamin Franklin, Horace Mann, or Malcolm X. The purpose of the role-play is to bring out the “intellectual convictions, controversies, and contradictions of real people.” Before the role-play, Frederick gives a mini-lecture to establish the context and setting for the role-play activity. Then, he makes sure each student or group has a clearly defined task. For instance, he asks each to propose a position on a topic and a course of action. During the role-playing, he maintains a leadership role as the President, or moderator, or whatever leadership role is relevant given how he has designed the activity. He carefully organizes and monitors the interactions. Finally, after the role-playing he spends time debriefing the class. He clarifies the purpose of the exercise, and makes appropriate transitions. Role-play activities would be a good active learning experience for the legal environment of business students. The activity would also work well near the end of the term to help students tie material from the course together before the final examination. The role-play experience could be structured in more than one way. There a few alternatives that the instructors can modify to achieve the specific goals they have outlined for their students and course. One idea would be to have students pretend they are representatives from the various schools of jurisprudence. Instructors could choose a legal topic, and ask each actor to present his or her position on a topic, and to propose a course of action. For instance, the instructor could ask the students whether we should abolish affirmative action. Students’ responses will differ considerably. Instructors should make sure to include feminist scholars and critical legal thinkers. To make sure all views are covered, instructors could have students pick their school of jurisprudence from slips of paper in a hat. Otherwise it might be difficult to get students to volunteer for certain schools. Another idea would be to pick a case currently pending before the U.S. Supreme Court. Instructors should make sure to pick a case that relates to something students have learned in class. Then, they could divide the class into groups, with a group that represents each justice of the Court. Instructors should then ask students to do research in order to figure out how their justice is likely to rule in the case. Then, they could organize a panel discussion in which the students argue the case pretending they are the justices. Instructors could also do a role-play in which the class takes a wide variety of roles. Instructors should pick an issue, such as whether people should be more vigorous in the enforcement of antitrust laws. Instructors could then have the students pretend they are the head of the Department of Justice, a Wall Street Journal editor, a prominent businessperson, and a consumer rights advocate such as Ralph Nader. Instructors should make sure they define the issue clearly, and expect each person to state a position on the topic that reflects strong critical thinking skills. Another possibility is to have the class watch a movie outside of class, such as “Norma Rae”. This movie relates well to labor law. Instructors could organize a panel discussion with a union representative, someone from the NLRB, a businessperson who opposes unions, an employee who does not favor the union, and someone on the board of directors of the company. Instructors could then have the panel make appropriate comments about the movie, given their specific roles. A final idea is to use a book, such as Roberts v. Texaco to set the stage for a role-play discussion. How did different players in that case view what happened to the plaintiff and Texaco? Instructors may also think of some other books (e.g., A Civil Action) that would set the stage for a good role-play discussion. This kind of role-playing provides a good, energetic class activity that gives instructors and their class a boost near the end of the term. This will help instructors demonstrate their desire to achieve Teaching Excellence. References • Peter Frederick, “Active Learning in History Class,” 16 TEACHING HISTORY 67 (1991). Chapter Overview, Topic Outline, and Discussion Questions Chapter Overview Today, employers’ decision-making powers are restricted by both federal and state laws, many of which are discussed in this chapter. The right of the employer to terminate an employment relationship was originally governed almost exclusively by the employment-at-will doctrine, discussed in the first section of this chapter. The second section discusses the constitutional provisions that affect an employer’s ability to hire and fire workers. The following six sections discuss each of the major pieces of federal legislation designed to prohibit discrimination in employment; these acts are discussed in the order of their enactment. The ninth section discusses the increasingly controversial subject of affirmative action. Global dimensions of employment discrimination are discussed in the final section. Most business students want to learn the material in this chapter, especially if they have managerial experience. They perceive they will be easily sued for employment discrimination. Many students do not seem to be aware of the employment-at-will doctrine. They are also unaware of how difficult it is for plaintiffs to win employment discrimination cases, or that their fears of huge jury awards are exaggerated. Chapter Twenty-One does an excellent job of showing managers the rules regarding hiring, firing, and promoting employees. The case selections are strong, and the explanations in this chapter are especially good. The discussion questions that follow the topic outline help the instructors and their students work with material from throughout the chapter. Topic Outline I. The Employment-at-Will Doctrine II. Constitutional Provisions III. The Civil Rights Act of 1866 and 1871 A. Applicability of the Acts Remedies Procedural Limitations IV. The Equal Pay Act of 1963 A. Equal Work Extra Duties Establishments B. Defenses C. Remedies V. The Civil Rights Act of 1964, as Amended (Title VII), and the Civil Rights Act of 1991 A. Applicability of the Act B. Proof in Employment Discrimination Cases Disparate Treatment Disparate Impact Harassment Teresa Harris v. Forklift Systems, Inc. Same-Sex Harassment Hostile Environment Extended A New Limitation on the Employer’s Liability Vance v. Ball State University C. Retaliation D. Statutory Defenses Bona Fide Occupational Qualification Merit Seniority Systems Mixed Motives Desert Palace, Inc., dba Caesar’s Palace Hotel & Casino v. Catharina Costa E. Protected Classes Race and Color National Origin Religion Sex Pregnancy Discrimination Act F. Enforcement Procedures The Charge Conciliation and Filing Suit G. Remedies H. Lilly Ledbetter Fair Pay Act of 2009 VI. The Age Discrimination in Employment Act of 1967 A. Applicability of the Statute B. Proving Age Discrimination A. Jones v. National American University C. Statutory Defenses Bona Fide Occupational Qualification Other Defenses Executive Exemption After-Acquired Evidence of Employee Misconduct D. Enforcement Procedures E. Remedies under ADEA VII. The Rehabilitation Act of 1973 VIII. The Americans with Disabilities Act of 1991 A. Covered Individuals McMillan v. City of New York B. Enforcement Procedures C. Remedies IX. Affirmative Action X. Global Dimensions of Employment Discrimination Legislation XI. Summary Discussion Questions for Chapter Twenty-One 1. Evaluate this statement: Most business students will not be at will employees once they graduate from college or get their MBA degrees. This statement is inadequate because most business undergraduate students and MBA students will be employees at will. Not many people have employment contracts. These students will not be protected by collective bargaining agreements because most will be managerial employees, and most will not have employment agreements. Probably, most will see in their employee handbooks that the employer will state clearly they are employees at will. 2. Explain relationships between the employment-at-will doctrine and the public policy exception. The most important relationship is that the public policy is the common law exception to the employment-at-will doctrine that most states have accepted. Thirty-three states have accepted some form of the public policy exception. This exception says that employers cannot fire employees when doing so would contravene some public policy. For instance, they cannot fire employees if they report the employer for engaging in illegal behavior. To fire them for that reason would contravene public policy in favor of reporting crime. 3. Explain relationships between the Civil Rights Act of 1866 and the Equal Pay Act. One relationship between the two is that both are federal antidiscrimination laws, but they protect two different groups. The Civil Rights Act of 1866 protects people from racial discrimination, whereas the Equal Pay Act responds to gender discrimination. The Civil Rights Act of 1866 guarantees that all persons have the same right to make and enforce contracts that have the full and equal benefit of the law. So this act applies only when some sort of contract that discriminates racially is involved. The Equal Pay Act prevents wage discrimination based on sex within a business establishment. 4. Explain why someone might think this statement is true: Disparate treatment is harder to prove than disparate impact. Disparate treatment cases focus on the employer’s unlawful discriminatory motive. The disparate impact test focuses on the employer’s apparently neutral policy that has an adverse impact on a protected class. Arguably, it is harder to prove a discriminatory motive. It is difficult to show that someone wanted to discriminate. It is especially hard for plaintiffs to show that an employer’s stated reason for discriminating was a pretext for a real discriminatory motive. 5. Evaluate this statement: The bona fide occupational qualification (BFOQ) defense helps many employers win employment discrimination cases. This statement is flawed because courts rarely accept the BFOQ defense. This defense allows an employer to discriminate in hiring on the basis of sex, religion, or national origin when such a characteristic is necessary for the performance of the job. Race cannot be a BFOQ. The BFOQ defense is available only if it is reasonably necessary to normal operations or essence of defendant’s business. This is very difficult for employers to prove. 6. Explain why someone might think this statement is true: The U.S. Supreme Court allows “reverse discrimination.” In some cases, the U.S. Supreme Court has allowed some groups to suffer in order to advance the interests of groups that have suffered discrimination in the past. For instance, in Johnson v. Santa Clara County Transportation Agency, the court allowed a woman to get promoted over an arguably better qualified man because women and minorities had been underrepresented in certain positions. No quotas were established. Instead, the Court decided race or sex could be one of several factors considered. 7. Evaluate this statement: Quotas are permissible and common in places of employment today. Quotas are specifically outlawed by the 1991 Civil Rights Act Amendment. They were rarely used prior to the 1991 Act. Instead, most employers have used goals and timetables to combat discrimination. 8. Explain relationships between quid pro quo and hostile environment harassment. Quid pro quo sexual harassment is a much older theory than hostile environment sexual harassment. Hostile environment harassment theory protects more women in the workplace, especially if they are harassed and suffer no tangible economic loss, such as a job loss or pay cut. Quid pro quo cases focus on supervisors who make sexual demands on someone of the opposite sex and this demand is reasonably perceived as a term or condition of employment. The hostile environment theory says that when a workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, that situation is actionable. 9. Explain why someone might think this statement is true: Plaintiffs in discrimination cases do not have the chance to win verdicts as high as plaintiffs in tort cases. This statement is true because plaintiffs win compensatory damages, including attorney fees, but even if they win punitive damages there are caps on how much they can get. These caps do not limit what plaintiffs in most states can get in tort cases. In cases of discrimination other than race, punitive damages are capped at $300,000 for employers of more than 500 employees, $100,000 for firms with 101 to 200 employees; and $50,000 for firms with 100 or fewer employees. 10. Explain relationships between the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1991. One relationship between the two is that the Americans with Disabilities Act was an expansion of the protections offered under the Rehabilitation Act. The Rehabilitation Act of 1973 protects handicapped individuals from discrimination in employment and helps them secure rehabilitation training, access to public buildings, and all benefits of covered programs that might otherwise be denied to them because of their handicap. This Act applies only to the federal government and employers who have contracts with the federal government. The Americans with Disabilities Act extends these protections to private sector employers who do not have federal contracts. 11. Evaluate this statement: Current antidiscrimination statutes require employers to hire people who are unqualified for their jobs. None of the antidiscrimination statutes requires employers to hire people who are unqualified for their jobs. Instead, when choosing from qualified applicants, the laws prohibit the employer from ruling people out based upon their protected traits, such as race, gender, or a handicap. 12. Evaluate this statement: Antidiscrimination statutes do not apply to U.S. citizens who work abroad for American companies. This statement is flawed. The Civil Rights Act of 1991 extended the protections of Title VII and the ADA to U.S. citizens working abroad for American employers. The ADEA was extended in 1984. One problem that sometimes arises is determining whether a multinational is “American” enough to be covered by the laws. Answers to Critical Thinking about the Law Questions, Case Summaries, Answers to Review Questions, Review Problems, and Case Problems Suggested Answers to Critical Thinking about the Law 1. The phrase “extra duties” is ambiguous. For instance, if "extra duties" means typing reports, it is difficult to know whether this task is extra. For instance, maybe the male secretaries have to type the extra reports, but they are excused from other duties such as cleaning the coffee pot. Extra duties could also mean extra work that required more time and effort than regular secretarial work for the extra duties to call for extra pay. 2. Other reasons why the men might have received raises may be that the men: • Started at lower probationary pay rates and their raise gave them the standard secretarial pay • Are somehow more productive • Really do undertake extra duties • Are pals with the person making salary decisions 3. The cases are similar in that men are paid more because they are special in some way—that they are physically stronger or that they are taking on extra duties. The cases are also similar in that the special difference between men and women might be a pretext for discrimination in both cases. The extra duties might not be extra at all. The physical strength issue might not even matter in the factory case. The cases are different in that the extra duties for the male secretaries were assigned by the employer, whereas physical strength is more likely to be out of the worker’s or the employee’s control. Case Summary—Teresa Harris v. Forklift Systems, Inc. This case established the hostile environment theory of sexual harassment. The Plaintiff, Harris, was insulted by her boss, and he made numerous suggestive comments to her. Harris quit and filed a lawsuit. The district court ruled against her, finding that some of the comments were offensive to the reasonable woman, but were not so serious as to severely affect Harris’ psychological well-being or interfere with her work performance. Harris appealed to the U.S. Supreme Court after the appellate court affirmed the district court’s decision. The U.S. Supreme Court reversed the decision of the lower courts and ruled in favor of Harris. The Court reaffirmed the hostile environment theory of sexual harassment, which had first been articulated in the Meritor case. Additionally, the Court said it was not necessary for the plaintiff to prove the behavior seriously affected her psychological well-being or led her to suffer injury. Suggested Answers to Critical Thinking Questions about the Law 1. The court does not define “reasonable person”. An “objectively hostile environment” occurs when the “reasonable person” would find the work environment hostile or abusive. Get students to try to articulate what a “reasonable person” might find hostile or abusive. They will see the difficulty of defining a reasonable person standard. 2. The key fact was whether plaintiffs had to prove the conduct “seriously affected plaintiff’s well-being” or led her to “suffer injury.” Title VII does not require concrete psychological harm. Case Summary—Vance v. Ball State University This case deals with work place harassment. Maetta Vance made a claim that Saundra Davis harassed her at work through physical threats and racial harassment. Vance sued Bell State University, her employer, arguing that her supervisor was Davis. However, the District Court and Court of Appeals for the Seventh Circuit determined that Davis was not Vance’s supervisor and granted summary judgment to Ball State. Vance appealed to the U.S. Supreme Court. The Court affirmed in favor of Defendant Ball State University. Case Summary—Desert Palace, Inc., dba Caesar’s Palace Hotel & Casino v. Catharina Costa This case deals with sexual harassment and discrimination, as well as defenses for termination. Costa worked for Caesar’s Palace as the only woman in the warehouse. She was involved in many altercations. Finally, she was let go. Costa filed suit, alleging discrimination and harassment. She claimed that she was stalked by a supervisor, received harsher treatment, was subjected to many slurs, and had her record stacked. During trial, the court instructed the jury regarding mixed motive termination. The company appealed to the Supreme Court. The Court held in favor of Costa because the District Court did not err in the jury instructions, and Costa proved that she worked in a hostile environment. Case Summary—Jones v. National American University This case is in the book to show how age discrimination occurs in the workplace. Kathy Jones filed an age discrimination suit against National American University after not receiving a promotion. NAU did not argue that the initial reason Jones was not hired was age but NAU asserted that it was not guilty of age discrimination because it provided a legitimate reason for not hiring Jones—that she lacked management experience. However, the appellant court found that Jones provided sufficient evidence to show that NAU’s proffered reason for not promoting Jones was a pretext for age discrimination. Jones was also able to refute the evidence NAU provided about other proffered reasons they had to not promote Jones. These findings led the appellant court to agree with the trial court in finding NAU guilty of age discrimination. Suggested Answers to Critical Thinking Questions about the Law 1. The defendant cited Scroggins v. University of Minnesota and McBary v. Schreiber Foods, Inc. because, in both of these cases, the defendant won. The defendants won because the employee plaintiffs were unable to disprove the other proffered reasons the defendants offered for why they did not hire the plaintiffs. Although age discrimination may have played a part in the defendants’ decisions about whether to hire the plaintiffs, the plaintiffs could not disprove other possible reasons for not being hired. 2. According to Judge Murphy, in the Scroggins and McBary cases, the plaintiffs were unable to disprove the other possible reasons the defendants provided for not hiring the plaintiffs. In this case, however, Jones was able to disprove NAU’s other proffered reasons for not promoting her. Therefore, the cases are not analogous. Case Summary—McMillan v. City of New York This case deals with the Americans with Disabilities Act of 1991 (ADA). Rodney McMillan was an employee HRA Community Alternative Systems Agency (CASA). He was undergoing treatment for schizophrenia with regular medication. His employer had a “flex-time policy” where employees could arrive by 10:15 am. However, the tardiness of an employee would have to be approved by their supervisor. McMillan was often late to work and his supervisor, Loshun Thornton allowed this for an extended period. Later, McMillan was fined for his late arrival and in 2010 the City brought charges against him for “misconduct and incompetence.” Consequently, McMillan requested for flexible timings to accommodate his disability, which was sent to Donald Lemons, the Deputy Director of HRA’s Equal Employment. His request was denied as there was no one to supervise McMillan after 6 pm to accommodate his late arrival. He filed a suit against the City of New York for violating the ADA. The district court granted summary judgment and dismissed the claims made by McMillan and he appealed. This judgment was vacated and remanded. Suggested Answers to Critical Thinking Questions about the Law 1. Once this case is returned to the district court stated that a reasonable juror would not find McMillan’s claims to be without merit. The court also stated that if all or some of the claims made by him might not survive summary judgment as the accommodations demanded would pose hardship to the City and it was unreasonable. 2. Yes, it would be relevant to examine the plaintiff’s disciplinary record as it would help determine whether he could work without supervision. Therefore, it would definitely affect the reasonableness of this accommodation as well. In this case, the plaintiff had a habit of being late to work but it did not have an effect his work performance. Additionally, the plaintiff was ready to make an accommodation by working through his lunch time. For this reason the City should be ready to make an accommodation for the plaintiff. Answers to Review Questions 21-1. The employment-at-will doctrine says that any employee who does not have a contract that stipulates the length of time that employment could last can be terminated at any time, for any reason. Employees are glad the doctrine is eroding because they do not appreciate being fired arbitrarily. Employers want to be free to fire people, so they are saddened by the gradual demise. 21-2. a. These jobs would be substantially similar in terms of skill, effort, responsibility, and working conditions, so they are “equal” under the Equal Pay Act. b. This one is tougher. The jobs are not equal because those who check narcotics have more significant responsibilities than those who check nonnarcotic drugs. c. This one depends on whether the two jobs require the same levels of skill and effort. Some students may think that both jobs would be substantially similar. 21-3. a. The Equal Pay Act strives to prevent wage discrimination based on sex within a business establishment. b. Remedies include back pay, attorney fees, and sometimes additional amounts if the employer did not act in good faith. c. Employers may assert defenses. The first is that the pay differential is based on one of the four statutory exceptions found in the Bennett Amendment to the Equal Pay Act. These are a bona fide seniority system, a bona fide merit system, a pay system based on the quality or quantity of output, and factors other than sex. 21-4. a. Title VII prohibits employers from hiring, firing, or otherwise discriminating in terms and conditions of employment, and segregating employees in a manner that would affect their employment opportunities on the basis of their race, color, religion, sex, or national origin. b. Remedies in Title VII cases vary. Employers might be required to establish special training programs for minorities. Also, plaintiffs might be back paid for up to two years from the time of the discriminatory act, and remedial seniority when appropriate, compensatory damages, and attorney fees. c. The most important defenses for the employer are the BFOQ defense, merit, and seniority. 21-5. One major change of the 1991 Civil Rights Act was that it allowed plaintiffs to recover both compensatory and punitive damages. Also, it should be noted that the punitive damages are capped in cases other than race cases. For instance, punitive damages are capped at $300,000 for employers of more than 500 employees, $100,000 for firms with 101 to 200 employees, and $50,000 for firms with 100 or fewer employees. 21-6. Reasonable accommodation includes accommodations such as changing work schedules, restructuring jobs, or giving an employee time off for treatment. The law does not require the employer to experience undue hardship. Answers to Review Problems 21-7. Yes, the Civil Rights Act was violated. The policy is discriminatory on its face. Not all women outlive all men, so it is unfair to make all women pay extra. 21-8. No. It is legally valid to pay extra amounts of money based upon swinging shifts because this makes Bryon’s working conditions less desirable. 21-9. The case will hinge on whether the Christian school can assert successfully a bona fide occupational qualification defense. This will be very difficult. The school cannot discriminate against pregnant women unless keeping the teacher undermines the essence of their school. It is doubtful the school can prove that unless it can show that one of its primary educational aims is to show girls that “a mother’s place is in the home.” 21-10. The problem is that the supervisor’s behavior was not sexual (even though people believed it was). Ellen should still argue the environment is hostile. She can show the environment has been altered. She can also show that if she were a man, people would not be jumping to the conclusion she is having an affair just because she talks to the guy behind closed doors. In addition to raising a Title VII claim (which will be hard for her to win), she could sue for defamation because he is hurting her reputation. She could also sue for intentional infliction of emotional distress, which will also be difficult to prove because she has probably not suffered enough emotional damage. 21-11. No. The ADEA applies to a U.S. citizen who is working in a multinational company’s Zaire facility. As long as the company is “American”, the U.S. citizen can sue under the ADEA. However, one would need more facts to determine whether the company is “American” enough. 21-12. The Rehabilitation Act applies only to the federal government and employers who have contracts with the federal government. Here, the two city employees, Davis and Sims, have no recourse. Because the CETA program is federally funded, D’Elea has recourse under the Rehabilitation Act. Answers to Case Problems 21-13. The Court found in favor of the plaintiff. The suggestions Demirelli made were found to be reasonable because they did not violate any law or company policy. There was no overbearing burden to supply him with a parking space and extending his lunch by 15 minutes did not violate the punctuality requirement. 21-14. The statute requires that McGullam file her complaint within 300 days of the alleged discriminatory act. In this case, the only alleged act of sexual discrimination that happened to McGullam within the last 300 days was the incident with her co-worker talking about “chickies” and “sleepovers” after McGullam was moved to the estimation department. The court decided that the “chickies” comments were too trivial to be considered sexual harassment because they were not lewd or sexually suggestive. With regards to the “sleepover” comments, McGullam must prove that these comments were significantly related to the sexual harassment she used to face in the productions department. The court found that the “sleepover” comments were insufficiently related to the production department conduct because McGullam was transferred from the production department. McGullam testified that she had no problem with her co-workers in the estimating department, and the “sleepover” comments were not lewd or directed toward her. Based on this evidence, the decision in favor of Cedar Graphics, Inc. was upheld by the appellant court. 21-15. The appellant court upheld the trial court’s ruling in favor of Hogan and Springstun. However, the court reversed the amount of compensatory damages awarded to Hogan and Springstun because they were excessive. 21-16. The essential functions of Richardson’s position as an assistant manager were to assist in the kitchen, dining, and take-out operations. Performing many tasks that would be considered essential included using manual labor. Due to this, the appellant court agreed with the trial court by ruling that Richardson was no longer qualified to work as an assistant manager at Friendly’s. 21-17. Yes, this case constitutes discrimination. The plaintiff was able to provide a number of instances where her coworkers referred to her in a discriminatory manner. Title VII was violated as Bashir was terminated due to her religious convictions and she had been working in a hostile environment as well. 21-18. A.D.P. is covered by the Americans with Disabilities Act as she was an alcoholic. It would be understandable if there were random breathalyzer tests but the A.D.P. was constantly subject to this even though there wasn’t any problem with her work performance. For this reason the appellate court found in her favor. Thinking Critically About Relevant Legal Issues 1. The issue here is that homosexuality must be treated like any other characteristic that is controlled by the person. In other words, it is like hair color. The author also argues that it would come into conflict with another protected class: religion. She concludes that homosexuality should not be a protected class. 2. The reasoning is that at-will employees can be let go for any reason. Homosexuality is not an immutable characteristic and therefore falls into the category of characteristics that can lead to termination. Also, if there are other unchosen characteristics that are not under one’s control, such as voice. Lastly, it comes into conflict with religion, not a specific religion, just “religion.” 3. The analogies are inappropriate and frankly unintelligent. First of all, being gay is not a choice and therefore is not like firing someone for having purple hair. Secondly, the comment about voice is out of line because voice can be linked to race and gender, for example, a “Latino voice.” There would be a claim if that were a reason for termination. 4. The opposition would correctly argue that sexual orientation should be a protected class. It is an immutable characteristic, just like race and gender. It is even above religion because religion is a choice. It is on a much higher level then voice or height because by firing someone because they are gay, that is saying that gays cannot do the work, just as it would be if someone firing someone based on race. Because being gay does not have anything to do with job performance and because it is a class of people who have been discriminated against in a way that, for example, tall people have not, it should be protected. Chapter 22 Environmental Law Introduction Chapter Twenty-Two addresses these questions: • What are the alternative approaches to environmental protection? • What are the Environmental Protection Agency’s responsibilities? • What is the National Environmental Policy Act of 1970 about? • What are the measures taken toward regulating water quality? • What are the measures taken toward regulating air quality? • What are the regulations related to regulating hazardous waste and toxic substances? • What is the Pollution Prevention Control Act of 1990? • What are the global dimensions of environmental regulation? Chapter Twenty-Two is significant because the United States has a long history of not doing enough to protect its physical environment. Today’s students seem especially concerned about the environment. This chapter gives them the basic information they need to understand the strengths and weaknesses in the United States’ regulatory efforts to date. Achieving Teaching Excellence Silent Participation Instructors shouldn’t overlook the possibilities for creating class discussions in silent ways. Some students have much to contribute, but their personalities make it difficult for them to speak out in class. This section offers three ways to encourage meaningful silent participation. First, if instructors have not already started using the computer to keep in-class conversations going after class, then they should consider it. Most colleges and universities offer the possibility for ongoing discussions. For example, Loyola College makes Blackboard available to faculty. Blackboard is a software platform from Blackboard, Inc. that includes a number of features, including a discussion board that allows the professor or students to create forums that allow for continued discussion. Second, instructors may create a silent participation opportunity by asking their students to respond to a question in class, on paper. For instance, an instructor can sometimes present a newspaper article that relates to course material and ask the students to write a ten-minute response, showing what they learned from the reading for that day. Then, they can collect the responses, reply in writing, and return the response to each student in the next class session. A final way to encourage silent participation is to engage in a process called “passing notes.” This teaching technique is used by Dr. Peggy McIntosh at a teaching institute that encouraged professors to create more inclusive classrooms. Instructors could ask students to take a piece of paper and write a question at the top of the page that relates to course material. Instructors can present a short legal case and ask the students to read it prior to writing a question. Then, they could ask the students to write a question about the case. Students are then asked to pass the question to the person sitting next to them. The students are given writing time of five minutes. Then, the instructors can ask the students to pass their paper once again. The student who receives this paper now has a question and one student’s response. The student then responds to the analysis on the page, pointing out the strengths and weaknesses of the analysis. The instructor allows the students to pass the paper three times, thereby allowing a few students to respond to the initial question and to evaluate other students’ analysis. Students pass the notes back, reading other students’ responses to the initial question and other students’ comments. Then, the instructors allow the students to raise questions about the case out loud. Students are likely to point out areas of confusion. They often point out disagreements with how to respond to the initial question. Also, sometimes, students offer comments about which questions were most helpful in analyzing a particular case. Chapter Overview, Topic Outline, and Discussion Questions Chapter Overview During the late 1960s, environmental problems became a major national concern, which led to the enactment of legislation to protect the environment and clean up existing problems. This chapter first examines alternatives to the regulatory approach for solving pollution problems and examines the primary agency responsible for enforcing environmental laws, the Environmental Protection Agency. Next it discusses the primary direct regulations designed to protect the environment, followed by an overview of the Pollution Prevention Act of 1990. The global dimensions of environmental protection are discussed last. This chapter is difficult because it presents much detailed information about various federal laws that regulate environmental hazards. In spite of its difficulty, students will be interested in studying the material in this chapter. The chapter does an excellent job of presenting scientific information in an interesting, understandable way. The chapter also presents key facts about issues that relate to environmental law. The discussion questions that follow the topic outline ask students to integrate material in the chapter. It is important for students to understand relationships among various laws the chapter describes. Topic Outline I. Alternative Approaches to Environmental Protection A. Tort Law Boomer et al. v. Atlantic Cement Co. Negligence, an Alternative Tort Solution B. Government Subsidies Approach C. Emission Charges Approach D. Marketable Discharge Permits Approach E. Direct Regulation Approach II. The Environmental Protection Agency III. The National Environmental Policy Act of 1970 A. Threshold Considerations B. Content of the EIS Brodsky v. United States Nuclear Regulatory Commission C. Effectiveness of the EIS Process IV. Regulating Water Quality A. The Federal Water Pollution Control Act Point-Source Effluent Limitations B. The Safe Drinking Water Act V. Regulating Air Quality Massachusetts v. Environmental Protection Agency A. The National Ambient Air Quality Standards B. New Source Review C. The Acid Rain Control Program D. Climate Change VI. Regulating Hazardous Waste and Toxic Substances A. The Resource Conservation and Recovery Act of 1976 The Manifest Program RCRA Amendments of 1984 and 1986 Enforcement of RCRA B. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization Act of 1986 C. The Toxic Substances Control Act of 1979 D. The Federal Insecticide, Fungicide, and Rodenticide Act of 1972 Pesticide Tolerances in Food VII. The Pollution Prevention Control Act of 1990 A. Business Aspects of Voluntary Pollution Prevention B. Sustainable Development VIII. Global Dimensions of Environmental Regulation A. The Need for International Cooperation B. The Transnational Nature of Pollution C. The Global Commons D. Primary Responses of the United States Research Conferences Treaties Aid IX. Summary Discussion Questions for Chapter Twenty-Two 1. Explain relationships between tort law and the National Environmental Policy Act (NEPA). Both tort law and the NEPA respond to environmental issues, but in very different ways. Tort law responds after some sort of harm has already occurred. The aim of tort law is usually to compensate a private individual for the consequences they suffered due to an environmental problem. Two kinds of tort law that respond to environmental issues are the torts of nuisance and negligence. The NEPA is the umbrella legislation for federal environmental laws. Federal laws, unlike tort law, are applied the same way throughout the United States. Also, federal law tries to prevent and remedy pollution, not just compensate people who have been injured by environmental hazards. 2. Explain relationships between negligence and nuisance. Both are torts that people can use in environmental cases to seek compensation for damage or injuries caused by the environment. A nuisance is an unreasonable interference with someone else’s use and enjoyment of his or her land. Courts usually respond in nuisance cases by granting damages to the person who cannot enjoy his or her land. Negligence is also used in cases where a defendant’s polluting harmed a plaintiff. Like nuisance law, negligence law responds inadequately to environmental matters. One problem is that it is hard to prove cause because the harm caused by environmental hazards is not always immediate. 3. Explain relationships between the government subsidies approach and the emission charges approach. Both the government subsidies approach and the emission charges approach are alternative ways of trying to reduce or eliminate pollution. Under the government subsidies approach, the government pays polluters to reduce their emissions. Examples of subsidies are tax breaks, low-interest loans, and grants for the purchase and installation of pollution control devices. Taxpayers bear the expense, rather than polluters. Emission charges are applied to polluters, who pay a flat fee on every unit of pollution discharged. This alternative does not require taxpayers to bear the cost of pollution. This approach is difficult to apply because it is hard to monitor every discharge of a pollutant. Also it is hard to know how much to assess the polluter for each unit of pollution. Finally, this approach seems to allow the polluter to continue polluting, as long as they can pay for the pollution. At least the subsidies approach tries to stop some of the pollution. 4. Explain relationships between the discharge permits approach and the direct regulation approach. Discharge permits provide an approach similar to emission charges. The government sells permits for the discharge of various pollutants. These pollutants can be discharged only if the polluter has the appropriate permit. Polluters are encouraged to reduce their emissions because this reduction would enable them to sell their permits. The direct regulation approach is very different. It protects the environment better by trying to prevent pollution, and clean up existing pollution. Direct regulation is imposed by the Environmental Protection Agency. 5. Evaluate this statement: People ignore white collar crime in the area of environmental crime. This statement is incorrect because the Environmental Protection Agency (EPA) seems to be increasing their enforcement in the environmental area, and is now using criminal sanction, including incarceration, to enforce environmental laws. The EPA refers certain cases to the Justice Department, which prosecutes environmental crimes. This shows that people do not ignore white collar crime in the area of environmental law. 6. Explain relationships between Federal Water Pollution Control Act (FWPCA) and Safe Drinking Water Act (SDWA). Both FWPCA and SDWA fall under the National Environmental Policy Act (NEPA), the umbrella legislation for environmental laws. Also, both are ways to regulate water quality. The FWPCA, also known as the Clean Air Act, concentrates on the quality of water in the waterways. The SDWA ensures that the water that is consumed is not harmful to one’s health. 7. Evaluate this statement: The Federal Water Pollution Control Act (FWPCA) ensures that the water available in the public water supply system is safe to drink. This statement is inadequate. It is the Safe Drinking Water Act, or the SDWA that ensures that the water available in the public water supply system is safe to drink. This law sets standards for drinking water supplied by public water systems that have at least 15 service connections or serve 25 or more persons. The law establishes maximum contaminant level goals and maximum contaminant levels for all contaminants that have the potential to have an adverse effect on human health. 8. Explain the special difficulties in trying to regulate air pollution. Air pollution is hard to control because it floats away and is hard to measure. When people discharge water pollutants, it is much easier to gather and test the water than when people discharge air pollutants. The Clean Air Act establishes national ambient air quality standards. It leaves some of the regulation to states. The quality of the air varies considerably from one location to another. 9. Evaluate this statement: The Environmental Protection Agency (EPA) has developed strong regulations to combat indoor air pollution. This statement is inadequate. The EPA has somewhat regulated indoor air pollution. OSHA has some air quality standards for workplaces. The EPA has publicized the problem. That’s the extent of what regulatory agents have done to respond to this form of pollution. 10. Explain why someone might think this statement is true: One of the problems with environmental regulation is that people lack scientific knowledge concerning environmental hazards. This statement is true. For each kind of pollution, have students identify what people still need to know from the scientific community before they can regulate it effectively. For instance, for each chemical that might be considered hazardous waste or a toxic substance, people need to know how much of each substance causes what kinds of harm to humans. That’s the only way people will know how to prioritize their environmental concerns. 11. Explain relationships between the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. The RCRA regulates the treatment, storage, and disposal of hazardous waste through a manifest or “cradle to grave” regulation. They try to keep track of hazardous waste through the use of records called manifests. The CERCLA also regulates hazardous waste, but it focuses on cleaning up hazardous waste. CERCLA authorized the creation of Superfund to clean up leaks from hazardous waste disposal sites. Superfund also provides money for energy responses to hazardous waste spills. 12. Explain relationships between the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The TSCA fills in a gap left by RCRA and CERCLA. It regulates toxic substances by ensuring that the least amount of damage will be done to human health and the environment by certain substances. A toxic substance is any chemical or mixture whose manufacture, processing, distribution, use, or disposal may present an unreasonable risk of harm to human health or the environment. The TSCA regulates both existing chemicals and new ones. The FIFRA has the same goals as the TSCA, but is narrower in focus. It takes a specific kind of toxic substance and regulates it separately. This category of toxic substance is pesticides. FIFRA requires pesticides to be registered and properly labeled. 13. Explain relationships between the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Superfund Amendment and Reauthorization Act (SARA) of 1986. SARA, is an amendment to CERCLA. The SARA amendments provide more stringent cleanup requirements, increase Superfund’s funding, and place the costs on corporations, or certain hazardous products or locations, such as petroleum, chemical feedstocks, and imported chemical derivatives. 14. Why are international dimensions of environmental law especially important? International dimensions of environmental law are especially important because pollution does not stay within borders. Pollution generated in the United States falls into other countries. For instance, acid rain affects Canada. Also, pollution generated in other countries affects the United States. For instance, Mexican factories right across the Texas border create hazards that can affect the health of U.S. citizens. Therefore, the U.S. has to implement regulations that protect U.S. citizens and others in neighboring countries. Answers to Critical Thinking about the Law Questions, Case Summaries, Answers to Review Questions, Review Problems, and Case Problems Case Summary—Boomer et al. v. Atlantic Cement Co. This case demonstrates why the tort of nuisance is ineffective as a means of controlling pollution. Plaintiffs in this case brought an action against the defendant. They sought an injunction against the defendant due to the considerable amount of dirt and smoke the cement plant created. The plaintiffs won the case, but they did not get the injunction. Instead, the court ruled that the appropriate remedy in the nuisance case was that the cement company would have to give the plaintiffs permanent damages. The court decided that permanent damages are allowed where the loss recoverable would be small compared with the cost of removal of the nuisance. Thus, it seemed fair to the court to give the plaintiffs permanent damages. Suggested Answers to Critical Thinking Questions about the Law 1. The court started by saying its essential function was to decide the rights of the parties before it, not to solve major problems such as pollution. The judicial system is not equipped to establish policies to eliminate air pollution. When looking at the parties in front of the court, the court decided to compare the total damage to the plaintiffs’ properties to the value of the defendant’s operation and the consequences of granting the injunction. Then, the court noted the negative economic consequences if they granted the injunction. Finally, the court said they would not grant the injunction unless the defendant refused to pay permanent damages. The requirement that the defendant pay damages will inspire them to improve techniques to minimize the pollution. 2. The court makes the assumption that if the cement company has to pay damages that will inspire the company to do research and figure out how to minimize pollution. Possibly, however, paying damages will be disincentive to the company. It might be cheaper to pay plaintiffs off than do anything about pollution abatement. Case Summary—Brodsky v. United States Nuclear Regulatory Commission This case is related to the environmental impact statement. The plaintiff, Richard L. Brodsky claimed that the Nuclear Regulatory Commission (NRC) had not produced an environmental impact statement (EIS) under the NEPA. The plaintiff had claimed that the environmental assessment (EA) and finding of no significance impact (FONSI) were inadequate. However, the defendant claimed that the environmental assessment was an increased fire safety risk that would adversely impact the environment. The U.S. District Court for the Southern District of New York concluded that the agency’s environmental assessment satisfied its minimum burden to justify the forgoing of the impact statement and thus granted summary judgment and the plaintiff appealed. Suggested Answers to Critical Thinking Questions about the Law 1. Yes, the same evidence can be used to overturn the original decision made by the court. For this reason, it is not necessary that there can be only one judgment in a case. 2. Unless otherwise defined the term “significant impact” is ambiguous. Therefore, it would be difficult to reach a judgment without talking this into account. Case Summary—Massachusetts v. Environmental Protection Agency This case is about the power of states to influence the Environmental Protection Agency (EPA). The state of Massachusetts and 19 other private organizations filed a rulemaking petition to the EPA to regulate greenhouse emissions from cars. The EPA denied the petition, citing that the Clean Air Act does not give the EPA the ability to address climate change and that it would be unwise to do that at this time. Massachusetts challenged that ruling. The Supreme Court found for Massachusetts, ruling that unless the EPA was able to demonstrate that greenhouse emissions did not contribute to global warming, they had to comply with the petition. Answers to Review Questions 22-1. Under common law, those who are injured by pollution can sue using the torts of nuisance or negligence. Both are ineffective remedies to pollution problems because they compensate injured parties, but do not prevent or stop the pollution. 22-2. Environmental impact statements (EIS) must be prepared for all proposed legislation or federal action that significantly affects the quality of the human environment. EIS must include a detailed statement of: • The environmental impact of the proposed action • Any adverse environmental effects that cannot be avoided should the proposal be implemented • Alternatives to the proposed action • The relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity • Any irreversible and irretrievable commitments of resources that would be involved in the proposed activity should it be implemented 22-3. Emission charges make the polluter pay a flat fee on every unit of pollutant discharged. Polluters will want to keep charges low. Discharge permits involve government sales of permits for the discharge of various pollutants. Polluters would be encouraged to reduce their emissions because this reduction would enable them to sell their permits. 22-4. Some people think the use of the EIS creates too much red tape. Those who write them regularly know how to pass judicial scrutiny, and might not follow the plan. The preparation of an EIS costs too much in terms of both money and time. On the other hand, these statements are important because they allow interested parties to examine the facts. Also, the EIS affects administrative decision making. 22-5. The Federal Water Pollution Control Act (FWPCA) strives to make sure that the water is clean. The FWPCA uses point source effluent limitations, and expects polluters to use the best available technology economically achievable. 22-6. The Federal Water Pollution Control Act (FWPCA) and the Clean Air Act both strive to set an acceptable level of pollution. The FWPCA does so through point source effluent limitations; the Clean Air Act does so through national ambient air quality standards. Both expect pollution to be reduced gradually. Both encourage companies to use technological advances to help reduce pollution. Answers to Review Problems 22-7. The plaintiffs are likely to use tort law theories to recover against the defendant. In particular, they are likely to use the theory of nuisance, which alleges an unreasonable interference with someone else’s use and enjoyment of his land. The plaintiff is likely to win and get monetary damages to compensate for any loss. In addition, however, the plaintiff will probably have to ask government regulators to assist in making sure the defendant actually cleans up the contaminated water. 22-8. The text states that, “The standards for new stationary sources, established by the New Source Review program, are to reflect the best available control technology, taking into account the costs of compliance.” Here, the Environmental Protection Agency must consider both feasibility and cost while setting primary air quality standards. 22-9. Yes, the injunction was granted. The Environmental Protection Agency (EPA) has power over the states to amend state plans and enforce the plans. States must comply with the EPA’s revisions. 22-10. One needs to know more about the disagreement between Idaho and the Environmental Protection Agency (EPA). The EPA cannot require a state to do more than is technologically feasible. If Idaho can prove that 72 percent is the technologically feasible number, the EPA cannot expect more. 22-11. Yes, Kantrell could be violating several federal laws, including the Federal Water Pollution Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and maybe even the Toxic Substances Control Act. 22-12. Yes, the defendant was still responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, a person who owned or operated a plant at the time waste was deposited is a responsible party, and may be held liable for cleaning up the site. Answers to Case Problems 22-13. The appellate court would not have ruled differently. It is because the court stated that it was not its place to substitute the judgment that was made with regard to the Bureau of Land Management (BLM) as it cannot determine the best option that the BLM can take up. It is because the records revealed the presence of a number of problems with the allotment of Split Rock and the BLM acknowledged that the Proposed Decision was not a remedy that could be resolved quickly. 22-14. In this case, the appellate court will be likely to affirm the decision of the district court. This is because the court held that the insurance company did not allege that it was a claimant and therefore was not a liable party. 22-15. It is less likely that the appeals court would overturn the district court’s ruling. In order to win the appeal they would have had to show substantial evidence that the United States caused the contamination in this area. 22-16. The Supreme Court overturned the ruling of the district court. The Court found that Shell was not liable as an “arranger” of disposal because Shell legally sold hazardous substances to B&B and, although Shell may have known the substances would have to be disposed eventually, the company did not intend for spills of its product and even took steps to encourage the reduction of spills. However, the Court did find that Shell was a “potentially responsible party” and, therefore, was responsible for paying a portion of the cleanup cost. 22-17. The case was remanded back to the lower courts with the instruction to look closer at the statute. The Supreme Court found the Fourth Circuit Court’s analysis was actually invalidated by their interpretation of the law. The PSD had to be equated to the NSPS counterparts and because the definitions did not match up, the case had to be revisited. 22-18. The court stated that the EPA lacked the statutory authority to assess the administrative penalties and failed to timely submit the permit application. Therefore, the agency would have guessed the identity of the various potential new point sources, or would have allowed unpermitted discharges to ensue. Thinking Critically About Relevant Legal Issues 1. The author finds that the Kyoto Protocols are ineffective and because of that the United States rightfully disagreed to sign them. Because there are many problems and because they come up short, the United States is better off trying to reduce emissions by itself, without signing a treaty. 2. The section about China is ambiguous because although the author believes that China will pollute the environment to a point where no treaty can help, the author does not take a stand on whether China should be considered a developed nation. The author offers no middle ground. Also, the part about current efforts is ambiguous because no efforts are discussed. 3. What is the United States doing to limit greenhouse emissions? This question is problematic because the United States is not doing enough. The U.S. has not lowered its emissions and it continues to cater to the oil companies. Until the United States does something, Kyoto is the best option available. 4. The opposition would say that although Kyoto may not be perfect, it’s a step in the right direction. With the United States’ involvement, changes can be made, such as putting a cap on emissions and removing China from the list of developing nations. Lastly, one would argue that President Bush had largely ignored the problem and is doing very little to help limit emissions, whereas Kyoto countries are leading the way, such as Great Britain, Germany, and Japan. Solution Manual for The Legal Environment of Business: A Critical Thinking Approach Nancy K. Kubasek, Bartley A. Brennan, M. Neil Browne 9780133546422, 9780134074030