John is protected under the Age Discrimination Act of 1967. He would need to show that he is in fact over 40, that he suffered an adverse employment action and that he was in fact, qualified for the job and met the expectations. Also, did the position remain open or was it filled by a similarly qualified individual that was younger? I am sure that Johns attorney could get the aptitude test from John and the person hired, to show if there was discrimination. I feel that since the company has people who are in their 30’s, there is a good chance that they are in fact not hiring him due to age.
The employer must show the tests are used valid. Meaning, thee tests are related to successful job performance and that it does not have the effect of eliminating certain races from the employment market. The test can be validated in several ways. “Test scores of applicants can later be compared with the applicants’ eventual job performance as a means of validating the test”. (1)
‘The Americans with Disabilities Act protects against people like Leo. In order for hugging to constitute sexual harassment it must be frequent and severe enough to create an offensive abusive, or hostile work environment”. (3) A nonconsensual physical touch is usually a clear-cut form of harassment but Leo does have a disability and he is not forcing the hug on Tom. Does the hug make Tom feel uncomfortable, is it forced and does it involve a lot of body touching that is uncomfortable to Tom? Sexual harassment is prohibited under the Title VII of the Civil Rights Act of 1964. (2) To prove the case Tom must do the following:
· Prove that he belongs to a protected group
· You were subjected to unwelcome harassment of a sexual nature;
· The harassment was pervasive enough to negatively impact a privilege, condition or term of your job; and
· Your employer knew or should have known that the harassment was occurring but failed to remedy the situation. (3)
I do not believe that Tom will have a case against Leo. As I stated earlier, he is not forcing the hugs on anyone and most of the employees welcome his hugs. Of course, I know that because some employees do, doesn’t mean everyone will but I don’t feel that Tom has a case.
1. Jennings, Marianne. 2018 Business Its Legal, Ethical, and Global Environment. Cengage Twelfth Edition.
2. The Rager Law Firm.October 27, 2018 California Sexual Harassment: When Hugging In The Workplace Creeates A Hostile Work Environment. Http://ragerlawoffices.com/california-sexual-harassment-when-hugging-in-the-workplace-cr3eates-a-hostile-work-environment/
3. SwartzSwidler, LLC. 2019. What’s The Burden of Proof For Workplace Sexual Harrassment. Https://swartz-legal.om/whats-the-burden-of-proof-for-workplace-sexual-harassment/