Definition of Terms




These are some of the terms used throughout my website. Most of them relate to employment issues. In some cases, they are simply dictionary definitions. Most of the time, however, they are my definitions based on the contexts in which I have come to understand and to use them. The list will grow as necessary or as requested. Send questions or comments to info@plaintiffblues.com.

ADR
Adverse Action
BFOQ
Burlington Northern & Santa Fe Railway Co. v. White
Circumstantial evidence
Civil liberties
Civil rights
Classes not protected by laws enforced by the EEOC
Covered Individuals
Desert Palace v. Costa
Direct evidence
Due process
EEOC
Equal protection
FEPA
Habeas corpus
Injunctive relief
LGBT
Lilly Ledbetter Fair Pay Act
Military Commission Act
Mixed motive
Plaintiff
Pretext
Prima facie
Protected activity
Protected class
Quid pro quo
Retaliation
Revenge
Sexual harassment
Sexual discrimination
Smoking gun
Whistleblowers





Sexual discrimination: This term refers to different and unfair treatment based on gender. This covers all aspects of employment from hiring, firing, promotion, pay and benefits, recruiting and retirement. Such different and unfair treatment of women (or men) in employment is prohibited in Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, and the Civil Rights Act of 1991. These laws are enforced by the Equal Employment Opportunity Commission and can be researched on its website - www.eeoc.gov.
However, different and unfair treatment of an employee or job applicant is not illegal in and of itself. The unfair treatment has to be specifically based on the individual's protected class. Gender, race, religion, disability, age, and national origin are the classes of individuals protected by the federal laws mentioned above. State and local statutes or other rules and regulations may protect other classifications such as sexual orientation, parental or marital status.

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Sexual harassment: This term refers to unwelcome sexual advances, verbal or other conduct of a sexual nature that affects an individual's employment and/or creates an offensive work environment. The prohibition of such sexual behavior generally also applies to students in schools as well. The two types of sexual harassment are quid pro quo and hostile environment. Quid pro quo means something done or given in exchange for something in return. In this reference, it refers to sex for job security or promotion. For sexual conduct to be in violation of the laws, it must be unwelcome and a condition of employment.
Several factors make sexual harassment issues more complicated. The first is defining which behaviors are sexually harassing and contribute to the hostile environment. This can be difficult because harassment is very subjective. It can differ by individual and by situation. For example, the same off-color joke might be funny to one person and offensive to another. An individual might find the same off-color joke funny when told by one person and offensive when told by someone else in a different situation.
Because sexually offensive behavior is so subjective, part of the burden of establishing the unwelcome-ness of the particular behavior falls on the person feeling harassed. They need to make their discomfort known to the harasser, a supervisor or official. It is common for the harasser to be unaware of the consequences of his/her behavior.
The other factor seldom understood is that the burden and/or legal liability for sexual harassment falls most heavily on the employer or school administration, not the harasser. Employers and administrators have the responsibility to ensure that people can work and learn an environment free of sexual harassment. They should train employees and students on the issues. However, once informed of an individual's concerns about sexual harassment, the employer or school district has to make it stop. The steps necessary to make it stop are not described and may vary from situation to situation.

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Retaliation: Retaliate means to deliberately harm someone in response or revenge for a harm he or she has done. In terms of employment law, an employer may not fire, demote, harass or otherwise retaliate against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. Three main terms describe retaliation. When an employer takes an adverse action against a covered individual because he or she engaged in a protected activity, that's retaliation.
Examples of adverse actions include termination, refusal for hire, denial of promotion, threats, unjustified negative evaluations, unjustified negative references, increased surveillance or any other actions that are likely to deter reasonable people from pursuing their rights. See Burlington Northern & Santa Fe Railway Co. v. White.

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Revenge: The dictionary definition of this noun is, "an act or instance of getting satisfaction, of getting even." George Herbert once said, "Living well is the best revenge." As you can see here, that has been a very satisfying approach to revenge!

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Pretext: This is an alleged motive or reason for an action that is false and is intended to hide the real intention behind the action.

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Plaintiff: A plaintiff is a person who begins a lawsuit against another person or institution in civil court. In the civil suit, the person or party being sued is called the defendant.

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Prima facie: This is a Latin term meaning, "at first view, on its face," synonymous with self-evident. In legal terms, it refers to a case that is clear on initial examination and sufficient to establish minimum facts, unless or until disproved.

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Protected class: This term refers to those people who are members of specific groups protected by the anti-discrimination employment laws - which are enforced by the EEOC. These laws include:
Title VII of Civil Rights Act of 1964 The Equal Pay Act of 1963 (EPA)
The Age Discrimination in Employment Act of 1967 (ADEA)
Title 1 of the Americans with Disabilities Act of 1967 (ADA)
Sections 501 and 505 of the Rehabilitation Act of 1973
The Pregnancy Disability Act
Those groups or protected classes include race, color, national origin, sex (including pregnancy), age (40 or older), religion, or disability. People who have filed an employment discrimination complaint or participated in a discrimination proceeding are also protected.

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Quid pro quo: This is a Latin phrase that means "something for something." It usually refers to something one party receives or is promised in return for something given or promised to another party. In many sexual harassment cases, it refers to sexual favors given (or required) in return for some type of favorable job consideration.

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Civil rights: This term refers to an affirmative list of the rights of American citizens that are guaranteed in the Bill of Rights, the Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments. I usually use the term in reference to issues of discrimination in employment and voting.

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Military Commission Act of 2006: President Bush signed this bill into law in October 2006. It authorized the President to establish military commissions to try unlawful enemy combatants. The law strips enemy combatants detained under this provision of the right of habeas corpus, thus preventing detainees from going to court to challenge their detention. As I read about the MCA, it seems conceivable that if an American citizen were suspected of "materially supporting" the enemy, he could be declared an enemy combatant and shipped off to Guantanamo, with no access to a writ of habeas corpus or due process of law. This law raises serious concerns about civil liberties.

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Civil liberties: While civil rights is generally a positive American concept, referring to the rights of all citizens, civil liberties is more universal and negative in nature. It generally refers to protections from government interference or limitations on government actions that may negatively affect the rights of individuals. I usually use the term in reference to the rights of the accused.

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Due process: This term essentially means legal fairness. It originates in the Fifth and Fourteenth Amendment statements that government may not deprive an individual of life, liberty, or property unless certain rules and procedures required by law are followed. Substantive due process means that those laws and procedures must be fair. Procedural due process means the ways those laws are enforced must be fair.

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Equal protection: This is a constitutional guarantee in the Fourteenth Amendment that states no State government can deny to any person in its jurisdiction equal protection of the law. The laws and the government must treat all people equally. The Supreme Court's interpretations of the due process and equal protection clauses of the Fourteenth Amendment essentially nationalized the Bill of Rights, ensuring their meanings were uniform throughout the country.

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Habeas corpus: Often referred to as the Great Writ or "the writ of liberty," it is such an essential liberty that it was one of the few protections specified in the body of the U. S. Constitution, Article I, Section 9. The phrase habeas corpus comes from the Latin, meaning "you should have the body" and these are the first words of the writ. Its purpose is to prevent unjust arrests and imprisonments. It is a court order to the official holding a prisoner to bring the prisoner before the court and show cause - explain with good reason - why the prisoner should not be released.

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Injunctive relief: This is a court order directing a person or party to do something or to stop doing something.

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Direct evidence: This refers to evidence that proves a fact without any inference or presumption. Direct evidence is often referred to as the "smoking gun." See Desert Palace v. Costa.

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Mixed motive: This concept is common in discrimination cases, where a legitimate reason for an employment action is combined with an improper or discriminatory reason. In other words, when employers take both lawful and impermissible factors into account when making employment decisions.

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Circumstantial evidence: This refers to indirect or secondary evidence, by which a fact may be reasonably inferred. See Desert Palace v. Costa.

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Desert Palace v. Costa: This unanimous Supreme Court decision in June 2003 made it easier for plaintiffs to win discrimination suits against their employers in mixed motive cases. Catharina Costa sued her employer, Caesarıs Palace Hotel & Casino, after she was fired from her job. Her termination followed a fight with a male employee, who was merely suspended for five days. Previous Supreme Court decisions had required that the plaintiff had to prove by direct, not circumstantial, evidence that discrimination was a motivating factor in the adverse employment action. In this case, the Court said, "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive that direct evidence."

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Burlington Northern & Santa Fe Railway Co. v. White: This unanimous Supreme Court decision in June 2006 gave employees broader protection against retaliation in the workplace. In 1997, Sheila White was the only woman working in the rail yard. After complaining about a supervisor making inappropriate remarks, she was transferred to a less desirable job. She filed a retaliation charge with the EEOC. Prior to this case, it had been almost impossible for an employee to win a retaliation case unless that retaliation resulted in dismissal. In this case, the Court said any employment action that, "might have dissuaded a reasonable worker" from complaining about discrimination will count as prohibited retaliation. Depending on the context of each case, now an unfavorable evaluation, an unwelcome transfer or schedule change could be considered retaliation.

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Smoking gun: This is a term often used synonymously with direct evidence, meaning something that is conclusive proof of a fact, requiring no inference.

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Adverse action: The term refers to the statutory protections against retaliation. An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include termination, unjustified negative evaluations, threats, unrequested transfers - or any other action likely to deter reasonable people from pursuing their rights.

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Covered individuals: This term refers to the statutory protections against retaliation. Covered individuals are people who have opposed unlawful practices, participated in investigations of employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity are also covered individuals. For example, it is illegal to terminate an employee because his/her spouse participated in discrimination litigation.

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Lilly Ledbetter Fair Pay Act: Law signed January 29,2009, by President Obama. The law is named for Lilly Ledbetter, a woman who worked 19 years as a supervisor for Goodyear. When she prepared to retire in 1998, she learned that she had been getting paid substantially less than her male counterparts all those years. She sued and won in lower courts, but in May 2007, the Supreme Court overturned the decision, saying that Ledbetter should have filed suit within the 180-day time limit of the first discriminatory paycheck. (That would have had to be filed years before she even knew about the difference.) Congress passed the law to correct the illogical Supreme Court decision.

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Whistleblowers: Whistleblowers are people who bring attention to violations of law, fraud, misconduct, corruption, ethical, and/or financial wrongdoings - usually against their employers. As a consequence, they are vulnerable to reprisal/retaliation. There are a wide variety of laws, state and federal, which offer protections to whistleblowers. However, this myriad of laws can vary widely according to the subject matter of the whistle-blowing and to the state in which the case arises. If the whistleblower raises concerns unrelated to employment discrimination, they are not "covered individuals" protected by the EEOC enforced laws.

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Protected activity: This term refers to activities opposing discrimination in the workplace, as long as such opposition is based on reasonable belief that practices complained of violate anti-discrimination laws. Examples might include complaining to anyone about alleged discrimination against oneself or others, threatening to file a charge of discrimination, refusing to obey an order reasonably believed to be discriminatory. But such opposition must reasonable - i.e. no threats or acts of violence.

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BFOQ: This acronym stands for Bona Fide Occupational Qualification. This term refers to very limited exceptions to the general rule that employers cannot make employment decisions based on gender, religion, national origin, or age. Examples of such exceptions might be requiring a woman be hired to play a womanıs part in a play or requiring that a churchıs minister be a member of that particular religion.

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ADR: This acronym stands for Alternative Dispute Resolution. Mediation is one form of alternative dispute resolution that is offered by the EEOC as an alternative to the traditional investigative or litigation process. The process offered is voluntary, confidential, enforceable by both parties (if an agreement is reached), and led by a neutral person, like a mediator, who has no personal interest in the dispute.

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FEPA: This acronym stands for Fair Employment Practices Agency (or Act). In general, the term refers to the more than 100 state and local laws and agencies that were initiated to prevent job discrimination. Most of these agencies are contracted with the federal EEOC to provide joint filing of employment discrimination claims in order to prevent duplication of services and proceedings.

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LGBT: This acronym stands for Lesbian, Gay, Bisexual & Transgender. Generally the term refers to people whose sexual orientation is other than heterosexual. Sexual orientation is not a protected class listed in the federal laws on employment discrimination enforced by the EEOC.

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Classes not protected by laws enforced by the EEOC: The EEOC does not enforce the protections that prohibit discrimination and harassment based on sexual orientation, status as a parent, marital status, and political affiliation - because these groups are not listed in the specific federal laws that the EEOC is charged with enforcing. However, other federal agencies, state and local governments often do provide some of these protections.

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EEOC: This acronym stands for the Equal Employment Opportunity Commission. This is the federal agency charged with enforcing the federal laws against employment discrimination. The website is www.eeoc.gov.

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