Accidents in North American Mountaineering 2002: Number 2, Issue 55: 8

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The profits of the individual training centers are pooled into one bank account in the name of CTI, which maintains a centralized management account allowing the profits of more successful training centers to cover the losses of less successful ones. Under these circumstances, ABC, CTI, and the other training centers are an integrated enterprise, and should be considered a single employer for purposes of coverage and liability under the EEO statutes. A charge must be filed against each employer to pursue a claim against that employer.

To determine whether a respondent is covered, count the number of individuals employed by the respondent alone and the employees jointly employed by the respondent and other entities.

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ABC is the sole employer of 17 employees. ABC also employs 5 employees who are jointly employed by Smith.

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Smith is the sole employer of 12 employees. An entity is a covered employment agency if it regularly procures employees for at least one covered employer, whether or not it receives compensation for those services. Respondent also regularly procures employees for XYZ Corp. Therefore, Respondent is a covered employment agency, and is prohibited from discriminating in any of its referral and procurement activities, including those conducted with ABC, a non-covered employer.

Example 2 - CP 1 files a charge alleging that she was not hired because of her religion by Respondent, an employment agency with 12 employees. CP 2 files a charge alleging that she was not referred by Respondent for a position with Smith Corp. Respondent regularly procures employees for Smith Corp. Therefore, Respondent is covered with respect to the claim raised by CP 1 and with respect to the claim raised by CP 2. It has 15 or more members 25 or more under the ADEA or maintains a hiring hall which procures employees for at least one covered employer.

This latter basis for union coverage will generally bring a union representing federal employees under the EEO statutes. Most labor organizations, including those representing federal employees, are covered under at least one of the above definitions of "labor organization. Agents of labor organizations may also be covered. However, this position has generally been rejected by the courts. An unfair labor practice charge against a postal union is filed with the NLRB.

Title VII, the ADEA, and the ADA prohibit a covered labor organization from engaging in discriminatory membership practices and other discriminatory activities related to its status as a labor organization, e. The EPA prohibits a labor organization from causing or attempting to cause a covered employer to violate the statute. A covered entity is as liable for the actions of its agents as it would be for actions taken by itself.

An agent is an individual or entity having the authority to act on behalf of, or at the direction of, the covered entity. An entity that is an agent of a covered entity is liable for the discriminatory actions it takes on behalf of the covered entity. Most of the federal appeals courts have held that supervisors may not be held individually liable for discrimination because they do not meet the definition of the term "employer. The investigator should also consult with the legal unit regarding potential charges against state officials for injunctive relief.


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See note and accompanying text, above discussing charges against states. Of course, a sole proprietor who employs at least 15 or 20 employees depending upon the applicable statute would be liable as a covered "employer.

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In addition to prohibiting employers from discriminating against their own employees, Title VII, the ADEA, and the ADA prohibit a covered third-party employer from discriminatorily interfering with an individual's employment opportunities with another employer. This kind of liability is commonly known as "third-party interference. The EPA only protects individuals who are employed by the respondent employer from sex-based compensation discrimination because it only prohibits discrimination against the respondent's own employees.

For the third-party interference theory to be available against an employer, two requirements must be met:. A federal agency may not be held liable for discriminating against another party's employees under Title VII or the ADEA because those statutes only prohibit federal agencies from discriminating against "employees" and applicants for employment. A federal agency may be held liable for discriminating against another party's employees based on disability , however, because the Rehabilitation Act incorporates section of the ADA, which prohibits interference with any individual's rights under the chapter.

CP files a charge alleging that Respondent discriminated against her on the basis of age and sex by asking ABC to replace her with a younger male director. If Respondent exercises sufficient control over CP, it may also be liable as a joint employer. Respondent is a covered employer under Title VII. Of course, CP may also have a claim against her own employer if, after bringing the harassment to its attention, it failed to take prompt and appropriate corrective action.

Example 3 - Respondent is an insurance company that provides insurance for the employees of Smith, Inc. CP, an employee of Smith, Inc. Under the circumstances, CP has an ADA claim against Respondent for providing discriminatory insurance benefits arising out of his employment relationship with Smith, Inc. Because the charge is filed under the ADA, it is not necessary that Respondent be a covered employer. The third-party interference theory generally cannot be applied to a state agency that licenses or certifies individuals to work in a particular profession under the EEO statutes where it is exercising its police power in granting and denying licenses.

Example - A state commission issues licenses to and rents stall space for horse trainers. Under such circumstances, the commission would not be covered as an employer in its capacity as a licensor but might be covered under the third-party interference theory in its capacity as a renter of stall spaces, if it met other requirements for coverage.

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New Hampshire Racing Comm n, F. Section of Title VII, which is incorporated in the ADA, authorizes the Commission to take enforcement action whenever it has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice that denies others the rights provided by the statute, and to investigate a charge of such a pattern or practice of discrimination.

For example, an allegation of selective enforcement of a licensing requirement against African-Americans or some other protected class would constitute an allegation of pattern or practice discrimination covered by Section A prison does not have an employment relationship with its own prisoners. Thus, its supervision of prisoners performing work in the prison is not subject to the EEO statutes, even if the work is being performed for monetary or other compensation.


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A business that acquires another may be subject to liability under the EEO statutes for discrimination that was committed by the entity that it succeeded, even if the successor is not named in the charge. Whether the successor should be held liable for the discriminatory acts of its predecessors must be determined on a case-by-case basis, and requires a balancing of the interests of the employer and the employee. Generally, the successor can only be held liable if it had notice of the charge and the predecessor is unable to provide relief.

Example 1 - CP alleges that Respondent discharged him from his position as a salesman based on his national origin. Respondent sells its sales operations to ABC Corporation, but remains in business as a manufacturer. CP seeks back pay for the period from his discharge through the date he got another position with XYZ Corporation.

Because Respondent is able to provide relief, ABC should not be held liable. Example 2 - Same as above except that CP seeks reinstatement. Because only ABC can provide reinstatement, it can be held liable and can be required to provide that remedy as long as it had notice of the charge. Example 3 - CP alleges that she was sexually harassed by a supervisory employee of Respondent, an electronics manufacturer. After the sale, Respondent is declared bankrupt. ABC retains most of the employees who formerly worked for Respondent and continues Respondent's electronics manufacturing business.

Under these circumstances, the requirements for successor liability are met, and Smith Corp. A foreign employer doing business in the United States is generally covered by the EEO statutes to the same extent as an American employer. However, in some cases, such an employer may allege that it is party to a treaty that permits it to prefer its own nationals for certain positions. If this defense is raised, the investigator should determine the following:. In determining whether a U. An employer operating abroad that is incorporated in the United States will generally have sufficient ties to the United States to be deemed an American employer.

Where an employer is not incorporated in the United States or it is not incorporated at all, e. Factors to consider include the following:. The EEO statutes also prohibit discrimination by a foreign employer that is controlled by an American employer. The determination of whether an American employer controls a foreign employer is based on the following: Title VII and the ADA do not apply to American Indian tribes, which are excluded from the definition of "employer," but may apply to a tribally owned business.

The critical factors in determining whether a tribally owned business is exempt are whether it performs essentially governmental functions on the tribe's behalf and whether it is integrated with and controlled by the tribe. Title VII and the ADA do not apply to a bona fide private membership club other than a labor organization which is exempt from taxation under section c of the Internal Revenue Code of An organization is deemed a bona fide private membership club if it meets each of the following requirements:.

The presence or absence of any one of these factors is not determinative, however, and the question as to whether an organization is private must be addressed on a case-by-case basis. Finally, in determining whether the requirement of meaningful conditions of limited membership is met, the Commission will consider both the size of the membership, including the existence of any limitations on its size, and membership eligibility requirements. Example 1 - Respondent was founded to promote the popularity of golf as a recreational activity.

SECTION 2: THRESHOLD ISSUES

It has members, who provide all operating revenue. It is exempt from taxation under section c of the Internal Revenue Code. Members have free use of the organization's facilities, including the golf course, health spa, meeting rooms, and cafeteria. Nonmembers may only use the facilities at the request and in the presence of a member.

Respondent has admitted most but not all applicants. Example 2 - Same facts as above, except that nonmembers may use the facilities without a sponsoring member by paying an extra fee. Applicants for membership need only know one current member, and Respondent has admitted all applicants for membership. Respondent has not established that it is private, nor that it has meaningful conditions of limited membership; therefore, it is not a bona fide private membership club.

Public international organizations, such as the World Bank, the International Monetary Fund, and the United Nations are generally not covered by the EEO statutes because of immunity conferred under international and United States law. An organization will be immune if is included on the list of organizations entitled to immunity set out in the International Organizations Immunities Act unless immunity has been waived by the organization or by Presidential Executive Order.

If it is unclear whether an organization's immunity has been waived, the charge should be referred to the legal unit for a determination of whether the EEO statutes can be applied to the organization.

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Title VII does not apply to discrimination by a religious organization on the basis of religion in hiring and discharge.