Employment Law Part a In Gilmer v Term Paper

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Employment Law

Part a in Gilmer v. Interstate/Johnson 500 U.S. 20 (1991), Petitioner Robert Gilmer, a securities representative with the New York Stock Exchange, was required to register as a securities representative by his employer. Mr. Gilmer's application contained a clause that stated his agreement to arbitrate any and all controversies "arising out of a registered representative's employment or termination of employment." At the age of sixty-two, Employer terminated Gilmer and Gilmer subsequently filed a charge with the Equal Employment Opportunity Commission alleging he was terminated in violation of the Age Discrimination in Employment Act. According to the registration agreement, Employer moved to have the court compel that the matter be heard in mandatory arbitration. The Supreme Court ultimately ruled that arbitration was mandatory.

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In its decision, the Supreme Court reasoned that arbitration was required because it in no way would undermine the role of the Equal Employment Opportunity Commission's enforcement of the Age Discrimination in Employment Act because it still allows an individual to file a charge with the commission. Further, the Commission is charged simply to combat age discrimination. There is nothing that states this combat must occur through judicial actions. Instead, on the contrary, the Commission may receive information regarding violations "from any source" and, according to Section 29 CFR 1626.4, 1626.13, nothing in the Age Discrimination in Employment Act states that the Commission must be directly involved in all employment disputes.

Term Paper on Employment Law Part a In Gilmer v. Assignment

Gilmer's main argument is that arbitration is not proper because it deprives a petitioner of their right to a "judicial forum" as provided for in the act. However, the Court argues that the Act is silent as to what constitutes a "judicial forum," thus ruling that arbitration and other nonjudicial resolutions. Instead the Act is silent as to protecting against a waiver of the right to judicial forum. Based on this reasoning, the Court concluded that Gilmer failed to meet his burden of proof to show that Congress enacted the Age Discrimination in Employment Act with the intent to preclude arbitration of claims brought under the Act.

This Court ruling has a significant impact on court-mandated arbitration. What it is essentially saying is that all cases that state the right of the petitioner to bring a judicial action can be interpreted to mean arbitration instead of an individual and private judicial action. What is surprising about their decision is how they interpret the term "judicial forum" to mean arbitration and other "nonjudicial forums." It seems that by using the word "judicial," Congress intended it to mean traditional judicial forums like the private court action Gilmer originally filed. However, the Supreme Court interprets this term in the opposite manner, saying that if Congress intended the word "judicial" to not mean arbitration and other nonjudical forums, it would have specifically said so. Yet, it seems that Congress did specifically say this in its specific use of the word "judicial," which essentially is the opposite of nonjudicial."

It is because of this misinterpretation of Congress' clear intent that I disagree with the majority's opinion. Instead I agree with the dissenting opinion, which relies heavily on the Federal Arbitration Act as it applies to the Age Discrimination in Employment Act. According to the Federal Arbitration Act, "Nothing herein contained shall apply to contracts of employment of...any class of workers engaged in foreign or interstate commerce." 9 U.S.C. 1. Thus, because Gilmer is engaged in interstate commerce, he is not under the jurisdiction of the Federal Arbitration Act, which, according to the majority, he is. Whereas the majority holds that the Federal Arbitration Act compels the enforcement of arbitration clauses even in claims of age discrimination, the dissent states that the Federal Arbitration Act does not extend to such cases. Instead, the dissent argues, and which I agree with, that arbitration clauses in employment are specifically exempt from coverage of the Federal Arbitration Act and therefore Employer cannot compel Gilmer to submit his action to arbitration.

Part B

Question One

In the case at hand, several deaf employees of United Parcel Services (UPS) have brought an action for discrimination under the Americans with Disabilities Act. During training, the Employer provided special training on handling the Anthrax threat. These training sessions were on video. The deaf workers claim they were discriminated against in that Employer never provided interpreters or subtitles for them. Employer counter argues that they were not required to provide a special accommodation because the deaf employees were able to watch the videos and because the employees do not meet the definition of being disabled for the purposes of handling packages.

The Americans with Disabilities Act covers entities, including private employer, against qualified individuals with a disability. A qualified individual is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. A disability is defines as 1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; 2) a record of such impairment; or 3) being regarded as having such an impairment. If an individual is qualifies as a disabled individual, then an employer must take reasonable measures to accommodate their disability.

Although the Courts have held that a hearing impairment is not a disability because its disabling effects can be mitigated through corrective instruments, this is not the case with a deaf individual. Being deaf is a physical impairment that substantially limits one or more the major life activities of the individual. This being the case, Employer (UPS) had to make reasonable accommodations in the training of the deaf employees. When the training involves both visual and audio information, it is not enough to simply state that the deaf workers can just watch the video as this does not allow them to receive the entire benefit of the training. Further, the use of an interpreter or closed caption subtitles is not an unreasonable request. Because of this, the employees have a valid claim of discrimination under the Americans with Disabilities Act.

Question Two

In the case at hand, Martha applies for a job as a stock clerk. The job requirements state that this position requires a great deal of lifting and a wide range of movement. During the interview, Martha informs the Employer that she will be undergoing a surgery to remove a tumor in a vertebrare. Further, this surgery will severely limit her ability to move. Because the Employer feels that this surgery will make it impossible for Martha to complete the job requirements, Martha is not hired. Martha files a claim for disability discrimination.

In order to have a valid claim, Martha must first demonstrate that with or without reasonable accommodation she can perform the essential functions of the employment position. Thus, in order to prevail in this claim, Martha must show that she can either perform the job requirements without accommodation or, in the alternative, show that if given reasonable accommodations, she would be able to perform the job requirements.

In the case at hand, Martha does not have a valid claim for discrimination in hiring under the Americans with Disabilities Act for two reasons. First, she does not have a disability because at the time of the alleged discrimination she was capable of performing the job. Second, even when she is disabled, she has failed to show that, given the right accommodations, she could perform the job requirements.

Question Three:

In the case at hand, Muhammad is an Muslim American who, following the terrorist attacks of September 11, 2001, is the target of jokes about his religion by both his coworkers and his manager. He is ultimately terminated after he throws away a paper cup his manager was still using. He has no history of employment problems. For this reason, Muhammad feels he was terminated for his religious and ethnic background and thus files an action with the Equal Employment Opportunity Commission.

Muhammad has a valid claim for both religious and ethnic discrimination in his termination. Although Employer claims the reason for his firing was Muhammad's throwing away of a paper cup, it will be difficult for the Employer to show that this is a valid reason for Muhammad's termination. If Muhammad was given specific instructions not to throw away the cup and if Muhammad has an employee file full of well-documented incidents of not following directions, then this would be a valid reason for termination. Instead, because of the lack of history and because of the evidence of the comments Muhammad was receiving, the EEOC will more likely than not view the Employer's claimed reasoning for termination as a sham and thus rule in favor of Muhammad.

Question Four:

In the case at hand employee Patsy makes a formal complaint to her boss that she is being sexually harassed by one of the store's regular patrons. Specifically, she request not to be assigned to this patron's table. The Employer, after several weeks, talks to the patron (to no… [END OF PREVIEW] . . . READ MORE

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