Risk Management Flashcards

What does an employer need to prove to use the Faragher/Ellerth affirmative defense to a supervisor harassment claim?

Answer: It took reasonable care to prevent and correct harassment, and the employee unreasonably failed to use the complaint process

The defense requires reasonable preventive and corrective care plus the employee's unreasonable failure to use the available procedures.

When is the Faragher/Ellerth defense NOT available to an employer?

Answer: When the supervisor's harassment led to a tangible employment action such as termination

If supervisor harassment results in a tangible employment action, the employer is strictly liable and cannot use the defense.

According to EEOC data, which basis has been the most frequently alleged in EEOC charges for many years in a row?

Answer: Retaliation

Retaliation has been the most frequently cited basis in EEOC charges for more than a decade.

A company wants a pay equity analysis while limiting the risk of disclosure in litigation. What is the best approach?

Answer: Have legal counsel commission the analysis under attorney-client privilege

Doing the analysis at counsel's direction helps protect findings under privilege while the organization fixes gaps.

After the Supreme Court's 2023 Groff v. DeJoy decision, what standard does an employer need to meet to deny a religious accommodation for undue hardship?

Answer: Substantial increased costs in relation to the conduct of its business

Groff rejected the de minimis test and requires substantial increased costs relative to the business.

Which practice most increases legal risk under Title VII for a diversity hiring initiative?

Answer: Requiring managers to fill a fixed number of openings with candidates of a specific race

Rigid race-based quotas in hiring decisions are unlawful disparate treatment under Title VII.

In a likelihood-by-impact heat map, which risk should usually get priority attention first?

Answer: High likelihood, high impact

Risks scoring high on both likelihood and impact sit in the critical zone and get the highest priority.