BUS203 Business Law I Chapter 5

 50.2.2 Employment at Will

In the realm of common law, an individual lacking a contractual assurance of employment for a specific duration was traditionally deemed an "employee at will," susceptible to termination at the discretion of the employer without cause, justification, or any articulated reason. Our scrutiny of federal statutes reveals a discernible erosion of the at-will principle. Notably, the Occupational Safety and Health Act bars employers from dismissing employees who assert their rights under this legislation.

A transformative shift in the at-will paradigm has been ushered in by the courts and legislatures of over forty states, adopting three pivotal doctrines: tort, contract, and the duty of good faith and fair dealing. Our exploration commences with an examination of the tort of wrongful discharge.

The concept of wrongful discharge serves as a significant exception to the employment-at-will doctrine, representing the termination of an employee for unjustifiable reasons. What qualifies as unjustifiable? It encompasses instances such as (1) terminating an employee for refusing to violate a legal statute, (2) terminating an employee for exercising a lawful right, (3) terminating an employee for fulfilling a legal obligation, and (4) terminating an employee in a manner contravening established public policy.

Discharging an Employee for Refusing to Violate a Law

Certain employers may seek to dissuade employees from providing truthful testimony during legal proceedings. An illustrative case involves a nurse who, in conscientious objection, declined to administer a specific anesthetic as ordered by a doctor, deeming it inappropriate for the patient in question. In response, the irate doctor, displeased with the nurse's refusal to comply, personally administered the anesthetic. Tragically, the patient's respiratory function ceased, and despite efforts from the doctor and others, timely resuscitation proved elusive, resulting in permanent brain damage. When the patient's family pursued legal action against the hospital, the institution warned the nurse of potential repercussions if she testified truthfully. Undeterred by intimidation, she upheld her legal oath in court, recounting the events accurately. Subsequently, and following several months of harassment, the hospital terminated her employment on a pretext. The hospital, in this instance, was held legally accountable for wrongful discharge, emphasizing the principle that, as a fundamental rule, employees should not face dismissal for refusing to engage in unlawful activities.

Discharging an Employee for Exercising a Legal Right

Consider the scenario where Bob Berkowitz, an employee at Pacific Gas & Electric, submits a workers' compensation claim following an injury sustained at the workplace. Shockingly, he faces termination for this act, driven by the employer's desire to avoid an increase in workers' compensation premiums. In this context, Berkowitz's action is not only protected by his legal right to file a workers' compensation claim but is also underpinned by a broader public policy imperative. He possesses the legal entitlement to initiate such a claim, and if he can demonstrate that his dismissal is a direct consequence of filing the claim, he stands to establish the tort of wrongful discharge. This underscores the crucial principle that employees have the right to exercise legally sanctioned actions, such as filing a workers' compensation claim, without facing adverse consequences from their employer.

Discharging an Employee for Performing a Legal Duty

The legal stance has consistently maintained that terminating an employee for fulfilling their civic duty by serving on a jury is impermissible. Despite the acknowledged challenges employers may face in finding replacements for employees on jury duty, the judiciary upholds the fundamental importance of this civic obligation. Employers are unequivocally prohibited from undermining the significance of jury duty, recognizing its pivotal role in the functioning of a fair and just legal system.

Discharging an Employee in a Way That Violates Public Policy

This aspect of the tort of wrongful discharge is arguably one of the most contentious, primarily due to the inherent ambiguity in the phrase "basic social rights, duties, or responsibilities." This parallels a similar exception in contract law, where courts refrain from enforcing contract provisions that contravene public policy, often discerned from statutes and legal precedents. Determining what constitutes public policy is a critical responsibility for state courts.

In the case of Wagenseller v. Scottsdale Memorial Hospital, the controversy unfolded when a nurse, unwilling to participate in her coworkers' unconventional rafting trip antics, faced dismissal. The group had engaged in nighttime socializing with alcohol, and when the festivities reached an unusual climax involving the exposure of buttocks to the melody of "Moon River," the nurse opted out. The court delved extensively into the matter, highlighting that the act of "mooning" was classified as a misdemeanor under Arizona law. Consequently, the court ruled that her employer lacked grounds for termination, as it would have amounted to compelling her to breach a state law.

In a broader context, some courts extend the umbrella of public policy to encompass professional oaths and codes. A notable example is found in Rocky Mountain Hospital and Medical Services v. Diane Mariani, where the Colorado Supreme Court examined the case of a certified public accountant discharged for refusing to compromise her professional code. The employer had repeatedly demanded her to manipulate figures and outcomes contrary to her training and professional code. The Supreme Court grappled with the question of whether the professional code of Colorado accountants could be considered a facet of public policy. Given that accountants are licensed by the state on behalf of the public, with the Board of Accountancy publishing a code and requiring an oath before licensing, the court concluded that the professional code indeed played a role in shaping public policy.

The Colorado State Board of Accountancy, established under section 12-2-103, 5A C.R.S. (1991), holds the crucial responsibility of formulating rules of professional conduct to uphold a high standard of integrity within the realm of public accounting, as outlined in § 12-2-104, 5A C.R.S. (1991). These meticulously crafted rules extend their governance to all individuals practicing as certified public accountants, with non-compliance risking professional disciplinary action, as stipulated in § 12-2-123, 5A C.R.S. (1991).

The paramount objective of these rules of professional conduct is grounded in a profound public interest. They serve to ensure the accurate dissemination of financial information to the public, fostering confidence within both the public and business communities in the reliability of financial reporting, as articulated in Rule 7.1, 3 C.C.R. 705-1 (1991). Furthermore, these rules play a pivotal role in maintaining consistency in financial reporting practices across various businesses, aligning with the legislative endorsement of these objectives in section 12-2-101, 5A C.R.S.

In a significant legal precedent, the court underscored the public mandate behind these rules by emphasizing that the licensing and registration of certified public accountants were explicitly designed to uphold high standards of professional conduct. The court further pointed out that Rule 7.1, titled "Integrity and Objectivity," unequivocally prohibits a certificate holder from knowingly misrepresenting facts or compromising their judgment for the sake of others. In the case of Rocky Mountain Hospital and Medical Services v. Diane Mariani, the court deemed the employer's request for Mariani to knowingly misrepresent facts as a blatant violation of this rule and a compelling basis in public policy for asserting a claim of wrongful discharge.

Contract Modification of Employment at Will

Contract law has the capacity to alter the default nature of employment at will. Oral assurances conveyed during the hiring process, even without the explicit endorsement of top management, may carry legal weight and be subject to enforcement. Additionally, employee handbooks can give rise to implied contracts, delineating specific personnel protocols and articulating conditions under which employees may be terminated, such as requiring a "just cause" or stipulating the necessity of prior warnings, notice, hearings, or other procedural safeguards. These contractual nuances serve to add layers of complexity and specificity to the employer-employee relationship, transcending the conventional at-will framework.

Good Faith and Fair Dealing Standard

In a notable departure from the prevailing at-will doctrine, certain states, including Massachusetts and California, have significantly altered the landscape by asserting that every employer has implicitly entered into a covenant of good faith and fair dealing with its employees. According to the jurisprudence in these states, discharging employees solely to evade fulfilling obligations such as commissions or pensions is deemed an act of "bad faith" and consequently unlawful. The implied covenant of fair dealing in these jurisdictions establishes that any termination lacking a justifiable cause, such as incompetence, corruption, or chronic tardiness, can be legally contested. It is important to note, however, that this perspective is not universally adopted, as exemplified by the case outlined in Section 50.4.4 on Disability Discrimination, underscoring the divergence of legal viewpoints on this matter.

50.3.3 Other Employment-Related Laws

The Federal Plant-Closing Act

A significant wellspring of employment opportunities in the United States has historically been the establishment of new industrial plants, contributing millions of jobs annually throughout the 1970s and 1980s. However, this surge in job creation was counterbalanced by a nearly equivalent loss, with almost 100 jobs being eliminated annually due to plant closures during that period. In the mid-1980s alone, a staggering 2.2 million plant jobs were lost each year, posing a considerable challenge not only to the national economy but also to the individuals affected by these closures.

Compounding the severity of the situation, surveys conducted in the 1980s revealed a distressing lack of notification provided by many companies to employees facing factory closures and mass layoffs. Astonishingly, almost a quarter of businesses with over 100 employees offered no specific notice about the impending closure or mass layoffs at their particular work site. Additionally, over half of these businesses furnished only two weeks' notice or less.

Responding to this critical issue, a national debate ensued in the late 1980s, culminating in the passage of the Worker Adjustment and Retraining Notification (WARN) Act by Congress in 1988. This federal plant-closing act mandates that businesses with 100 or more employees must provide at least sixty days' notice to affected employees, their local bargaining unit, and the local city or county government under specific conditions. These conditions include scenarios where at least 50 employees in a single plant or office facility face job losses, long-term layoffs, or a reduction of more than half their working hours due to a shutdown, and when a shutdown involves long-term layoffs affecting 500 employees or at least a third of the workforce.

Violating the WARN Act subjects employers to liabilities, including back pay for the notice period owed to employees, as well as potential fines and penalties. Notably, employers are exempt from providing notice under certain circumstances, such as unforeseeable business circumstances or when actively seeking capital or business that, if obtained, would avert or delay the shutdown, and giving notice would impede securing the needed capital or business in good faith.

The Employee Polygraph Protection Act

The credibility of various lie detection methods has been subject to scrutiny in numerous studies, prompting over half of the states and Congress in 1988 to enact legislation restricting their usage by private businesses. The Employee Polygraph Protection Act stands as a formidable legal barrier, explicitly prohibiting private employers from employing lie detectors, including devices like voice stress analyzers, for any purpose. Significantly, both employees and job applicants are shielded from being compelled or even inquired about their willingness to undergo such testing. Notably, the act carves out exceptions for public employers, defense and intelligence entities, private security firms, and manufacturers of controlled substances.

The utilization of polygraphs, sophisticated machines measuring physiological responses such as blood pressure and pulse, is carefully circumscribed. While they can be employed in investigations involving crimes like theft, embezzlement, and industrial espionage, their usage mandates that the employer possess "reasonable suspicion" regarding the employee's involvement in the alleged crime. Moreover, there must be substantiating evidence for the employer to take disciplinary action or terminate the employee based on polygraph results or the employee's refusal to undergo testing. It is essential to note that the federal polygraph law does not override state laws, and if a state unequivocally prohibits employers from using polygraphs, the limited authorization under federal law becomes unavailable.

Occupational Safety and Health Act

In a highly industrialized society, prioritizing workplace safety is paramount. Extensive studies spanning over a century have meticulously chronicled the grim toll exacted by perilous working conditions in mines, on railways, and in factories—exposing workers to hazards from tools, machinery, hazardous surroundings, and toxic chemicals. By the late 1960s, empirical evidence revealed a staggering human cost: over 14,000 workers killed and 2.2 million disabled annually, amounting to a financial toll exceeding $8 billion and a loss of more than 250 million worker days. In response to this pressing issue, Congress took decisive action in 1970 by enacting the Occupational Safety and Health Act, with its primary objective being to ensure, to the extent possible, safe and healthy working conditions for every man and woman across the nation.

The act places upon each employer a fundamental obligation to provide a workplace devoid of recognized hazards likely to result in death or severe physical harm to employees. Additionally, the Secretary of Labor is empowered to establish national health and safety standards, with this rule-making authority delegated to the Occupational Safety and Health Administration (OSHA), an agency within the US Department of Labor. OSHA possesses the jurisdiction to inspect workplaces falling under the purview of the act, triggered by employee complaints or reports of fatal or multiple injuries. The agency is vested with the authority to impose penalties and can take administrative measures to enforce its standards, while criminal provisions of the act are enforced by the Justice Department.

Criticism was leveled at OSHA during its initial two decades for perceived delays in issuing standards, with fewer than thirty national workplace safety standards issued by 1990. However, safety enforcement is not exclusively under federal purview. Although OSHA standards supersede similar state standards, the act allows the Secretary to authorize states to formulate standards equal to or exceeding federal standards. Furthermore, the Secretary may provide grants to states, covering half the costs of enforcing state safety standards—a testament to the collaborative approach to ensuring workplace safety.

Employee Retirement Income Security Act

A substantial majority of the US workforce, exceeding half, is covered by private pension plans designed to secure their retirement. A 1988 estimate indicated that the collective value of pension funds surpassed $1 trillion, entailing an annual tax expenditure of almost $60 billion for the federal Treasury. In the 1960s, with the remarkable growth of private pension funds, Congress became privy to distressing narratives of employees being deceived out of pension benefits, losing a lifetime's savings through manipulative tactics such as prolonged vesting provisions and untimely terminations just before retirement. In response to these egregious practices, Congress enacted the Employee Retirement Income Security Act (ERISA) in 1974.

ERISA, at its core, regulates the vesting of employees' pension rights and the funding of pension plans. It stipulates that within five years of commencing employment, employees are entitled to vested interests in retirement benefits contributed on their behalf by individual employers. For multiemployer pension plans, the vesting period extends to ten years. To ensure financial security, various pension plans are required to be insured through the Pension Benefit Guaranty Corporation, a federal agency funded by annual premiums from employers. The corporation is empowered to assume financial control of underfunded plans and can legally compel employers to rectify deficiencies. ERISA also mandates pension funds to disclose financial information to beneficiaries, grants employees the right to legal recourse for benefits, dictates standards of conduct for fund administrators, and prohibits employers from unjustly denying employees their entitlement to pensions. The act largely supersedes state laws pertaining to employee benefits, establishing a comprehensive federal framework to safeguard pension rights and promote transparency and fairness in the administration of pension plans.

Fair Labor Standards Act

Amidst the challenges of the Depression era, Congress, prompted by President Roosevelt, passed a landmark national minimum wage law—the Fair Labor Standards Act of 1938 (FLSA). This comprehensive legislation not only prohibited most forms of child labor but also instituted a tiered system of minimum wages for regular workweeks and higher rates for overtime. The initial hourly minimum was set at twenty-five cents, but the administrator of the Wage and Hour Division of the US Department of Labor, a position established by the act, held the authority to adjust the minimum rate on an industry-by-industry basis.

Originally, the FLSA had a more limited scope, applying specifically to work related to transporting goods in interstate commerce or producing goods for interstate shipment. However, employers soon devised methods, such as segregating interstate and intrastate aspects of their production, to circumvent the minimum wage requirements. Over the subsequent twenty-five years, the FLSA underwent significant expansion, now encompassing all workers in businesses with a particular dollar-volume of goods involved in interstate commerce. This includes the majority—between 80 and 90 percent—of all privately employed individuals outside of agriculture, as well as a significant portion of agricultural workers and state and local government employees.

Enforcement of the FLSA falls under the purview of the administrator of the Wage and Hour Division, who holds the authority to negotiate back pay on behalf of the employee. If a settlement is unattainable, the Labor Department has the option to file a lawsuit on the employee's behalf. Alternatively, armed with a notice detailing the administrator's calculations of owed back wages, the employee may independently pursue legal action in federal or state court. Notably, under the FLSA, a successful employee is entitled to double the amount of back wages owed—a provision aimed at bolstering the deterrent effect against violations of this critical labor legislation.

Workers’ Compensation Laws

Since the onset of the twentieth century, state workers' compensation laws have been pivotal in addressing work-related injuries or illnesses. These laws establish a framework wherein individuals are entitled to a predetermined weekly compensation for disabilities resulting from accidents or illnesses sustained in the course of employment. Furthermore, these compensation plans cover the necessary hospital and medical expenses incurred in treating injuries or illnesses directly linked to the workplace. An essential feature of these plans is the elimination of the hazards and uncertainties associated with lawsuits, as they obviate the need to establish fault for compensation to be awarded.

The funding mechanism for these compensation plans typically involves employers contributing to statewide funds or securing insurance coverage. This financial support ensures the availability of resources to provide compensation and medical care to workers who suffer injuries or illnesses in the workplace. By implementing this structured system, workers' compensation laws offer a streamlined and efficient means of addressing occupational injuries and illnesses, promoting the well-being of employees and providing a level of financial security during times of health-related challenges stemming from their work.

Other State Laws

While it may seem that the majority of employment law falls under federal jurisdiction, employment discrimination is predominantly governed by state law due to explicit congressional mandates. The Civil Rights Act of 1964 directs federal courts to defer to state agencies for the enforcement of anti discrimination provisions within parallel state statutes, provided these statutes offer remedies akin to those in federal law. Notably, numerous states have surpassed federal regulations by implementing more extensive bans on various forms of discrimination.

For instance, well before the enactment of the Americans with Disabilities Act, over forty states had already prohibited such discrimination in private employment. Furthermore, more than a dozen states have taken steps to ban employment discrimination based on marital status—a category not covered by federal law. Some states have even enacted laws specifically safeguarding individuals who may be deemed "overweight." In the realm of sexual orientation, two states and over seventy counties or municipalities have instituted measures to prohibit employment discrimination, a domain where federal law lacks statutory provisions.

This intricate interplay between federal and state regulations showcases the diversity and dynamism of employment discrimination laws across the United States. State legislatures, in many cases, have taken the initiative to expand protections and address emerging issues, creating a patchwork of regulations that may exceed the scope of federal law in various aspects.

50.4.4 Cases

Disparate Treatment: Burdens of Proof

Barbano v. Madison County

Factual Background

At the Madison County Veterans Service Agency in New York State, the director position became vacant, prompting the County Board of Supervisors to form a committee tasked with conducting interviews for the role. Maureen E. Barbano, along with four other candidates, underwent interviews by this committee. Upon entering the interview room, Barbano overheard a remark expressing surprise at the presence of "another woman." Early in the interview, Donald Greene declared his unwillingness to consider "some woman" for the position. Greene proceeded to pose personal and discriminatory questions to Barbano regarding her family plans and whether her husband would approve of her transporting male veterans. In response, Barbano asserted that the questions were irrelevant and discriminatory. However, Greene insisted that they were relevant, justifying his concern about hiring a woman who might become pregnant and quit. Another committee member, Newbold, concurred that the questions were relevant, and no committee member objected to their appropriateness.

Notably, none of the interviewers rebuked Greene or signaled disapproval of the questions, nor did they inform Barbano that she was not obligated to answer them. Barbano emphasized that if she decided to start a family, she would take no more time off than medically necessary. Greene persisted, inquiring whether Barbano's husband would object to her "running around the country with men," citing his reluctance for his own wife to engage in such activities. Barbano clarified that she was not his wife. The interview concluded after Barbano asked questions about insurance.

Following interviews with several candidates, the board ultimately hired a male candidate. In response, Barbano filed a lawsuit against the county for sex discrimination in violation of Title VII. The district court ruled in her favor, awarding Barbano $55,000 in back pay, prejudgment interest, and attorney's fees. Madison County appealed the decision of Federal District Judge McAvoy, and Barbano cross-appealed, seeking additional damages.

The court determined that Barbano had successfully established a prima facie case of discrimination under Title VII, prompting a closer examination of the appellants' asserted justifications for not hiring her. The appellants put forth four reasons favoring Wagner over Barbano, all of which the district court dismissed as either unsupported by the record or viewed as a pretext for discrimination, especially in light of Barbano's interview. Considering Barbano's education and extensive experience in social services, the district court further ruled that the appellants had failed to demonstrate that, in the absence of discrimination, they still would not have selected Barbano for the position.

Consequently, the court awarded Barbano back pay, prejudgment interest, and attorney's fees. In a subsequent ruling, the court rejected Barbano's plea for front pay and a mandatory injunction compelling her appointment as director in the event of the next vacancy. The present appeal and cross-appeal ensued from these decisions.

From the Opinion of Feinberg, Circuit Judge

The appellants contend that the district court's conclusion, attributing discriminatory intent to the Board based on Greene's statements during the interview, is in error. They argue that there is no direct evidence of discrimination by the Board, and, consequently, it is inappropriate to impose the burden on appellants to demonstrate that they would not have hired Barbano in the absence of discrimination. On the other side, Barbano contests the sufficiency of the remedies granted by the district court, challenging the adequacy of the relief awarded to her.

A. Discrimination

To begin, it's important to note that Judge McAvoy's opinion predates Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1990), where the Supreme Court clarified the distinct analyses for "pretext" and "mixed motives" cases. Given that Judge McAvoy did not have the benefit of this opinion, he did not clearly differentiate between the two types of cases when assessing the alleged discrimination. For the purposes of this appeal, the crucial consideration lies in whether the district court's factual findings are supported by the record and whether the correct legal standards were applied, irrespective of the categorization of the case.

Regardless of whether it's a pretext or mixed motives case, the plaintiff carries the burden of persuasion on whether gender played a role in the employment decision (Price Waterhouse v. Hopkins at 1788). Appellants argue that Barbano failed to meet this burden by pointing out that the only evidence of discrimination pertains to Greene's statements during the interview. Additionally, appellants contend that since Greene, an elected official, was beyond the control of other Board members, evidence of his discrimination does not establish discrimination by the entire 19-member board, which ultimately made the hiring decision.

While acknowledging that discrimination by one individual doesn't necessarily implicate the entire decision-making body, the record at hand supports the district court's determination that the Board, as a whole, engaged in discriminatory practices when making the hiring decision.

To begin, it is evident that Greene's statements during the interview were discriminatory. His explicit statement that he would not consider "some woman" for the position, coupled with questions about Barbano's potential pregnancy and her husband's opinion on her interactions with male veterans, all lacked relevance to any bona fide occupational qualification, making them discriminatory. Similarly, his inquiries about Barbano's husband's approval for her to "run around the country with men" were discriminatory, as they were unrelated to legitimate job qualifications.

The discriminatory nature of Greene's questions is underscored by their prevalence throughout the interview. With almost the entire interview centered on these discriminatory queries, the district court rightfully concluded that the interview itself was discriminatory. Furthermore, given the discriminatory tone of the interview and the other Committee members' acquiescence to Greene's line of questioning, it is reasonable to infer that those present, not just Greene, engaged in discriminatory behavior.

Judge McAvoy highlighted that Newbold, the Committee Chairman, considered Greene's discriminatory questions to be relevant. Importantly, despite Barbano's objections to the discriminatory nature of the questions, no one supported her stance or informed her that she was not obligated to answer. No efforts were made to redirect the interview away from discriminatory lines of inquiry. This collective toleration of discriminatory statements by all participants in the interview serves as evidence of discrimination by the entire group. The fact that each member was independently elected to the Board does not negate the Committee's ability to control the interview's course. The Committee had a choice in conducting the interview, and the court reasonably found that they exercised that choice in a patently discriminatory manner.

Discrimination significantly influenced the hiring decision in this case. Following the interview process, the committee evaluated the candidates and submitted a recommendation on the preferred candidate for the position. It is well-established that evaluation in the hiring process involves comparing candidates against each other, as articulated in Berl v. County of Westchester, 849 F.2d 712, 715 (2d Cir. 1988). The appellants acknowledged that Barbano was qualified for the position. Because Judge McAvoy could reasonably find that the evaluation of Barbano was tainted by gender discrimination, it logically follows that the Committee's recommendation to hire Wagner, resulting from a comparative assessment of the candidates, was also inherently tainted by discrimination.

Subsequently, the Board unanimously accepted the Committee's discriminatory recommendation, making the hiring decision reliant on a prejudiced suggestion. Drawing from the precedent set in Hopkins v. Price Waterhouse, where the Supreme Court recognized that a collective decision-making body can discriminate by relying on discriminatory recommendations, we find the reasoning in that case applicable to the present situation. The Board's decision, grounded in a recommendation influenced by discrimination, aligns with the principles established in Hopkins.

In the case of Hopkins v. Price Waterhouse, Ann Hopkins, seeking partnership at the accounting firm of Price Waterhouse, alleged gender discrimination in her denial of partnership. Her evidence primarily consisted of evaluations made by various partners. Price Waterhouse contended that this evidence did not establish discrimination by its internal Policy Board, the effective decision-maker in partnership matters. The Court, however, rejected this argument and concluded that the evidence did indeed establish discrimination:

Hopkins demonstrated that the partnership actively sought evaluations from all firm partners and heavily relied on them in the decision-making process. Some of these evaluations contained discriminatory comments. Importantly, the firm never disclaimed reliance on those particular comments, neither in Hopkins' case nor in previous instances. Given these circumstances, a plausible and, one might argue, inevitable conclusion is that the Policy Board, in making its decision, did consider all partner comments, including those motivated by discrimination.

Barbano's case carries a heightened significance in terms of discrimination because the sole recommendation the Board relied upon was inherently discriminatory, unlike the situation in Price Waterhouse, where not all evaluations used were discriminatory. While it's true that the discriminatory nature of some evaluations in Price Waterhouse was readily apparent upon reading them, in Barbano's case, the discriminatory recommendation was embedded in a resolution to the Board, and a mere reading of the resolution wouldn't unveil the discrimination. Nevertheless, the facts in this case indicate that the Board was aware, or at least put on notice, before making the appointment that the Committee's recommendation was tainted by discrimination.

During the Board meeting in March 1980 when Wagner's appointment was voted on, Barbano, as a member of the public, raised objections and queried whether male applicants faced similar questioning during interviews. This act alerted the entire Board to the potential discrimination faced by Barbano during her interview. Despite this, the Committee members did not address the question, and Newbold, the only one to respond, evaded the issue by stating he did not ask such questions. At this juncture, the Board's claim of ignorance was further undermined by the presence of the Chairman of the Board, Callahan, who had attended many interviews, including Barbano's, in his capacity as Chairman. Callahan neither refuted Barbano's allegations nor faced any queries from other Board members on the matter, implying a tacit acknowledgment of the credibility of Barbano's concerns.

It is evident that those present at the Board meeting comprehended Barbano's allegations of discrimination during her interview. John Patane, a Board member who had not interviewed Barbano, directly inquired whether she was suggesting that Madison County was not an equal opportunity employer, to which Barbano affirmed. Patane remarked that the County already had their "token woman." Chairman Callahan apologized to Barbano for "any improper remarks that may have been made," but an apology for discrimination falls short of an effort to eliminate discrimination from the hiring decision. Despite being aware of potential improprieties, the Board did not conduct any investigation into the allegations and did not disavow any reliance on discrimination. In essence, the circumstances indicate that the Board was willing to rely on the Committee's recommendation even if discrimination occurred during Barbano's interview. Given these facts, the district court's conclusion that Barbano met her burden of proving discrimination by the Board was not clearly erroneous.

B. The Employer’s Burden

Having established that Barbano successfully met her burden of proving discrimination, the district court correctly shifted the burden to appellants to demonstrate by a preponderance of the evidence that, in the absence of discrimination, they would not have selected Barbano for the position. Appellants contend that this burden is only imposed on an employer when the plaintiff establishes discrimination through direct evidence. They argue that since Barbano's evidence was largely circumstantial, the district court erred in assigning the burden of proof to them. However, appellants misunderstand the nature of Barbano's evidence and the relevant legal standard.

The burden appropriately shifts to the defendant "once the plaintiff establishes by direct evidence that an illegitimate factor played a motivating or substantial role in an employment decision." (Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d Cir. 1989)). Therefore, the crucial inquiry here is whether the evidence is direct, indicating that the impermissible criterion influenced the decision-making process. (Hopkins, at 1791; Grant, 880 F.2d at 1569). If the plaintiff provides such evidence, the fact-finder must then determine whether it shows that the impermissible criterion played a motivating or substantial role in the hiring decision. (Grant, 880 F.2d at 1569).

As previously determined, the evidence establishes that Barbano's gender significantly influenced the hiring decision. The substantial role of discrimination in this decision is underscored by the Board's reliance on the committee's recommendation. Testimony from Rafte indicates that the Board typically accepts a committee's recommendation, as evidenced by the unanimous vote to appoint Wagner in this case. Had the Board distanced itself from Barbano's discrimination claims and taken steps to ensure it did not rely on illegitimate criteria, the evidence supporting the substantial role of discrimination in the decision might have been weakened. However, the Board demonstrated no inclination to take such actions, allowing illegitimate criteria to play a substantial role in the hiring decision by adopting the discriminatory recommendation.

Therefore, the district court correctly imposed the burden on appellants to demonstrate that, in the absence of discrimination, they would not have hired Barbano. As articulated in Price Waterhouse v. Hopkins, at this stage, the employer must convince the fact-finder that, despite the appearance of impropriety, there is no underlying discriminatory motive. Judge McAvoy acknowledged appellants' stated reasons for choosing Wagner over Barbano but found that the evidence only supported the first two reasons. Despite the committee's preference for Wagner's military background and veterans' organization involvement, which were not listed as job requirements, the district court determined that appellants failed to meet their burden of proving that, absent discrimination, they would not have hired Barbano, given her education and experience in social services.

The district court's adherence to the preponderance of evidence standard was appropriate, as clarified in Hopkins, ensuring that appellants were held to a proper burden of proof.

Examining the qualifications of Barbano and Wagner, Barbano's experience as a Social Welfare Examiner for Madison County for three years equipped her with the skills to determine eligibility for public assistance programs, including Medicaid and food stamps. Her responsibilities included issuing or denying applications based on federal, state, and local regulations. Pursuing an Associate Degree in Human Services, Barbano was familiar with welfare agencies beneficial to veterans. Rafte, the County Director of Personnel, testified to the impressive nature of Barbano's resume. Being a resident of Madison County, Barbano had an additional advantage according to Rafte. Notably, Barbano had enlisted in the United States Marine Corps in 1976, demonstrating her commitment to service, though her vision was affected during recruit training, leading to an honorable discharge.

Comparatively, Wagner, with nine years of experience as an Air Force Personnel Supervisor, maintained personnel records and had a high school equivalency diploma. He held the rank of Staff Sergeant upon an honorable discharge from the Air Force in 1965. While Wagner was a member of the American Legion and had recommendations from two Legion members, his employment for the six years prior to becoming Director included roles as a school bus driver and part-time bartender at the American Legion. Wagner admitted lacking knowledge of laws, rules, and regulations related to veterans' benefits and services, as well as unfamiliarity with the forms and procedures for processing veteran benefit claims and maintaining liaison with welfare agencies. These differences in qualifications were crucial in evaluating the hiring decision.

Indeed, both candidates demonstrated qualifications for the Director's position, and the responsibility of the court, as well as the district court, was not to determine preference between the two. Judge McAvoy's role was accurately understood in assessing whether appellants successfully proved, by a preponderance of the evidence, that they would not have hired Barbano even in the absence of discrimination. The judge's conclusion that defendants did not meet this burden is subject to review for clear error, and upon examination, it cannot be asserted that the finding was clearly erroneous.

Title VII and Hostile Work Environment

Duncan v. General Motors Corporation

Diana Duncan worked as a technical training clerk in the high-tech area at GMC as part of the College’s Center for Business, Industry, and Labor program from August 1994 until May 1997. Duncan provided in-house training support to GMC employees.

Duncan first learned about the College’s position at GMC from Booth, a United Auto Workers Union technology training coordinator for GMC. Booth frequented the country club where Duncan worked as a waitress and a bartender. Booth asked Duncan if she knew anyone who had computer and typing skills and who might be interested in a position at GMC. Duncan expressed interest in the job. Booth brought the pre-employment forms to Duncan at the country club, and he forwarded her completed forms to Jerry Reese, the manager of operations, manufacturing, and training for the College. Reese arranged to interview Duncan at GMC. Reese, Booth, and Ed Ish, who was Booth’s management counterpart in the high-tech area of the GMC plant, participated in the interview. Duncan began work at GMC in August 1994.

Throughout her tenure at GMC, Duncan experienced unwelcome attention from a GMC employee, James Booth, which eventually led to her resignation. Subsequently, she filed a lawsuit under Title VII of the Civil Rights Act and the Missouri Human Rights Act, alleging sexual harassment and constructive discharge. The jury found in favor of Duncan, awarding her back pay and emotional distress damages. GMC appealed from the district court's denial of its post-trial motion for judgment as a matter of law and the award of attorneys' fees related to the post-trial motion. The court reversed the decision.

Two weeks after Duncan began working at GMC, Booth requested an off-site meeting with her at a local restaurant. During the meeting, Booth revealed personal issues with his troubled marriage and professed his love for a married coworker. He then propositioned Duncan, asking if she would engage in a relationship with him. Duncan rejected his advance and promptly left the restaurant. The following day, Duncan informed Joe Rolen, the paint department supervisor, about the incident, although Rolen had no authority over Booth. However, Duncan did not report Booth’s behavior to Reese, her supervisor at the College, or Ish, Booth’s management counterpart at GMC. Despite not reporting it formally, she did confront Booth, who apologized for his behavior and made no further inappropriate advances.

Duncan claimed that Booth's attitude toward her became hostile after she rejected his advance, and he became increasingly critical of her work. For instance, he would criticize her competence and suggest hiring someone from "Kelly Services" to replace her whenever she made a typographical error. Duncan acknowledged that Booth's criticisms were not limited to her but extended to other employees, including male coworkers.

Duncan testified to several instances of Booth's inappropriate behavior, including directing her to create a training document on his computer, which displayed a screen saver featuring a picture of a naked woman. Booth also allegedly touched her hand unnecessarily on multiple occasions and had questionable items in his office, such as a planter shaped like a man with a cactus protruding through the front and a child’s pacifier shaped like a penis, which he showed to coworkers, including Duncan, on two occasions.

The hostile work environment continued in 1995 when Booth and another College employee created a derogatory "recruitment" poster featuring Duncan. The poster portrayed her as the president and CEO of the "Man Hater’s Club of America" and listed absurd membership qualifications such as controlling finances, sex, raising children, and assigning household chores to men. This offensive poster was displayed on a bulletin board in the high-tech area, contributing to the demeaning atmosphere Duncan experienced.

On May 5, 1997, Booth asked Duncan to type a draft of the beliefs of the “He-Men Women Hater’s Club.” The beliefs included the following:

—Constitutional Amendment, the 19th, giving women [the] right to vote should be repealed. Real He-Men indulge in a lifestyle of cursing, using tools, handling guns, driving trucks, hunting and of course, drinking beer.

—Women really do have coodies [sic] and they can spread.

—Women [are] the cause of 99.9 per cent of stress in men.

—Sperm has a right to live.

—All great chiefs of the world are men.

—Prostitution should be legalized.

Duncan refused to type the beliefs and resigned two days later.

Throughout the period from 1994 to 1997, Duncan consistently voiced her concerns about Booth's inappropriate behavior to various individuals, starting with paint department supervisor Joe Rolen in 1994. She continued to express her complaints to Reese at the College on multiple occasions. Despite her efforts, Booth's behavior would temporarily improve after discussions with Reese.

Following a charge of sex discrimination filed with the EEOC in October 1997 and subsequent issuance of a right-to-sue notice in April 1998, Duncan initiated legal proceedings against both the College and GMC under Title VII of the Civil Rights Act and the Missouri Human Rights Act. Duncan reached a settlement with the College before trial, and the jury later found in her favor on both claims against GMC. Post-trial, GMC filed a motion for judgment as a matter of law or, alternatively, a new trial, which the district court denied. Additionally, the district court granted Duncan attorneys' fees related to GMC's post-trial motion. GMC now appeals these decisions.

A. Hostile Work Environment

GMC asserts that Duncan failed to establish a prima facie case for her hostile work environment claim, contending that she did not provide sufficient evidence. However, we concur with GMC's position...

It is not contested that Duncan satisfies the initial two criteria for a prima facie case: she belongs to a protected group, and Booth's attention was unwelcome. Furthermore, we determine that the harassment had a basis in sex...

While there is evidence suggesting that some of Booth's behavior, and the resulting unpleasant work atmosphere, affected both male and female employees, GMC highlights ten incidents when Booth exclusively targeted Duncan. GMC concedes that five of these incidents could arguably be rooted in sex: (1) Booth's proposal for a "relationship"; (2) Booth's touching of Duncan's hand; (3) Booth's request for Duncan to sketch his planter; (4) the Man Hater's Club poster; and (5) Booth's request for Duncan to type the He-Men Women Haters beliefs. "A plaintiff in this kind of case need not show...that only women were subjected to harassment, so long as she shows that women were the primary target of such harassment." We find that a jury could reasonably determine that Duncan and her gender were the predominant subjects of these incidents. The evidence adequately supports the jury's conclusion that the harassment was rooted in sex.

We concur with GMC's argument that the alleged harassment, although regrettable, did not reach the level of severity or pervasiveness required to constitute a violation of Title VII. Duncan must demonstrate that the workplace was saturated with discriminatory intimidation, ridicule, and insult to meet the demanding standard for actionable harm (Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114 S. Ct. 367, 1993).

The fourth component of a hostile environment claim incorporates both objective and subjective elements, necessitating an environment that a reasonable person would find hostile and one that the victim genuinely perceived as abusive (Harris, 510 U.S. at 21-22). This assessment considers the overall circumstances, including the frequency, severity, physical threat, humiliation, or interference with work performance resulting from the discriminatory conduct.

While the evidence indicates that Duncan was distressed by the derogatory poster and Booth's inappropriate behavior, she has not, as a matter of law, proven that these incidents, when considered collectively, were sufficiently severe and extreme to alter the terms or conditions of her employment. Courts have consistently rejected hostile work environment claims with similar or more egregious facts (Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874, 5th Cir.; Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62, 7th Cir., cert. denied, 528 U.S. 988, 145 L. Ed. 2d 367, 120 S. Ct. 450, 1999; Black v. Zaring Homes, Inc., 104 F.3d 822, 823-24, 826, 6th Cir., cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172, 1997; Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337, 7th Cir., 1993).

In these cases, courts have held that the conduct, even when offensive or inappropriate, did not create a hostile work environment. The standards are designed to differentiate between ordinary workplace challenges, such as sporadic abusive language or occasional teasing, and conduct that substantially interferes with an employee's work performance (Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662, 118 S. Ct. 2275, 1998).

Booth's actions, while boorish, chauvinistic, and immature, do not rise to the level of creating an objectively hostile work environment permeated with sexual harassment. Duncan presented evidence of four categories of harassing conduct based on her sex: a single request for a relationship (not repeated after rejection), four or five isolated incidents of Booth briefly touching her hand, a request to draw a planter, and teasing through a poster and beliefs for an imaginary club. While these incidents made Duncan uncomfortable, they do not meet the standard for actionable sexual harassment. Duncan fails to address this component of her prima facie case in her brief, and as a matter of law, she did not show a sexually harassing hostile environment sufficiently severe or pervasive to alter the conditions of her employment, leading to the failure of her hostile work environment claim (Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399, 1986).

Therefore, the district court's denial of judgment as a matter of law is reversed. Since GMC should have prevailed on its post-trial motion, the award of attorneys' fees is also vacated.

Ms. Duncan endured a prolonged series of incidents of sexual harassment in her workplace, surpassing the realm of mere "gender-related jokes and occasional teasing" (Faragher v. City of Boca Raton, 524 U.S. 775, 788, 1998). When considering the evidence in the light most favorable to her and allowing for all reasonable inferences, there is substantial evidence supporting her cause of action (Stockmen’s Livestock Market, Inc. v. Norwest Bank of Sioux City, 135 F.3d 1236, 1240, 1998). The jury reasonably concluded that Mr. Booth's offensive behavior created a hostile work environment, a determination supported by ample evidence.

Ms. Duncan faced a sexual advance from her supervisor shortly after starting her job. This proposition, occurring during work hours, was not just a "single request." The Court's characterization minimizes the impact of the advance on Ms. Duncan's working conditions. Following this incident, Mr. Booth's demeanor turned hostile, intensifying criticism of her work and undermining her professional capabilities in the presence of her peers. Crucially, there is no indication that this hostile behavior manifested before Ms. Duncan rejected his sexual advance. This evidence allows a reasonable inference that Mr. Booth's shift in attitude towards Ms. Duncan's work was a consequence of her refusal, and the jury's conclusion on the hostile work environment is well-founded.

Moreover, this sexual overture was not an isolated incident; rather, it marked the beginning of a series of degrading actions directed at Ms. Duncan by Mr. Booth based on her sex. These inappropriate behaviors manifested in various forms, ranging from physical touching to social humiliation and emotional intimidation. Mr. Booth, for instance, repeatedly touched Ms. Duncan inappropriately on her hand. He publicly labeled her a "Man Hater" who "must always be in control of" sex in front of her colleagues. He forced her into an unfair dilemma by making her choose between drawing a vulgar planter displayed in his office or forfeiting consideration for a promotion—a coercive tactic that would likely dissuade a reasonable person from pursuing further career advancement.

The Court references cases from other circuits in which hostile-work environment claims were rejected based on conduct deemed "equally or more egregious" than that in question here. I disagree with the Court's assessment that Ms. Duncan endured less severe harassment than the plaintiffs in those cases. For instance, in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333 (7th Cir. 1993), the plaintiff did not allege differential treatment in work duties or evaluations due to her sex. This contrasts sharply with Ms. Duncan's situation, where she was assigned specific tasks of a sexually charged nature, such as typing up the minutes of the "He-Man Women Hater’s Club," presented to her as a mandatory duty of her job.

Furthermore, Ms. Duncan faced allegations of professional "incompetence because of her sex." She presented evidence supporting this claim by testifying that, following her rejection of Mr. Booth's sexual advance, he became more critical of her work. The request for her to draw the planter as a condition for promotion represented a form of "conduct that would prevent her from succeeding in the workplace," a circumstance absent in Ms. Shepherd's case. Additionally, Ms. Duncan was "propositioned" to engage in a sexual relationship with her employer—a claim not raised by Ms. Shepherd.

Lastly, it is crucial to highlight that the harassing acts in Ms. Duncan's case were specifically directed at her. In Black v. Zaring Homes, 104 F.3d 822, 826 (6th Cir.), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, 118 S. Ct. 172 (1997), the court asserted that the absence of specific comments directed at the plaintiff supported the conclusion that the defendant's conduct was not severe enough to warrant actionable harm. In contrast, in the present case, a jury could reasonably infer that Ms. Duncan felt particularly humiliated and degraded because she alone was singled out for this harassment by Mr. Booth.

Our own court's Title VII jurisprudence indicates that Ms. Duncan endured enough offensive conduct to qualify as sexual harassment. In Breeding v. Arthur J. Gallagher and Co., we overturned a summary judgment in favor of an employer, asserting that a supervisor who "fondled his genitals in front of" a female employee and "used lewd and sexually inappropriate language" could create an environment severe enough to be actionable under Title VII. (164 F.3d 1151, 1159, 8th Cir. 1999). In Rorie v. United Parcel Service, we concluded that a work environment in which "a supervisor pats a female employee on the back, brushes up against her, and tells her she smells good" could be found by a jury to be a hostile work environment (151 F.3d 757, 762, 8th Cir. 1998). Is it evident that the women in these cases experienced greater harassment than Ms. Duncan? I think not.

We have recognized that "there is no bright line between sexual harassment and merely unpleasant conduct, so a jury’s decision must generally stand unless there is trial error" (Hathaway v. Runyon, 132 F.3d 1214, 1221, 8th Cir. 1998). We have also stated that "once there is evidence of improper conduct and subjective offense, the determination of whether the conduct rose to the level of abuse is largely in the hands of the jury" (Howard v. Burns Bros., Inc., 149 F.3d 835, 840, 8th Cir. 1998). The Court acknowledges that Ms. Duncan took subjective offense to Mr. Booth’s behavior and characterizes Mr. Booth’s behavior as "boorish, chauvinistic, and decidedly immature." Thus, the Court appears to agree that Mr. Booth’s behavior was "improper conduct." I believe the Court errs in deciding as a matter of law that the jury did not act reasonably in concluding that Ms. Duncan faced severe or pervasive harassment that created a hostile work environment.

Therefore, I dissent from the Court’s conclusion that Ms. Duncan did not present sufficient evidence to survive judgment as a matter of law on her hostile work-environment and constructive-discharge claims.

Age Discrimination: Burden of Persuasion

Gross v. FBL Financial Services, Inc.

I

Petitioner Jack Gross initiated his employment with respondent FBL Financial Group, Inc. (FBL), in 1971, eventually reaching the position of claims administration director by 2001. However, in 2003, at the age of 54, Gross was reassigned to the role of claims project coordinator. Simultaneously, FBL transferred many of Gross' responsibilities to a newly created position—claims administration manager, which was assigned to Lisa Kneeskern, then in her early forties and formerly under Gross' supervision. While Gross and Kneeskern received equal compensation, Gross perceived the reassignment as a demotion due to the redistribution of his former responsibilities to Kneeskern.

In April 2004, Gross filed a lawsuit in the District Court, alleging that his reassignment to the claims project coordinator position violated the Age Discrimination in Employment Act (ADEA), which prohibits employers from taking adverse actions against employees "because of such individual’s age." 29 U.S.C. §623(a). The case proceeded to trial, during which Gross presented evidence suggesting that his reassignment was influenced, at least in part, by his age. FBL countered, asserting that Gross' reassignment was a result of corporate restructuring and that his new position better aligned with his skills.

At the conclusion of the trial, and despite objections from FBL, the District Court instructed the jury that they must deliver a verdict in favor of Gross if he demonstrated, by a preponderance of the evidence, that FBL "demoted [him] to claims projec[t] coordinator" and that his "age was a motivating factor" in FBL's decision to demote him. The jury was further informed that Gross' age could qualify as a "‘motivating factor’ if it played a part or a role in FBL's decision to demote him." Additionally, the jury received instructions about FBL's burden of proof, emphasizing that the verdict must favor FBL if it was proven by a preponderance of the evidence that FBL would have demoted Gross regardless of his age. The jury ultimately returned a verdict in favor of Gross, awarding him $46,945 in lost compensation. FBL contested the jury instructions on appeal.

The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, asserting that the jury had been improperly instructed based on the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In the Price Waterhouse case, the Court addressed the appropriate allocation of the burden of persuasion in Title VII cases when an employee alleges adverse employment action due to both permissible and impermissible considerations—a "mixed-motives" case. The Price Waterhouse decision was characterized by a plurality opinion supported by four Justices and a dissent by three Justices. Despite this division, six Justices concurred that if a Title VII plaintiff demonstrates that discrimination was a "motivating" or a "‘substantial’" factor in the employer's action, the burden of persuasion should shift to the employer to prove it would have taken the same action regardless of the impermissible consideration. Justice O’Connor added that for this burden shift to occur, the employee must provide "direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision."

As Gross admitted that he had not presented direct evidence of discrimination, the Court of Appeals concluded that the District Court should not have given the mixed-motives instruction. Instead, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims, and the jury should have been instructed solely to determine whether Gross had proven that age was the determining factor in FBL’s employment action.

II

The matter before us pertains to the query of whether a plaintiff is obligated to "present direct evidence of discrimination to secure a mixed-motive instruction in a non-Title VII discrimination case." Nevertheless, prior to addressing this inquiry, it is imperative to establish whether the burden of persuasion ever undergoes a shift to the party that is defending an alleged mixed-motives discrimination claim under the ADEA. Our determination is unequivocal – it does not.

A

The petitioner relies on this Court's precedents interpreting Title VII to support his interpretation of the ADEA. However, due to material differences between Title VII and the ADEA concerning the relevant burden of persuasion, these decisions are not directly applicable to our construction of the ADEA.

In the Price Waterhouse case, a plurality of the Court, along with two concurring Justices, concluded that in a Title VII case, if a plaintiff proves that membership in a protected class played a motivating role in an employment decision, the defendant can avoid liability only by demonstrating by a preponderance of the evidence that it would have made the same decision even without considering that factor. However, as clarified in Desert Palace, Inc. v. Costa, Congress subsequently amended Title VII to expressly allow discrimination claims where an improper consideration was "a motivating factor" for an adverse employment decision.

Crucially, this burden-shifting framework established in Title VII has never been explicitly applied to ADEA claims, and the Court declines to do so now. Statutory interpretation demands careful scrutiny, and unlike Title VII, the ADEA lacks a provision allowing a plaintiff to establish discrimination by showing age was merely a motivating factor. Additionally, Congress did not incorporate such a provision into the ADEA when contemporaneously amending Title VII.

We must acknowledge Congress's deliberate choice to amend certain provisions of Title VII while refraining from making parallel changes to the ADEA. When Congress amends one statutory provision but leaves another untouched, it is presumed to have made a deliberate decision. Therefore, the Court's interpretation of the ADEA is not guided by Title VII decisions like Desert Palace and Price Waterhouse. The distinct actions taken by Congress regarding these statutes underscore the need for a separate analysis and interpretation of the ADEA's requirements.

B

Consequently, our examination must center on the text of the ADEA to determine whether it permits a mixed-motives age discrimination claim. However, the ADEA does not provide such authorization. The foundation of statutory construction is the language used by Congress, assuming that the ordinary meaning of that language accurately reflects the legislative purpose. The ADEA specifies that it is unlawful for an employer to discriminate against an individual in various aspects of employment "because of" their age. The ordinary meaning of "because of" implies that age was the reason for the employer's decision.

Therefore, to establish a disparate-treatment claim under the ADEA, a plaintiff must demonstrate that age was the "but-for" cause of the adverse decision. This aligns with our precedent, such as in Kentucky Retirement Systems v. EEOC, where we upheld the burden of persuasion for ADEA cases. The absence of any indication in the statute's text that Congress intended to create an exception reinforces the default rule that plaintiffs bear the burden of proving their claims when the statute is silent on the allocation of the burden of persuasion.

Therefore, the burden of persuasion required to establish employer liability remains consistent in alleged mixed-motives cases as well as in any other ADEA disparate-treatment action. The plaintiff is obligated to demonstrate, by a preponderance of the evidence, which can be either direct or circumstantial, that age was the "but-for" cause of the contested employer decision.

III

Lastly, we dismiss the petitioner's argument that our interpretation of the ADEA should be governed by Price Waterhouse, which originally introduced the burden-shifting concept in alleged mixed-motives Title VII claims. Regardless, it is unclear whether the Court would adopt the same approach if presented with the question for the first time today.

Recognizing the limitations of Price Waterhouse in hindsight, it has become apparent over the years that its burden-shifting framework is challenging to implement. In cases brought before a jury, courts have encountered particular difficulties in formulating instructions to elucidate this framework. Consequently, even if Price Waterhouse was theoretically sound, the practical challenges associated with its application have negated any discernible advantages in extending its framework to ADEA claims.

IV

In summary, we affirm that a plaintiff asserting a disparate-treatment claim under the ADEA must establish, by a preponderance of the evidence, that age was the decisive factor leading to the adverse employment action. The burden of persuasion does not transfer to the employer to demonstrate that the action would have occurred irrespective of age, even if the plaintiff has presented evidence suggesting that age played a role in the decision. Consequently, we overturn the decision of the Court of Appeals and instruct remand for subsequent proceedings in accordance with this opinion.

Wage Law

Wage law, also known as labor or employment law related to compensation, encompasses regulations and standards governing the payment of wages and benefits to employees. Here are some key aspects of wage law:

Minimum Wage: Most jurisdictions set a minimum wage, which is the lowest amount an employer can pay an employee for their labor. This rate can vary by country, state, or locality.

Overtime Pay: Employees who work more than a certain number of hours in a given workweek are often entitled to receive overtime pay, which is usually one and a half times their regular hourly rate.

Equal Pay: Laws often mandate that employers provide equal pay for equal work, regardless of gender or other protected characteristics.

Payroll Deductions: Employers must follow regulations regarding permissible deductions from an employee's wages. Deductions may include taxes, benefits contributions, and other authorized withholdings.

Frequency of Pay: Wage laws may stipulate how often employees must be paid, whether it's weekly, bi-weekly, or monthly.

Recordkeeping: Employers are typically required to maintain accurate records of hours worked, wages paid, and other relevant information for each employee.

Bonuses and Commissions: Regulations may address how bonuses and commissions are handled, including when they should be paid and how they factor into overtime calculations.

Tip Regulations: For employees who receive tips, there are often specific regulations regarding tip pooling, reporting, and how tips affect minimum wage requirements.

Child Labor Laws: Special provisions exist to protect the rights of young workers, including restrictions on the types of work they can perform and the hours they can work.

Employee Benefits: While not strictly part of wage law, regulations may govern benefits such as health insurance, retirement plans, and other forms of compensation.

Prevailing Wage Laws: In certain industries or for government contracts, prevailing wage laws may require that contractors pay workers at rates comparable to those prevailing in the same locality for similar work.

Meal and Rest Breaks: Some jurisdictions have laws specifying the minimum break periods employees are entitled to during their workday.

It's important for employers and employees to be aware of and comply with relevant wage laws to ensure fair and legal compensation practices in the workplace. Keep in mind that specific regulations can vary widely based on the jurisdiction and industry.

Employee Discrimination

In Figure 12.1, we observe a compelling representation of Abercrombie & Fitch's marketing prowess through a vibrant billboard in the heart of New York City. This snapshot encapsulates the essence of A&F's brand philosophy, known as "Casual Luxury," which serves as the linchpin for the company's substantial annual sales exceeding $2 billion across North America, Europe, and Asia.

The billboard, a microcosm of A&F's overarching strategy, radiates an image meticulously crafted to evoke adjectives such as athletic, young, all-American, sexy, and attractive. This deliberate characterization mirrors the core of A&F's success, fueling substantial profits that accrue to its shareholders. The company adeptly leverages its marketing concept to persuade young consumers that donning A&F apparel aligns them with a lifestyle synonymous with youth, athleticism, and attractiveness.

Essentially, A&F's strategy hinges on a powerful narrative: the belief that by choosing their clothing, consumers are not merely making a fashion statement but embracing a lifestyle. The company's financial success is a testament to the effectiveness of this strategy, which creates a symbiotic relationship between the brand and its consumers.

To uphold the authenticity of this narrative, A&F meticulously curates its brand image. This extends beyond the realms of traditional advertising to encompass a stringent selection process for models featured in print and web campaigns. Furthermore, this commitment extends to the recruitment of store personnel, ensuring that every customer interaction with A&F reinforces the carefully constructed brand image.

In the fiercely competitive landscape of the fashion industry, A&F's success is not merely in selling clothes; it lies in selling a compelling and aspirational identity. Through a meticulously crafted blend of marketing, image curation, and a commitment to consistency, Abercrombie & Fitch has etched itself as a powerhouse in the global retail scene.

Abercrombie & Fitch's practice of hiring individuals based on attractiveness for its stores is not illegal under the employment-at-will doctrine in the United States. This doctrine grants both employees and employers the freedom to choose their working arrangements, allowing employers to hire, terminate, or make workplace decisions as they see fit. This principle is widespread and covers the majority of workers in the United States.

Under this framework, companies have the latitude to establish and enforce appearance standards, whether related to physical attributes like attractiveness or other criteria. Employees can be terminated for reasons such as unconventional hairstyles, visible body modifications, or even personal disagreements with the employer, as the at-will doctrine affords companies broad discretion in these matters.

However, a notable exception arises when employment arrangements are explicitly governed by a written contract specifying a fixed duration. Even in such cases, many employment contracts still maintain at-will status for the worker.

The potential legal issue arises if Abercrombie & Fitch's emphasis on an "all-American casual luxury" image covertly translates into discriminatory practices, particularly against racial minorities. While marketing a certain aesthetic is within the legal bounds, if this becomes a guise for racial discrimination, the company would be in violation of anti-discrimination laws. If A&F's competitors maintain a more diverse representation in their models and store workers under a similar marketing theme, and A&F's practices are suspected of concealing discriminatory motives, it could lead to legal consequences.

In essence, the legality hinges on the alignment between A&F's marketing strategy and its hiring practices. If the emphasis on a specific image extends beyond aesthetics to covert discrimination, it could constitute a breach of the law.

Discrimination, as a concept, doesn't inherently carry illegality; it's the specific nature and context of discrimination that determines its legality. Abercrombie & Fitch, for instance, can legally choose to discriminate based on perceived attractiveness, just as Vogue can emphasize certain body types. Understanding when discrimination becomes illegal involves recognizing protected classes and the circumstances that trigger legal scrutiny.

The law identifies protected classes to safeguard individuals from unfair treatment. These classes often include characteristics such as race, gender, age, disability, religion, and national origin. Discrimination against individuals falling within these protected categories is typically illegal.

Determining when a person falls into a protected class depends on the specific characteristics involved. For instance, age discrimination protections apply to individuals over 40, while gender discrimination protections encompass both men and women.

To establish illegal discrimination, a disappointed worker must typically demonstrate that adverse employment actions were taken based on their membership in a protected class. This requires evidence that the discriminatory characteristic was a motivating factor in the decision. Such proof may involve direct evidence, such as discriminatory statements or actions, or indirect evidence that suggests a pattern of biased behavior.

This chapter delves into these complexities, providing future business professionals with the knowledge to navigate the fine line between legal and illegal discrimination when hiring, managing, and terminating employees. It aims to equip individuals with a comprehensive understanding of the legal landscape, fostering ethical and compliant practices in the realm of employment.

Occupational Health and Safety

Take a moment to watch this informative video, providing a comprehensive overview of the Occupational Safety and Health Administration (OSHA). Delve into the historical evolution and crucial functions that define OSHA's role in ensuring workplace safety. The video sheds light on the catalysts that prompted the establishment of the Occupational Safety and Health Act, underscoring the need for a regulatory framework to safeguard workers.

Pay particular attention to the issues that OSHA has grappled with throughout its history. Explore the diverse challenges and incidents that have shaped OSHA's approach to occupational safety, as it continues to evolve in response to emerging workplace concerns. Understanding the historical context and ongoing issues faced by OSHA is pivotal in appreciating the agency's significance in promoting and enforcing safety standards across various industries.

By immersing yourself in this video, you'll gain valuable insights into the pivotal role OSHA plays in fostering a safe and healthy working environment. The content will provide a nuanced understanding of the agency's trajectory, from its inception to its ongoing commitment to addressing the dynamic landscape of workplace safety.

Collective Bargaining

Collective bargaining is a process in which representatives of employees (usually labor unions) negotiate with employers to reach agreements on terms and conditions of employment. This negotiation process aims to establish a collective agreement, a legally binding document that outlines the rights, responsibilities, and working conditions for the employees.

Key elements of collective bargaining include:

Representation: Employees often form or join labor unions to collectively represent their interests during negotiations. Unions appoint representatives to engage in discussions with employers on behalf of the workers.

Negotiation: The negotiation process involves discussions between labor representatives and employer representatives. The topics covered in negotiations can include wages, working hours, benefits, job security, and other terms and conditions of employment.

Collective Agreement: Once both parties reach a consensus, the terms agreed upon are documented in a collective agreement. This agreement is binding and serves as the foundation for the employment relationship between the workers and the employer.

Grievance Procedures: The collective agreement often includes procedures for addressing disputes or grievances that may arise during the term of the agreement. This helps maintain a structured process for conflict resolution.

Labor Strikes and Employer Lockouts: If negotiations reach an impasse, employees may resort to strikes, and employers may initiate lockouts. These are powerful tools used to apply pressure and encourage concessions from the opposing party.

Collective bargaining is a fundamental aspect of labor relations, providing a framework for employees to have a collective voice in their workplaces. It helps balance the power dynamics between labor and management, ensuring that workers have a say in shaping the conditions under which they work. It's a crucial mechanism for establishing fair labor practices, protecting workers' rights, and fostering a cooperative and constructive relationship between employers and employees.

Collective Bargaining and Labor Arbitration

Collective bargaining and labor arbitration are interconnected processes within the realm of labor relations, serving as essential mechanisms for resolving disputes and establishing terms of employment.

Collective Bargaining:

Definition: Collective bargaining is a negotiation process between representatives of employees (typically labor unions) and employers to reach an agreement on various terms and conditions of employment.

Participants: Representatives from labor unions negotiate with representatives from the employer. These negotiations often cover areas such as wages, working hours, benefits, workplace conditions, and grievance procedures.

Purpose: The primary goal of collective bargaining is to establish a legally binding collective agreement. This agreement outlines the rights and responsibilities of both parties and serves as the foundation for the employment relationship.

Legal Framework: Collective bargaining is often conducted within the framework of labor laws that govern the rights and obligations of both employers and unions. In many countries, these laws provide guidelines for the bargaining process and the enforcement of resulting agreements.

Labor Arbitration:

Definition: Labor arbitration is a dispute resolution process in which a neutral third party, known as an arbitrator, is appointed to hear and settle disputes arising from the interpretation or application of a collective agreement.

Participants: Labor arbitration involves the disputing parties—usually the labor union and the employer. The parties present their cases to the arbitrator, who makes a binding decision to resolve the dispute.

Purpose: The goal of labor arbitration is to provide a fair and impartial resolution to conflicts that arise between the parties, especially when they cannot reach an agreement through negotiations or other means.

Decision Making: Arbitrators base their decisions on the terms of the collective agreement, relevant laws, and industry standards. The decision is final and binding, providing a resolution to the specific dispute at hand.

Interconnection:

Sequential Process: In the context of labor relations, collective bargaining often precedes labor arbitration. When the parties cannot resolve a dispute through negotiation, they may resort to arbitration to find a resolution.

Enforcement: The decisions made through labor arbitration are legally binding, emphasizing the importance of adhering to the terms outlined in the collective agreement.

Collective bargaining and labor arbitration work in tandem to maintain a balance in labor relations, offering a structured framework for negotiating employment terms and resolving conflicts within the workplace. Together, they contribute to the establishment of fair and equitable working conditions.

National Labor Relation Board: Frequently Asked Questions

1. What is the National Labor Relations Board's role?

The National Labor Relations Board (NLRB) is an independent federal agency tasked with safeguarding employees' rights to organize, engage in collective bargaining, and address unfair labor practices. The NLRB administers the National Labor Relations Act (NLRA) and oversees the enforcement of labor laws in the private sector.

2. What other government agencies might be able to help me with a workplace issue?

Depending on the nature of your workplace issue, other government agencies that may be able to assist include the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC) for discrimination issues, and state labor departments.

3. Is my employer subject to the National Labor Relations Act (NLRA)?

Most private-sector employers in the United States, excluding agricultural, railroad, and independent contractor workers, are subject to the NLRA. Public-sector employees and agricultural laborers have different labor relations statutes that cover them.

4. Which employees are protected under the NLRA?

Most private-sector employees, whether or not they are in a union, are protected under the NLRA. However, agricultural laborers, independent contractors, and supervisors are generally excluded.

5. Do I have to be in a union to be protected by the NLRA?

No, employees do not need to be part of a union to be protected by the NLRA. The NLRA protects both union and non-union employees' rights to engage in activities such as concerted action for mutual aid or protection.

6. What are an employer's and union's obligations under the NLRA?

Employers must refrain from unfair labor practices, such as interfering with employees' rights to organize or engage in protected activities. Unions must represent employees fairly and avoid unfair labor practices as well.

7. How do I file a charge with the NLRB if I believe my rights have been violated?

You can file a charge with the NLRB by visiting their website, contacting your nearest regional office, or using their online filing system.

8. How do I start the process for an election to bring in a union or decertify an existing union?

To start the process, employees must typically file a petition with the NLRB. The petition requires the support of a certain percentage of employees, and the NLRB will then conduct an election.

9. What are the rules governing collective bargaining for a contract?

Collective bargaining rules involve negotiating in good faith, addressing terms and conditions of employment, and reaching a mutually agreeable contract. The NLRA requires both parties to bargain in good faith.

10. Do I have to pay union dues if there is a union at my workplace?

In many cases, employees in unionized workplaces may be required to pay union dues or an equivalent fee. These fees are often negotiated as part of the collective bargaining agreement.

11. Is it legal to strike or picket an employer?

Under the NLRA, employees have the right to strike, but there are certain restrictions. Strikes related to economic issues are generally protected, while certain unfair labor practices by employers may trigger a protected strike. Picketing is also generally protected but subject to certain legal limitations.

12. How do I make a Freedom of Information Act (FOIA) request?

You can submit a FOIA request to the NLRB by following the guidelines on their website or contacting their FOIA office.

13. What if I have a question that's not on this list?

If you have additional questions or need specific guidance, you can contact the NLRB directly through their regional offices, which are available to assist with inquiries and provide information.

Whistleblower Protection Programs

Whistleblower protection programs are initiatives designed to safeguard individuals who report misconduct, violations of laws, or unethical behavior within an organization. These programs aim to create a safe environment for whistleblowers to come forward without fear of retaliation. Here are key aspects of whistleblower protection programs:

**1. Definition of Whistleblower: A whistleblower is someone who discloses information about wrongdoing within an organization. This can include illegal activities, violations of regulations, fraud, safety concerns, or any other form of misconduct.

**2. Legal Protections: Many countries have specific laws and regulations that provide legal protections for whistleblowers. In the United States, for example, the Whistleblower Protection Act and the Sarbanes-Oxley Act offer legal safeguards for employees who report certain types of misconduct.

**3. Confidential Reporting Channels: Whistleblower protection programs typically include confidential reporting channels. This allows individuals to report concerns anonymously, reducing the fear of retaliation and encouraging more people to come forward.

**4. Non-Retaliation Policies: Organizations with whistleblower protection programs commit to non-retaliation policies. This means that employees who report wrongdoing are protected from adverse employment actions, such as termination, demotion, or harassment.

**5. Investigation Processes: Whistleblower protection programs include procedures for investigating reported concerns thoroughly. This involves assessing the validity of the claims and taking appropriate actions to address any misconduct.

**6. Communication and Awareness: Effective whistleblower protection programs emphasize communication and awareness. Employees need to be informed about the existence of the program, the protections it offers, and how to use the reporting channels.

**7. Training: Organizations often provide training to employees and management about the importance of whistleblowing, the procedures for reporting, and the protections in place. This helps create a culture that values ethical behavior and accountability.

**8. Documentation and Record-Keeping: It's crucial for organizations to document whistleblower reports, investigations, and actions taken. Proper record-keeping ensures transparency and compliance with legal requirements.

**9. External Reporting Options: Whistleblower protection programs may provide avenues for external reporting if internal channels are not effective or if the concern involves high-level executives or the organization as a whole.

**10. Continuous Improvement: Organizations should regularly review and update their whistleblower protection programs to ensure they remain effective. This may involve feedback mechanisms, assessments of program effectiveness, and adjustments based on lessons learned.

**11. Global Considerations: In multinational organizations, whistleblower protection programs may need to account for different legal and cultural contexts. Understanding and complying with various international whistleblower protection laws is essential.

Whistleblower protection programs play a crucial role in promoting transparency, accountability, and ethical conduct within organizations. When well-implemented, these programs contribute to a healthier organizational culture and help prevent and address wrongdoing.

Burden of Proof

Criminal Law

                                             Businessperson in Trouble:

 

Explore the image above called "Businessperson in Trouble." It diverges from the conventional imagery typically associated with aspiring business students envisioning success in the corporate realm. However, for a disheartening number of managers and executives, this image transforms into a stark reality as they find themselves entangled in criminal activities within the professional sphere. A quick perusal of any reputable news outlet today will likely reveal a headline aligning with a narrative where this ominous photo could find its place.

The genesis of such occurrences is multi-faceted. Individuals may inadvertently become entwined with the "wrong crowd" at work, finding it challenging to extricate themselves from compromising situations. Corporate culture and leadership can exert a corrosive influence on a work environment, leading individuals to neglect ethical considerations or brazenly flout legal boundaries. The prevalence of misconduct within an organization can create a false sense of acceptability, with individuals rationalizing their actions by virtue of their collective involvement. The Enron scandal serves as a poignant example, where members of the workforce appeared ensnared in a culture of corporate avarice, struggling to disentangle themselves. Opportunism, devoid of a moral compass, can also drive individuals towards transgressions, epitomized by figures like Bernie Madoff in contemporary news.

Occasionally, criminal behavior emanates from a prioritization of profit over ethical conduct. Consider corporate environmental crimes, where companies consciously choose to sidestep regulatory mandates related to hazardous waste disposal or storage. Ultimately, the root causes behind such criminality become secondary; the commission of a crime inflicts harm on others, and the perpetrator becomes liable to criminal prosecution.

Vigilance against crime is imperative for everyone, as its impact reverberates within and outside businesses. Even individuals of unwavering integrity must maintain a watchful eye to safeguard not only their personal reputation but also the reputation of their businesses from the perilous activities of others. Criminal activities originating "from the outside" pose tangible threats to businesses, encompassing property damage, theft, shoplifting, corporate espionage, fraud, and arson, each carrying substantial financial implications. Equally concerning are threats "from the inside," involving crimes like embezzlement, computer crimes, and fraud, wherein the perpetrators often emerge as trusted colleagues, eluding suspicion.

Furthermore, businesses must shield themselves from the ramifications of employee misconduct, as an employee's criminal actions within the scope of employment can lead to the corporation's criminal conviction. This adds a layer of complexity, especially when the corporation stands to benefit from the illicit actions of its employees. Notably, not all corporate convictions stem from unwittingly being embroiled in an employee's misdeeds; some actively engage in criminal conduct, whether fostered by a wayward corporate culture or blatant involvement in organized crime, such as money laundering.

Delving into the realm of criminal law within the business sphere becomes essential. Beyond comprehending fundamental criminal law principles and the intricacies of business-related crimes to decipher daily news headlines, we must strive to ensure that our professional engagements and the individuals associated with our businesses never become the focal point of such stories. This chapter serves as a comprehensive exploration of the distinctions between criminal and civil law, the essence of criminal law, constitutional protections for the accused, applicable defenses, repercussions of criminal acts, and the objectives of punitive measures. Additionally, it scrutinizes specific crimes pertinent to the business landscape, encompassing white-collar offenses, blue-collar crimes adversely impacting businesses, and crimes perpetrated by businesses themselves. Finally, it presents diverse strategies aimed at mitigating exposure to criminal liability.

10.1.1 The Nature of Criminal Law, Constitutional Rights, Defenses, and Punishment

Envision a scenario where a meticulous bookkeeper, employed by a physicians group, undertakes the responsibility of collecting and processing due invoices for the group. Recognizing the physicians' demanding schedules and implicit trust in her role, she seizes the opportunity to orchestrate a deceptive scheme. In a calculated move, she fabricates a phantom company, concocts fictitious invoices for purported "services rendered," and dispatches these invoices to the physicians group for payment.

As the unsuspecting physicians settle these fraudulent invoices, the bookkeeper orchestrates the next stage of her scheme. Unbeknownst to her employers, she directs the payments to a non-existent entity's bank account—one that she clandestinely controls. This clandestine maneuver represents a fraudulent disbursement, a glaring example of the manifold ways in which criminal activities can infiltrate the workplace. 

When criminal activities infiltrate the workplace or business environment, it may be tempting to minimize the impact, assuming that no genuine harm has been inflicted. Such rationalizations often hinge on the belief that insurance policies can sufficiently cover losses, or that victims of embezzlement might not immediately discern the financial repercussions, implying a lack of genuine necessity. However, these justifications serve as mere smoke screens.

The reality is that when an insurance company compensates for losses stemming from a crime, it, too, incurs injury, alongside the direct victims and society as a whole. Dismissing the significance of embezzlement merely because victims may not promptly notice the financial discrepancies is a fallacy. Regardless of wealth or immediate awareness, individuals and businesses are entitled to the retention of their property, and the implications of crime extend far beyond individual losses.

Crime operates as a corrosive force, eroding confidence in the social order and challenging the collective expectations that underpin civil society. Each criminal act, regardless of scale, leaves a mark on the public conscience. At its core, criminal statutes delineate the essential rules governing a civil society's functioning. Crimes constitute offenses against this societal framework and its established order. In essence, a crime is not a private transgression but a public injury—an affront to the foundations of a harmonious, lawful society.

Distinguishing itself from civil law, criminal law exhibits several noteworthy distinctions, as illustrated in the figure located above. Fundamentally, crimes are deemed public injuries, and it is the government's role to mete out punishment for these offenses. Unlike civil matters, where private citizens may file lawsuits against each other, the prosecution of crimes lies exclusively within the domain of the government.

When a crime transpires, such as fraud victimizing an individual, the government assumes the responsibility of assembling evidence and initiating charges against the alleged perpetrator. The formal charging of a person for a crime is executed by the government through an indictment. Notably, the victim of the crime serves as a witness for the government, distinct from being a direct participant in the prosecution of the case.

Contrastingly, within the civil tort system, a victim possesses the right to bring a civil suit against the party responsible for the inflicted injuries. In this realm, criminal laws and torts often intersect, with parallel causes of action existing. Sometimes, these legal claims bear identical or similar names. For example, a victim of fraud may pursue a civil action for fraud, concurrently serving as a witness for the state in the criminal trial addressing the same fraudulent activity. This nuanced interplay between criminal and civil proceedings underscores the multifaceted nature of legal recourse for individuals impacted by wrongdoing.

In the realm of criminal cases, a foundational principle holds that the defendant is presumed innocent unless proven guilty. This presumption of innocence necessitates that the state must substantiate its case against the accused before any punitive measures can be imposed. If the state fails to convincingly prove its case, the accused is acquitted, resulting in their release, and they may not be subjected to retrial for the same offense. The burden of proof in a criminal case rests squarely on the prosecution, compelling them to establish the case beyond a reasonable doubt. In this context, the defendant is not obligated to present any evidence, as the onus lies on the government to establish guilt. Furthermore, the evidence must be so compelling that there is no reasonable doubt regarding the defendant's culpability.

Contrasting this stringent standard is the burden of proof in a civil trial, where the plaintiff is required to demonstrate their case only by a preponderance of the evidence. This entails that the evidence supporting the plaintiff's case must outweigh the contrary evidence. Conceptually, the criminal standard of proof—beyond a reasonable doubt—approximates a level of certainty akin to 99 percent, leaving a minimal 1 percent room for doubt. In contrast, the preponderance of the evidence standard could be likened to a 51 percent threshold in favor of the plaintiff's case, with up to 49 percent allowance for doubt.

These distinct burdens of proof underscore the considerable difficulty in successfully prosecuting a criminal defendant compared to bringing a prevailing civil claim. Notably, as both criminal and civil actions can be initiated against a defendant for the same incident, disparities in burdens of proof can yield seemingly contradictory verdicts. A noteworthy example is the O. J. Simpson trials, where he was acquitted of murder in a criminal trial but found liable for wrongful death in a subsequent civil action.

The heightened burden of proof in a criminal case is rooted in the recognition that the stakes for the defendant are far more profound compared to those in a civil case. While the loss of assets in a civil proceeding is undoubtedly significant, the potential loss of liberty in a criminal case is considered a more severe consequence. Consequently, criminal defendants are afforded a more robust set of protections than their counterparts in civil proceedings. Given the gravity of potential outcomes in criminal cases, due process requirements are set at a particularly high standard for individuals facing criminal charges.

The Constitution doesn't explicitly delineate due process procedures, and their specifics can vary based on the potential penalties involved. In a civil case, due process might encompass rudimentary elements such as notice and an opportunity to be heard. For instance, if the government intends to revoke a professional license, the defendant might receive notice through a letter, with the opportunity to be heard manifested in a written appeal. In contrast, the due process requirements in a criminal case are more rigorous, reflecting the profound implications of potential penalties. The stringency of these procedures acknowledges the gravity of the potential consequences, emphasizing the importance of upholding justice and safeguarding the rights of those accused in criminal proceedings.

Constitutional Rights Relevant to Criminal Proceedings

Individuals accused of crimes benefit from a set of rights safeguarded by the U.S. Constitution. While many crimes fall under state law jurisdiction, numerous provisions within the Bill of Rights have been incorporated, extending their applicability to the states—an application known as the incorporation doctrine.

The Sixth Amendment, a cornerstone of these rights, ensures that criminal defendants have the right to legal representation during any phase of a criminal proceeding where the possibility of incarceration exists. This constitutional safeguard guarantees that if a defendant cannot afford legal counsel, the state is obligated to appoint an attorney at its own expense.

Equally significant is the protection afforded by the Fifth Amendment, which establishes the right to avoid self-incrimination. This right serves as a bulwark against coercive tactics, preventing the government from subjecting individuals to torture in order to extract confessions. The Fifth Amendment, recognizing the potential for abuse under duress, empowers individuals to choose silence, ensuring that no one can be compelled to testify against themselves or make self-incriminating statements. In essence, it shields individuals from being forced into admissions under extreme physical or psychological pressures, upholding the principles of justice and preserving the integrity of the legal process.

The Eighth Amendment of the U.S. Constitution serves as a bulwark against cruel and unusual punishment. While historical practices such as drawing and quartering have long been abandoned, contemporary discussions center on the application of this amendment in the context of torture. A contentious issue arises concerning the use of torture by the United States against individuals held on foreign soil. Many argue that the protections enshrined in the Eighth Amendment should extend universally, covering everyone under U.S. authorities, regardless of their location.

Conversely, the Fourth Amendment establishes a vital safeguard against illegal searches and seizures. This prohibition dictates that evidence obtained in violation of the Fourth Amendment cannot be admitted in a court of law. Compliance with the Fourth Amendment necessitates the government to procure a search warrant before searching a specific area for designated items, provided there is a reasonable expectation of privacy in the targeted area. The issuance of a search warrant hinges on the presence of probable cause, indicating that there is sufficient corroborating evidence to reasonably believe that a crime has been committed. This constitutional provision underscores the significance of protecting individuals from unwarranted intrusions into their privacy, ensuring that evidence obtained unlawfully is excluded from legal proceedings.

When a valid search warrant is issued, the government is authorized to search the specified area for the items outlined in the warrant. However, the legality of a search can also be maintained without a warrant due to various exceptions. These exceptions include the plain view doctrine, exigent circumstances, consent, the automobile exception, lawful arrest, and stop and frisk.

The plain view doctrine allows a search or seizure without a warrant if the evidence is readily apparent to a government agent, such as a police officer. Exigent circumstances arise in emergencies, enabling law enforcement to act without a warrant. For example, if someone is cruelly mistreating an animal, the state can intervene without a warrant to protect the animal. This exception is also applicable in hot pursuit cases, allowing police to pursue a suspect into a building without a warrant.

Consent is another exception, where a person with the authority to grant consent permits a search or seizure. This authority need not be the owner of the location; valid consent can be obtained from someone with shared control, such as a roommate.

The automobile exception allows the search of a lawfully stopped vehicle without a warrant. If a police officer, during a lawful stop, observes something incriminating, it can be seized without a warrant. Additionally, no warrant is needed to search someone subject to lawful arrest, ensuring the safety of law enforcement officers. The stop and frisk exception allows a lawful stop to be accompanied by a frisk for weapons without a warrant.

In specific circumstances within the business realm, administrative agencies may conduct warrantless searches of closely regulated businesses, like junkyards, where stolen cars may be disassembled for parts. These exceptions underscore the nuanced landscape of search and seizure laws, balancing individual rights with the needs of law enforcement and public safety.

Defenses

When the government infringes upon a defendant's constitutional rights during evidence collection, the evidence obtained through such violations may be suppressed at trial. This exclusionary rule, based on the concept that evidence from an illegal search is considered "fruit of the poisonous tree," prohibits the use of such evidence against the defendant. It's crucial to note that while lying to the defendant or employing trickery and deceit by law enforcement is not a constitutional violation, evidence tainted by clear breaches of constitutional rights faces exclusion.

Another defense often invoked under the exclusionary rule pertains to confessions. If the government questions an individual in a custodial interrogation without first reading the Miranda warnings, a defense may arise. These warnings, commonly heard in movies, typically include statements such as, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you by the state. Do you understand your rights?"

The purpose of the Miranda warnings is to ensure that individuals are aware of their right to remain silent and their right to legal counsel. To invoke these rights, a person must do so unequivocally; vague expressions like "Don't I need a lawyer?" may not suffice. The Miranda warnings act as a safeguard, ensuring that individuals comprehend their rights in custodial interrogations and can make informed decisions about whether to exercise those rights.

The application of Miranda warnings is contingent upon an individual being in custody and subject to interrogation. The definition of being in custody implies a lack of freedom to leave. Therefore, if a casual conversation with a police officer in a grocery store leads to a confession, and the person was free to leave at any time, that confession is admissible in court, even without the Miranda warnings. Similarly, if there is no interrogation by the police, any statement made may be used against the individual, even without the Miranda warnings. Interrogation is defined by statements or actions likely to elicit a response.

Constitutional protections also extend to the prohibition against double jeopardy, enshrined in the Fifth Amendment. This safeguard prevents the government from prosecuting the same defendant for the same crime after they have already stood trial for it. This underscores the importance of thorough evidence collection before bringing charges, as the prosecution typically has only one opportunity to prosecute the defendant unless the trial results in a hung jury.

Additional defenses rooted in the U.S. Constitution include lack of capacity defenses such as insanity and infancy. Insanity as a defense is applicable when the defendant lacks the capacity to understand that their actions were wrong. Infancy, on the other hand, can be asserted by individuals who have not reached the age of majority, often eighteen years old. However, invoking the infancy defense doesn't absolve individuals of responsibility for their actions. Juvenile offenders may be sentenced to juvenile detention centers, with goals focused on education and rehabilitation. In certain circumstances, juvenile offenders may also be tried as adults. These defenses underscore the complex interplay between legal principles, individual capacity, and age-related considerations in the criminal justice system.

Finally, the state is prohibited from inducing an individual to commit a crime that they did not already have the predisposition to commit. In the event that the state engages in such conduct, the defendant may assert the defense of entrapment. This defense recognizes the importance of ensuring that law enforcement actions do not actively create criminal behavior but instead focus on addressing existing criminal tendencies or activities. Entrapment serves as a safeguard against manipulative tactics that could lead individuals into criminal conduct they were not inclined to pursue independently.

Punishment

In the aftermath of a criminal conviction, the government administers the punishment, dissociating it from the victim's role. Once declared guilty of a crime, the individual transforms into a criminal, subject to various forms of punishment meted out by the legal system. The array of potential penalties for criminal offenses encompasses fines, restitution, forfeiture, probation, civil disabilities, and, notably, a loss of liberty. Loss of liberty manifests in various forms, ranging from community service and house arrest to incarceration. In jurisdictions with the death penalty, the ultimate consequence may be the loss of the convicted individual's life.

The duration of incarceration hinges on whether the conviction pertains to a misdemeanor or a felony, with misdemeanors generally constituting less serious offenses. Even infractions, such as parking violations, fall under the umbrella of criminal offenses but are considered less serious than misdemeanors.

Penalties for violating state criminal statutes, encompassing felonies, misdemeanors, or infractions, are delineated within the relevant statutes. These penalties might be specified as a range, such as "up to $5,000" or "up to one year in jail." The inclusion of a range provides judges with discretion to consider various factors when determining the appropriate sentence. For instance, a first-time offender with no prior criminal history convicted of a misdemeanor carrying a potential penalty of up to one year in jail might receive a lesser sentence, such as thirty days, or no jail time at all, as the judge considers individual circumstances in the sentencing process. This discretionary approach aims to ensure that the punishment aligns with the specific circumstances of each case.

Historically, judges possessed broad discretion in sentencing convicted criminals, leading to concerns about inconsistent treatment for similar offenses. In response, the U.S. Sentencing Commission established the Federal Sentencing Guidelines in the 1980s, initially as mandatory guidelines for federal judges. However, the perception of excessively harsh penalties for minor offenses prompted a shift, and today, these guidelines are advisory following the U.S. Supreme Court's decision in United States v. Booker (543 U.S. 220, 2005). This decision reinstated the discretionary power of federal district court judges to exercise judgment when sentencing offenders. Some states have implemented their own sentencing guidelines, contributing to controversial "three strikes" laws that impose severe penalties, including extended incarceration, for relatively minor offenses.

Convicted criminals may face civil disabilities depending on their state of residence. Felons, individuals convicted of a felony, might encounter restrictions such as being barred from possessing firearms, running for public office, serving on a jury, holding a professional license, or voting. Felons who are illegal immigrants may also face deportation.

In addition to loss of liberty and civil disabilities, punishment for crimes encompasses various forms. Fines, monetary penalties for offenses, are applicable in both criminal and civil cases. Restitution, repayment for damages resulting from the criminal act, is a common penalty for property damage crimes and is also employed in civil law, particularly in contract disputes. Forfeiture, the involuntary loss of property ownership, is utilized in cases like illegal drug trafficking to seize assets involved in criminal activities. Probation, a common penalty for criminal offenses, entails court supervision without confinement, often requiring periodic reporting to a state agent, such as a probation officer. These diverse forms of punishment reflect the multifaceted nature of addressing criminal behavior within the legal system.

Purpose of Punishment

Conviction of a crime results in criminal penalties, often involving incarceration. However, the purpose of punishment in our legal system is not rooted in a vigilante ethos where victims take justice into their own hands, preventing potential never-ending feuds akin to historical conflicts like the Hatfields and McCoys in the nineteenth century.

Various objectives can shape a criminal justice system, including retribution, punishment, rehabilitation, the protection of society, and deterrence from future criminal acts. While retribution is not the primary focus, rehabilitation, punishment, societal protection, and deterrence are commonly cited goals. The Federal Bureau of Prisons encapsulates these ideas in its mission statement. Unfortunately, rehabilitation programs may not always be accessible, appropriate, or effective. Additionally, achieving the goal of deterrence is not guaranteed, evident in the high recidivism rates prevalent in the United States. The multifaceted nature of these goals reflects the complexity inherent in the pursuit of justice within the criminal justice system.

Punishment of Business-Related Crime

Punishments for "white-collar criminals" mirror those for any criminal, with the term referring to nonviolent crimes committed in a professional or organizational context. Individuals engaged in white-collar crime bear criminal liability for their actions. Moreover, since a corporation is considered a legal entity, it can face criminal conviction and subsequent punishment. However, corporations do not enjoy all the constitutional protections available to individuals, such as the right against self-incrimination.

A significant challenge arises when determining how to penalize a corporation for engaging in criminal activities. Unlike individuals, corporations lack a soul to rehabilitate or a body to incarcerate, a sentiment reminiscent of Lord Chancellor Thurlow's remark between 1778 and 1792: "No soul to damn, no body to kick." This underscores the unique nature of corporate punishment.

One proposed approach is revoking a corporation's charter, akin to a corporate death penalty. However, this strategy poses risks, as it may harm innocent parties not involved in the criminal activity. Employees could lose their jobs, and suppliers and customers might be deprived of the goods or services provided by the offending corporation. The broader community could suffer the consequences of the actions of a few bad actors. Balancing the need for corporate accountability with the potential collateral damage to innocent stakeholders remains a complex challenge in the realm of white-collar crime.

Conversely, it is imperative to impose penalties on corporations to uphold the objective of deterring future crimes. A common method of corporate deterrence involves imposing substantial fines, often calculated as a percentage of profits or the entire proceeds obtained through illicit activities.

Beyond financial repercussions, criminal corporations also experience significant damage to their reputation. Reputational harm is particularly challenging to mend, representing a lasting consequence that corporations must grapple with in the aftermath of criminal activity.

10.2.2 Crime

Picture yourself working in a publicly traded corporation as an accountant when your manager urgently whispers over the phone, "Quick! Shred the paper copies of the financial records!" The immediate instinct might be to comply, as how could shredding paper be criminal? However, it's crucial to exercise caution, as under the Sarbanes-Oxley Act, destroying documents before the mandated retention period can indeed constitute a crime.

This section delves into crimes pertinent to business, emphasizing the need for vigilance regarding criminal activity both within and outside the organization, as well as through the actions of the business itself. The insights gained here will empower you to recognize potential criminal behavior, leading to critical decisions, such as whether to become a whistleblower or not. Understanding these nuances is essential for anyone navigating the complex landscape of business-related crimes.

White-Collar Crime

White-collar crime refers to nonviolent offenses committed by individuals in their professional capacity or by organizations, typically for financial gain and often involving deceptive practices. The term's historical origins lie in the distinction between the "white collars" worn by managers, executives, or professionals, in contrast to the "blue collars" of factory workers and laborers. Unlike traditional street crimes such as burglary or robbery, and distinct from person crimes like murder or rape, white-collar crimes occur in the professional work environment and aim to achieve financial rewards through deception. Perpetrators of white-collar crimes often carry out their activities during working hours, seemingly inconspicuous at their desks.

Understanding why otherwise successful businesspersons or organizations engage in white-collar crime is a complex matter. Even individuals earning substantial salaries or financially healthy businesses may succumb to the temptation to violate the law. High-profile examples like Kenneth Lay of Enron and Bernie Ebbers of WorldCom, synonymous with corporate greed and ethical lapses, do not fully elucidate the motivations behind such actions. Vigilance against white-collar crime is crucial for businesses, given the challenge of identifying those who might turn to criminal behavior within the workplace. White-collar crimes encompass a range of activities, including fraud, larceny, organized crime, cybercrime, and environmental crime.

Fraud and Larceny

White-collar crimes often center around the use of deception with the goal of acquiring money or property, and this essence aligns with the concept of fraud. Indeed, many instances of white-collar crime can be categorized as various forms of fraud. In certain cases, white-collar crimes involve straightforward larceny, characterized by the unauthorized taking of property with the intent to deprive the owner of that property. In both fraud and larceny within the white-collar realm, the perpetrator seeks personal financial gain by appropriating property.

Fraud manifests in diverse contexts, including regulatory violations such as insider trading, which falls under the category of securities fraud. Securities fraud occurs when individuals employ deception to sidestep regulations or statutes overseen by the U.S. Securities and Exchange Commission (SEC) with the aim of acquiring money or property. A notable example is the SEC's charge against Goldman Sachs for securities fraud, alleging the misrepresentation of material facts to investors for financial gain.

Health care fraud stands out as a prevalent form of white-collar crime, often exemplified by scenarios where physicians submit false claims to health insurance companies with the aim of obtaining monetary gains.

Insurance fraud occurs when deception is employed to receive insurance funds. An example is when an individual falsely claims that their office was burglarized, reporting stolen computer equipment to their insurance company in an attempt to obtain coverage. This act constitutes insurance fraud as it involves deceit to secure an insurance payment. Arson often features prominently in insurance fraud cases. If someone deliberately sets fire to their office building with the intention of collecting under their fire insurance policy, they commit insurance fraud through arson—where arson refers to the intentional act of setting fire to property.

Financial institution fraud pertains to fraudulent activities against banks and similar institutions, including credit unions. The Internal Revenue Service (IRS) typically investigates cases of financial institution fraud. Instances of this type of fraud may involve individuals falsifying tax documents, profit and loss statements, or engaging in money laundering to secure funding from banks.

Consider another type of fraud where deception is intricately concealed. Bernie Madoff orchestrated a massive fraud scheme known as a Ponzi scheme. In a Ponzi scheme, akin to a pyramid scheme, participants contribute funds. Those positioned at the top may seemingly receive returns on their investment, but those at the bottom typically do not. This disparity arises because the funds contributed by individuals at the bottom tier are utilized to pay returns to those at the top. The architects of Ponzi schemes actively seek investors, and those who invest expect a legitimate return on investment (ROI). However, the mastermind behind the Ponzi scheme doesn't genuinely invest the funds; instead, they pocket the contributions. To maintain the illusion of legitimacy, the orchestrator uses new investors' money to provide returns to earlier investors. This cycle allows the Ponzi scheme to persist, creating the appearance that investors are receiving genuine ROIs. The issue lies in the fact that the capital contributions eventually vanish, as they are never invested but are simply appropriated by the fraudster for personal use, including concealing the scheme by making fake ROI payments to investors. To sustain itself, the pyramid must continually expand, attracting new investors to perpetuate the cash flow. Ultimately, pyramids collapse due to their inherently unsustainable structure.

Madoff, a wealth manager, managed to defraud investors out of billions of dollars. How could someone accomplish such a feat? Interestingly, Harry Markopolos, a financial analyst, identified Madoff's actions as statistically impossible long before Madoff was eventually caught and reported his concerns to the SEC.

Business owners can also fall victim to white-collar crime, with embezzlement being a common occurrence. Embezzlement happens when someone lawfully in possession of property converts it for personal use. Bernie Madoff, for instance, committed embezzlement as he had legal possession of his clients' money but wrongfully used it for himself instead of fulfilling his fiduciary duty. Embezzlement differs from larceny, which involves the unauthorized taking of property with the intent to deprive the owner. In embezzlement, the perpetrator initially has the right to be in possession but then misappropriated the property for personal gain. Embezzlement strategies may involve forgery, such as counterfeiting signatures or other documents, and wire fraud if electronic communications are used.

Corporate espionage and misappropriation involve illegal actions where a competitor or potential competitor unlawfully acquires the trade secrets of another entity. The Economic Espionage Act is a federal statute that criminalizes the theft of trade secrets. In a notable case of corporate espionage, Starwood Hotels filed a lawsuit against Hilton, alleging that Hilton and some of its executives illicitly obtained millions of dollars' worth of confidential trade secrets. These stolen secrets were purportedly used by Hilton to compete with Starwood's thriving chain of hotels.

Organized Crime

The term "organized crime" often conjures images of traditional mafia activities, but it extends beyond that in contemporary contexts. Take the case of Pfizer, which settled with the U.S. Department of Justice in 2009. Pfizer's subsidiaries, Pharmacia and Upjohn, were found to be selling pharmaceuticals "off-label" in doses and for uses not approved by the Food and Drug Administration (FDA). Moreover, they were providing kickbacks to physicians to prescribe these drugs. The subsidiaries pleaded guilty to misbranding with the intent to defraud or mislead, paying a criminal fine exceeding one billion dollars and forfeiting profits from their illicit activities. Beyond criminal violations, they faced penalties for violating civil law, particularly concerning kickbacks to physicians. This conviction affected those unaware of these actions, such as shareholders, numerous employees, and patients who had unknowingly encountered off-label marketing in what should have been trusted relationships with their physicians.

The Racketeer Influenced and Corrupt Organizations Act (RICO) is a federal statute designed to enhance penalties for criminal activities and has the power to significantly extend the prison term of a convicted offender. Even if an individual is not directly linked to organized crime, they can face RICO charges for violating the statute. This legislation targets individuals engaged in a pattern of at least two racketeering activities, encompassing a broad spectrum of offenses commonly associated with organized crime, spanning a decade (18 U.S.C. §1961(5)). Racketeering activities range from loan-sharking, bookmaking, money laundering, counterfeiting, smuggling, and blackmail to human trafficking. Notably, RICO, originally crafted to combat traditional organized crime, is now applied to diverse entities such as insurance companies, stock brokerages, tobacco companies, banks, and other large enterprises. Moreover, RICO includes a civil provision enabling competitors to file charges, with successful suits resulting in triple damages.

Bribery occurs when an individual pays a government official to sway their decisions or actions in an official capacity for the payer's benefit. The Foreign Corrupt Practices Act (FCPA) prohibits bribery by U.S. companies operating in foreign territories, except for "grease payments" designed to expedite a predetermined process rather than influence a decision. It is crucial for companies to exercise caution when relying on the grease payment exception, as such payments are legal under the FCPA only if they comply with the laws of the country where they occur—an allowance rarely found in any jurisdiction. Additionally, states have their own statutes addressing bribery.

Money laundering transpires when proceeds from illicit activities undergo processing within an ostensibly legitimate business to "cleanse" the origin of those funds. To illustrate, an individual receiving $10,000 from criminal pursuits may seek to legitimize the money. One method involves establishing a business that deals extensively in cash, creating the façade of legitimacy. By funneling the money through the business's financial records over time, the illicit funds are "cleaned." For instance, if the business is a tavern with a monthly gross of $12,000, the ill-gotten $10,000 could be incrementally added over ten months, with the business falsely claiming a monthly gross of $13,000. This manipulation renders the ten thousand dollars ostensibly acquired by the legitimate business.

In this scenario, if someone were to discover the money laundering operation and threatened to expose it to authorities unless a payment was made to maintain silence, this would constitute blackmail—an instance of extortion. Blackmail unfolds when an individual threatens to disclose damaging information, such as involvement in criminal activities, but offers to withhold the information in exchange for payment. Extortion, on the other hand, involves obtaining property through coercion. Another example is when a local gang engages in extortion by extracting "protection payments" from businesses. Should a business decline payment, the gang inflicts harm, whether through vandalism or physical assault, thereby coercing compliance.

In cases involving organized crime, individuals may face compelling motives to deviate from ethical conduct. The apprehension of government sanctions is a prevalent concern, but the specter of reprisals within the organized crime community can be equally potent. This dual fear often leads individuals to withhold the truth when it is imperative to do otherwise. Providing false testimony under oath, regardless of perceived justifications, constitutes the criminal act of perjury. Furthermore, individuals engaging in such deception may find themselves charged with obstruction of justice, a crime characterized by actions impeding the fair administration of justice.

Antitrust laws are crafted to safeguard economic competition by preventing activities that diminish or eradicate it. Agreements "in restraint of trade" are expressly prohibited under the Sherman Act (15 U.S.C. §1). These offenses encompass illicit practices like collusion, market allocation, price-fixing, and bid-rigging. Notably, criminal convictions have been secured for bid-rigging contracts related to school children's milk, price-fixing in the residential doors market, and price-fixing concerning steel wool scouring pads. For an engaging perspective on antitrust cases, one can explore the movie trailer of "The Informant!"—based on an actual antitrust case involving illegal price-fixing—referenced in the following video:

Congress has tackled antitrust activities through the enactment of several significant pieces of legislation, with varying implications for criminal penalties. Notably, the Sherman Anti-Trust Act stands out as a legislative instrument that explicitly imposes criminal penalties for antitrust violations. In contrast, it's essential to recognize that not all antitrust laws come bundled with criminal sanctions, signaling a nuanced approach to addressing different facets of anticompetitive behavior within the legal framework.

Cybercrime

Cybercrimes, committed through computers or the Internet, are witnessing a surge in prevalence, encompassing activities such as hacking and identity theft. This expansive category, known as cybercrime, spans a spectrum of white-collar offenses and has become pervasive in the modern era, given the ubiquity of computers in nearly every workspace. The offenses range from non-white-collar crimes, such as the possession of child pornography, to more traditional white-collar crimes involving deceptive practices to gain financial benefits.

One key federal statute addressing cybercrime is the Computer Fraud and Abuse Act (CFAA), which imposes penalties for compromising computers integral to interstate commerce or communication. This legislation specifically targets those who illicitly access computers to commit fraud and other offenses. For an overview of the provisions carrying criminal punishments and their corresponding statutory sentences, refer to the table below.

The Unauthorized Access to Stored Communications Act is a federal statute designed to safeguard the confidentiality of email and voicemail communications. Despite its seemingly broad scope, the application of this act is more delimited than its name suggests. Courts have clarified that home computers, business computers, and Internet service providers (ISPs) do not fall under the category of "electronic communications devices" covered by the act. Consequently, while hacking into an email account provider would violate the act, intrusions into home or business computers do not constitute offenses under this legislation. Due to this nuanced interpretation by the courts, prosecutions under the act have been relatively scarce since its enactment.

Identity theft has been expressly codified as a federal criminal violation under 18 U.S.C. §1028(a)(7) and 18 U.S.C. §1028A. This form of crime has become pervasive, with perpetrators fraudulently obtaining credit using the identity of an otherwise creditworthy individual. The victims of identity theft often endure extensive efforts, sometimes spanning hundreds of hours, to rectify the resulting damage. This underscores the critical importance of refraining from disclosing personal information on the Internet as a preventive measure against such crimes.

Spamming has been brought under the purview of federal regulations through the CAN-SPAM Act, transforming violations into federal crimes. This legislation, outlined in 18 U.S.C. §1037, establishes a framework for prosecuting individuals or entities sending copious amounts of unsolicited emails that fail to adhere to federal requirements. Marketers should take heed, as the CAN-SPAM Act serves as a potent tool to curb and penalize the dissemination of unwanted and non-compliant email communications.

Environmental Crimes

Environmental crimes encompass actions that contravene federal or state statutes pertaining to the environment, attracting criminal sanctions. The Environmental Protection Agency (EPA) is tasked with enforcing federal environmental statutes, including those that entail criminal penalties. Numerous corporations have faced convictions for environmental crimes, exemplified by engaging in activities such as illegal dumping of toxic substances into waterways, harm to endangered species or their habitats, or the illicit trade in substances banned due to their severe environmental impact. Key U.S. federal environmental statutes carrying criminal penalties include the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Endangered Species Act. Furthermore, many state environmental laws also stipulate criminal penalties to reinforce environmental protection measures.

In a separate case, Mar-Cone Appliance Part Co. faced conviction for the illicit purchase and sale of ozone-depleting refrigerant gas, unlawfully smuggled into the United States in violation of the Clean Air Act. The sentencing was comprehensive, involving a five-year probationary period imposed on the business, a substantial half-million-dollar criminal fine, and a four-hundred-thousand-dollar payment to a nonprofit organization. Mar-Cone Appliance Part Co. had distributed this banned substance across the United States, an act starkly condemned for undermining international environmental initiatives aimed at mitigating ozone damage, all for the sake of personal gain.

Blue-Collar Crime

Blue-collar crime is a broad term encompassing offenses distinct from white-collar crimes, particularly in the context of business. Within the business sphere, property crimes take precedence over crimes against individuals. Property crimes involve damage to property, contrasting with person crimes that entail harm to an individual's body. Larceny emerges as a significant worry for numerous businesses, and it's essential to recognize that this offense is not exclusive to white-collar criminals. In retail, for example, shoplifting is a substantial and pervasive concern, constituting a major focus of loss prevention efforts. Moreover, employee theft poses a serious problem across various business sectors. Finally, vandalism, characterized by unauthorized property damage, poses a potential threat to any business with a physical presence, making it susceptible to the actions of vandals.

10.3.3 Minimizing Corporate Criminal Liability and Losses Attributed to Crime

Businesses can proactively take affirmative measures to mitigate criminal liability, and individuals need not remain passive in the face of criminal activities. This section outlines specific strategies and laws aimed at combating crime in the business realm.

To foster a culture of ethical conduct, businesses should conduct annual training sessions, including ethics training, to instill good workplace ethics. Developing company-wide codes of ethics further reinforces the commitment to ethical behavior within the organization. Establishing such codes can contribute significantly to cultivating a corporate culture that values ethical behavior and unequivocally condemns unethical actions. Leadership plays a crucial role in this process, serving as positive role models for all employees.

Certain companies, exemplified by Boeing, have implemented ethics hotlines, enabling employees to anonymously report unethical behavior for investigation. Federal sentencing guidelines for organizations underline the importance of maintaining a robust compliance program to detect and report law violations. Organizations voluntarily disclosing violations are eligible for substantially reduced sentences and fines.

In instances where preventive measures fall short, individuals witnessing illegal conduct in the workplace have the option to abstain from participation and may choose to become whistleblowers. Whistleblowers are individuals who report the illicit activities of their employers or organizations to authorities. Typically, whistleblowers have observed wrongdoing that may harm others, prompting them to "blow the whistle" to protect potential victims or put an end to the misconduct.

Whistleblowers encounter numerous challenges in the workplace, with the enduring stigma associated with reporting misconduct being a significant hurdle. Despite the noble intention of preventing harm to innocent parties, whistleblowers may paradoxically be perceived by their colleagues as individuals who have betrayed the organization. This places whistleblowers in a profound ethical dilemma: they witness wrongdoing but may not feel at ease reporting it due to the fear of repercussions, such as job loss or difficulty finding new employment. The prospect of losing one's status, friendships, or reputation often acts as a deterrent, even when the whistleblower desires the cessation of unethical behavior.

Whistleblower protection laws are in place to prevent retaliatory actions against those who come forward. Various statutes include whistleblower protection provisions, such as the Sarbanes-Oxley Act, although the act is not exclusively dedicated to whistleblower protection. The False Claims Act is another example, offering financial incentives for whistleblowers exposing fraud by federal contractors, allowing them to receive a portion of any recovered amount, up to 25 percent. Despite these legal safeguards, real-world whistleblowers often find that the laws offer limited comfort in the face of the practical challenges they confront post-disclosure.

Unit 5 Discussion

A Discussion Question should be answered in 2 to 3 paragraphs. and then respond to two of your peers with meaningful responses.

If you caught an employee stealing one dollar’s worth of office supplies, what would you do? What about twenty-five dollars’ worth of supplies? One hundred dollars’? One thousand? Should employees be trained not to even take a pencil home? Would that type of training be worth the cost of the training itself?

Me personally I would report any number of stealing but working for TSA at the airport I think about it in terms of if I was flying and I lost something I would feel horrible knowing someone stole it. But too you could lose your job if caught as well. I have been accused before for stealing from passenger's looking to try and get something they never had to begin with. I was working in baggage and a passenger claimed that I stole his headphones from his bag. Investigation happened they rolled back the tape and never saw it happen I screened the bag then put everything back the way it was and sent the bag on its way. Even before TSA though I always felt it was more important to work for anything I get  doesn't matter if its 2 dollars or 2,000 why ruin your reputation over any item. But I've seen people get caught for stealing at TSA there is a case still pending FBI investigation at my old airport as well which a person was taking money out of people's wallets and purses for months. He was eventually caught thankfully. We do have training for integrity and they do training of if you see something say something. It's a training that happens every year but too you are watched in everything you do and knowing you won't work with the government or could face jail time why even put yourself at risk? 

Essay Unit 5

Through your readings under Unit 5 write an essay on a subject of interest. This would be something that was thought provoking that you wanted to know more.

Unit 5 Essay

 

              The topic which I think is a really interesting during this week is the collective bargaining considering that my union at Transportation Security Administration is setup in the same fashion. For attempting to earn rights for the employees that work for TSA.  It also brought about different awards and recognition’s that we are offered by the agency as well. Such as the attendance award which recognizes employee’s for meeting the strict availability demands. The career service recognition which recognizes employees for the years of service to TSA awarded after retirement.  On the spot awards which are offered for recognition of any contribution which can be added by any supervisor or manager.

                 Many of those awards are still dependent on whether the budget allocated is enough to meet any of those and it can be difficult to get some of the awards rewarded if you don’t make an effort to contribute or do things. There’s also the Joint Awards Committee that evaluate the awards and recognition of them. And management can still go over that comity and still grant the rewards. They do also have a stipulation that JAC members not be included if there’s conflict of interest such as nomination for relatives but too there’s still a lot of favoritism that happens within TSA so it’s still possible that some could fail to be nominated based on likes or dislikes as well.

The leave procedures are controlled as well which used to use forms from OPM the 71 form for request of leave or approval. But more recently leave requests are done through workforce central with a digital calendar and no longer require OPM71 to be completed like before. Leave cannot be rejected unless the employee doesn’t have the number of hours for it. Or has a proper reasoning.

             When it comes to sick leave and TSA though it can be really strict cause they really don’t want you to call out at all. And they keep track of anything they consider a pattern of callouts and you could get written up for it. For example, if your off day is Tuesday and you get sick on Monday and call out that is frowned upon because they will say you are using it incorrectly. Even if you provide documentation which often isn’t accepted anyways. That doesn’t mean that you shouldn’t keep your doctors documentation because if they attempt disciplinary action you can go to your union with proof. But management often will try to get away with what they can in order to punish individuals even though it’s not acceptable according to the bargaining rights.

            Annual leave is another difficult thing when it comes to TSA because an officer cannot use annual leave outside of what is provided day wise on the calendar that means that once the annual leave is completely filled you have to wait until the next year to be able to use those days because of operational needs. That is the one thing that they use anytime the union attempts to take action against unfair treatment and the union has no course of action. When we had to work 6 days a week and where awarded extra limited time days off for working certain days by the secretary no extra days where included we were told if you had annual leave on the calendar you could swap those days for the free days. But people who didn’t just couldn’t use the free days and you lost them at the end of the year.

                Despite having a union and when it comes to TSA the rate of turnover is pretty high because people get fed up with the poor treatment with TSA and overall low morale. But before the collective bargaining rights it was even worse as an agency. Though it still needs quite a lot of work for TSA to become a place for people to have a desire to work.

                With the change in pay officers will be getting in July it might at least help some of the problems but there’s still some changes which would only be possible with the adding of TSA to the general schedule system that the rest of the government is under. 

Unit 5 Quiz

Question 1

2 / 2 pts

Elevators, Inc. does considerable business overseas for high-rise luxury hotels. To speed up the building permit process, it authorized a project manager to pay a government official a "fee" in the amount of $500. It is common practice in the foreign country for government officials to accept a "fee" to expedite processes. In doing so, has Elevators, Inc. broken United States law?

Select one:

  No, Elevators, Inc. has not broken the law because "grease" payments are permitted under United States law.

  Yes, Elevators, Inc. has broken the law because the amount paid to the government official was $500. 

Incorrect  Yes, Elevators, Inc. has broken the law because it has paid a bribe to a foreign government official. 

  No, Elevators, Inc. has not broken the law because payment was made in United States currency. 

 

Question 2

2 / 2 pts

When an organization makes incentive payments to a decision maker in order to persuade someone else to pay for something, which of the following is it committing?

  Forgery 

x  Kickback 

  Extortion 

  Blackmail 

 

Question 3

2 / 2 pts

Which of the following is an example of a felony?

x  Extortion 

  Public intoxication 

  Jaywalking 

  Petty theft 

 

Question 4

2 / 2 pts

Which of the following is an example of a misdemeanor?

  Armed Robbery 

x  Disturbing the peace 

  Homicide 

  Kidnapping 

 

Question 5

2 / 2 pts

The CAN-SPAM Act is a federal statute in the United States that criminalizes which of the following?

  Embezzlement 

x  Unsolicited marketing email 

  Stealing government confidential information 

  Theft of trade secrets 

 

Question 6

2 / 2 pts

How does a misdemeanor differ from a felony?

x  A misdemeanor carries a criminal penalty of imprisonment for up to a year, whereas a felony carries a penalty of imprisonment for a year or more 

  A misdemeanor is subject to stiffer fines than a felony 

  A misdemeanor is a more serious offense than a felony 

  A misdemeanor is determined by common law, whereas as felony is set according to statutory law 

 

Question 7

2 / 2 pts

Because its garment printing machine needed expensive replacement heads, a clothing manufacturer intentionally damaged the machine so that it could collect on the warranty. What white collar crime has been committed?

  Perjury 

  Misappropriation 

  Financial institution fraud 

x  Insurance fraud 

 

Question 8

2 / 2 pts

Car Wa$h, Inc. uses it business to conceal profits made from the drug trade. What is this practice called?

x  Money Laundering 

  Embezzlement 

  Securities fraud 

  Larceny 

 

Question 9

2 / 2 pts

Which of the following situations can be described as white collar crime?

  A store manager threatens to fire workers if they misuse customer credit card information. 

  A store clerk routinely steals her coworker's lunch from the break room.

  While at work, a sales clerk intentionally destroys a store's clothing items with a red marker.

x  A store manager takes almost a thousand dollars from the day's sales and keeps it form himself.

 

Question 10

2 / 2 pts

The Unauthorized Access to Stored Communications Act is a federal statute in the United States that applies to which of the following?

x  Email and voicemail accounts 

  Residential Computers 

  Internet Service Providers 

  Business Computers