In July 1994 Elvis R. Stewart, an African American, began working for the McDonald’s restaurant located inside the Wal-Mart store on Benson Boulevard in Anchorage, Alaska. Stewart’s shift was from 7:30 p.m. until closing, the time of which varied. Stewart also worked at Taco Bell. Stewart’s shift at Taco Bell was from 11:30 a.m. until 7:00 p.m. In order to work both shifts, Stewart carried a change of clothes and personal items in a duffel-type bag. He would change out of his Taco Bell uniform, and into his McDonald’s uniform, in the Wal-Mart bathroom. He used the Wal-Mart bathroom, instead of the Taco Bell bathroom, because it was larger and less crowded with customers.
Wal-Mart had a nationwide policy of stationing a member of its management team at its exits to check for receipts of purchases made by Wal-Mart and McDonald’s employees, and to check for stolen items that might be concealed in their personal bags. Management conducted the checks before employees left the store at the end of their shifts.
According to Stewart, sometime during his third week of employment, Hardy stopped him as he was exiting McDonald’s at the end of his shift. Hardy asked to search Stewart’s bag, and then proceeded to dump the contents of Stewart’s bag onto the counter and look through it. According to Stewart, this type of bag search continued until mid-February 1995. Steward testified that he routinely objected to the searches.
Stewart asked Hardy whether he searched certain people because they were black. Hardy answered yes.
Question: Were the searches motivated by race discrimination? Explain.
Elizabeth Salsbury, a speech language pathologist employed by SunDance, was notified by letter from SunDance dated February 26, 1999, that the company was compelled to reduce its workforce and that Salsbury’s job would be terminated effective March 1, 1999. The letter informed Salsbury that she would receive 80 hours’ worth of severance pay after signing a separation agreement and general release.
A provision of the agreement stated, “This Release and covenant not to sue also expressly, and without any limitation of the foregoing General Release, includes bot is not limited to any claims which Releasor may have or may assert under federal or state law prohibiting employment discrimination and claims growing out of any legal restrictions on the rights of Company to terminate its employees, whether statutory or arising under common law, including without limitations: Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Releasor on behalf of herself and other releasers expressly agrees that she will not institute, commence, prosecute or otherwise pursue any proceeding, action, complaint, claim, charge or grievance against Company or any other released parties in any administrative, judicial or other forum whatsoever with respect to any acts or events occurring prior to the date hereof in the course of Releasor’s dealing with Releasee.”
Salsbury decided not to sign the Separation Agreement.
Question: Can severance pay be given conditional to the employee’s promise to forego proceeding under Title VII of the Civil Rights Act and/or the Americans with Disabilities Act? Explain.
Howard Saari was employed by Smith Barney, Harris Upham & Co., Inc., as an account executive beginning in July 1988. He alleges that his work was satisfactory at all times. According to Saari’s complaint, on or about December 14, 1988, a “sum of money, supposedly belonging to a client of Smith Barney, was supposedly stolen from the desk of a Smith Barney employee.” Saari alleged he was questioned about the theft and was later asked to take a polygraph test concerning the incident, which he refused. Saari claims he was then terminated for his refusal to take the polygraph examination.
Saari became a registered representative of the NYSE and thereby subject to its Rule 347, which provides that “Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration.”
Saari contends that the enforcement provisions of the Employee Polygraph Protection Act show no such flexibility.
Question: Is the arbitration requirement in violation of the EPPA? Explain
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