Law Exam II Notes

Intellectual Property Law

3 categories of protection
-patents
-trademarks
-copyright
Trademarks and Service Marks
Words, names, symbols, devices used to distinguish one sellers
products from those of another (e.g., IBM, Coke, Dell) and services
provided by a business (e.g., JetBlue).
Toys R Us v. Canarsie Kiddie Shop
9-Factor Test for Likelihood of Confusion
Strength of Senior Users Mark
Degree of Similarity between Two Marks
Proximity of the Products
Likelihood of Bridging the Gap
Evidence of Actual Confusion
Junior Users Good Faith
Quality of Junior Users Product
Sophistication of the Purchasers
Junior Users Goodwill
Starbucks v. Black Bear Micro Roasterys
1997: Starbucks takes legal action
2003: Victors Little Secret decision
2005: District court rules Starbucks failed to prove actual dilution of
trademark. Black bear wins. Starbucks appeals.
2006: In response to Victors Little Secret, Congress amends the FTDA
to allow a trademark holder to enjoin anothers use of its trademark
holder to enjoin anothers use of its trademark if it can show that it is
likely to cause dilution.
2007: Seconf Circuit remands to district court, which finds that Black
Bear still wins, even under the revised standard.
10 year of litigation!
Copyright
Protects the fixed form of expression of original, creative ideas,
not the ideas themselves.
Term is currently: life of the author + 70 years, or, if a
corporation, 95 years from publication.
Fair Use Doctrine: a defense to copyright infringement.
Copyrighted work may, in some cases, be reproduced without

permission of the author for purposes of education, criticism,

parody, and news reporting.
Mattel Inc. v. Walking Mountain Productions
Four Factor Fair Use Test
-Purpose and Character of the Use (e.g., commercial,
educational)
- Nature of the copyrighted work
- Amount and Substantiality of the portion of the
copyrighted work used
- Effect of the Use upon the potential market for the
original
Patents
Protect products, processes, inventions, machines and bioengineered plants.
Must be novel, useful and non-obvious.
Patent infringement: the use, sale or manufacture of the
patented invention without the patent holders permission.
Exclusive monopoly for 20 years; then invention falls into the
public domain.

Justice and Employment Law

Employment Law: Employee Rights

MIGRANT MAIDS AND Fraser v. NAtionwide
What it means to be an employee/employer.

What laws offer protections to employees

Fair Labor Standards Act
OSHA
Workers Compensation
Family Medical Leave Act

Privacy rights in the workplace.

Workers compensation laws- state laws that provide
financial compensation to covered employees or their
dependents when employees are injured on the job
Family Medical Leave Act (FMLA)- a law designed to
guarantee that workers facing a medical catastrophe or certain
specified family responsibilities will be able to take needed time

off from work without pay but without losing medical benefits on
their jobs
Occupational Safety and Health Act (OSH Act)- a regulatory
act designed to provide a workplace free from recognized
hazards that are likely to cause death or serious harm to
employees
Scope and Employment
[If elements are met, employer IS
responsible for employees actions]
-Was the employee subject to the employers supervision?
-Was the employee motivated, at least in part, by a desire to
serve the employers business interests?
- Did the problem arise substantially within normal working hours
and in a work location?
- Was the act in question of the general kind the employee had
been hired to perform?
Termination: Employment at will
Employed for an indefinite period, at the will of the employer and
the employee.

Few workers have employment contracts; most are considered to

be at will.

Either party is free to terminate the employment relationship for

a good reason, a bad reasonor no reason at all.

BUT, cannot be wrongfully discharged.

Wrongful discharge
In violation of law (e.g. Civil Rights Act, FLSA OSHA, state laws).
-In violation of public policy or whistleblower protections.
-Where there was an implied contract (e.g., youre with us for
a year and then well reassess.)
Fair Labor Standards Act
Enacted in 1938, during the Great Depression.

Designed to:
Establish a minimum wage

 Establish a ceiling on hours worked weekly

Prohibit child labor
Establish equal pay for equal work regardless of gender

Employees are either exempt or covered.

Covered employees must be paid at least the minimum wage for

the first 40 hours worked in a week, and 1.5 times their hourly
wage for each hour worked above 40 hours.

FLSA + State Wage & Hour Laws

Remember that the FLSA is a floor (wages) and a ceiling (hours),
but many state laws raise the floor (e.g., NY has a higher minimum
wage than the FLSA) and lower the ceiling (e.g., CA requires
employers to provide meal breaks).
FLSA Enforcement
60% of US nursing homes routinely violate overtime, minimum
wage, or child labor laws.

54% of contractors in the LA garment industry violate the

minimum wage law.

A survey of NYC restaurants found that more than half were

violating overtime or minimum wage laws.

There are fewer DOL inspectors today than there were in 1938,
when the FLSA was passed (at a time when there were far fewer
workers and workplaces).
- U.S.

Department of Labor
Why Dont Employees Come Forward?
Dont know their rights, especially with respect to
misclassification

More and more employees told they are independent

contractors

Are aware of their rights, but fear retaliation

Prefer their exempt salaried status

Mandatory Dispute Resolution Agreements (aka mandatory

arbitration agreements)

Costly, both in terms of money and time

Family Medical Leave Act

Provides up to 12 weeks of unpaid leave for family or personal
medical emergencies

Can be for birth/adoption of a child; care for spouse or immediate

family member with serious health condition, or your own health
condition if it makes it impossible for you to do your job.

In order to be eligible for FMLA:

Employer must have 50 + employees
Employee must have worked at least 1,250 hours in the
past year

Employment and Labor Law Contd.

Title VII, Civil Rights Act of 1964

PROHIBITS a covered employer from hiring, firing, promoting,
disciplining, compensating or making other decisions on the basis of:
-race
-color
-sex
-religion
-national origin
Which employers Are Covered?
Employers engaged in interstate commerce with 15+
employees.

Labor unions engaged in industries affecting interstate

commerce.

Employment agencies that place workers with covered

employers.

Filing a Claim under Title VII

EE files charge with local EEOC (Equal Employment Opportunity
Commission) office

SOL: 180 days from the discriminatory event, except in the

case of harassment cases that involve a pattern of behavior.

Within 10 days, EEOC notifies ER.

EEOC may refer for mediation.

If not, EEOC proceeds with investigation

EEOC Determination
No-Reasonable-Cause finding. EEOC case is dismissed, EE is
given a right to sue letter. Having exhausted administrative
remedies, EE may bring case to court.

Reasonable-Cause Finding. EEO officer meets with parties to

discuss resolution.

Judicial Review. EEOC may file civil action in federal court.

Title VII Remedies

-designed to make the victim whole
Back pay

Front pay

Reinstatement

Compensatory damages

Seniority/Retroactive Seniority

Injunctive relief

Punitive damages

Attorney fees

Medical costs

Theoretical Bases for Title VII Actions

DISPARATE TREATMENT
Treating employees differently because of prohibited Title
VII factors.

Intentional discrimination, though plaintiff need not

actually know that employer intends to discriminate.

McDonnell Douglas sets up framework for proving

disparate treatment.

Disparate Treatment: Prima Facie Case

Employee (EE) must show that:
EE belongs to a protected Title VII class;

EE applied and was qualified for a job for which the

ER was seeking applicants;

EE was rejected and position remained open and

ER continued to seek applicants with EEs
qualifications.

Prima Facie Unmodified:

1. the plaintiff is within on of the protected classes
2. he or she applied for a job for which the employer
was seeking applicants for hire or promotion
3. the plaintiff possessed the minimum qualifications to
perform that job
4. the plaintiff was denied the job or promotion
5. the ER continued to look for someone to fill the
position
** Prima Facie Case is modified to the situation: termination,
unequal pay, unfair discipline, exclusion from training, etc
Employers Defenses
Legitimate, Nondiscriminatory Reason
Its not because s/he is a member of a protected class, its because

Bona Fide Occupational Qualification

It IS because s/he is a member of a protected class (e.g.,
female), but we have a solid business reason for basing the decision
on that criteria
Theoretical Bases for Title VII Actions
DISPARATE IMPACT
Facially neutral policy (i.e. applies to ALL employees)
that has an adverse impact on a protected class.

If policy has a statistically disparate impact (fourfifths rule), illegal discrimination may be found if the
employer cannot demonstrate that the policy is a
BUSINESS NECESSITY (ERs defense).

Civil Rights Act of 1991: Burden is on ER to prove that

policy IS job-related.

The plaintiff attempts to establish discrimination in 1 of 3 ways:

disparate impact, disparate treatment or harassment.
TERESA HARRIS V> FORKLIFT SYSTEMS
Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature that:
(a) explicitly or implicitly makes
submission a term or condition of
employment [Quid Pro Quo]; or
(b) creates an intimidating, hostile or
offensive environment
[Hostile Environment.]
Sexual Harassment Key Points
The victim or harasser may be a woman or a man. The victim
does not have to be of the opposite sex.

Harasser can be the victim's supervisor, a boss in another area, a

co-worker, or a non-employee.

The victim does not have to be the one harassed. Could be

anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without economic injury

to or discharge of the victim.

The harasser's conduct must be unwelcome.

Jenson v. Eveleth Taconite

1984: Jensen files complaint with Minnesota Human Rights
Department. Her tires are slashed.
1985: State recommends Company pay Jensen $11,000.
Company refuses.
50 LAWYERS DECLINE TO TAKE JENSENS CASE
1988: Jensen files lawsuit.
1991: Certified as class action.
1992: Liability trial Co. loses.
1993 1995: Damages trials.

The

1995: Settle for $3.5 million.

14 years and $33 million in legal fees and settlement
payments for the Company.
It should be obvious that the callous pattern and practice of
sexual harassment engaged in by Eveleth Mines inevitably
destroyed the self-esteem of the working women exposed to it. The
emotional harm, brought about by this record of human indecency,
sought to destroy the human psyche as well as the human spirit of
each plaintiff. The humiliation and degradation suffered by these
women is irreparable. Although money damage cannot make these
women whole or even begin to repair the injury done, it can serve to
set a precedent that in the environment of the working place such
hostility will not be tolerated. ~ Judge Donald Lay
Jensen v. Eveleth Taconite
Progressive Electric v. National Labor Relations Board
(NLRB)
NLRA Section 7
Labors Magna Carta

Employees have the right to:

Organize: join, form or assist unions

Bargain Collectively, and

Engage in concerted action (e.g., circulate petitions,

strike, leaflet).

NLRA Section 8(a)1

Employers cannot: interfere with, restrain or coerce employees in

the exercise of their Section 7 Rights.

Examples of prohibited activity:

Banning distribution of union literature;

Spying on or blacklisting employees

Suspending or firing for union activity

Employers cannot make threats or promises but they can state

an opinion.

Employers can give a prediction of what will happen if workers

unionize, but not a threat or promise (e.g., Loyola cant say it will
close its doors and move to Mexico if that isnt a realistic
prediction).

Employees may not harass, intimidate or threaten fellow

employees.

Those actions are NOT protected under the NLRA.

CASES
(INTELLECTUAL PROPERTY)
TOYS R US INC v. CANARSIE KIDDIE SHOP INC
Plaintiff Toys R Us inc, sold chilrens clothes in stores across the
country. The firm obtained a registered trademark and service mark for
Toys R Us and aggressively advertised and promoted its products using
these marks. In the late 1970s, Defendant Canarsie Kiddie Shop Inc,
opened two childrens clothing stores within two miles of a Toys R Us
shop and contemplated opening a third. The owner of Canarsie Kiddie
Shop Inc called the stores Kids R Us. He never attempted to register
the name. Toys R US sued for trademark infringement in the federal
district court. The defendants use of the Kids R US mark does not
create a likelihood of confusion for an appreciable number of
consumers.
Plaintiff developed its mark
The plaintiffs substantially developed plans to open stores similar to in
format to those of the defendants
Similarities between the marks
The defendants lack of good faith in adopting the mark
Lack of sophistication of the purchasers

The limited goodwill the defendants have developed in their

mark
Judgment for the plaintiff TOYS R US
First part of the nine part test: Strength of the Senior Users
Mark
A mark can fall into one of the four general categories:
1. generic- entitled to no trademark protection whatsoever, since
any manufacturer or seller has the right to call a product by its
name
ex: aspirin and heroin
2. descriptive-identifies a significant characteristic of the product,
but is not the common name of the product
examples of imaginary marks could be considered merely
descriptive for computer peripherals: FASTBAUDformodems(describingthe
quicknessofthemodem);
104KEYforcomputerkeyboards(describingthenumberofkeysonakeyboard)
examplesofmarkswhichmightbeconsidereddescriptivebuthaveclearlydevelopedasecondary
meaning:SHARPfortelevisions;DIGITALforcomputers;WINDOWSforwindowingsoftware

3. suggestive-requires no imagination, though and perception to

reach a conclusion as to the nature of the goods. Ex: Microsoft
(suggestive of software for microcomputers)
4.arbitrary/fancifulrequirenoextendeddefinition.Theyaremarks,whichinnoway
describeorsuggestthequalitiesoftheproduct.Fancifulmarksaredeviceswhichhave
beeninventedforthesolepurposeoffunctioningasatrademarkandhavenoother
meaningthanactingasamark.Fancifulmarksareconsideredtobethestrongesttypeof
mark.ExamplesoffancifulmarksareKODAKAPPLEandEXXON.
Suggestive marks require some imagination, thought, or
perception to reach a conclusion as to the nature of the goods.
Descriptive marks allow one to reach that conclusion without
such imagination, thought or perception.
Junior Users Good Faith v. Good Will
Good faith-the state of mind of the junior user is an important factor
in striking the balance of equalities

Goodwill- A powerful equitable argument against finding infringement

is created when the junior user , though concurrent use of identical
trademark, develops goodwill in their mark
Bridging the gap refers to two distinct possibilities 1. The senior user
presently intends to expand his sales efforts to compete directly with
the junior user , thus creatinfgthe likelihood that the two products will
be directly competitive 2. While there is no present intention to bridge
the gap, consumers will assume otherwise and conclude that the
parties are related companies

Victor Moseley and Kathy Moseley Victors Little Secret v. V

Secret Catalgue Inc
Petitioners, Victor and Kathy own an adult novelty store
Victors secret. An army colonel sees an advertisement for the
store and thought petitioners were using a reputable
trademark to promote unwholesome merchandise, so he sent a
copy of the ad to respondents, the corporations that own the
Victorias Secret trademarks. Respondents asked petitioners to
discontinue using the name and they responded by changing
their name to Victors Little Secret. Respondents then filed a
lawsuit containinfg 4 separate claims for
1. trade mark infringement, alleging that petitioners use of
their trade name was likely to cause confusion and/or
mistake
2. Unfair competition, alleging misrepresentation
3. Federal dilution in violation of the FTDA
4. Trademark infringement and unfair competition in violation of the
common law of Kentucky
There was no evidence of confusion between marks. Court ruled for
V Secret Catalogue and Moseleys appealed.
Fair Use Doctrine- a legal doctrine providing that a portion of a
copyrighted work may be reproduced for purposes of criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarships, and research

Zomba Enterprises inc Zomba Songs inc, Plaintiffs-Appellees

v. Panorama Records, Inc., Defendant-Appellant
Panorama manufactured and sold karaoke compact discs issuing a
new disc monthly in each case of a variety of musical genres. Each
monthly karaoke package contained the top 9 or 10 hits in that
genre for the revelant month. Plaintiff Zomba is in the business of
exploiting musical compositions for commercial gain, holding and
administering copyrights to a variety of musical compositions,
including songs performed by performers such as Backstreet boys.
Zomba discovered that Pano was using songs on which Zomba held
the copyright. Zomba was willing to grant Pano a lease but Pano did
not negogiate an agreement. Zomba then files complaint, asserting
one count of copyright infringement foreach Zomba-owned song
Pano had recorded and sold in its karaoke packages.
Court grants Zombas motion for summary judgment on the issue of
copyright infringement. Pano appealed.
FOUR FACTOR FAIR USE TEST
1. the purpose & character of the use
2. the nature of the copyrighted work
3. the amount and sustainability of the portion used in relation to
the copy ight work as a whole
4. the effect of the use upon the potential market for or value of the
copyrighted work.

(EMPLOYMENT LAW I)
MIGRANT MAIDS
Fair Labor Standards Act (FLSA) most pervasive law regulating
wages and hours and covers all employers engaged in interstate
commerce or the production of goods for interstate commerce
-minimum wage

-employees who work more than 40 hours in a week be paid no less

than one and one half time their regular wage for all the hours beyond
the standard 40 hour work week
-employees must earn a min amount of income and spend a certain
amount of time engaged in specified activities before they can fall into
each of those exempted categories
Fraser v. Nationwide Mutual Insurance Company
Plaintiff Frasers employment at Nationwide was terminated after
emails revealed that he had divulged company trade secrets.
Nationwide believed that Fr had become disloyal to the company and,
consequently the company searched it own main file server for emails
showing disloyal conduct. Fr then filed a lawsuit against Nationwide,
claiming lawful wrongful termination and a violation of the ECPA. The
district court found in favor of the defendant, Nationwide, on summary
judgment. The plaintiff appealed.
ECPA (Electronics Communications Privacy Act) protects privacy right
to electronic forms of communication. It prohibits the intentional
interception of electronic communications or the intentional disclosure
or use o the information obtained through such interception. It does
h/e include a business-extension exemption that allows employers to
monitor employees telephone conversations in the ordinary course of
their employment , as long as the employer does not continue to listen
to conversations once it recognizes that they are of a personal nature.
A second exemption arises when the employees consent to the
monitoring of their conversations.
Theresa Harris v. Forklift SystensInc
Plantiff Harris was manager for Defendant Forklift Systems Inc.Durng
her tenure, Harris was repeatedly insulted by defendants president
and because of her gender subjected to sexual innuendoes. She quit
and filed an action against the defendant for creating an abusive work
environment based on her sex. Defendant wins. Altho comments were
offensive, but not so serious affecting her well being or her work
capability. Harris appeals.
Progressive Electric v. National Labor Relations Board (NLRB)
Progressive is a nonunion electrical contractor. Progressive, seeking to
fill job openings, advertised in the local paper. D. Cousins responded to
the ad I n order to unionize Progressive. During the application process,
Cousins did not reveal his union affiliation. He was hired. Randall a

member of an out of town union also responded to the ad and was

hired. His past union affiliation was apparent on his resume and he
intiated a discussion of it in his job interview with Randy Neeman,
Progressives president. Randall started to work and he agreed to help
the union in its organizational efforts.
Someone makes comments about Randal to Cousins and another
employee. Randall walks off work site and says hes on strike because
he was not being paid union wages. Neeman says it was a voluntary
quit. The union files an unfair Labor practice charge with the NLRB.
NLRB s general counsel issued a complaint alleging violations of
Section 8a1 of the act. ALJ found that Progressive had committed unfair
practices by threatening employees with plant closure and job loss.
NLRB affirmed and Progressive appealed.

CHAT WITH KENNEDY

In a trademark infringement case, how do you know whether
to apply the 9 factor test or see whether the likelihood of
dilution has occurred (FTDA)?
Trademark infringement is more of when you are trying to use the
same trademark to sell your goods (or servicemark for your services).
The likelihood of dillution is when your use somehow dillutes the power
of the senior user's trademark, even if you aren't trying to appropriate
it.
That's why even when Victor's Secret changed it to Victor's Little
Secret, the concern was that this store's use of their trademark was
somehow dilluting the power of the Victoria's Secret brand.
Same for Charbucks. It's not like anyone thought they were getting
Starbucks, or that Starbucks feared that was happening (in the way
that Toys R Us feared that consumers would be confused by Kids R Us).
Since private employers dont need to adhere as strictly to the
Fourth Amendment, do employees (at private companies) have
any expectation of privacy?
They don't have 4th Amendment protections against privacy, but tort
law provides SOME protections against invastion of privacy (but we
really didn't cover that in this class). For example, if an employer
ordered a strip search in your private sector workplace, you would
have tort law invasion of privacy or battery or intentional infliction of
emotional distress claims, perhaps. The trickier issue (again, not really
for this class but you might be interested), is when a private employer
calls in the police (like in shoplifting cases) and orders a search.
Oh interesting. So they don't have to prove that a search is
"reasonable" like a public firm would?
That's correct. Though use the term "public employer" because "public
firm" sounds a little like a publicly traded firm, which would be a
private company. Just to confuse everyone :)
I am just a bit confused as to what we should know about Tort
Reform. We have the Hot Coffee Documentary, but I was
confused how we were supposed to apply that. Also from the
Torts III sheet we had, we never really discussed what the
basis for limited liability cases referred to or reasons stated
for supporting reform.

Dave, if you watched and paid attention to the HBO Hot Coffee
Documentary and our discussion following, you will be fine.
Disparate impact, one of the slides refers to the 4/5 rule, what
exactly is that?
They don't have 4th Amendment protections against privacy, but tort
law provides SOME protections against invastion of privacy (but we
really didn't cover that in this class). For example, if an employer
ordered a strip search in your private sector workplace, you would
have tort law invasion of privacy or battery or intentional infliction of
emotional distress claims, perhaps. The trickier issue (again, not really
for this class but you might be interested), is when a private employer
calls in the police (like in shoplifting cases) and orders a search.
The issues of tort reform are less "applied" and more "reflective"
The other thing I had a question about was the Freedom of
Expression documentary we watched part of in class. That
would apply to the copyright part of the test correct?
Correct
Also going off of Diana's question about disparate impact, as
you stated in class, it does not really matter whether the
plaintiff utilizes disparate treatment or impact to bring their
case across? If there is a question that asks us to choose
between the two, is it possible to argue for both? I am still
somewhat unsure what the subtle differences that lie between
the two.
Oops, sorry Diana I missed your question. Yes, with disparate impact
there is a general rule that for it to be significantly impacting a
protected class, 4/5 of the class should not be able to get the position,
etc.
With respect to you question Dave, it does matter but the differences
are not subtle. Let me explain with an example...
f the airline said "We only hire women as flight attendants." That would
clearly be disparate treatment, right? If you were applying for the job,
you would say, "I'm Dave Engelhardt. I'm a member of a protected
class. I applied for this job of flight attendant. I meet the minimum
qualifications. I wasn't hired because I'm a man, because the policy is
facially discriminatory."
But, if the airline said, "We only hire flight attendants who are 110
pounds or less." You could still have a claim...
But you would say, "MOST men (not all, but most - probably 4/5) weigh
MORE than 110 pounds. I'm Dave Engelhardt. I'm a member of a
protected class. I applied for this jobo f flight attendant. I meet the

minimum qualifications. I wasn't hired because I'm a man, because the

police has a disparate impact on men."
That really helped. So disparate impact deals more with a
general policy that a company applies to all employees. while
disparate treatment deals with more with the specifications
laid out in Title VII, such as gender and race
Dave, disparate impact is neutral on its face but discriminatory in its
impact -- whether it applies to a single person or lots of people.
Remember the hospital policy banning male nurses in the delivery
room? That was disparate treatment even though it would affect EVERY
man who applied.
I remember the case I just would think that it could be
considered disparate impact because it discriminates against
more than the 4/5 set out in the definition we have from your
slide.
thank you i'll read more in the textbook and try to look at
questions. I am just still a little stuck on the distinction. I will
have try to break it down further for myself. :)
Yes, but my point is that you don't even have to resort to disparate
IMPACT analysis, since the disparate treatment analysis is so clear
(since it is discriminatory on its face)
Most cases are NOT so clear (most employers don't say, straight up,
we're not hiring you because of [protected class]. So, in many of those
cases you have to resort to disparate impact if it is a bogus rule put in
place just for the purpose of making it harder for certain groups to get
the job.
For example, college degrees when they are not necessary or credit
scores when they don't tell you anything about employment
performance (but everything about economic class and race).
Hi, is it important to know the process of filing a claim under
title VII with the EEOC?
Understand the general framework. That you can't just walk into a
courtroom and file a complaint.
And the determinations of the EEOC like "reasonable-cause
finding"?
Yes. But sounds like you already understand them, just by virtue of
asking :)

OTHER CLASS
In the case with victors little secret Victorias secret was
unable to prove dilution of the company or the brand correct?
They lost when the standards was having to show "actual dillution" and
then they lost AGAIN even after Congress lowered the standard to
"likelihood of dilution. Same for Black Bear Roastery.
Okay in the case with Mattell and the walking mountain
productions was this the case with the employee that left and
created the new dolls but had made the sketches at mat tell.
No, that was the case with the Food Chain Barbie art exhibit (barbie in
a blender, barbie enchilladas, etc.)
Okay so they used the four part test to rove if it was fair use?
Correct. In like a step by step can you summarize the burden shifts. It
starts with the plaintiff to prove a prima facie case. Then to employer
to give legit business reasons. Finally employee to show the reasons
are just pretext? It's really about who carries the burden of proof in
order to avoid losing a motion to dismiss by the other side. So first, the
plaintiff establishes a prima facie case (I applied for the job, was a
member of protected class, etc.) Usually the plaintiff doesn't have
evidence yet of the employer's discriminatory intent (its rare (though

not impossible) that an employer will say, straight up, I didn't hire you
because you are Asian.) So, if an employer brought a motion to
dismiss, at this point they might win every case. The burden shifting
allows for the case to proceed in order to have access to discover to
find the facts that can help ultimately show discriminatory intent. So,
plaintiff establishes prima facie case.
Then... ...Employer has burden of proof to show that either there was a
legitimate non-discriminatory reason (e.g., it was because you were
not fluent in Spanish that we didn't hire you, not that you were Asian.
Or, a BFOQ in the case of sex or religious discrimination (e.g., we had
to hire only a Catholic to be a Catholic priest).
At this point, the employer could bring a motion to dismiss, but the
McDonnell Douglas burden shifting gives the plaintiff an opportunity to
show that the defendant's arguments were merely pretext for
discrimination.
One last shot before the employer wins the motion to dismiss. Very
important in employment discrimination cases where you as the
plaintiff need to keep the case alive long enough to get discovery to
get the evidence you would need to convince a jury of what you are
alleging.
For employment termination is an employer fires someone for
no reason at all how will they know if they are being
wrongfully discharged in order to make a case?
Exactly, that's why this framework exists. If, as the plaintiff you can at
least establish that you have a prima facie case, and you survive the
defendant's motion to dismiss (e.g., judge concludes that there are
issues of material fact that should be heard and decided by a jury), the
judge will order discovery and you can have better opportunity of
discovering facts that help your case.
This is also why plaintiff has the opportunity to show pretext. If an
employer says, "We fired her just because we felt like it." That would
be permissible for an at-will employee. But if you subpoena co-workers
and managers and learn that the managers treated this person
differently because she was a woman or member of other protected
class, you can still show that the "no reason at all firing" was still
pretext for unlawful discrimination.
Of course, you may also discover nothing through discover. It may very
well be the case that the person was not fired based on their status as
a member of a protected class. But the point is that a jury would be
able to decide one way or another based on the evidence provided.

And you can only gather the evidence if you survive a motion to
dismiss (remember the stages of civil litigation we studied in the first
week of class)
What is the whistleblower protections?
Whistleblower protections usually built into laws as protections for
those who report violators. For example, even though you are an at will
employee, if your employer fires you because you reported to the
Department of Labor that they were underpaying everyone, that would
be an unlawful termination.
Good Faith is like the guy not knowing about the Toys R Us
logo? Then goodwill was he wasn't trying to copy it?
Good faith is whether he knew about the senior user's mark. Goodwill
is the quantifiable value of the mark.

I'm going over employment law 3 and Im confused on what a

secondary boycott is and why they are allowed in the
construction and garment industries.
So a primary boycott would be where I organize a boycott of
Starbucks. The workers are being mistreated and the union says,
"Don't buy Starbucks!" to try and put pressure on Starbucks to treat its
workers better. That makes sense, right?
A secondary boycott is where we boycott the people who make
the cups that Starbucks uses. We are still trying to put pressure on
Starbucks, but its indirect. The problem is that it becomes an antitrust
issue -- restraint of trade. The public doesn't really understand the
point of putting pressure on the cup manufacturer. This practice IS
allowed in the construction and garment industries however, because...
In those industries, the way they are structured there is so much
subcontracting that you would HAVE to do a secondary boycott to
really put any pressure on the people who are committing the unfair
labor practices. For example, Abercrombie is not the company that is
actually sewing the clothes. If you have a problem with the people
running the sweatshops who employ the people making the clothes,
you could try and boycott them (primary boycott), but...it wouldn't
make much of an impact because who the heck has even heard of S&J
Textiles operating out of a booth in Pakistan. In order to apply the kind

of pressure to make working conditions better, you have to have a

secondary boycott on Abercrombie. Ditto for construction. There's so
many subcontractors that the law says you can boycott the Hyatt hotel
for its use of evil construction contractors, since most people will not
be able to directly boycott the construction contractor themselves.
Can you say that the women of the migrant maids are
being discriminated under the Title VII act due to the miss
treatment they were experiencing due to there race/color? or
are they not allowed to because they are not covered ?
migrant maids, some of it is that they are in isolated workplaces
and therefore don't qualify for protections under federal laws that
require 10 or 15+ employees (like NLRA, Title VII)... ...some of it is just
practically, it is hard for them to enforce their rights because like under
workers comp, the employer has to set aside monies for them, which
many do not.
Can you explain what would be two cases one of disparite
impact and one of disparite treatment Im a little unsure of the
difference?
Disparate treatment would be saying, "We only hire female flight
attendants." Disparate impact would be saying, "We only hire flight
attendants who weigh less than 110 pounds."
The first instance is discrimination on its face. In the second
instance, men are going to be statistically less likely to get that job,
even if they aren't directly excluded. Impact is still discrimination on
the basis of a protected class. Its just that the rule or policy or decision
is seemingly neutral, but has a disparate IMPACT on a protected class.