The Sporty One Law Suit
LS311M5- Agency and Employee Relationships
Did CARDWARE have genuine bona fide occupational job qualifications in its ad?
Bona fide occupational job qualification is how employers sift through candidates from characteristics that may be protected from discrimination. Such as age, religion, and gender. Only in specific circumstances is this allowed to be used for example, someone looking to hire a mechanic wouldn’t hire someone who only had experience fixing vacuums. The ad for THE SPORTY ONE, states “WANTED: Salesperson experienced in retail sales or marketing preferred, energetic, youthful, athletic, and able to “sport” the clothing lines of The Sporty One with style. The Sporty One is a division of CARDWARE Inc. and proud to be an Equal Opportunity Employer.”, at first glance it seems as though there is a BFOJQ, however the legal qualifications are not met. Although it may seem from business stand point for the clothing line to have a young athletic sales person represent the clothing line, the actual duties of the position can easily be carried out by any of applicants as well.
Petunia’s strongly felt, she was a well-qualified individual who met the criteria of the ad especially since the company’s slogan for the clothing is also “You don’t have to be an athlete to look and feel like one.” With this slogan it was easy for her to feel she would be a strong candidate while not only being an embodiment of this slogan, but also bringing 5 years of retail experience. Regardless of a BFOJQ Petunia does not have any legal proof of the reasoning or her not being hired such as her being older. To prove any age discrimination there would need to be direct evidence. Such as she was refused to be able to fill out an application due to her age. Noah being hired is not enough to build a case on. Both applicants did meet the experience portion in the ad, Petunia for her retail experience and Noah for his Marketing. CARDWARE did express that Noah fit the company image but because of “future plans” for the company. Especially since they are focusing on growing the male customer base and having a male sales representative can help. Petunia does not align with the future direction of company although she has experience in sales, she cannot prove that she is the best asset towards CARDWARE’s goals. In addition, providing consistency to the CARWARE defense she was also told that age was not a factor. CARDWARE can possibly be held liable for claims under the ADEA given that Petunia can prove intentional action taken against her specifically for her age and based on facts given she does not have a case. Petunia has failed to meet her initial burden of proving discrimination had occurred.
If Petunia brings a lawsuit based on negligence against CARDWARE and The Sporty One, will CARDWARE be responsible for Noah’s behavior? If so, under what theory?
Any employee of CARDWARE means that their actions are an extension of the company. Therefore, making CARDWARE responsible for actions of their employees under a legal doctrine called respondeat superior. Under this doctrine the employers are responsible for the actions of employees while they are performing duties for their position.
CARDWARE is liable for an intentional tort because of Noah’s actions. Noah’s actions were not professional and his act of shoving carries an intent to make Petunia leave the store with it the understanding that certain consequences would inevitably result.
What defenses might CARDWARE assert? What defenses might CARDWARE utilize?
CARDWARE could claim comparable negligence and this would allow the parties to assume their own portion in the blame in the recovery of any damages. CARDWARE could also state that Noah acted on his own outside the scope of his duty. A case could made that by physically removing Petunia he was not performing an act that were expected by the company and the result of his actions were not performed for the company’s interest. The reasonable man theory can be applied in this situation as well. One could ask if a reasonable man would have used force towards someone harassing them. The law would say a reasonable man would have called the store management or authorities.
If Hetty Whitestone’s estate claims that CARDWARE should be responsible for Hetty’s death, will it?
Hetty Whitestone’s survivors or estate holders would be within their right to file a wrongful death suit against CARDWARE. Noah being an employee was acting as an agent of CARDWARE and committed a tort. His actions in physically removing Petunia resulted in Hetty’s death. Although the death happened outside of the store, stores are responsible for the square footage outside their entrance way. Being that Hetty was struck and knocked over she would have had to have been within this area of the entrance way. Hetty was owed a duty of care. There was a breach of duty by Noah when he failed to properly handle the situation with Petunia and by respondeat superior CARDWWARE.
Noah, an employee of CARDWAR, actions caused the death of a women and will result in significant legal fees and damages. Fighting this case would not be cost effective nor would put CARDWARE in a positive light. To maintain positive press and to ease all involved more would be gained by pre-emptively offering to pay funeral costs and a settlement. Considering her advanced age, the settlement would be a generous offer, however going to court and having a jury hear the story could result in significantly more damages.