Integrated Chinese Level 1 Part 2 Teachers Handbook 20 [UPD]

Example 1 - CP works for an accounting firm and has the title of partner. The firm pays CP a salary, and CP is supervised by an individual at a higher level. CP receives a share of the firm s profits in addition to his salary, but he does not have any input into decisions made by the firm, which are made by higher-level partners. While CP has the title of partner, he is in fact an employee.

Example 2 - CP files a charge alleging that she was denied the position of Commissioner of the Human Affairs Commission (HAC) of State X on the basis of sex. The Commissioner is exempt from State X's civil service laws, and the individual selected for the position is personally appointed by the Governor. The HAC is an arm of the state s Executive Department, and was created by the legislature to encourage fair treatment of, and to prevent discrimination against, the state's citizens. The HAC has the authority to make rules and regulations, to formulate policies that effectuate the purposes of State X's human affairs laws, and to make recommendations in furtherance of those policies. These are all policymaking functions. As the head of the HAC, the Commissioner plays a major role in formulating policies and having them accepted by the legislature. Therefore, the individual in the position of Commissioner is an appointee on the policymaking level and is covered under section 321.

The exemption does not apply to middle-management employees, only to top-level employees who exercise substantial managerial authority over a significant number of employees and a large volume of business. For example, the head of a significant and substantial local or regional operation of a corporation (such as a major production facility), but not the head of a minor branch, would be covered by the term "bona fide executive."(93) The heads of major departments associated with corporate headquarters operations, such as finance and legal, would also typically be covered by the term "bona fide executive."

Example 2 - CP files a charge after being required to retire from his position as Chief Labor Counsel of a corporation upon reaching the age of 65. CP was an in-house attorney specializing in labor law, and exercised relatively minor supervisory duties over four other labor law attorneys. He was far removed from the head of the Legal Department, being one of six attorneys who reported to one of eight Assistant General Counsel, who, in turn, reported to the General Counsel. CP also had only a modest impact on policy, had virtually no access to the high policymaking levels of management, and attended meetings of certain committees primarily for the purpose of providing legal advice. Respondent was not permitted to compel CP's retirement because he did not qualify as a bona fide executive or high policymaker. Whittlesey v. Union Carbide Corp., 567 F. Supp.1320, 1321-28 (S.D.N.Y. 1983), aff'd, 742 F.2d 724 (2d Cir. 1984).

If an employer does not have the minimum number of employees to meet the statutory requirement, it is still covered if it is part of an "integrated enterprise" that, overall, meets the requirement. An integrated enterprise is one in which the operations of two or more employers are considered so intertwined that they can be considered the single employer of the charging party. The separate entities that form an integrated enterprise are treated as a single employer for purposes of both coverage and liability. If a charge is filed against one of the entities, relief can be obtained from any of the entities that form part of the integrated enterprise.

Payment of compensation is actionable if it is affected by either a discriminatory compensation decision or some other discriminatory practice. For example, a charging party may challenge within 180/300 days any paycheck that is lower than it otherwise would be because of the discriminatory denial of a career ladder promotion. In a career ladder promotion, an individual is promoted to a higher pay and/or grade level based on whether that individual meets certain predetermined performance, time-in-grade, or other criteria.

In addition to satisfying the claim or issue preclusion requirements of a particular state, as discussed above, the prior state proceedings, at the administrative and/or judicial level, must also meet due process requirements under the Fourteenth Amendment. Even if the charging party alleges that the final judgment was erroneous, it would be preclusive if it met such due process requirements.(238)

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Integrated Chinese Level 1 Part 2 Teachers Handbook 20 [UPD]

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