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One would agree that the CARDWARE did have a real BFOQ in its advertising, despite the fact that there is a major federal provision that forbids employment discrimination known as Title VII of the Civil Rights Act of 1964. Title VII prohibits any form of discrimination in job pay, terms, conditions, and privileges. This prejudice could take the form of color, ethnicity, age, gender, or national origin. In this situation, though, CARDWARE could be operating on a legitimate professional certification that provides for a valid degree of discrimination for business protection (Beever, 2016). Their primary desire was to employ someone who was young with an athletic body so as to portray the image of their company. They hired Noah basing their qualification on qualities that were vital to the organization operations. In contradiction to the Bona Fide Occupational Job Qualifications, the company’s slogan educates that it is proud to be an equal opportunity employer. The phrase “Equal Opportunity Employer” ties them to the title VII of the Civil rights Act passed in 1964 where the company should be responsible for answering the discrimination charges filed against them by Petunia.
Petunia’s point of view is that she was discriminated upon on the basis of age even though the company was looking for more of a sporty look and not someone who has a lot of weight. This made Petunia feel that the organization was not fair to her since she was best qualified for the position. On the other hand, CARDWARE’s position is compromised because the team included the phrase “equal opportunity employer” because it makes Petunia’s claims valid.
They could have avoided this conflict by narrowing their search terms down to show that they needed someone who is young and a healthy fit body to reflect their clothing line. They could have used a broad enough statement and does not discriminate against anyone. Secondly, when Petunia came into the store, Noah should have alerted the security department of the company and later on reported the matter to the police rather than taking the prevailing issues in his hands.
If Petunia takes them to court and claims that there was negligence in the organization, this organization can defend itself using the BFOQ which is considered valid to Title VII of the Civil rights Acts rights developed in 1964; the BFOQ can protect them from being punished by the law. In this case, they can educate the court about the qualities they needed for their employees and assert their reason which was to protect and exhibit the image of their company to live to by their word of being sporty. This means it needed models which corresponded to the desires of the enterprise. This is a valid reason to defend them (permissible discrimination) (Beever, 2016).
The subjective theory of negligence focuses on one’s state of mind. This theory educates on one's state of mind during the activity occurrence. It manifests best when one in involved in careless activities controlled by their mental attitude. When Petunia went into the store to abuse Noah, she was bitter and felt that the company had not treated her fairly. Therefore, she was mentally disturbed.
The defenses that CARDWARE can use are comparative negligence where the plaintiff (Petunia) is largely at fault for the damages caused both to her and Hefty. First and foremost, the plaintiff is not satisfied with the hiring exercise and goes to the store to abuse Noah who after a while of being patient, he shoves her out the door. Petunia would have intentionally landed on the stall so that it hit Hefty who eventually lost her life. In this case, the court might bar Petunia from recovery because she is more at fault for causing the accident than the defendant (Beever, 2016).
Yes, the CARDWARE may be held accountable for Hefty's death because employers are commonly held responsible for the conduct of their employees because, in most cases, companies direct the employees' behavior and therefore should share the good and the bad (Find Law, 2013). Since CARDWARE benefits from the employee's activities in the form of profits, as the employer, it should also be legally held responsible if the same behavior equals harm even though the damage caused was never intentional. In this case, therefore, the employer will be responsible for Noah's actions because they occurred in the course and scope of employment. However, the company can use the assumption of risk defense strategy where it can claim that the plaintiff should assume the risk involved because, despite the fact that Petunia knew that her activities were dangerous when she went into the store and attacked Noah with words, she went ahead and did it anyway. Petunia knowing very well that she was pushed and knocked the stall that hit Hefty leading to her death should tell the truth and once the truth has been established and that she knew her activities were unacceptable. (Find Law, 2013)
Beever, A. (2016). Rediscovering the Law of Negligence . Virginia: Hart Publishing.
Find Law. (2013). Retrieved May 5, 2017, from http://files.findlaw.com/pdf/smallbusiness/smallbusiness.findlaw.com_liability-and-insurance_an-employer-s-liability-for-employee-s-acts.pdf.
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