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It is against the law for any employer to discriminate in the hiring of new employees based on their nationality, age, faith, or gender. However, this is not the case with BFOQ, which is exempt from some of this general law. The defense known as "bona fide occupational qualifications," or BFOQ, is employed when there is discrimination against a specific protected class in a specific essential work. (Cavico & Mujtaba, 2016). When the essential duties of the job require particular people, a business would occasionally be within its rights to discriminate against a particular protected class. The job advertisement that was aired by the CARDWARE Inc. did not in any way specify the particular age limit persons they were looking to hire for the vacancy since they just said young person. For most BFOQ defense, the court restricts the law to only cover gender issues but not age (Cavico & Mujtaba, 2016). The problem with the scenario was that Petunia, a plump middle-aged woman, raised issues since a younger and slender person than her, Noah, was hired for the position and not her, despite the fact that both of them were uniquely qualified for the job position. Petunia would have provided credence to the slogan of the company “You don’t have to be an athlete to look like one” as she would have attracted more middle-aged ladies to purchase from the store by just looking at style as an athlete and want to be more like her. Additionally, she had a five-year experience in retailing, and that would still have landed her the job.
The factors that made Noah more fit for the job than Petunia was because he was qualified regarding customer service experience, and secondly because he perfectly fit the physique qualifications the company was looking for in the person they would hire for the position. Although he lacked retail qualifications, Noah was majoring in the particular department he was hired to work in although he still had not gained retail skills. Petunia, who had prior retail experience for this particular job position, was not all round as compared to Noah. She ignored the full details of the advert which specified on energetic, athletic and a youthful person, of which she did not qualify perfectly well. The physical fitness and customer service go hand in hand, and these two factors were evident in Noah, thus much qualified for the position. Thus, considering these facts, Noah is best positioned to take up the job as compared to Petunia.
It is the obligation of a person or an organization, under duty element in a negligence case, to protect all its employees. Therefore, it was a legal responsibility of Noah to protect the store and its environment against Petunia who was disrupting it. Another instance of negligence was the failure of CARDWARE to employ a security guard who would have escorted Petunia out hence prevention of the death of Hetty. The company, under the third element of negligence, causation, can be said as the proximate cause of the death for its failure to employ Petunia. Hence, Noah will become free as, under the same theory of negligence, he can claim that he owes no duty to the plaintiff and that his response to the confrontation is as a result of a past recruitment exercise.
The court can hold it that CARDWARE, the employer to Noah, is liable for his actions. First and foremost, the company took no action to stop the harassment against Noah from an outsider, Petunia. The fact that Noah had to take a defensive action that led to the death of Hetty is a good reason enough that the company did not provide a protection mechanism for him. The common law states that a principal is supposed to provide a secure working environment which includes the conditions, premise, and equipment, for its employees and agents (Miller, 2015). Thus, CARDWARE neglected this law and is therefore liable for the death of Hetty.
Hetty’s Estate Claims
In case that Hetty’s estate holds CARDWARE responsible for her death, then they are correct since it was the store’s employee who caused the death by shoving Petunia, making Hetty stumble on the clothes rack.
Defense Utilized by CARDWARE
However, CARDWARE might utilize the defenses that they did not authorize to commit any form of crime while on their premises, thus should be held accountable for his disobedient actions which range out of the employment scope. Obedience, according to the law, states that when an agent is acting on behalf of their principal, they ought to lawfully follow the said instructions, and a deviation from them is a direct violation of their duty (Miller, 2015). Still, the company can claim that they had no knowledge of the harassment as Noah had not presented any form of a written complaint or the same. Moreover, Petunia could have purposely stepped on the clothes wrack which was the ultimate death of Hetty.
CARDWARE would have prevented all the issues that occurred by putting a security agent in place at all times. Again, in the ad, they should have specified the age bracket for the potential employees. Thus Petunia would not have applied for the interview in the first place.
Cavico, F. J., & Mujtaba, B. G. (2016). The Bona Fide Occupational and Qualification (BFOQ) Defense in the Employment Discrimination: A Narrow and Limited Justification Exception. Journal of Business Studies Quarterly, 7(4), 15.
Miller, R. L. (2015). Business Law Today, Standard: Text & Summarized Cases. Nelson Education.
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