Game Development Business and Legal Guide (Premier Press Game Development)

State and Federal Regulations

It is vital that an employer contact local counsel for every one of its offices, as state laws vary widely and federal laws change.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 applies to businesses with 15 or more employees and protects against discrimination based on race, color , religion, sex (including pregnancy or childbirth), or national origin. It does not protect independent contractors. Title VII protects potential employees as well as current ones, meaning that employers must adhere to anti-discrimination rules in their employment solicitation and application procedures.

NOTE

CAUTION

Beware pre-employment discrimination, a.k.a. What can and can't be asked during the interview. See discussion in the Applications and Interviews section later in this chapter.

To prevail in a discrimination case, the plaintiff must prove that the employer intentionally discriminated on the basis of race, religion, sex, or national origin. He can prove this by showing that:

1. The employee is a member of a protected class.

2. He sought and was denied an available position or benefit for which he was qualified. The employer has a legal defense to such discrimination if it can provide evidence of legitimate , non-discriminatory grounds for its decision.

A plaintiff can also prevail by showing disparate impact of employer's policies. The discrimination here can be unintentional : what is important is proving that the policy, practice, or rule affected different groups disproportionately in a statistically significant way. Again, an employer has a legal defense to the disparate impact of its policies if the practice at issue is:

1. Job- related

2. A business necessity (beyond inconvenience or annoyance)

Even if the employee proves that discrimination did occur, an employer has certain statutory defenses under Title VII:

• Bona Fide Occupational Qualification. An employer who discriminates based on a bona fide occupational qualification ("bona fide" meaning not based on assumptions, stereotypes, or preferences of co-workers ) reasonably necessary to the normal operation of business may avoid liability by showing a reasonable basis for believing that a certain class would not be able to perform the job at issue. This defense is not available for discrimination based on race or color.

• Bona Fide Seniority/Merit Procedures. An employer will not be liable for discrimination where the business has an established seniority or merit system in place that is not intentionally discriminatory, and the alleged discrimination is consistent with that bona fide system. A plaintiff may overcome this defense by proving the system has a discriminatory intent (not just impact) or illegal purpose.

Sexual Harassment

Title VII also protects against sexual harassment in the workplace. There are two forms of harassment:

• Quid Pro Quo, literally "this for that," where a person is punished in any way for refusing a superior 's sexual advances.

• Hostile Environment, where a hostile workplace environment is created by the physical or verbal sexual conduct of others in the workplace, not just superiors.

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CAUTION

Employers are strictly liable for quid pro quo harassment by their employees, whether or not the employer knew of the harassment.An employer will be liable for hostile environment harassment if it knew or should have known of the harassment and failed to take remedial action.

Employers face two primary difficulties in protecting themselves from harassment claims:

1. Monitoring. While it is impossible for an employer to be everywhere at all times, the law nevertheless holds that employer responsible for what happens in its workplace. Remember the liability distinction: An employer is liable no matter what for quid pro quo harassment, but only for hostile environment harassment where the employer knew or should have known.

2. One person's hostile environment is another's happy workplace. Many smooth, functional workplaces are rife with what look like hallmarks of the hostile environment but are actually indicators of strong morale . Provocative banter, for instance, is an exceedingly common feature of many functional workplaces, particularly those with a high concentration of young people. As one young woman said of this: "How else do you expect me to stay awake during the meetings?" The best way to handle this ambiguity is to provide several channels of communication for employees to communicate discomfort, including asking employees if they ever feel uncomfortable as part of annual reviews and documenting their responses.

Company-wide training is an employer's best response to the challenges of keeping a workplace harassment-free. Draft your policy, make sure it is disseminated to everyone in the company, conduct periodic sensitivity training, and be sure that the policies and procedures you set up are followed to the letter, especially with regards to documentation.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) is a federal law applying to businesses with interstate commerce and 20 or more employees that protects those forty and older from discrimination. It does not apply to independent contractors.

An employer may be found in violation of the ADEA if the plaintiff shows that he was either denied employment or benefits of employment because of his age, or that he was fired and replaced by a significantly younger person. The employer can avoid all liability by showing that it had a legitimate, nondiscriminatory basis for its decision. The employee would then have to prove that such basis was a pretext for discrimination.

Disability Discrimination

The Americans with Disabilities Act ("ADA") is a federal law applying to businesses with 15 or more employees who work at least 20 calendar weeks per year. It protects those with physical and emotional disabilities from discrimination and requires employers to make reasonable accommodations to employees' disabilities. This is one of the most expensive and difficult laws with which to comply . Disabilities are defined as a mental or physical impairment that substantially limits one or more of a person's major life activities. Disabilities may include: infertility, alcohol addiction , and panic disorder , but the ADA does not protect those addicted to illegal drugs or legal drugs acquired illegally (for example, Oxycodone). It does not apply to independent contractors.

Employers are required to make reasonable accommodations so that the employee can perform her job unless such accommodations would be an undue hardship for the employer. "Reasonable accommodation" is still a hazily-defined term , but the following are suggested in the Act:

• Making work facilities accessible

• Modifying job or schedule

• Acquiring or modifying equipment or devices

• Modifying exams, training material, or policies

• Providing interpreters

"Undue hardship" is defined as anything requiring significant difficulty or expense compared against the:

• Nature and cost of the accommodation required

• Financial resources of the facility, number of people employed at the facility, and the impact on resourcesfinancial and otherwise , at the facility

• Financial resources of the company and size of the business

• Type of business employer conducts with respect to composition, structure, and function of the workforce, geographic distribution, and relationship of facility to company

Legal Defenses: The employer avoids liability by showing that it had a legitimate, nondiscriminatory basis for its decision. The employee would then have to prove that such basis was a pretext for discrimination.

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CAUTION

Note that allowing absences is a common require ment, which means giving the job back to the employee after his absence. Game developers are most likely to encounter this law in relation to repetitive stress injuries and emotional/substance abuse disorders.A recent Supreme Court decision noted that not all RSI can be considered a disabili ty, only those restricting a person's ability to carry out required life activities, such as household chores.

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CAUTION

Even if a company is exempt from the fed eral laws due to its small size, it may be subject to state restrictions.