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雇主責(zé)任保險(xiǎn)-全英文(doc187)-保險(xiǎn)綜合(參考版)

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【正文】 judgment under uncertainty: heuristics and biases (daniel kahneman et al. Eds., 1982). N2. See christopher parsons, moral hazard in liability insurance, 28 geneva papers on risk amp。 oskar menstern, theory of games and economic behavior (princeton univ. Press, 60th anniversary ed. 2020). For more recent empirical evidence of the influence of risk aversion on decision making, see choices, values, and frames (daniel kahneman amp。 failures to hirelabor amp。 employment lawdiscriminationactionable discriminationlabor amp。s moral framework by giving employers an affirmative defense if they use preventive medicine and make a good faith effort to stop discrimination before it starts. If epli coverage is contingent on similar proactive measures, the moral hazard disappears, thereby realigning the incentives created by employment law39。s primary means of motivating pliant, preventive, nondiscriminatory work environments. Employment practices liability insurance allows employers to transfer the law39。s efforts in offering the affirmative defense while still allowing options for those employers seeking to transfer risk. So long as an appropriate preventive program is in place (., an employer cannot transfer risk without proactively seeking to prevent discrimination before it happens) the moral framework of employment law can coexist with the incentive to transfer risk, making epli39。s short life, better loss history data n69 has bee available and that data has facilitated more accurate underwriting and pricing. N70 higher premiums relate solely to costs and not prevention. Higher premiums create an incentive in that the filing of a claim may make premiums go up but higher premiums do not create the incentive employment law builds to prevent wrongful practices. To realign incentives, there must be more than a higher premium. There must be a barrier to the incentive to transfer risk that arises, unless the employer retains the incentive to prevent the wrongful practices. When underwriting epli coverage, insurers can add to the data traditionally relied on for pricing and look also to the atmosphere the employer creates. Most employers who seek coverage have never had a claim filed against them. To an insurer evaluating whether to provide coverage, such an employer would be desirable. An insurer, however, could go further to mandate that this employer have in place appropriate efforts at prevention of wrongful employment practices before approving coverage. If such a requirement is too onerous, insurers could, in the alternative, offer discounts or reduced premiums for employers who actively seek to provide a nondiscriminatory workplace, much like employers who receive group health discounts for nosmoking policies or workers pensation discounts for safe workplaces. N71 Many epli carriers have employed an intersection of underwriting with the encouragement of prevention. Some insurers require applicants to examine their antidiscrimination policies and procedures and often insist on a fullscale audit of the pany39。s analysis assumes that the employer decides to discriminate based on the presence or absence of financial incentive. Many scholars build upon becker39。as if he were willing to pay something, either directly or in the form of a reduced ine, to be associated with some persons instead of others.39。taste for discrimination39。s primary purpose is to provide the spur or catalyst which causes employers ... To selfexamine and to selfevaluate their employment practices and to endeavor to eliminate [discrimination], n63 then removing the framework employment law creates sets up a peculiar and troubling moral hazard. Iii. Potential realignment of incentives, moral frameworks, and employment law Despite the moral hazard epli creates, it exists and operates within a growing market. Epli can, however, exist within employment law39。s moral framework presupposes that the statutory purpose is to reduce and mitigate the unfair disadvantage ... From which persons suffer Page 6 87 Va. L. Rev. 85, * on account of their race or gender. n62 this moral framework is tied to prevention, with money in place primarily to create an incentive for that prevention. While damages pensate for injuries, epli coverage for damages can never restore employment law39。s incentive to prevent, we also infer that increasing damages raises the employer39。s other incentives namely, the wrongdoer39。 intent to connect title vii39。 desire to limit their risk, the legal rule remains and builds a moral framework at the workplace for employers who might otherwise engage in or fail to prevent wrongful employment practices. Admittedly, epli would not affect the incentives of an employer who would provide a moral and nondiscriminatory workplace regardless of legal standards. This paper, however, does not address the nondiscriminatory employer. Analysis of moral hazard focuses upon those who seek to do wrong or fail to prevent wrongful behavior and need an incentive to do right. N44 we similarly address employers who would otherwise treat their employees in an immoral way and need an incentive to treat them properly. Employment law has evolved to create this incentive through the deterrent effect of damages with corresponding reductions in liability for prevention. When the supreme court decisions of 1998 made employers responsible under circumstances where they knew or should have known about discriminatory conduct, it also established rather clear affirmative defenses available to insulate employers from imputed liability. N45 to establish an effective affirmative defense, employers must: (1) exercise reasonable care to prevent and promptly correct supervisor discrimination [*649] (including dissemination of an effective antidiscrimination policy)。s deterrent purpose in 2020. N41 in the next section, we address whether epli undermines
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