EMPLOYMENT DISCRIMINATION

Fall Semester - 1990

Professor Iijima

Final Examination

Sample Answer # 1

I. Title VII

II. Covered entities

III. Police dept. "er"? Yes, has 800 police officers, therefore > 15 ees. Also, state & local governments covered.

IV. is "ee"? Yes, is "an individual employed by er." Here, no problem regarding whether can successfully sue , as is suing his own statutory er.

V. Covered employment decision? Affected term, condition, or privilege of employment? Yes. Change in duties probably is condition of employment.

VI. Discrimination?

VII. Disparate treatment (individual)

VIII. Direct evid? Possibly. Beating of African American prisoner and harassment by other officers may evidence a general environment of racism. Department's failure to take effective action to remedy situation may also be evidence.

IX. Indirect evid? (McDonnell Douglas)

X. 's proof of p/f case - Yes, will succeed at establishing this.

XI. Member of protected class? Yes, is African American.

XII. Qualified for position? Yes. has a good work record based on 6 years of service.

XIII. Loss of position? Yes, at least temporarily.

XIV. Position remained open? Assume so.

XV. 's rebuttal - articulation of legitimate reasons.

XVI. will articulate a number of legit reasons: too agressive; "macho;" not team player; decision was for 's protection.

XVII. Reasons clear and reasonably specific?

XVIII. Possibly, especially the 's protection reason.

XIX. The other reasons were subjective. Subjective reasons are acceptable, but suspect.

XX. 's rebuttal would probably be successful, as bears a very low burden.

XXI. 's proof of pretext - Possibly successful.

XXII. 's failure to take strong position.

XXIII. Reasons subjective.

XXIV. But safety issue is strong argument.

XXV. Disparate treatment (pattern & practice)

XXVI. able to prove that racial discrim was er's standard operating procedure? Statistical work-force disparities show evidence of long-lasting and gross dispartity b/n the composition of work force and general population? Possible.

XXVII. able to prove that discriminatory pattern not result of discriminatory intent? E.g., lack of interest in police work by African Americans in geographical area, or few qualified? Possible.

XXVIII. Disparate impact?

XXIX. able to show facially neutral criteria excluded disproportionate numbers of protected class? Possible.

XXX. Criteria:

XXXI. Positive criteria: Camaraderie and esprit de corps

XXXII. Negative criteria: Stereotyped attitudes re African American men as being too agressive and macho.

XXXIII. able to isolate specific practices? Difficult.

XXXIV. Need more statistical and comparative evidence.

XXXV. 's rebuttal

XXXVI. 's burden would vary depending on when the case arose.

XXXVII. Under Wards Cove, need only produce some evid of legitimate business goals. would probably be successful under this standard.

XXXVIII. Civil Rights Act of 1991, however, codified the burden placed on s pre-Wards Cove. Under the earlier standard, would bear the burden of proof of business necessity & job relatedness.

XXXIX. Subjective standards ok even if known only to er, if sufficiently clear, specific and capable of objective evaluation.

XL. Supervisorial rankings allowed, unless extremely vague and open to divergent interpretations.

XLI. able to prove non-discriminatory alternative would serve er's needs? Possible.

XLII. Mixed motive case?

XLIII. able to show illegal discrimination was a motivating factor? Possibly, given racial harassment, ineffective response of dept., and stereotyping.

XLIV. If succeeds in proving discrimination, would have an opportunity to prove that it would have made the same decision based only on legitimate criteria. The result of 's successful showing of "same decision" would depend on when the case arose.

XLV. Under Price-Waterhouse, proof of "same decision" would relieve any any liability for discrimination, i.e., there would be no violation of Title VII.

XLVI. Under the Civil Rights Act of 1991, would not be able to avoid liability for discrimination, but the remedies available to would be limited to declaratory relief, injunctive relief, and the portions of attorney's fees & costs directly attributable to the mixed motive claim. Damages, and reinstatement would not be available to .

XLVII. Racial harassment - hostile environment? Possibly.

XLVIII. Title VII not limited to economic or tangible harm.

XLIX. Sufficiently severe to alter conditions of employment & create abusive working environment? Possibly.

L. Events

LI. Utterance of racial epithet

LII. Failure to back-up.

LIII. Beating of prisoner. (Remember case where er discriminated against Hispanic ees on basis of race by giving discriminatory service to Hispanic clientele.)

LIV. Ct would examine totality of circumstances, including:

LV. Level of offensiveness of actions (Here, highly offensive, as well as dangerous.)

LVI. Frequency of actions. (Here, there were multiple harassing actions taken, but the facts do not clearly indicate the frequency.)

LVII. Length of time over which the actions occurred. (This would be from "last May" until the time at which the exam was taken.)

LVIII. Context in which actions occurred. ( & respectively would argue that the context, i.e., police work, particularly requires a non-discriminatory environment or one in which team work is essential.)

LIX. If harassment, is er liable for acts of ees? Probably.

LX. Harassment not done by supervisors.

LXI. Therefore, question is whether can show knowledge or the harassment and failure to take corrective action. (Here, the er certainly had knowledge, as complained continuously. would argue that the er's initial action was inadequate, as shown by the continued harassment, and that no further action was taken. would argue that its action, i.e., the memo, was prompt and appropriate, as was the 's reassignment.)

LXII. If discrimination, BFOQ defense?

LXIII. Not for race.

LXIV. But may want to argue that the ability to work safely with other police officers is a BFOQ. In one case, we saw that an er need not hire a person whose physical condition would create the probability of serious harm to the ee. would argue, however, that cts have not allowed er's to be paternalistic in their employment decisions.

LXV. Retaliation?

LXVI. 's case

LXVII. Protected expression - opposition or participation?

LXVIII. Re beating of prisoner.

LXIX. Not protected expression. Opposition was to matter not covered by Act.

LXX. But exception for where reasonably believed other officer's acts violated Act.

LXXI. could argue that the later harassment was the result of his reporting of the earlier harassment. This would be protected expression. Also, could argue that his reassignment was retaliatory.

LXXII. Adverse employment action? Probably. The took off a position he liked & assigned him office work. This would be a change in his conditions of employment.

LXXIII. Causal connection? Probably. knew of 's opposition. The adverse action occurred soon after 's opposition.

's ability to establish p/f case => presumption of discrim.

LXXIV. 's rebuttal - articulation of legitimate reson for adverse action?

LXXV. Yes - Too agressive; "macho;" not team player; 's safety.

LXXVI. Form of 's opposition take it outside protection? No, apparently followed procedures in an orderly fashion, reporting the problems to his superior.

LXXVII. able to show pretext? Possibly, given the evidence of discrimination.

Sample Answer # 2

LXXVIII. Title VII

LXXIX. Covered entities

LXXX. Law firm is "er" - 15 or more ees and engages in interstate commerce.

LXXXI. is "ee." She is an associate, so we do not have the "partner" analysis problem.

LXXXII. Law school's placement office is "employment agency" - regularly undertakes to procure ees for an er.

LXXXIII. Covered employment decisions?

LXXXIV. By placement office? No

LXXXV. Did not use discriminatory ad

LXXXVI. No obligated to monitor employment policy of recruiting ers.

LXXXVII. By law firm? Affected terms, conditions, or privileges of employment? Probably

LXXXVIII. Conditions of employment - departments presumably are different

LXXXIX. Bonuses probably privilege of employment

XC. Discrimination?

XCI. Disparate treatment (individual)?

XCII. Direct evidence? Possibly. was told that her peer "would be better able to establish & maintain strong reltionships w/ the biz community." This might evidence sex stereotyping. Also, the low numbers of in the corporate department

XCIII. Indirect evid? (McDonnell Douglas)

XCIV. 's proof of p/f case - Yes

XCV. Member of protected class? Yes, in sex discrim case.

XCVI. Qualified for position? Yes, same general qualifications as hired.

XCVII. Rejected? Yes, was not hired for corporate position.

XCVIII. Position remained open? Yes.

('s p/f case creates presumption of discriminatory intent.)

XCIX. 's rebuttal - articulation of legitimate reasons. Yes: Ability to establish and maintain strong relationships with business community.

C. Clear and reasonably specific

CI. Subjective evidence ok, but suspect.

CII. 's proof of pretext - Possibly.

CIII. Direct: may be able to show discriminatory reason more likely motivated , using evidence above.

CIV. Indirect: may be able to show that 's proffered explanation unworthy of credence.

CV. Stats: 1:30

CVI. Rejected before either she or John had opportunity to demostrate ability re business contacts. Same business experience.

CVII. Reasons subjective.

CVIII. Disparate treatment (pattern & practice)?

CIX. able to prove that sex discrim was er's standard operating procedure? Possibly. The statistical work-force disparities may show evidence of long-lasting and gross dispartity b/n the composition of work force and general population.

CX. able to prove that discriminatory pattern not result of discriminatory intent?

CXI. Lack of interest in corporate work by ? Possible. Need more statistics re applicants, etc. Also, need to know how applicants found, e.g., word-of-mouth by those already in department (nearly all ).

CXII. Product of pre-Act hiring policies? Perhaps. Depends on how many lawyers in department hired or joined department before 1964. Need more statistics.

CXIII. Disparate impact?

CXIV. able to show facially neutral test excluded disproportionate numbers of protected class? Possible.

CXV. Facially neutral tests:

CXVI. Ability to establish & maintain relationships w/ business community.

CXVII. Stereotyped attitudes re as being unable to work well with male business persons.

CXVIII. able to isolate specific practices? Yes, here, used primarily one "neutral" test.

CXIX. Exclusion of disproportionate number of ? Yes. But must look at qualified population in relevant labor market. Here, with legal qualifications and interest in corporate law.

CXX. "Business necessity"? able to produce some evid of legitimate business goals? Possibly.

CXXI. 's burden would vary depending on when the case arose.

CXXII. Under Wards Cove, need only produce some evid of legitimate business goals. would probably be successful under this standard.

CXXIII. Civil Rights Act of 1991, however, codified the burden placed on s pre-Wards Cove. Under the earlier standard, would bear the burden of proof of business necessity & job relatedness.

CXXIV. Requirement of ability to relate to business community is reasonable.

CXXV. Subjective standards ok even if known only to er, if sufficiently clear, specific and capable of objective evaluation.

CXXVI. But business relationships important for new associates? Test should evaluate candidate at entry level. Exception: where established job progression.

CXXVII. able to prove non-discriminatory alternative? Probably. could give associates an opportunity to develop business relationships.

-> CXXVIII. Mixed motive case?

CXXIX. If able to show discrimination played part (see above);

CXXX. would have to prove that it would have made the same decision based only on legitimate criteria. Here, hard for to show legitimate criteria if decision based on assumption that Jane less able to establish and maintain business relationships that John.

CXXXI. Sex-plus case? Sex plus ostensibly neutral characteristic.

CXXXII. Test

CXXXIII. Discrim

CXXXIV. Based on sex

CXXXV. Not BFOQ

CXXXVI. "Plus"

CXXXVII. May need to be immutable characteristic. But see Price Waterhouse ("masculine" personality traits).

CXXXVIII. Or distinction based on fundamental rt.

CXXXIX. BFOQ defense? No.

CXL. Not reasonably necessary to normal operation of business.

CXLI. Particular job does not require ee to be .

CXLII. not reasonably necessary to essence of business.

CXLIII. Customer attitudes and preferences not BFOQ, even assuming such preferences exist.

CXLIV. Desire to maximize profit not "essence."

CXLV. EPA

CXLVI. Er? Yes.

CXLVII. engaged in commerce; or

CXLVIII. Er engaged in commerce, 2 or more ees so engaged; and makes at least $325,000.

CXLIX. Equal work? E.g., substantial equality of skill, effort, and responsibility?

CL. Similar working conditions?

CLI. Same physical location.

CLII. Different departments may be relevant.

CLIII. Wages? Probably.

CLIV. Where benefit provided for benefit of ee.

CLV. Exemptions? Factor other than sex?

CLVI. Er must prove, depending on what type of analysis used

CLVII. Under disparate impact analysis, need only produce evid of business necessity.

CLVIII. Under EPA, may have to prove as affirmative defense.

CLIX. Business reason test

CLX. Must be acceptable business reason.

CLXI. Economic benefits to er is legit business interest. But must be no discrim re allowing to work in better department.

CLXII. Market considerations.

CLXIII. Er's perception that will work for less than not acceptable justification for paying them less.

CLXIV. Er must use factor reasonably in light of er's stated purpose. Policy: must prevent abuse but accommodate er discretion.

CLXV. Reconstruction Civil Rts Act

CLXVI. § 1981? No. Covers only race discrim in formation or enforcement of Ks.

CLXVII. § 1983? May be conspiracy to deprive Jane of equal protection rts. Covers sex discrim. But no c/a for conspiracies to violate terms of Title VII or EPA. May be c/a if no viable c/a under those statutes.

CLXVIII. MHRA - probable, if claim under Title VII.