EMPLOYMENT DISCRIMINATION

Fall Semester - 1990

Professor Iijima

Final Examination

Sample Answers

Question # 1

Mitchell Carter is an African American police officer with the Minneapolis police department. The Department has approximately 800 officers, 10% of whom are women, and 8% of whom are persons of color. The officers are not members of a union.

Officer Carter has been employed by the Department for 6 years, and has a good work record.

Last May, Officer Carter reported to the Internal Affairs office of the Department that a white officer physically abused a handcuffed African American prisoner in the department's booking room. That officer was disciplined and left the department. Following that incident, Officer Carter has received anonymous harassing notes claiming that he is a traitor. Some of the notes have made racist remarks. Officer Carter also noticed that the other officers are slow to back him up when he needs assistance on patrol. Officer Carter filed complaints with his supervisor about the notes and slow backup. The Department issued a memo informing all personnel that it would not tolerate such activities. The notes continued to appear, and Officer Carter still believes the other officers are not backing him up. Officer Carter continued to inform his supervisor about the problems. To date, the Department has taken no further action.

Last week, Officer Carter's supervisor, Captain Smith, warned him that police work is a job where camaraderie and esprit de corps count almost as much as skills at the pistol range or in the patrol car. Captain Smith told Officer Carter that Officer Carter had a reputation as being too aggressive and "macho" in making traffic stops, and as not being a good "team player." Captain Smith then temporarily reassigned him from his patrol duties to office work. Captain Smith told Officer Carter that the reassignment was for Officer Carter's safety. Although Officer Carter will receive the same pay and benefits, he preferred patrol work.

Determine whether or not Officer Carter has any viable causes of action against the police department for employment discrimination, and explain your answer. Disregard any statute of limitations issues. Disregard any claims against the State itself. (Your analysis is more important than the specific result you reach.)

[Note: This hypo is similar to a newspaper article handed out in class. Do not waste time searching for the article -- it does not contain helpful analysis or information. I have attached a copy of the article in case you need to satisfy yourself on this point.]

Sample Answer # 1

I. Title VII

II. Covered entities

III. Police dept. is "er"

IV. is "ee"

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.

IX. Indirect evid? (McDonnell Douglas)

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

XI. Member of protected class? Yes.

XII. Qualified for position? Yes.

XIII. Loss of position? Yes (temporarily).

XIV. Position remained open? Assume so.

XV. 's rebuttal - articulation of legitimate reasons. Yes: Too agressive; "macho;" not team player; for 's protection.

XVI. Clear and reasonably specific

XVII. Subjective evidence ok, but suspect.

XVIII. 's proof of pretext - Possibly.

XIX. 's failure to take strong position.

XX. Reasons subjective.

XXI. But safety issue is strong argument.

XXII. Disparate treatment (pattern & practice)?

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

XXIV. 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? Possible.

XXV. Disparate impact?

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

XXVII. Tests:

XXVIII. Camaraderie and esprit de corps

XXIX. Stereotyped attitudes re African American men as being too agressive and macho.

XXX. able to isolate specific practices? Difficult.

XXXI. Need more statistical and comparative evidence.

XXXII. able to produce some evid of legitimate business goals. Yes.

XXXIII. Low burden of proof.

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

XXXV. Supervisorial rankings allowed, unless extremely vague and opent ot disvergent interpretations.

XXXVI. able to prove non-discriminatory alternative? Unlikely.

XXXVII. Mixed motive case?

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

XXXIX. would have to prove that it would have made the same decision based only on legitimate criteria.

XL. Different analysis under MHRA: used McDonnell Douglas. Once discrimination proven, no opportunity for to show it would have made same decision.

XLI. Racial harassment - hostile environment? Probably.

XLII. Not just utterance of racial epithet; failure to back-up.

XLIII. liable for acts of ees? Probably. Knowledge; failure to take corrective action.

XLIV. If discrimination, BFOQ defense?

XLV. Not for race.

XLVI. But safety may be strong BFOQ argument. Lesser burden. Disability case re no need to hire person whose physical condition would create probability of serious harm.

XLVII. Retaliation?

XLVIII. 's case

XLIX. Protected expression - opposition or participation?

L. No. Opposition was to matter not covered by Act.

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

LII. Adverse employment action? Possibly.

LIII. Causal connection? Probably. Knowledge, relatively short time aft incident.

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

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

LV. Yes - Too agressive; "macho;" not team player.

LVI. Form of 's opposition take it outside protection? No.

LVII. able to show pretext? Possibly.

LVIII. MHRA - Possibly

LIX. Reconstruction Civil Rts Acts?

LX. § 1981 - No, harassment not re making and enforcing of employment K. But in 8th Cir., may be c/a if deemed "discharge." (Minority approach.) Demotions generally not covered.

LXI. § 1983 - possibly, if separate constitutional or federal statutory rts has been violated by person acting under color of state law.

LXII. § 1985 - conspiracy? Possibly. 2 or more persons.

Question # 2

Last June, Jane Roe, a graduating law school student, saw a job notice posted on her law school's placement office bulletin board. The notice stated that Badger & Hackle, a 100-lawyer firm in St. Paul, was looking for two associates. One associate would work in its corporate department, and the other associate would work in its employment benefits department. Badger & Hackle required all its associates to bill 1,800 hours/year, and paid an annual starting salary of $45,000. Jane applied for the position in the corporate department. The law firm rejected her for that position, but offered her the employment benefits position. Jane accepted the offer.

One week later, Badger & Hackle hired John Doe for the corporate position. Jane knew that John's background was very similar to hers, including grade point average, extracurricular activities, and work experience. When she inquired about the basis for the law firm's decision to hire John instead of her, she was told that John would be better able to establish and maintain strong relationships with the business community. She did a "head count" and determined that only 1 of the 30 lawyers in the corporate department was a women. In the rest of the firm, 20% of the lawyers were women.

Jane and John began work in August, 1990. Last week, with their pay checks, they received year-end bonuses. Most of the lawyers in the employment benefits department, including Jane, received a bonus of $100. Most of the lawyers in the corporate department, including John, received a bonus of $1,000.

Determine whether or not Jane has any viable causes of action for employment discrimination, and explain your answer. Disregard any statute of limitations issues. (Your analysis is more important than the specific result you reach.)

Sample Answer # 2

I. Title VII

II. Covered entities

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

IV. is "ee"

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

VI. Covered employment decisions?

VII. By placement office? No

VIII. Did not use discriminatory ad

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

X. By law firm?

XI. Affected terms, conditions, or privileges of employment?

XII. Conditions of employment - departments presumably are different

XIII. Bonuses probably privilege of employment

XIV. Discrimination?

XV. Disparate treatment (individual)?

XVI. Direct evidence? No.

XVII. Indirect evid? (McDonnell Douglas)

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

XIX. Member of protected class? Yes.

XX. Qualified for position? Yes. Generally, same qualifications as hired.

XXI. Rejected? Yes.

XXII. Position remained open? Yes.

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

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

XXIV. Clear and reasonably specific

XXV. Subjective evidence ok, but suspect.

XXVI. 's proof of pretext - Possibly.

XXVII. Direct: may be able to show discriminatory reason more likely motivated .

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

XXIX. Stats: 1:30

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

XXXI. Reasons subjective.

XXXII. Disparate treatment (pattern & practice)?

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

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

XXXV. 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 ).

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

XXXVII. Disparate impact?

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

XXXIX. Facially neutral tests:

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

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

XLII. able to isolate specific practices? Yes - reluctance to hire .

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

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

XLV. Low burden of proof.

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

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

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

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

L. Mixed motive case?

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

LII. 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.

LIII. Different analysis under MHRA: used McDonnell Douglas. Once discrimination proven, no opportunity for to show it would have made same decision.

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

LV. Test

LVI. Discrim

LVII. Based on sex

LVIII. Not BFOQ

LIX. "Plus"

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

LXI. Or distinction based on fundamental rt.

LXII. BFOQ defense? No.

LXIII. Not reasonably necessary to normal operation of business.

LXIV. Particular job does not require ee to be .

LXV. not reasonably necessary to essence of business.

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

LXVII. Desire to maximize profit not "essence."

LXVIII. EPA

LXIX. Er? Yes.

LXX. engaged in commerce; or

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

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

LXXIII. Similar working conditions?

LXXIV. Same physical location.

LXXV. Different departments may be relevant.

LXXVI. Wages? Probably.

LXXVII. Where benefit provided for benefit of ee.

LXXVIII. Exemptions? Factor other than sex?

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

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

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

LXXXII. Business reason test

LXXXIII. Must be acceptable business reason.

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

LXXXV. Market considerations.

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

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

LXXXVIII. Reconstruction Civil Rts Act

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

XC. § 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.

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