EMPLOYMENT DISCRIMINATION Spring 1992

Professor Iijima

EXAM - OUTLINE OF ISSUES

  1. GENERAL COMMENTS


    1. A number of you failed to follow the directions. I did not give points for issues that were not based on federal statutes.


    2. A couple of you assumed basic facts in order to create a Title VII problem, e.g., assumed in Question #1 that Collins and Lovett were different races. This made no more sense than to assume they were of different religions, national origins, etc. Because the analysis under the ADEA and Rehab Act parallels Title VII analysis, however, you got credit for points that could have been made under the applicable statutes.


  2. QUESTION #1


    1. ADEA


      1. Coverage:


        1. Is IRS an er?


          1. Ers w/ at least 20 ees.


          2. Engaged in commerce? Probably.


        2. covered by ADEA?


          1. "Ee"? Yes, is "an individual employed by any er." § 11(f) [1052]


          2. ADEA covers federal ees. Here, IRS is federal agency.


          1. Protected group: over 40 years.


        1. Private c/a available.


        2. Discrim re "discharge" covered. (Note: Here, just as in Title VII cases, there is no need to try to fit a termination of employment into the "term, conditions, or privileges of employment" language.)


      1. Proof of discrim?


        1. Disparate treatment


          1. No direct evid in facts


          2. Indirect proof - McD-D


            1. 's p/f (burden of persuasion).


              1. Member of protected class (over 40)


              2. Applied/qualified?


                1. Applied.


                2. At least initially qualified, as successfully performed position for number of yrs. Fact that trained in replacement shows knowledge of job.


But Q whether presently "qualified" given medical condition.

              1. Rejected? Yes.


              2. Replaced by younger person.


Although replacement also in protected group, age is relative matter. Fact that is significantly older than replacement probably sufficient to meet this element.

            1. 's rebuttal: Articulation of legit biz reason (burden of production).


              1. Morale probs.


              2. Image problems.


            2. able to prove (burden of persuasion) pretext?


              1. Show that reasons not legit? Image too subjective?


              2. No problem until notified of condition. But this would not show age discrim.


        1. Disparate impact?


"Image" criterion have disp impact on older ees?

      1. Any affirmative defenses under § 4(f)(1)?


        1. BFOQ?


          1. § 4(f)(1) - Not UEP for er to hire on basis of age where BFOQ "reasonably necessary to the normal operation of the particular biz . . . ." [1048]


          2. Q whether qualification relates to particular job from which protected ind excluded. [615]


          3. In Title VII context, Q whether:


            1. Particular job reqs qualification; &


            2. If so, whether req reasonably necessary to essence of er's biz.


        1. Not UEP for er to hire on basis of age where "differentiation is based on reasonable factors other than age." [1048]


        2. Bona fide seniority system or bona fide ee benefit plan?


        3. Discharge or discipline based on gd cause?


    1. Rehab Act


      1. Coverage


        1. Allows private c/a vs fed govt, agencies, instrumentalities, fed contractors.


        2. Here, IRS probably would be covered.


      2. Discrim?


        1. "handicapped"?


          1. Physical impairment? Yes.


          2. Substantially limits one or more major life activity?


            1. Actual impairment - Argue that sleeping & staying awake are both major life activities.


            2. Regarded as having impairment. regards as having impairment that limits 's ability to work, which is major life activity.


        2. Disparate treatment?


          1. Direct evid - Supervisor thinks that symptoms of her condition "inconsistent w/ image" of dept.


          1. Indirect proof - McD-D


            1. 's p/f case


              1. member of protected group.


              2. Qualified/applied


              3. Rejected


              4. Position given to person w/o same impairment.


            2. 's rebuttal - artic of legit reason


            3. 's proof of pretext.


        1. Disparate impact


          1. 's p/f case


            1. Except for physical handicap, qualified to fill position


            2. Handicap prevents him from meeting physical criteria. (Staying awake all the time.)


            3. Criterion has disp impact on persons w/ sleep apnea


            4. Showing that handicap can be accommodated or criteria not "job related."


              1. could be moved to position w/ less public contact, etc.


              2. could try to argue that no real image problem.


          1. 's rebuttal


            1. Job related/ biz necessity


              1. Ability to stay awake is part of job.


              2. Needed to create gd PR w/ public.


            2. No reas accom


              1. No accommodation able to keep awake. Not able to perform essentials adequately.


              2. Any accommodation would impose undue hardship to operations.


          2. 's response


            1. Other selection criteria would serve 's ints?


            2. Produce evid that accommodation may be reasonably made.


    1. Title VII - not applicable. Does not protect individuals from employment discrimination based on age or handicap (except conditions related to pregnancy or childbirth).


  1. QUESTION #2


    1. Title VII - Coverage


      1. RSA an er? No, it does not have 15 ees.


      2. RSA "employment agency"?


Q whether traditionally undertakes to procure ers for ees, or vice versa.

      1. ee? No, but ind seeking employment.


      2. UEP for employment agency to fail or refuse to refer for employment, or otherwise to discirminate against, any ind because of race, color, sex, or to classify or refer for employment any ind on the basis of race, color, or sex.


    1. Title VII - Race Discrim


      1. Fact that RSA merely responding to client request insuff to insulate RSA from liability.


      2. Disp treatment - direct evid.


      3. BFOQ defense? Authenticity? No.


      4. Affirmative action? No facts to show that WMCL complied w/ EEOC reqs.


    2. Title VII - Sex Discrim


      1. Disparate impact - football


        1. 's p/f case


          1. Neutral criterion - college football


          2. Disparate impact on - no referred; few, if any, play college football.


        2. 's rebuttal - proof of biz purpose, necessity.


          1. Client request


          2. Client needed someone knowledgeable about football. Credibility.


        3. 's proof of less discriminatory alternatives.


          1. Could require participation in college varsity sport.


      1. Disp impact - appearance


        1. 's p/f case


          1. Neutral criterion - size, feminine appearance.


          2. Disparate impact on - less emphasis on 's appearance?


        2. 's rebuttal - proof of biz purpose, necessity.


          1. Viewer preference - ratings, etc.


        3. 's proof of less discriminatory alternative.
          1. Go by viewer approval ratings themselves?


      2. Sexual harassment


        1. Applies to employment agencies?


          1. Yes. Title VII forbids sex discrim in referral, or otherwise. No reason to limit harassment claims to ers.


        2. Quid pro quo


          1. Here, possibility that 's refusal of Richard's advances caused adverse treatment.


        3. RSA liable for acts of Richard?


          1. Possibly. Richard was pres of , trfr one would expect him to be able to influence referrals.


          2. But Q whether such decisions w/i his authority.