ADDITIONAL INSTRUCTIONS 3. Please read the fact pattern carefully and answer the question asked at the end of each fact pattern. Irrelevant material will
not improve your grade and in fact may lower your score if it makes your answer inconsistent and/or incoherent. 4. Analyze the issue thoroughly. I am not concerned about who wins. You must demonstrate that you understand the issues
and can analyze the facts for and against a position. 5. This is not a test on Minnesota law. For each question assume that you are in a jurisdiction that follows the principles
concerning employment law that we have discussed throughout the semester. IF YOU ARE TO ASSUME OTHERWISE
THIS WILL BE INDICATED IN THE TEST QUESTION. I.
Two weeks after submitting her resume a message was left on her answering machine informing her that the health club
received her resume and she is the most experienced applicant. The manager of the club wishes to interview her. The
following day Roberta arrives at the club and notices that there are only men at the club. She asks to speak with the manager
and is escorted into his office. When Roberta identifies herself the manager (Sam) is stunned and immediately says he
thought she was a man. He says that the club could never hire Roberta for the position because they need a male fitness
coach. The club is a men's club and all of the employees, except for some of the clerical staff, are men. The fitness coaches
are frequently required to enter the locker room and showers. The coaches are required to give "sports massages" to
members who are partially or completely nude while receiving the massage. The manager says that he knows the members
would not tolerate her presence because they already objected to having some of the female clerical workers working in
locations close to the dressing rooms and showers. Roberta responds that she is qualified and she frequently had do administer physical therapy and massages to male athletes
when she was a trainer for the rugby team. The players were on occasion completely nude. Sam says he will not allow
Roberta to disrupt his club. He refuses to hire her and later hires a male with about the same qualifications as Roberta.
II. You are an attorney practicing employment law and one day Dr. Charlie Parker, a recently licensed physician, walks into
your office seeking your counsel. He practices general family medicine and works for a small rural hospital. The hospital
agreed to employ him "for as long as he performs satisfactorily." State regulations require that: "small hospitals must have
present in the hospital or on-call a licensed physician 24 hours a day." "On-call" means: "that if the licensed physician is not
present in the hospital she must be near a phone and capable of responding to a medical emergency phone call." In additions,
the on-call physician must be able to "return to the hospital within a reasonable period of time in order to respond to the
medical emergency." Since the hospital is small and in a rural location there are not many doctors who choose to practice in
the area. As a result, there are only three doctors who work with Parker at the hospital. One of them is a surgeon and the
other practices internal medicine. Parker and the other two doctors rotate their on-call time. They each take a turn serving as
the doctor present or on-call during the early morning hours.
PLEASE ANSWER CHARLIE'S QUESTION. THAT IS, DOES CHARLIE HAVE ANY RECOURSE IF HE REFUSES
TO SERVE AND IS TERMINATED. PLEASE ARGUE THE FACTS FOR AND AGAINST THE DOCTOR. III. John Coltrane is the owner of a construction company and is facing a problem. Two days ago he was cited by an OSHA
inspector for violating a safety regulation requiring the use of safety belts at construction sites. It seems that some of
Coltrane's employees were working on a building but were not using safety belts while walking across steel girders. Coltrane
is aware of the regulation and does not wish to contest the validity of the regulation. In fact, he thinks it is a good rule,
however, he thinks he is not at fault. One of Coltrane's supervisors (Art Pepper) had previously warned employees about
wearing safety belts. In fact, on the day of the inspection by the OSHA investigator, Pepper warned two employees about
using safety belts. The investigator witnessed the warning but issued a citation anyway when he saw the same employees
later and they were not using the belts. Coltrane knew nothing about the particular employees involved in the violation or
that they were not wearing safety belts. In addition, several years ago Coltrane initiated a safety awareness program where employees were regularly informed of
safety rules (including the required use of safety belts) and told that if they did not follow the rules they could be fired. Art
was the supervisor in charge of the program. Under the program some employees were warned several times about not using
safety belts but noone was ever fired. Some of the employees, however, were fined a day's pay or fired for not following
safety rules other than the rule concerning the use of safety belts. Moreover, last year an employee fell from a building and
was severely injured because of her failure to use a safety belt. This same employee had previously gone through the safety
awareness program and still refused to wear a belt. She was warned several times by Art, and was threatened with discharge.
Coltrane knew of this injury to the employee but did not know that the employee consistently refused to wear a belt and that
Art only threatened her with discharge. COLTRANE COMES TO YOU FOR ADVICE. HE DOES NOT BELIEVE THAT HE SHOULD BE HELD
RESPONSIBLE FOR THE EMPLOYEES' CONDUCT AND WANTS TO CONTEST THE CITATION. PLEASE
EXPLAIN TO COLTRANE THE ARGUMENTS HE CAN MAKE. YOU SHOULD ALSO ASSESS THE
STRENGTHS AND WEAKNESSES OF THESE ARGUMENTS. IV. Jill Hill applies for and is hired as a bartender at a local sports bar owned by Jack Daniels. Most of the patrons (70%) are
single males between the ages of 21 and 35. The bar sells drinks and shows sporting events on cable T.V. Jack and Jill enter
into a written agreement whereby Jill agrees to work for Jack from October 1, 1992 thru October 1, 1994. One week after
Jill is on the job Jack suggests that Jill start wearing skirts to the bar instead of pants and that the skirts should be short. Jack
says Jill is an attractive women and the patrons might buy more drinks if she "showed a little more of herself." Moreover,
some of the male patrons have complained about Jill not being very friendly. They say she doesn't seem to like to talk about
sports or enjoy some of the sexually oriented jokes they tell while watching a game. Jack confronts Jill and tells her that she
is not doing her job. He says part of a bartender's job is to make the patron's feel comfortable and she is not doing that. He
tells her he knows some of the jokes they tell are not "very nice" and that he is offended by them, but as long as that's the
kind of crowd that comes to his sports bar he has no choice but to accept their "primitive humor."
Standard Exam Instructions and Student Conduct Code
1. This is a two hour open book exam consisting of four essay questions. You may spend any amount of time on the
questions, however, each questions was designed to be answered in no more than one half hour. Place the test question in
the blue book when you turn in the exam.
2. The questions are equally weighted (25%).
Roberta Jones is a part time student attending law school and needs a little extra cash. One day she sees an ad in a paper
concerning an opening for a "fitness coach" in a health club which employs over 50 employees. The position is described as
working closely with club members in developing fitness programs and requires that the applicant have some experience in
"sports massage." Since Roberta's undergraduate degree is in physical education and physical therapy and she previously
served as a trainer for a professional rugby team she applies for the job. She mails in her resume which uses her nickname
"Bobby" Jones.
YOU ARE A RECENT GRADUATE OF A PROMINENT LAW SCHOOL AND ROBERTA WALKS INTO
YOUR OFFICE AND RELATES THE FACTS DETAILED ABOVE. SHE ASKS IF SHE HAS ANY LEGAL
RECOURSE. PLEASE EXPLAIN WHAT, IF ANY, LEGAL ACTION IS AVAILABLE TO ROBERTA. YOU
MUST EXPLAIN BOTH THE STRENGTHS AND WEAKNESSES OF ANY ARGUMENT PRESENTED.
For some time this arrangement has troubled Parker. In his view he is a generalist and even thought he is a licensed physician
he believes that he could very easily face a medical emergency for which he lacks the competence to treat. He also believes
that his conduct is inconsistent with the Hippocratic Oath which he is sworn to follow. Specifically the oath requires that he
"will prescribe regimen for the good of his patients according to his ability and judgment and never do harm to anyone."
Furthermore he is bound not to "prescribe a deadly drug, nor give advice which may cause his patient's death."
Doctor Charlie is troubled and says he's tormented by the prospect of facing patients he may not know how to treat. He's
already been told by a hospital administrator that the hospital rule is that if a physician refuses to serve as an on-call physician
or be present in the hospital he will be fired. Charlie wants to know if he has any recourse if he refuses to serve as an on-call
physician and is terminated. He says he wants to refuse to serve today and wants you to tell him what to do NOW!
A week later more complaints are lodged against Jill. When Jill shows up for work he calls her over to the bar along with
several patrons. He first turns to the patrons and says, "okay guys when I'm through with her she'll act and dress like a real
woman." While patrons are listening, Jack tells Jill she just isn't "sexy enough" and "he thinks her problem is that she's sick
and hates men." He suggests that "maybe she was abused as a child." Jack then orders her to go home and change into
something that the patrons will find more acceptable. He suggest she wear a skirt and not be "so ashamed of how you look."
Jill refuses and Jack responds by saying she is not a good bartender for his kind of bar. Upon hearing this many of the
patrons in the bar start to cheer. Jack then fires Jill on the spot.
THE DAY AFTER THIS EVENT JILL COMES TO YOUR OFFICE SEEKING LEGAL ADVICE. EXPLAIN TO
JILL WHAT LEGAL RECOURSE SHE MAY HAVE. YOU MUST DISCUSS THE FACTS AND ISSUES FOR
AND AGAINST HER.