Employment Discrimination Law. Law Professor Krieger Fall IN-CLASS EXAMINATION #1 (September 24, 1997)

Transcription

1 Law Professor Krieger Fall 1997 IN-CLASS EXAMINATION #1 (September 24, 1997) INSTRUCTIONS You have 65 minutes (9:55 to 10:00) to complete the exam. As discussed, you may use your notes, your textbook and statutory supplement, and any outline you have created yourself. The exam consists of 4 questions, some containing subparts. After each question, in parentheses, is a suggestion as to how much time you should spend on each. Answer the precise question asked in each question or sub-question, and keep your answers brief and to the point. These are intended to be short answer questions, not typical law school exam essay questions. If you write typical law school exam answers, you will not have time to finish! Please write your exam number on each of the bluebooks you use and, if you use more than one, number them (i.e. 1/2, 2/2...) Use only one side of each bluebook page, and write legibly. Be sure to number your answers with question and subpart numbers. Remember: go right to the main point. Be brief and direct. Page 1/5

2 Question 1 (Multiple choice; 5 minutes) You represent Marlee Pharmaceuticals in a sex discrimination lawsuit brought by former Marlee employee Susan Pearson. In the suit, Pearson alleges that she was chosen for layoff in a reduction in force because of her sex, in violation of Title VII. While employed at Marlee, Pearson worked as a senior research chemist. A Ph.D is required for the senior research chemist classification. You have been quite concerned about the case, because a fair amount of evidence, all discovered by the plaintiff, indicates that gender bias may indeed have played a role in the layoff decisions. For example, one of the decision makers had been heard to make frequent comments indicating that he didn t think women had scientific minds. Pearson was the only individual with more than ten years at the company selected for layoff. Only one man was in the group of 4 laid off, and he was actually terminated for dishonesty. (He had been found to have fabricated certain experimental data.) So in actuality, all of the laid off employees were women. You are particularly concerned about the scientific minds comment because the case is pending in a jurisdiction which interprets direct evidence relatively loosely in deciding whether to allow a mixed motives instruction. On September 22nd, you got some startling news from your client. Pearson never in fact completed her doctoral dissertation. In fact, she never received her PhD, despite the fact that she listed it on her resume. Which of the following statements most accurately reflects the probable effect of this new information on your client s exposure in the suit: A. Chances are good that you will be able to get the suit dismissed because, without a PhD., plaintiff will be unable to establish one of the four elements of her prima facie case. B. In spite of this new evidence, your client will probably still be held liable because the evidence indicates that Pearson s sex was a motivating factor in the layoff decision. But, the interaction of this new evidence and the provisions of Section 706(g)(2) make it unlikely that she will be able to recover any individualized injunctive or monetary relief. C. The news isn t likely to have much effect on whether your client is held liable for sex discrimination, nor does it eliminate its exposure to individualized monetary relief, although it may serve to reduce it. Page 2/5

3 Question 2 (15 minutes) DRG Industries manufactures steel I-beams at a facility outside of Columbus, Ohio. The work is both strenuous and technically complex. Keeping production at competitive levels requires workers to perform at a fast pace in unpleasant (hot) working conditions. Slowdowns in work pace have an unquestionably deleterious effect on productivity. DRG has performed a series of studies, the results of which demonstrate that it takes five to seven years of experience for employees to reach maximum levels of efficiency. The studies also demonstrate that, after age 45, a worker s pace begins to slow. By age 50, the average drop in work pace is substantial. Unfortunately, it does not appear possible to identify in advance those individuals whose work pace is most likely to decline with advancing age. In response to these studies, DRG has instituted a rule against hiring employees over 40 years of age. The theory behind this new policy is that, given the amount of time required for employees to learn the job so as to reach maximum levels of efficiency, and given the tendencies towards declining productivity with advancing age, hiring new employees who are already over 40 is economically inefficient. Assuming that the company s study and other medical testimony indicating that it is not possible to identify ahead of time individuals who are likely to experience a decline in physical ability is sound, is the company s restrictive hiring rule legally defensible? Briefly explain why you think so, or not. Page 3/5

4 Question 3 (30 minutes total, including reading the facts.) Denise Records is an African American factory worker at Atlantic Mobil Systems, a Yonkers, New York company that manufactures pre-assembled temporary buildings, such as modular school units. On August 10 th, 1997, she and three co-workers appeared on a local Yonkers news broadcast about racial harassment and discrimination at the company s manufacturing plant. During the broadcast, Ms. Records stated that she had been subjected to racial epithets and other forms of racial harassment by coworkers, and that, when she reported the incidents to management, they had done nothing. On September 15 th, 1997, Ms. Records received a memorandum from AMS management stating that, following the broadcast, the company had conducted a thorough investigation and found both her allegations of racial harassment and her claim to have reported the alleged incidents to her supervisors to be untruthful. The Memorandum continued: Although this investigation did not support your allegations of racial harassment or your claim that you reported incidents of racial harassment to management, it did find that you yourself have engaged in gross misconduct, for which disciplinary action, up to and including termination, may be justified. Specifically, the company has good cause to believe that your voluntary participation is a local primetime news broadcast seriously damaged the image and reputation of this organization, when in fact your allegations were without merit. Based on the company s belief that you misrepresented the facts in this manner, disciplinary action against you is being considered. 3.a. 3.b. 3.c. If Ms. Records is in fact disciplined, what is the nature of the Title VII claim that she might assert against AMS in response to that discipline? (2 minutes) Given the facts provided above (including the forum in which the case would be filed) which model of disparate treatment proof do you think would govern the disposition of Ms. Records case? Explain your opinion. (20 minutes) Given the nature of Ms. Records claim against AMS, might the company have an argument, based on applicable provisions of the Civil Rights Act of 1991, that mixed motive analysis is not appropriately applied in her case? What would that argument be? (5 minutes max this is an extra credit thing.) Page 4/5

5 Question 4 (15 minutes) Briefly describe how the Court s reasoning in Personnel Administrator v. Feeney might be used by the defendant in the Gotham Miniature Lamp Works problem on p. 317 of the Zimmer textbook. 1 To do this you should: a. Briefly describe how plaintiffs would likely construct or frame their case; and b. Explain how Feeney might be used to fashion a theory of defense. 1 In case you don t have your book with you, here are the facts set out in the problem: Gotham Miniature Lamp Works makes light bulbs at its factory located on the north side of Gotham in a predominately Hispanic and Asian neighborhood. Most entry-level jobs require only basic manual dexterity and minimal ability to speak and understand English. Most incumbent workers are Hispanic or Asian. Almost all entry-level workers are hired by referral from incumbent employees. About 36 percent of the entry-level labor pool in Gotham is black, while 5 percent of the entry-level workers in the company s workforce are black. The percentage of black applicants who were hired is 10 percent, while that for non-black applicants is 5 percent. Page 5/5