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Question :

(TCO B) DePeters, Co. is sued for sex discrimination on the grounds that too few women are hired because fewer women than men achieve passing scores on a required manual dexterity and physical strength test. DePeters, Co. offers in its defense that even though fewer women score high enough on the test, a greater percentage of the passing women are hired. The company maintains that, as a result, the percentage of women in the workforce mirrors the percentage of available women in the labor pool. A group of women who took the test and failed file suit. Explain the basis for the cause of action, analyze the merits of the cause of action, employer defenses, and likely outcome. Support your response with applicable law.

Student Answer:

This group would be filing under a case of: "Disparate impact" which is a methodology for establishing that an employer has engaged in discrimination against a specific group of employees or job applicants of the same race, ethnicity, religion or sex that does not require evidence that the employer intended to discriminate. The disparate impact methodology has long been recognized as a means of proving these forms of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. ("Title VII") (Gibbonslaw.com). The group's cause of action is: 1) they feel the female sex was discriminated against and 2) they were not hired as it states, "...a group of women who took the test and failed filed suit." As an employer defense there are several case points to make: 1)"...a greater percentage of the passing women are hired." This means more women per applications are hired than men who pass-defense would be no discimination here 2)there is a test in place for all applicants which is a required manual dexterity and physical strength test-if someone cannot pass this test how will they actually perform the job. The job is not promoted as come to work and let someone else work for you. The most likely outcome for this case would be: 1) The company will allow it to head to court 2) The judge will favor DePeters Co. because they treat ALL applicants the same testing the same for male and female and will find no discimination present because a greater percentage of women who pass the test over that of the male applicants. 3) No just cause for Disparate Impact (http://www.gibbonslaw.com/news_publications/articles.php?action=display_publication&publication_id=1729)

Instructor Explanation:

(Chapter 6) The women would file suit alleging a violation of Title VII of the Civil Rights Act of 1964, alleging that the test has a disparate impact upon women. Even though a greater percentage of the passing women are hired, the employer's process of arriving at the bottom-line figures should be scrutinized for disparate impact.

This situation is similar to the case of Connecticut v. Teal, 457 U.S. 440 (1982), where the Supreme Court held that the "bottom-line" result does not preclude employees from establishing a prima facie case, nor does it provide the employer with a defense. Although the percentage of the women in the workforce mirrors the percentage of available women in the labor pool, the test still results in fewer women passing it than men. Therefore, the test has a disparate impact upon women.

The employer's defense to this suit would be that passing the test is a bona fide occupational qualification (BFOQ). DePeters would argue that the job required manual dexterity and physical strength similar to that which is tested. If they were able to show that passing the test was reasonably necessary to their particular business, they may have a valid defense against the claim. The burden of proof would be on DePeters to show the similarity between the positions and the test and that the dexterity and strength were bona fide occupational qualifications. If they were unable to meet that burden, the women would likely be successful in their claim.

2.

Question :

(TCO H) Kramer, a black male, enters into an employment contract with Bonzai Consulting for a three-year term. Shortly after the commencement of the term, it was made clear to Kramer by some of his white colleagues that he was not welcome. Kramer is frequently locked out of his office, his work is sabotaged, and his mail is intercepted and destroyed. All of these actions render him ineffective and lead to his eventual dismissal. Kramer sues. Analyze the cause of action, legal basis for his claim, the viability of his claim, measures that should have been taken by the company to minimize or avoid liability, and use applicable law to support your response and conclusion.

Student Answer:

This case shows a strong claim for Disparate Treatment much like the video tutorial we watched in week 3. According to the EEOC website: "Under Title VII, a disparate-treatment plaintiff must establish “that the defendant had a discriminatory intent or motive” for taking a job-related action.[2] This doctrine was read into the act in Griggs v. Duke Power Co., which interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” The Griggs Court stated that the “touchstone” for disparate-impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.”[3] If an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination." This is stating that Kramer (above) has every right to experience a harrassment-free workplace no matter is origin and will need to prove the harrassment was not necesary for his job. His viability is defined by the EEOC as its definition: "A disparate treatment violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII. The issue is whether the employer's actions were motivated by discriminatory intent. Discriminatory intent can either be shown by direct evidence, or through indirect or circumstantial evidence. The actions shown by the employees are all disciminatory in intent and also could claim as racial discrimination which is the cause of action and legal basis for his claim. Kramer has two ways to go as direct or indirect method of proving this as some are actions, but could be documented by having someone open the door adn also pulling his computer and tracing records of the destroyed emails. The employer should have taken disciplinary measures including reporting to EEOC office and including termination of the employees making Kramer ineffective. According to the EEOC website the employer must prove by hard evidence no employee has committed any acts in accusation. A persuasive manner will not work in a case like this but only hard evidence due to the nature of the claim. More than likely the employer will not be able to produce hard evidence here and would probably settle away from court. If in court, the ruling would go in favor of Kramer on the basis of Disparate Treatment against him by the now terminated employees.

Instructor Explanation:

According to Title VII, it is illegal for an employer (1) "to fail or refuse to hire or discharge any individual, or to otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of an individual's race, color and or (2) to limit, segregate, or classify his or her employees or applicants for employment in any way that would deprive, or tend to deprive, any individual of employment opportunities, or otherwise adversely affect his or her status as an employee, because of such factors as race, color, etc..."

Kramer was hired by the company for a three-year term, and there is no indication that the person(s) responsible for hiring decisions exhibited any bias in this decision. However, some of Kramer's new colleagues began making him feel unwelcome shortly after he began his job. Even though Kramer is experiencing disparate treatment, the offense is being committed by nonsupervisory coworkers and not by the company itself (which seems to be a key distinction in identifying racial discrimination cases). Rather than racial discrimination, then, it seems like what he is experiencing is racial harassment. Therefore, to successfully pursue a claim, Kramer would have to file a charge of racial harassment.

The employer may be liable for racial harassment "if the employer himself is the one who perpetrates the harassment, or if it is permitted in the workplace by the employer or supervisory employees." In this case, the employees are perpetrating the harassment against Kramer (locking him out of his office, sabotaging his work, interfering with his mail, etc.). There is no mention of whether Kramer filed any complaints with his employer, but our text does not state that this is necessary for an employer to be relieved of liability. Rather, the employer is advised to enforce a zero-tolerance policy against workplace harassment, to take all such complaints seriously, and to take immediate, corrective action when necessary. All of these steps are required to protect the employer from liability.

Kramer was dismissed for ineffective performance, which he claims was the direct result of the harassment he suffered from his new colleagues. If he was given no opportunity to discuss his performance with his supervisors prior to his dismissal, and no actions were taken by the company to address the problems causing Kramer's poor performance, the company would be liable for racial harassment, and possibly for constructive discharge as well.

3.

Question :

(TCO A) Emmanuel & Peterson is an extremely busy law firm specializing in litigation. In order to keep up with the workload, the firm refuses to hire anyone as a secretary who is unable to type at least sixty-five words per minute. As a result, there are no male secretaries working for the firm. A group of male applicants file litigation challenging this policy. Explain the legal basis for the suit, the likelihood of prevailing in the cause of action, and the defenses available to the firm.

Student Answer:

The group of male applicants is filing as a Disparate Impact claim in which the business hiring practices are questioned of Emmanuel & Peterson. The disparate impact methodology has long been recognized as a means of proving these forms of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. ("Title VII") (Gibbonslaw.com). I do not feel the group has a strong basis to file and any judge will most attentively look to the employer to prove themselves out of the suit. The defense would bring to light the firm needs 65 words per minute typed for quality and efficiancy in the firm. Not one male has tested out typing 65 words per minute or more. The will go onto to defend the males do not qualify for the job description yet still applied. They will produce hard evidence of the job description, pull the testing records of each male that did not qualify and the judge will rule in favor of the firm.

Instructor Explanation:

The legal basis for this suit is disparate impact under Civil Rights Title VII. Disparate impact alleges that an employer's policy, while neutral on its face, has an adverse impact on a group protected under Title VII. If such a policy impacts protected groups more harshly than majority groups, illegal discrimination may be found.

In this case, the male applicants file litigation challenging the law firm's policy of using the typing test and claim it causes disparate impact for male applicants. Screening devices oftentimes are causes of disparate impact, whether the employer intended for such an occurrence or not. Employers should use caution when using such screening devices. A defense for using screening devices can be supported by business necessity--that is, the employer's need for use of the screening device for legitimate requirements of the job. One way of proving business necessity is to establish the test's validity.

A test has validity if it reflects an actual sample of the work done on the job.

In this case, the law firm's policy to use the typing test to measure ability to type at least 65 words per minute has validity and may be used as a defense based on business necessity to ensure candidates can fulfill typing requirements of the job.

The response should address standing and Title VII claims for discrimination based on gender. The employer defense that would be successful is the bona fide occupational qualification defense, with a claim that the skills are necessary for the position and the firm.