JACOB D. FUCHSBERG LAW CENTER

EMPLOYMENT DISCRIMINATION LAW

PROFESSOR SCHERER

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Assume that you are an attorney in private practice in the State of Woodhull. You recently met with a new client, Deborah Davis, who gave you the information discussed below and asked for your advice concerning legal rights she may have against her former employer, Ace Aeronautics, Inc. ("Ace"), a manufacturer of sophisticated electronic equipment used on military and civilian aircraft.

Deborah is an aeronautical engineer who graduated thirteen years ago from the United States Air Force Academy. She left military service three years ago. Three months later, she began to work on various military and civilian projects for Ace. She worked for Ace for two years. Throughout her two years of employment by Ace, Deborah’s immediate supervisor was Ben Blunt, an aeronautical engineer who also has former military experience. Deborah worked as part of a team of eight aeronautical engineers and is the only female in the group. She also is the only African-American in the group.

Deborah left the Air Force because her husband, a civilian, was killed in an automobile accident three years ago, and Deborah wanted to be available every day to care for her three children. She was pleased by the job offer from Ace, and was paid at the rate of $140,000 per year during her first year with Ace and at the rate of $155,000 per year during her second year with Ace. However, she was displeased by three aspects of her job. First, she learned that less than two percent of Ace employees in Woodhull are African-American, even though ten percent of the residents of Woodhull are African-American. Second, she was displeased by frequent comments by Ben that expressed his desire to have a romantic relationship with her. His comments included almost daily references to her physical attractiveness and, upon occasion, included explicit comments about sexual activities he would like to engage in with her. Third, she was displeased by racist comments directed at her, or made in her presence, by co-workers.

Soon after she was hired, Deborah complained to Ben about the low number of African-Americans employed by Ace. Ben advised her to discuss the matter with Walter Warbucks, the president and owner of Ace. Two days later, Deborah met with Walter and told him about her concerns. Walter told her that there are very few African-Americans in Woodhull who are qualified to hold the technical positions at Ace, and that she is wrong that there is discrimination. He said, "How could we be biased against blacks? We hired you." When Deborah responded that there are many non-technical jobs at Ace, Walter told her, "Our customers, including the Department of Defense, are happy with the way we run our business. You should mind your own business." Deborah said, "They will not be happy if they learn about racial discrimination by Ace." Walter said, "That’s a dangerous comment. You need to be careful."

During her two years of employment by Ace, Deborah felt frustration over Ace’s hiring practices, and felt an increasing level of anger at Ben for his conduct toward her. Each time she demanded that he stop making what she considered to be inappropriate comments, he laughed and said, "I know you like it."

Deborah also was frustrated, and insulted, by racist comments often made by three of the other engineers in her working group. Some of these comments were directed at Deborah and some were directed at African-Americans in general. Deborah usually did not respond. She did, however, report the more extreme comments to Ben, who told her to ignore them. He said, "They are just joking around. Don’t be so sensitive."

Ten months ago, Deborah became very angry at a sexually explicit comment made by Ben and told him that, if his comments continue, she will hire a lawyer and sue the company and Ben. Two weeks later, she received a written evaluation of her work, prepared by Ben, that rated her work as poor in every category. The written evaluation form indicated that the evaluation was given to Walter, to whom Ben reports. Two weeks after she received the negative work evaluation, Deborah received a termination notice signed by Ben and Walter. Deborah’s prior work evaluations reflected excellent work in every category.

Deborah has attempted to obtain suitable employment during the last nine months, but has been unable to obtain an engineering position equivalent to the one she had at Ace. Her termination by Ace has prevented her from obtaining many desirable positions, and she now is earning $45,000 per year as an engineer with the State of Woodhull Department of Transportation.

Deborah asked you what her legal rights are and what remedy she might obtain under applicable law. She has some understanding of employment discrimination law, and has asked about such things as back pay, front pay, attorney’s fees, and emotional pain and suffering awards.

WHAT ADVICE WILL YOU GIVE TO DEBORAH AND WHAT ARE

Assume that you are an attorney in private practice in the State of Woodhull. You recently met with a new client, Bill Bates, who discussed with you the facts set forth below and asked for your advice.

Bill is 52 years of age and worked for Artisan Acrylics, Inc. ("Artisan") for twenty years. During those twenty years, he held various hourly wage manufacturing positions. All of his work involved exposure to fumes caused by the use of methacrylic acid to manufacture acrylic resins that are used to produce acrylic paint. Many artists prefer acrylic paint over oil paint because of the density and bright colors of acrylic paint, its ability to dry rapidly, and its long term resistance to heat and light.

During the last two years, Bill developed an increasingly severe allergic reaction to the fumes to which he was exposed in the manufacturing area. This caused serious eye irritation which led to permanent eye damage and the need for him to wear eyeglasses. It also caused him to experience respiratory problems, skin rashes, nausea, and diarrhea. To correct the physical problems caused by exposure to the fumes, he asked Artisan to transfer him to the shipping department or to an office position.

Artisan’s chief executive officer, Wilma Wise, told Bill that he is not qualified for an office position, and lacks sufficient seniority to obtain a shipping department job. (There is no union at Artisan, but the company uses seniority status as one consideration in making personnel decisions.) Bill told Wilma that Artisan is obligated under the Americans with Disabilities Act to accommodate his disability. Wilma responded by saying that he is not disabled, and told him that if he isn’t able to do his job he should quit to avoid being fired. When Bill was absent from work for three days, after he had used his available sick days, he was fired. This occurred a few weeks ago.

Bill told you that he believes the real reason Artisan did not accommodate him was their desire to remove him because he is in his fifties. He told you that Artisan employs about sixty employees, most of whom are younger than Bill. Forty of these employees work in the manufacturing area, fifteen work in the office, and five work in the shipping department. Bill told you that three of the last four workers who were fired were over the age of 50. Wilma is 48 years old.

Bill told you that, approximately two years ago, he and other workers at Artisan were required to sign an employment contract that compels them to submit all employment related disputes to binding arbitration. Artisan is not required to submit disputes it may have with employees to binding arbitration, although it may do so. Artisan pays the cost of the arbitration. However, discovery is very limited in the arbitration proceeding established by the employment contract, and no attorney’s fees are available if the employee is successful.

Bill asked you what his legal rights are with respect to Artisan and what remedy he might be able to obtain in an action brought in federal or state court based upon age discrimination under the Age Discrimination in Employment Act and disability discrimination under the Americans with Disabilites Act. He also asked you if he is required to submit his dispute to binding arbitration, rather than bring an action in court.

Assume that Amy Able wants to bring a Title VII action against her employer McGovern Publishing Company, Inc. ("McGovern"), on behalf of herself and others similarly situated, on the basis that various aspects of McGovern’s hiring and promotional practices have a disparate impact on women. Which of the following will Amy have to prove to establish her prima facie case?

(A) That the employment practices of McGovern, at the bottom line, have a disparate impact on women.

(B) That employment practices having disparate impact on women are not job related.

(C) That employment practices having disparate impact on women are not consistent with business necessity.

(D) None of the above.

Which of the following is a correct statement concerning the Age Discrimination in Employment Act ("ADEA")?

(A) The ADEA applies to private sector employers with fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

(B) Under the U. S. Supreme Court’s decision in Hazen Paper Co. v. Biggins, disparate impact theory is not available in an ADEA action.

(C) Liquidated damages are available under the ADEA if the employer’s conduct was "willful," which means that the employer "knew or showed reckless disregard" as to whether or not its conduct violated the ADEA.

(D) The ADEA protects private sector employees between the ages of 40 and 70 from age discrimination in employment.

 

 

 

The Pregnancy Discrimination Act (Section 701(k) of Title VII) requires which of the following.

(A) That pregnant women be given up to twelve weeks of unpaid maternity leave.

(B) That pregnant women not be given maternity leave, paid or unpaid, unless similarly situated non-pregnant persons are given comparable leave.

(C) That discrimination on the basis of sex be defined to include discrimination on the basis of pregnancy, under Title II.

(D) All of the above.

Which of the following is not a correct statement concerning sexual orientation discrimination?

(A) Private sector employment discrimination on the basis of sexual orientation is prohibited by Section 296 of the Executive Law of the State of New York.

(B) Private sector employment discrimination on the basis of sexual orientation is prohibited by Section 8-107 of the New York City Administrative Code.

(C) Private sector employment discrimination on the basis of sexual orientation is prohibited by Title VII of the 1964 Civil rights Act.

(D) Federal government employment discrimination on the basis of sexual orientation is prohibited by an executive order issued by President Clinton.

 

 

 

 

 

 

 

 

Which of the following is an accurate statement concerning the after-acquired evidence defense in Title VII cases?

(A) A plaintiff may not obtain remedy in a Title VII action if "after-acquired evidence," discovered in the course of litigation, reveals that the employer had a sufficient non-discriminatory basis for the action it took.

(B) The after-acquired evidence defense applies if evidence available during discovery, but not previously available, establishes that the employer was entirely motivated by a legitimate, non-discriminatory reason for the employment action it took.

(C) In McKennon v. Nashville Banner Publishing Co., the after-acquired evidence defense was rejected by the U. S. Supreme Court as a basis for reducing employer liability for discrimination that has taken place.

(D) None of the above.

 

 

 

Under United Steelworkers of America v. Weber and Johnson v. Transportation Agency, Santa Clara County, California, which of the following is necessary for a private sector, voluntary, race-based or gender-based affirmative action program to be lawful under Title VII?

The affirmative action program must be remedial.

 

The affirmative action program must not unnecessarily trammel the interests of persons who are not the beneficiaries of the program.

The affirmative action program must be temporary, in that it must end when the current effects of prior discrimination have been eliminated.

All of the above.