1.) Patricia sued her employer alleging sexual harassment in violation of Title VII. As the plaintiff, Patricia must shoe that she was subjected to harassment based on a protected class characteristic, the harassment resulted in tangible employment action or was sufficiently server or pervasive to alter working conditions and create a hostile environment, the harassment was unwelcome and lastly, there is basis for attributing liability to the employer. Patricia was harassed based on the protected class characteristic of sex. Her supervisor, Louis was clearly attracted to her, asking her out on dates, left her “I love you” notes and telling Patricia that he wants to impregnate her. He kissed her without consent and asked for her to massage him. This is clearly “harassment because of sex”. The harassment did not result in any tangible employment action. Patricia declined these unwanted advances, but her career did not suffer. “During this time, senior management has complimented Patricia on her excellent work and she has received a significant raise.” However, this did create a hostile environment. Patricia directly told Louis his actions were making her uncomfortable. One could argue that her continued excellent work shows that Patricia was unaffected by the harassment. But just because her work was unaffected does not disprove that Patricia both felt and stated she felt uncomfortable. On multiple occasions Patricia politely rejected any date invitations Luis made. She even told him directly to stop. She made it quite clear that these advances were unwelcomed. She did not solicit or provoke this type of behavior from her supervisor. Since Louis was Patricia’s supervisor, Weinstein, Lauer and Franken LLC would be vicarious liable for the actions of Luis. But, since there was no tangible employment action this is subject to an affirmative defense. This is where Patricia’s case falls apart.Her company did have an anti-harassment policy and employees were informed that the LLC would not tolerate unwelcome harassment. Patricia failed to use the company’s recognized reporting mechanism. As stated in Chapter 9, “Courts have clearly placed the burden on employees experiencing harassment to come forward quickly and use the employers’ established reporting mechanism” Judgement would be in favor of Weinstein, Lauer, and Franken LLC.2.) Bob is bringing a claim under Title VII alleging that he was the victim of discrimination based on his gender. He is suing three different people, Northeastern Airlines, a county prison and the producers of the television show “Singing Women”. Bob is claiming that the hiring policies of these three employers are facially discriminatory. Each defendant will use the bona fide occupational qualification (BFOQ) defense to refute Bob’s claims. In the first case, I would award judgment to Bob. Northeastern airlines stated they have “a policy of only hiring female flight attendants to work in business and first class. The airline does hire male flight attendants to work in economy class. Northeastern justifies this policy because surveys indicate that its business and first-class customers strongly prefer female flight attendants.” Northeastern has failed to demonstrate how this protected class characteristic of being female is a BFOQ. Preference for a gender is not one of the three general grounds courts have established for a BFOQ to be recognized. Bob is qualified for this position and should have been hired. In the second case, judgement would be in favor of the prison. The county prison says NY State Regulation requires that a female officer needs to be present in all jails that house women. The prison would argue privacy as the grounds for a BFOQ. In the Everton v. Michigan Department of Corrections case, the 6th circuit upheld a privacy-based BFOQ. Saying that this policy would promote safety at the female facilities. This is the most likely the same reason for the NY State regulation. Again, Bob is qualified for this position but the prison’s BFOQ holds up. Last are the TV producers and this is the most cut and dry case out of the three. The producers are creating a show that follows an all-female band. While Bob is within the age range and is both an excellent singer and actor, he does not fit the role. The producers would argue a BFOQ on the grounds of authenticity. The producers are limiting a female role to female actors because this is what is called for in the script of the show. Bob should wait the third installment of Magic Mike. 3A.) This is inadequate legal advice. On the surface, this may look like underutilization, but we would need to check the data (employer’s records, census, state employment services, colleges and training institutions) to see if there really is a discrepancy in the number of women on the job and the number of women with the necessary skills for this job. 3B.) This is good legal advice. Expanding the avenues of recruitment to achieve a more diverse workforce and removing criteria that could have an adverse impact do not leave anyone worse off and will not raise any issues of discrimination. 3C.) This is bad legal advice. Affirmative action goals should be used to an extent in the hiring process. But employees should not be laid off because of it. Layoffs should be done based on seniority, work performance, budget concerns, etc. Affirmative actions should not be a basis for layoffs. 4A.) This is good legal advice. If you do ask for medical information and the potential employee does not get the job, you are risking the chance of being hit with a discrimination lawsuit. The person may not have been hired due to another reason but the implication is there.4B.) This is inadequate legal advice. If the employee was treated poorly by design to force him/her to quit, that would be a constructive discharge. If he was being treated poorly not by design and resigned on his own volition, this would not be a constructive discharge.4C.) This is bad legal advice, employers are
under no legal duty to conduct performance appraisals. If they do however,
employers need to evaluate all the employees not a select few. As that can
might result in a discrimination lawsuit.
5.) I do believe that Title VII also
prohibits discrimination based on an employee’s sexual orientation. Rights for
the LGBT community have progressed at a break neck speed. Just ten years ago
less than half of Americans supported gay rights, today that number is over
50%. We have changed as in nation regarding this issue and our laws should
reflect that. Yet not all states have laws on the books that specifically
protect the LGBT community. In these states, a gay American can get married in
the morning, and fired from their job by noon for simply posting their wedding
photos on Facebook. By saying Title VII, a federal law prohibits this type of discrimination
it would provide sweeping protection across the United States. As of now this
is the best avenue forward. Congressional legislation would be better, but the
current makeup of Congress does not instill confidence in a law of this kind
passing. Also, the EEOC are experts in anti-discrimination law. By taking this
position, they are setting an example for the courts to follow.
6.) ABC has not violated Title VII because it
only employs ten people, not fifteen as Title VII requires.