Monday, Feb 27 Class

We will have class as scheduled on Monday Feb 27.  Please be sure to read and study Chapter 6 including cases.  Thank you!  Please also check your on-line identity.  Please do not register for the blog as "unknown" or with a name that does not identify you as the contributor. 

Affirmative Action Case to Supreme Court

http://news.yahoo.com/supreme-court-takes-affirmative-action-case-155238326--abc-news.html

Just found this article on Yahoo. The other day in class we were talking about BFOQs and how race and gender cannot be used in determining employability. I remember someone brought up the question of college admittance regarding the use of gender and race in the admissions process. The case being brought to the court is in regards to college admittance at a Texas University, in which the plaintiff claims she was denied admission from because of her skin color(Caucasian). In accepting the case, the court has agreed to analyze the issue of affirmative action. The case is stated to be heard around the time of the next presidential election.

Review of Memo- First Draft

I had an opportunity to read the first draft of your Johnson Control Memo.  We will discuss my general observations and recommendations in class on Monday.   Papers were assigned a check - (70%), a check (80%) or a check + (90%).  Your papers have been returned to the writing instructors and will be available to you at the time of your scheduled meeting.  Please consider the following issues:

 

 

+

1.     Who sued who for what

2.     The U.S. Supreme Court reversed the decision of the Circuit Court of Appeals

3.     JC cannot continue to implement a “fetal protection policy”

4.     No BFOQ for JC

5.     Define requirements to establish a BFOQ

6.     Why did the Court reach this decision?

7.     Impact of this decision on the company

8.     Moral issue- Should JC continue the manufacturing process knowing the likely harm to employees and the unborn?

9.     Possible legal liability to workers and the unborn

10.  Ultimate dilemma: If JC allows women to work near process, JC incurs liability.  If JC bans women from process, JC violates order of the Court.

The following issues should be addressed in your final paper and avoided:

-

1.     Provided opinion

2.     Factually incorrect statement

3.     Reported dicta

4.     Unreadable

5.     Lack of flow

6.     Poor transitions

7.     Awkward

8.     Other

 

Important Clarification for Paper Due Friday

Please double-space your memo re: Johnson Controls.  Use the 

memo format on page 33 of the Kunkel text. 

We are asking for this format to assist in the grading process. 

Three pages double-spaced is approximately the equivalent 

of two pages single-spaced.

All papers are due Friday. 

I will need hard copy of your papers at this time. 

No late or electronic submissions will be accepted. 

Please follow all other instructions outlined the Kunkel text. 

You can address the memo to me. Thank You! 
 

Rick Custin 

Code of Civil Procedure – Section 425.16 - Slapp

 California Strategic Lawsuit Against Public Participation

 

Code of Civil Procedure – Section 425.16.

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue (emphasis added) shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.
(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5. (2) A defendant who prevails on a special motion to strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendant from recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.

Please read this addendum in conjunction with Olaes v. Nationwide - p. 39 of the Cihon text.  

Excerpt from case Re: Whistleblower p.31 Cihon - Plante v. Hinckley

A Massachusetts Appellate Court allowed most of the lawyer's wrongful discharge claim to go forward.  What is the appropriate balance between the attorney-client privilege and federal law against child pornography?  Did the Court make the correct decision? Please take a close look at the entire opinion.  Search for Plante v. Hinckley (2011)


2011 Mass. Super. LEXIS 66,*;28 Mass. L. Rep. 263
Kevin M. Plante v. Hinckley, Allen & Snyder, LLP et al.
Opinion No.: 115034, Docket Number: 06-CV-4528-F
SUPERIOR COURT OF MASSACHUSETTS
28 Mass. L. Rep. 263; 2011 Mass. Super. LEXIS 66
April 7, 2011, Decided

OPINION BY:   Dennis J. Curran
OPINION  

MEMORANDUM OF DECISION AND ORDER

INTRODUCTION

Kevin M. Plante sued his former employer, Hinckley, Allen & Snyder, LLP (Hinckley Allen), for wrongful termination. Hinckley Allen counterclaimed. The matter is currently before the court on three motions: (1) Hinckley Allen's motion for summary judgment on the separation agreement and release (paper no. 65); (2) Hinckley Allen's motion to strike evidence relied upon in Plante's opposition to its motion for summary judgment (paper no. 67); and Plante's motion to dismiss the counterclaim (paper no. 59). For the reasons explained below, both of Hinckley Allen's motions are ALLOWED in part and DENIED in part. Plante's motion is DENIED.

source:  http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdihja&searchTerm=fcXW.TUHb.GaeH.QbGW&searchFlag=y&l1loc=FCLOW

SBA Writing Project Rubric ETLW 302

Name:	SBA Writing Project Rubric ETLW 302
		Levels of Achievement
	Needs Improvement	Satisfactory	High
Criteria	70%	80%	100%
Grammar	Excessive errors in word usage, sentence construction, punctuation, spelling; limited evidence of proofreading and editing; revisions not effectively made from first draft to final copy	Few errors in word usage, sentence construction, punctuation, spelling; some evidence of proofreading and editing; some effective revisions made from first draft to final copy	No errors in word usage, sentence construction, punctuation, spelling; evidence of thorough proofreading and editing; thoughtful and effective revisions made from first draft to final copy
Weight
40%
Coherence	Limited awareness of purpose or topic; lack of transitional words and phrases	Some focus on the purpose or topic; some use of transitional words and phrases	Clearly identifies and focuses on the  purpose or topic; fluent use of transitional words and phrases
Weight
20%
Conciseness and Clarity	Incorrect or limited variety of sentence structure; passive voice; ineffective or inappropriate word choice and tone	Some variety of sentence structure; active voice; acceptable word choice and evidence of appropriate tone	Skilled use of varied sentence structure; active voice; effective word choice and appropriate tone throughout
Weight
20%
Organization	Paragraphs not arranged in a coherent order; incorrect or lack of topic sentences;  limited and/or irrelevant details used to support the main idea in each paragraph	Paragraphs arranged in a logical order; topic sentences introduce the main idea in each paragraph; relevant details used to support the main idea in each paragraph	Paragraphs arranged in a coherent order that helps make the purpose clear; varied topic sentence structure used to introduce the main idea in each paragraph; engaging and relevant details that reveal deep insight used to support the main idea in each paragraph
Weight
10%
Formatting	Inappropriate format for the purpose; incorrect or missing headings, margins, or other required components	Generally appropriate format for the purpose; generally correct use of headings, margins, or other required components	Correct format for the purpose; skilled use of headings, margins, or other components to enhance the overall appearance
Weight
10%
		Overall Score
		0%

Prompt for First Writing Assignment- Johnson Controls

Prompt:  Business & Society- First Writing Assignment

You are a manager employed by Johnson Controls, Inc. Your immediate supervisor has requested that you prepare a three-page memorandum addressing the issues involved in the Johnson Controls case which was decided by the United States Supreme Court.  Please address how this important decision will affect the “fetal protection policy” previously adopted by your company.   You should address issues including the financial and social impact of this decision on your company.  Your supervisor has indicated that she does not want you to cut and paste text or provide excessive quotations from the Court’s opinion. 

No research is required.  Your paper should be based on the syllabus of the Court’s opinion as provided below.

Your memorandum must be 3 pages in length, double-spaced and consistent with the format of the paper memo, 5.1 in the Kunkel text.

Your paper will be evaluated on substance, style, readability and grammar.  No papers will be accepted after the due date.  All ideas and writing should be your own.  Plagiarism is strictly prohibited. 

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Petitioners
v.
JOHNSON CONTROLS, INC., 499 U.S. 187, 111 S.Ct. 1196

No. 89-1215.

Argued Oct. 10, 1990.

Decided March 20, 1991.

Syllabus

A primary ingredient in respondent's battery manufacturing process is lead, occupational exposure to which entails health risks, including the risk of harm to any fetus carried by a female employee. After eight of its employees became pregnant while maintaining blood lead levels exceeding that noted by the Occupational Safety and Health Administration (OSHA) as critical for a worker planning to have a family, respondent announced a policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding the OSHA standard. Petitioners, a group including employees affected by respondent's fetal-protection policy, filed a class action in the District Court, claiming that the policy constituted sex discrimination violative of Title VII of the Civil Rights Act of 1964, as amended. The court granted summary judgment for respondent, and the Court of Appeals affirmed. The latter court held that the proper standard for evaluating the policy was the business necessity inquiry applied by other Circuits; that respondent was entitled to summary judgment because petitioners had failed to satisfy their burden of persuasion as to each of the elements of the business necessity defense under Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733; and that even if the proper evaluative standard was bona fide occupational qualification (BFOQ) analysis, respondent still was entitled to summary judgment because its fetal-protection policy is reasonably necessary to further the industrial safety concern that is part of the essence of respondent's business.

Held: Title VII, as amended by the Pregnancy Discrimination Act (PDA), forbids sex-specific fetal-protection policies. Pp. 197-211.

(a) By excluding women with childbearing capacity from lead-exposed jobs, respondent's policy creates a facial classification based on gender and explicitly discriminates against women on the basis of their sex under § 703(a) of Title VII. Moreover, in using the words "capable of bearing children" as the criterion for exclusion, the policy explicitly classifies on the basis of potential for pregnancy, which classification must be regarded, under the PDA, in the same light as explicit sex discrimination. The Court of Appeals erred in assuming that the policy was facially neutral because it had only a discriminatory effect on women's employment opportunities, and because its asserted purpose, protecting women's unconceived offspring, was ostensibly benign. The policy is not neutral because it does not apply to male employees in the same way as it applies to females, despite evidence about the debilitating effect of lead exposure on the male reproductive system. Also, the absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Cf. Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613. Because respondent's policy involves disparate treatment through explicit facial discrimination, the business necessity defense and its burden-shifting under Wards Cove are inapplicable here. Rather, as indicated by the Equal Employment Opportunity Commission's enforcement policy, respondent's policy may be defended only as a BFOQ, a more stringent standard than business necessity. Pp. 197-200

(b) The language of both the BFOQ provision set forth in § 703(e)(1) of Title VII—which allows an employer to discriminate on the basis of sex "in those certain instances where . . . sex . . . is a [BFOQ] reasonably necessary to the normal operation of [the] particular business"—and the PDA provision that amended Title VII which specifies that, unless pregnant employees differ from others "in their ability or inability to work," they must be "treated the same" as other employees "for all employment-related purposes"—as well as these provisions' legislative history and the case law, prohibit an employer from discriminating against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job. The so-called safety exception to the BFOQ is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform, and the employer must direct its concerns in this regard to those aspects of the woman's job-related activities that fall within the "essence" of the particular business. Dothard v. Rawlinson, 433 U.S. 321, 333, 335, 97 S.Ct. 2720, 2728-29, 2729-30, 53 L.Ed.2d 786; Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 413, 105 S.Ct. 2743, 2751, 86 L.Ed.2d 321. The unconceived fetuses of respondent's female employees are neither customers nor third parties whose safety is essential to the business of battery manufacturing. Pp. 200-206.

(c) Respondent cannot establish a BFOQ. Fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. Moreover, respondent's professed concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. Title VII, as amended by the PDA, mandates that decisions about the welfare of future children be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents or the courts. Pp. 206-207.

(d) An employer's tort liability for potential fetal injuries and its increased costs due to fertile women in the workplace do not require a different result. If, under general tort principles, Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer has not acted negligently, the basis for holding an employer liable seems remote at best. Moreover, the incremental cost of employing members of one sex cannot justify a discriminatory refusal to hire members of that gender. 886 F.2d 871 (CA7 1989), reversed and remanded.