Smaller File Sized Video

Here is a lower quality but much smaller file size that you can download more quickly.

http://dl.dropbox.com/u/31313051/Chapter%209.mov

Friday Class Video Recording

Hey everyone,

Sorry for the wait.  Here is the video recording of Friday's class: http://dl.dropbox.com/u/31313051/Chapter9.zip

See you tomorrow,

Kevin

Friday Class about Chapter 9

Hey everyone,

I recorded the class so that people could watch/listen to see what they missed.  The video weighs in at 1.97 GBs which has made it difficult for me to upload it easily.  It has taken forever (~8 hrs) with my internet connection and then it gave me an error when it finally finished.  I am leaving town tomorrow morning so I don't really have time to try and fix it.

So what I've done is made an audio version of the class.  It is only about 120 mb.  So that will be a lot easier for people to download and manage.

Here is the link for it:

http://dl.dropbox.com/u/98782181/Chapter%209.m4a


Have a nice weekend,

Kevin

See also Section 1542 of the California Civil Code

Parties often enter into a release at the end of a dispute or lawsuit.    California Civil Code section 1542 reads:

"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."

Sample waiver under ADEA - OWBPA- Chapter 9

Sample Waiver and General Release: Group Layoffs of Employees Age 40 and Over

The following example illustrates one way in which the required OWBPA information could be presented to employees as part of a waiver agreement and is not intended to suggest that employers must follow this format. Rather, each waiver agreement should be individualized based on an employer’s particular organizational structure and the average comprehension and education of the employees in the decisional unit subject to termination. For another example of how the required information might be presented, see 29 C.F.R. § 1625.22(f)(vii).
Although this sample addresses only OWBPA issues, most severance agreements also ask employees to waive all claims against the employer, including claims arising under any federal, state, and local laws. See paragraph 6 below.

Dear [Employee]:
This letter will constitute the agreement between you and [your employer](“the Company”) on the terms of your separation from the Company (hereinafter the “Agreement”). The Agreement will be effective on the date specified in paragraph 7, below.

1. Your employment will terminate on _______X_____ date.
or
You have agreed to resign on _______X_______ date. Your last day of work will be _______X_______ date.

2. In consideration of your acceptance of this Agreement, the Company will pay you an extra ______ [week’s][month’s] salary at your current rate of $_______ per [week][month], less customary payroll deductions, to be paid within five (5) business days after the effective date of this Agreement as defined in paragraph 7 below. This severance pay will be in addition to your earned salary and accrued vacation pay or leave to which you are entitled.
***
[Paragraphs 3, 4, and 5 may address benefits, unemployment compensation, references, return of property, confidentiality, etc.]

6. Except as to claims that cannot be released under applicable law, you waive and release any and all claims you have or might have against the Company. . . .These claims include, but are not limited to claims for discrimination arising under federal, state, and local statutory or common law, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Genetic Information and Discrimination Act, and [state law].
***
7. The following information is required by OWBPA: You acknowledge that on __________________, you were given 45 days to consider and accept the terms of this Agreement and that you were advised to consult with an attorney about the Agreement before signing it. To accept the Agreement, please date and sign this letter and return it to me. Once you do so, you will still have seven (7) additional days from the date you sign to revoke your acceptance (“revocation period”). If you decide to revoke this Agreement after signing and returning it, you must give me a written statement of revocation or send it to me by fax, electronic mail, or registered mail. If you do not revoke during the seven-day revocation period, this Agreement will take effect on the eighth (8th) day after the date you the sign the Agreement.
   The class, unit, or group of individuals covered by the program includes all employees in the _____ [plant, location, area, etc.] whose employment is being terminated in the reduction in force during the following period :_______________). All employees in ___[plant, location, area, etc.] whose employment is being terminated are eligible for the program.
   The following is a listing of the ages and job titles of employees who were and were not selected for layoff [or termination] and offered consideration for signing the waiver. Except for those employees selected for layoff [or termination], no other employee is eligible or offered consideration in exchange for signing the waiver:
   

   Job Title	Age	# Selected	# Not Selected
   (1) Bookkeepers	25	2	4
   	28	1	7
   	45	6	2
   (2) Accountants	63	1	0
   	24	3	5
   (3) Retail Sales Clerks	29	1	7
   	40	2	1
   (4) Wholesale Clerks	33	0	3
   	51	2	1

Sincerely,
__________________________________
On Behalf [the Company]
By signing this letter, I acknowledge that I have had the opportunity to consult with an attorney of my choice; that I have carefully reviewed and considered this Agreement; that I understand the terms of the Agreement; and that I voluntarily agree to them.

________________ Date:

______________________________________________ [Employee]

   

Group 2: Chapter 7 Question 6 by Devyn Greenberg

Court Decision:

Anderson was a female attorney working at a law firm starting in 2001. She accepted the job based on the fact that was going to be promoted to partnership within 5 to 6 years and was told it was just a “matter of course” as long as she received good reviews, which she did. In 2007 and again in 2008 Anderson was rejected her partnership and terminate. The firm with more than 50 partners never has had a female partner, so Anderson proceeded to file a complaint alleging gender discrimination.

The court stated that Title VII does not include going from employee to partner. It is strictly between employee and employer relationship. It does not involve being promoted to employer. The courts now are very reluctant to take on cases involving partnership in law firms.

Questions to Consider:
Does Title VII apply to such a partnership selection decision?
Does Anderson’s complaint state a claim under Title VII?

Group Decision:

We believe that Title VII does not cover Anderson based on the fact that being a partner would involve ownership of the company and there are no laws that cover people from discriminating against ownership. Basically, if I owned a company, there is no law stating that I would have to give someone else ownership of my company based on anything, especially not gender, color, or origin.

Group 2: Chapter 7 Question 7 by Amanda Polacek

Court Decision:

Cabaret Restaurant was in violation of Title VII under the Civil Rights Act of 1964 because sex can not be a permissible BFOQ for a restaurant seeking to dress female

waitresses “in alluring costumes” solely for the purpose of enhancing sales volume. Courts must distinguish between businesses selling virtually nothing but sex (“sex” businesses) and those offering titillation along with some other type of good or service (“sex-plus” businesses), as in the case of Cabaret Restaurant.

Group Decision:
We agreed with the court’s ruling. As long as Plebani can prove that there was no significant positive change in the company’s volume of business, it can be concluded that hiring only female waitresses is not a business necessity even though there may be a customer preference for it. The main function of this job is to serve food, and this was proven based on the fact that the gender of the actual waiter or waitress was irrelevant when looking at sales.
Cabaret Restaurant will make the argument that having only female servers contributes to the “gentleman’s club” atmosphere. However, they will have great difficulty proving that only female servers is a business necessity since the restaurant initially started out with both male and female servers and no long-term financial benefit come from the all female switch.

Group 2: Chapter 7 Question 8 by Chris Arrington

Court Decision:

The Trial Court’s decision was reversed and remanded for discovery. The plaintiffs were, “entitled to make additional efforts to prove a case of intentional discrimination within the boundaries sketched in this opinion.” The main issue was that the Plaintiff’s original claim was not enough to warrant a remedy and summary judgement dismissed the case; however, on appeal, it was found that the Plaintiff was making a claim at intentional discrimination and was sent back to the courts for hearing.

Group Decision:
The book version is a bit vague on the details, but Title VII does not require comparable worth standards and it only prohibits intentional discrimination on the basis of gender for setting pay scales. The main claim the nurses have here is that a state study was not followed in setting wages. Not following a study is not enough to make a claim at intentional discrimination based on sex.  If the wages for these nurses were in line with the market of wages for other comparable jobs, then there would be no claim under Title VII as the employer would not be discriminating against the women, but merely following market trends as we’ve seen in Lemons v.Denver.

Group 2: Chapter 7 Question 9 by Matt Puttmann

Court Decision:

Baker was not in violation of her Title VII rights under the Civil Rights Act of 1964. In order for her to qualify for sexual discrimination, she must meet the following criteria:

  
A. that she is a member of a class (non-homosexual) protected by Title VII
B. that she was qualified for the position or rank sought
C. that she was denied tenure or reappointment; and
D.  that in cases of re-appointment or tenure others with similar qualifications were reappointed or granted tenure.

Group Decision:
Our group decided that even though Baker met the first and third requirement, however she did not fulfill the second and fourth requirements. She was not fully qualified for reappointment and that she was also replaced by a candidate with more qualifications of which she lacked.  Roundball was able to coach and teach and therefore was more qualified than Baker, fully justifying her termination. After referencing the case, our group was correct in our hypothesis and our decision was synonymous with the district court.

Group 2: Chapter 7 Question 10 by Matt Puttmann

Court Decision:

Under the Family and Medical Leave Act, a “serious health condition” is any of the following:

A. Illness, injury, or condition that requires inpatient hospital care or
B. lasts more than three days and requires continuous treatment by health-care provider or
C. that involves pregnancy  or
D. long-term permanently disabling health condition or
E. absences for receiving multiple treatments for restorative surgery or
F. for a condition  that  would likely result in a period of incapacity of more than three days if it were not treated.

Group Decision:
Our group does not believe depression is a “serious health condition” as it is only present in the plaintiff 10-20% of the time.  She also only told her employer that she was merely “sick” without giving a more specific diagnosis. Finally, she also needed to make notice of her depression 30 days prior to qualify for FMLA privileges, which she did not.  After referencing this case, our group’s decision was again synonymous with courts in that the plaintiff “failed in her obligation to tell the employer enough to suggest that the FMLA may be pertinent.”   

Group 2: Chapter 7 Question 11 by Anthony Manning

Court Decision:

The court found that the Plaintiff Rebecca Thomas was discriminated against by the Defendant Cooper Industries, Inc. on the basis of her gender.  The court awarded her monetary damages totaling 52,163.23 as well as counsel fees, job reinstatement, moving costs, and interest on all aforementioned items.

Group Decision:

In the case Thomas v. Cooper Industries, Inc., our group is in agreement with the court’s ruling that Cooper was in violation of Title VII of the Civil Rights Act of 1964 by discriminating against Thomas on the basis of her gender.  The act does allow for discrimination based on gender, however it only allows this discrimination if it is a bona fide occupational qualification (BFOQ).  In the case of Thomas the fact that she had been successfully managing the position vacated by her previous boss shows that gender is not a BFOQ for the position.  Furthermore there was no evidence in the company's policy that this particular position could only be filled by men prior to Thomas’s assumption of it duties.

In addition Thomas could bring a case against Cooper for violating the Equal Pay Act of  1963.  The act ensures that equal pay is  given for equal or equivalent work.  Since Thomas was not compensated at the level of her predecessor she could file suit and request backpay for   the difference in salary for the period she was in the position.  

Group 2: Chapter 7 Question 12 by Kevin Badeaux

Court Decision:

The lower court found in favor of the defendant on the grounds of discrimination and retaliation.  According to the court of appeals, the lower court applied the wrong legal standard to the plaintiff’s claims of sex discrimination and retaliation.  The court, therefore, reversed and remanded the ruling.

Group Decision:

In the case of Thompkins v. Morris Brown College, it would be considered a case of “Gender-Plus” Discrimination.  A situation of gender-plus discrimination is when “an employer places additional requirements on employees of a certain gender but not on employees of the opposite gender.”  Gender-plus discrimination violates Title VII of the Civil Rights Act of 1964.  Our groups agrees with the decision made by the 11th Circuit Court of Appeals based upon this principle of “Gender-Plus” Discrimination.  Based on the case details, Thompkins was fired because she would not choose between the two jobs that she worked.  Contrary, the male faculty that worked two jobs as well, were not required to choose between their jobs.  

Group 2: Chapter 7 Question 13 by Ara Molina

Court Decision:

The circuit court subsequently vacated the district court's decision and remanded the case for further proceedings, based on new evidence that was discovered.  

Group Decision:

In this case, Matthews was not a victim of gender discrimination. Gender discrimination is described as “limiting, segregating, or classifying employees or applicants in a way that would deprive individuals of employment opportunities or otherwise adversely affect their status as employees because of their sex.” The Plaintiff was not disenrolled on the basis of her being a woman, but rather that fact that she was homosexual. During the course of her service in the Army, and the Army Reserves, Matthews received several high performance ratings, promotions, and numerous performance related awards. Furthermore, her discharge from the Army was honorable. This demonstrates that the Plaintiff was not deprived of opportunities nor was her status as an employee affected because she was a woman. Her disenrollment from the ROTC came only after she willingly disclosed to her commander that she was a lesbian. By her disclosing this information, her commander found that she was in violation of ROTC and Army Reserve regulations; it was this violation that led to the Plaintiff’s disenrollment. Furthermore, the commander that was informed by Matthews that she was a lesbian, did not interfere with Matthews ability to participate in the WildeStein Club, therefore, the Plaintiff’s first amendment rights were not violated.

Group 2: Chapter 7 Question 14 by Rachael Haxton

Court Decision:

The court decided that Southwest did not sufficiently establish that its policy of hiring only females in flight attendant and ticket clerk positions is a bona fide occupational qualification. They failed to prove that their profits would directly decrease if they were to hire males.

The book states that a Bona Fide Occupational Qualification “…allows an employer to hire a specific gender…when business necessity requires it. (Cihon, 147)” A BFOQ for sex must be denied where sex is merely useful for attracting customers of the opposite sex, but where hiring both sexes will not alter or undermine the essential function of the employer's business. Because of the lack of supporting evidence and inability to provide a convincing business necessity Southwest Airlines was not successful in claiming a BFOQ.

Group Decision:

Our group agrees with the court’s decision. We believe that it was not Congress’ intent to grant a BFOQ for sex appeal. The lack of evident that Southwest was able to provide the courts with, gives our group more of a convicting vote in favor of Wilson. We understand that Southwest was using the “Love Airline” image to have an advantage over their competition, but research showed that “courteous and attentive hostesses” was ranked fifth in importance when their customers completed surveys. Just as the court’s ruling depicted, lower fares and on-time departures are a more dominate reason for picking an airline.

Group 2: Chapter 7 Question 15 by Devyn Greenberg

Court Decision:

George was being recruited by NASA for a position that required him to undergo extensive psychological testing. George was told that he was suspected of being homosexual and he neither denied nor affirmed if he was. NASA ultimately didn’t hire him, and George filed a claim stating he was discriminated against because of NASA’s perception of his sexual orientation.

The district court ruled in favor of the plaintiffs, yet it was over turned stating "gay people are a 'quasi-suspect class' entitled to heightened scrutiny."

Questions to Consider:
On what legal provisions can George base his suit? Is he likely to win? Would the outcome be different if George applied for a flight engineer position that did not involve classified national security information?

Group Decision:
We believe that, based on the information given, George does not have the ability to win the suit because the speculation that NASA denied him because of their suspicion of his sexual orientation. It was never clearly stated who was the one that told George that NASA was suspicious, and it was purely speculation. So we believe George does not have a case.

Group 3: Chapter 8 #15 (Felicia Wijenberg)

Maguire vs Marquette University. Maguire filed an appeal saying that she had been discriminated based on gender after being denied the associate professor of theology at Marquette a very highly Catholic university. She filed under Title VII that she was denied because she was a woman. Marquette replied that her being a woman had nothing to do with her not being hired but that her resume simply didn't compete with other applicants.

Maguire was denied the appeal and the case was dismissed because Title VII can only prove cases where misconduct happens because of race, gender, nationalitynational she had no proof.

Maguire then said the actual reasom for not being hired was because of her pro choice view of abortion which clased with the Catholic university's disbelief of abortion. The plaintiff alleged that Marquette's refusal to hire her because of her views on abortion violated the Wisconsin common law of academic freedom and Marquette's own policies regarding academic freedom. The district court dismissed this claim. it dismissed it because it relied on its understanding that the Title VII exemption for religious employers and the First Amendment prohibited a federal court from examining the hiring decisions made by the theology department at Marquette.

We agree with the court in this situation. If she had been able to file under the second reason from the beginning saying that she wasn't being hired because of her beliefs and was being denied academic freedom she would have had a better case. To try and use her being a woman as a reason to say she wasn't getting the job didn't make sense and in the end lost her the case. 

Group 3: Chapter 8 #14 (Felicia Wijenberg)

Robles vs USA. Robles was denied ability to raise in grade and scope of his renewable license because he did not give sufficient reason as to why he deserved a raise. His license application was re-issued as a renewal instead of a raise. He had lied in his application falsely stating that he hadn't applied to any other port for a license when in fact he did. He appealed that the grounds for denial of his application were unconstitutionally acceptable. Also, he appealed that if your license is denied you are to be given a document stating why and he never received that document. The court denied his claim saying that this is a situation bound under law and because he falsely represented information in his application, defendant had every right to deny him.

We agree that the court had every right t deny the appeal by Robles as he lied in his application for a raise in grade and scope. He should have been given the document stating as to why he was denied with his application though, as it was law that they give it to him. 

Group 3: Chapter 8 #13 (Julien Fargo)

In Leake v. University of Cincinnati, since plaintiff did not file her charges with the EEOC until April 17, 1973, more than 180 days after the alleged biased act, “the district court concluded that plaintiff's claim was time-barred.”(OpenJurist) I believe the case between Bouzoukis v. Enormous State University should go the same way. Yes, the University was sly in some ways by not letting her know all the facts before they gave her the option to delay filing her complaint with the EEOC. And the idea was they were not going to raise up the issue of time limits as a defense. The law is still the law, and Bouzoukis was still not within the constraint of the “300 day time limit of the alleged violation.”(Cihon) The court should dismiss the case for these reasons.

Group 3: Chapter 8 #12 (Julien Fargo)

In the case of Reeb v. Economic Opportunity Atlanta, Inc., The district court dismissed the case for want of jurisdiction, because Mrs. Reeb had not brought her complaint before the EEOC within ninety days of the alleged discriminatory discharge. “We vacate the judgment and remand the case to the district court.”(OpenJurist) In Westman’s case it is a very similar situation. The employer argued to the court that Westman’s complaint is invalid and should be dismissed because it was “not filed within the time limit required under Title VII. I believe that the complaint most certainly should be dismissed because clearly she missed the mark as far as the timing is concerned. A person seeking relief from employment discrimination is required to “file a charge with the Equal Employment Opportunity Commission within ninety days after the alleged unlawful employment practice.” I believe the court should dismiss the case.

Group 3: Chapter 8 #11 (James Pendarvis)

Case Summary: Kim Cloutier worked for Costco. She had several tattoos and piercings covering her body and face. After several years of employment, Costco updated their dress code, prohibiting all facial jewelry except earrings. Cloutier’s supervisors implemented the new policy and informed Cloutier that she would have to remove her jewelry. She refused, claiming that she was a member of the Church of Body Modification. Costco attempted to accommodate her by letting her wear a band aid to cover it up, or putting studs in so the holes wouldn’t close. Cloutier rejected that offer, claiming that the only acceptable accommodation would be to excuse her from the dress code and let her wear her jewelry. Cloutier was fired and subsequently filed suit for religious discrimination under Title VII.

The court granted summary judgment to Costco, concluding that the defendant had attempted to reasonably accommodate Cloutier, and that they would endure undue hardship if they had tried to accommodate Cloutier.

Group Opinion: We affirm the ruling with the court, because unlike the last case, the employer here (Costco) offered generous accommodations to Cloutier, which she refused. While respecting the freedom of religion is paramount, this case demonstrated that the employer had done everything in its power to resolve the situation amicably. Furthermore, they were able to prove undue hardship, unlike the last case with the Postal Service.      

Group 3: Chapter 8 #10 (James Pendarvis)

Case Summary: McGinnis was a postal worker who processed forms and paperwork as a window clerk. When tasked with processing draft registration materials she declined as a conscientious objector, based on her objections to conscription and war. When people approached her workstation with draft registration materials she politely directed them to another window. McGinnis was warned that refusing to process these materials would endanger her job. When faced with this warning she refused to handle the draft registration materials and was subsequently fired. She filed suit, based on religious discrimination found under Title VII.

Although she wasn’t connected to any formal church, she grew up with strong ties/affiliations to the Quaker community. Additionally, her brother and father were conscientious objectors when faced with the draft.

When the case went to court, the judge found that the Postal Service was unable to prove undue hardship. Not once did the Postal Service try and accommodate her beliefs, for example by having her work at a window that didn’t process those materials. Additionally, employees at other postal offices who offered similar objections were accommodated. The Postal Service’s claim that this would lead to a slippery slope was also ruled as unfounded.

Group Opinion: Based on the readings in Chapter 8, we strongly concur with the ruling declared in this case. Although her opinions may not be popular, the freedom to exercise one’s religion is a constitutionally enshrined amendment, and as such, should be defended. 

Group 3: Chapter 8 #9 (Taylor Turner)

After reviewing the case “Furnco Construction Corp. vs. Waters,” our group thinks that Constructo has met its burden under Title VII. After the plaintiff has established a prima facie case, the burden shifts to the employer to prove a legitimate nondiscriminatory reason for rejection. If the employer successfully offers a legitimate nondiscriminatory reason for rejection, the burden shifts back to the plaintiff to show that the employer’s ostensible reason was pretext for discrimination. Constructo does not have a history of racial discrimination like Furnco Construction Corp did. Although you cannot make a ruling based off these statistics because it might not prove motive, the company already has more than double the percentage of African-American workers than the rest of greater metropolitan area, so discrimination against African-Americans is unlikely. Title VII does not impose a duty to adopt a hiring procedure that maximizes hiring of minority employees. The employer could argue that they only hire workers referred by Constructo employees because they have reference that they are quality people and good workers. To better cover themselves, Constructo might want take applications from bricklayers that are not referred by employees. If it can be proven that the same employment decision would have been made absent the discriminatory motivation, then the plaintiff would be denied remedies such as damages or reinstatement. 

Group 3: Chapter 8 #8 (Taylor Turner)

 After reviewing the case “United Airlines vs. Evans,” our group thinks that Dewhurst’s claim is filed outside of the 180 days after her seniority is determined, but within the loophole that states you can file up to 180 days after the violation ceases. Dewhurst failed to file a charge with the EEOC within 180 days after her seniority was determined; Title VII recognizes that certain violations, once commenced, are continuing in nature. In these instances, discriminatees can file charges at any time up to 180 days after the violation ceases. The violation to Dewhurst, treating her as a new employee even though she was wrongfully forced to resign, is a violation that is continuing to this day. The fact that she was forced to resign early made her current employment a present violation of her worker’s rights. The respondent’s charge therefore is not time-barred, and the Court of Appeals judgment reinstating her complaint should be affirmed. 

Group 3: Chapter 8 #7 (Kristen Lanzavecchia)

The case discusses Cohen, who applied for a position with The Christian Science Monitor, which is a daily newspaper published by the Christian Science Publishing Society, a branch of the Christian Science Church. The application for the Monitor is the same one used for general positions at the church, and contains many questions relating to membership in the Christian Science Church and to its religious affiliation. Cohen was not a member of the Church and was rejected for employment. He filed a complaint to the EEOC alleging that his application was not given full consideration because he was not a member of the Christian Science Church. While Title VII does not allow discrimination in employment based on race, color, religion, sex, or national origin, an amendment was made to Title VII in 1972 and Section 2000e-1 provides: “This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution or society of its activities.” So the issue is whether the Monitor is a religious activity of a religious organization and therefore within the limited exemption provided by Congress in the Civil Rights Act of 1964. If the Monitor is not a religious activity of a religious organization, than it is not permissible for the Monitor to apply a test of religious affiliated to candidates for employment.  We agree that The Christian Science Monitor is a religious activity of a religious organization, therefore, the defendants have not committed an unlawful employment practice under Title VII. 

Group 3: Chapter 8 #6 (Kristen Lanzavecchia)

The case discusses Morgan, an untenured faculty member at Ivy University. In February 1995, he was informed that he would not be offered a tenure position and was offered a one-year terminal contract with the university. He appealed to the tenure committee for reconsideration, but he was again denied tenure and offered a one-year contract, which would expire on June 30, 1997. On June 1, 1997, he filed charges with the EEOC alleging race and sex discrimination (Title VII) in denying him tenure. Title VII requires that a complaint be filed to the EEOC within 180 days, or 300 days under certain circumstances, after the alleged unlawful employment practice occurred. The issue here is when exactly the unlawful practice occurred. He filed his charges more than 180 days after he was notified of the denial of tenure, but before the actual termination date. In the case of Delaware State College v Ricks, it was originally decided that the limitation period for the claims began when the Board officially notified him that he would be offered a one-year terminal contract. However, the Court of Appeals reversed the decision, holding that the limitation period for the claims did not being until the terminal contract expired. Therefore, we believe that Morgan was within the limitation period for filing a complaint to the EEOC. He is challenging not only the denial of tenure, but also his termination, which occurred on June 30, 1997. 

Group 1 - Chapter 6. Case 7. (Post for Iko Tumangan)

Williams vs. the City of Montgomery

Groups Decision:

In this case two white firefighters convicted of felonies were discharged; however, they were reinstated. A black firefighter was fired, but he was not reinstated. Williams sued the city of Montgomery claiming that disparate treatment under the civil rights act took place. Policies stated that firefighters convicted of felonies could not work for the city. The city of Montgomery was not given absolute immunity.

We agree with the court’s decision. We think that policies should be applied uniformly to avoid situations where even an unintentional bias may take place. We are unsure if the courts looked into the degree of the felonies received by the Williams and the other two firefighters, but despite the facts Williams should have been granted close to equal treatment or opportunity for reinstatement. This is lesson in upholding policies and doing it steadfastly so that situations like these don’t arise   

Courts Decision:

“The City and Board contend that they are entitled to a jury trial. The district court's decision holding that the City and Board were not entitled to a jury trial is correct. Williams requested backpay which is an equitable remedy not requiring determination by a jury. The Board and the City, therefore, are not entitled to a jury trial on the Title VII claim.” 

Williams wins this case against the defendant and according to the courts decisions discrimination under title VII took place. Williams is entitled to back pay. 

Group 1 - Chapter 6. Case 6 (Post for Iko Tumangan)

Lanning v. SEPTA

Groups Decision:

This is a disparate impact case of discrimination because the initial physical fitness tests for the job (i.e. running 1.5miles in 12minutes) did not mean to discriminate any specific group of peoples; however, it apparently did. Surveys showed that only 12% of women passed and a larger 56% of men passed. Under the civil right act title VII arguably women here are being discriminated against. SEPTA’s defense was that they performed the test as a business necessity.

SEPTA provided studies of how physical fitness is required; however, these studies were flawed showing very little relatedness to the job. People who did not pass the test and were hired even won awards for their performance. 

This case is very controversial because the civil rights act prohibits many activities performed by SEPTA:   

Civil Rights Act of 1991, a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance of the job in question in order to survive a disparate impact challenge [emphasis added].

SEPTA goes against the civil rights act without proving that the cutoff test showed minimum qualification, and there were people awarded for superior performance who did not pass this physical fitness test. We believe the district court should reverse their decision and reconsider. 

SEPTA makes an argument were in the case of a perpetrator one with physical ability could better catch this person; however, this lies way outside the normal scope of the job. We believe SEPTA’s arguments did not prove a business necessity.

Courts Decision:

Even though validation studies for testing employee fitness were flawed, the district courts upheld SEPTA’s claims that physical fitness was a requirement and related to the job at hand.

Group One- Chapter 6- Question 15

Group One: Question 15; Nelson v. Wal-mart Stores, Inc.- Jenna Van Horn

Groups Agreement: Group One believes that there could  be a claim for disparate impact based on the fact that only 8.4%, or 672 drivers, out of the approximately 8,000 drivers Wal-Mart employs. The policy in question is that Wal-Mart recruits drivers  almost “exclusively by word of mouth”, in which current drivers hand out a “1-800” card to prospective applicants. On the surface, this policy seems neutral, but coupled with the fact that only about 15% of persons employed as “driver/sales workers or truck drivers” in the “ truck transportation” industry, means that there will be a much smaller margin of African Americans receiving offers of employment. Wal-Mart does have the defense in that it does stipulate that any screening committee in the final stages of assessing a potential employees must be at last 50% diverse,  but we as a group believe that the fact that there are no written or objective criteria potentially allows for subjective decisions to be made based on irrelevant details of a potential employee’s life. Therefore, we would hold that there is a disparate impact with Wal-Mart’s hiring process.

Actual Outcome: Wal-Mart moved to have the case dismissed on the ground that they asserted that the plaintiffs could not establish a prima facie case because that Plaintiffs' statistical analysis is flawed because Plaintiffs' experts relied on data outside the relevant time period. The defendant’s also believed the census data where the plaintiffs were getting the statistical data for the entire nation was flawed because it did not consider Wal-Mart’s minimum requirements for potential applicants. The court held that since the plaintiffs did in fact meet the requirements for prima facie, and since there seems to be material consideration in the, the defendants' motion for summary judgment on plaintiffs' class claims was denied. Wal-Mart then settled out of court for 17. 5 million dollars before the case could go back to trial. They also  agreed to provide priority placements for 23 black applicants who provide approved claim forms and to implement improvements to their transportation division’s recruitment, selection and personnel systems, as well as set benchmark hiring goals to ensure diversity.

Group 1-Ch.-6. Question 10.

Group Decision:

 I believe that this is a case of racial discrimination.  Since Chaline had been a successful disc jockey for previous companies, then he should have the chance to be a disc jockey for this radio station as well.  Even though this radio station is African American oriented, it is still on the “radio.”  Therefore, his skin color should not really matter.  He could change his “voice” to whatever they were looking for if they needed him to do so.  However, even that would still be considered a form of racial discrimination as well.  There is no legitimate excuse for KCOH to terminate his employment.

Chaline v. KCOH,Inc.:

Chaline brought the action of racial discrimination to the United States District Court for the Southern District of Texas under the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981 (1976).  Following a bench trial, the district court found that Chaline was well qualified to be a KCOH disc jockey based upon his experience and demonstrated ability, and that Don Samuels (the African American man who eventually got the job as disc jockey) was not more qualified than Chaline to fill the dual position of production manager and part-time disc jockey. Accordingly, the court concluded that Chaline's employment was terminated because he was white. In response to the appellants' suggestion that Chaline lacked the black "voice" and the sensitivity to black listening tastes necessary for the job, the court determined that this asserted justification for Chaline's termination was merely pretextual. Based on these findings, the court awarded Chaline back pay of $6000 and reinstatement as production manager.  KCOH tried to appeal this decision by stating that Chaline failed to establish a prima facie case of racial discrimination because he was not qualified for the position as part-time disc jockey.  They also contended that legitimate, nondiscriminatory business reasons prompted Chaline's dismissal.  However, their appeal was unsuccessful.  The appellate court found in favor of Chaline as well. 

Group #1 Chapter 6 Case Problem 8

Group #1 Chapter 6 - Dominick Vandenberg

 

Case Problem 8 – Leonard Vs. Walsh Construction Co.

In the case Leonard Vs. Walsh Construction, we believe it to be inadmissible to determine that there was racial discrimination going on. A former Caucasian employee was fired for “smoking” the marijuana but was never the one who “owned” or brought to distribute the marijuana at work. Just because Albert was of a different race doesn’t mean he was not re-hired due to being of that race. Albert was the one with the marijuana in his possession and brought it to work with him. The case does not specify if the employees had a hand book that could have read “anyone who brings illegal substances to work will be immediately terminated and not re-hired.” It is also unclear if Albert ever sought out the company for rehire.

Group 1 - Chapter 6. Question 11. (Post for Mamoun Abdel Karim)

In our opinion, the courts’ incorrectly initially but by reversing the decision justified affirmative action. To my knowledge, affirmative action is only appropriate if they are based on past findings of discrimination. In this case, as the prompt in the book states, “the affirmative action plan was adopted voluntarily by the city in response to the marked disparity between the percentage of African Americans employees in the police and fire departments with the percentage of African Americans in the population.” That is an incorrect basis to apply affirmative action, and hence the plaintiff’s argument stands valid because affirmative actions was implemented on incorrect grounds.

COURTS’ DECISION
The district court granted defendants' motion for summary judgment on December 29, 1983, and subsequently denied plaintiff's motion to set aside the order granting summary judgment on January 27, 1984. The district court determined that, although the statute of limitations barred plaintiff's EEOC charge because he failed to file it within 180 days of the Board's decision to hire the firefighters, the statute was equitably tolled by Potvin's assurances that plaintiff would be hired. Reaching the merits of defendants' arguments, the district court held that summary judgment should be granted because neither Title VII nor the Fourteenth Amendment prohibited the adoption of an affirmative action program designed to remedy the statistical disparity between the percentage of minorities in the population of the City and the percentage of minorities in the Fire Department.
After the decision was appealed, the district court decide that evidence of a statistical disparity between the percentage of minorities employed in the Department and the percentage of minorities within the population of South Bend constituted, without more, a finding of past discrimination. Accordingly, the district court's grant of summary judgment is REVERSED, and this case is REMANDED to the district judge from which this appeal was taken for further proceedings consistent with this opinion.
United States Court of Appeals, Seventh Circuit

Mamoun Abdel Karim

Group 1 - Aaren O'Connor - Chapter 6, #13 (King v. University of Minnesota)

Ch. 6, #13 King v. University of Minnesota

Assuming that King was guilty as charged, what arguments, if any, remain available to him if he tries to challenge his dismissal on the basis of race discrimination?

-          King could try to show disparate treatment. If he proves disparate treatment, as long as the defendant cannot prove a BFOQ, then he can win.

Court decision:

-         The court ruled that King’s dismissal was for a reasonable cause, based on his behavior – University of Minnesota won.

”The court upheld the university’s dismissal of a tenured faculty member for neglect of his teaching responsibilities and lack of scholarship. The university had provided the following due process protections:

1.       Frequent communications with King concerning his poor teaching, his unexcused absences, and his refusal to cooperate with the department.

2.       A departmental vote, with King present, to remove him from the department because of his history of poor performance.

3.       Notice to King of the charges against him and the university’s intent to initiate removal proceedings.

4.       A hearing panel of tenured faculty and the right to object to any of the individual members (which King did for one member, who was replaced)

5.       Representation by counsel and substantial documentary discover, including depositions of administrators

6.       A prehearing conference in which the parties exchanged issue lists, witness lists, and exhibit lists.

7.       A hearing occurring over a two-week period, during which King was represented by counsel, who cross-examined witnesses, presented witnesses and documentary evidence, and made oral and written arguments

8.       Review of the entire record by the university president

9.       Review by the regents of the panel’s findings, the president’s recommendation, and briefs from each of the parties

10.   An opportunity for King to appear before the regents before they made the termination decision”

The Law of Higher Education by William A. Kaplin, Barbara A. Lee

http://books.google.com/books?id=jDvrK8z_0h0C&pg=PA559&lpg=PA559&dq=king+v+university+of+minnesota&source=bl&ots=CfPQmIDrJo&sig=n8vdZu10W0IsAwGEo3WTnIHauXk&hl=en&sa=X&ei=GFYhUPyDOKTS2AXikIGgAw&ved=0CE8Q6AEwAQ#v=onepage&q=king%20v%20university%20of%20minnesota&f=false

Group 1 - Aaren O'Connor - Chapter 6, #12 (Chambers v. Omaha Girls Club)

Ch. 6, #12 Chambers v. Omaha Girls Club

Can you suggest a theory under which Chambers could challenge her discharge based on race discrimination?

-          If Chambers can somehow prove disparate impact, or show that the proportion of discharged  unmarried black female employees  to discharged unmarried white female employees is less than 80%, then she could challenge her discharge based on race discrimination

Can the Girls Club articulate a bona fide business reason sufficient to overcome a finding of race discrimination?

-          Yes, the Girls Club can articulate a BFOQ because the employees are supposed to be role models for the girls in the Girls Club, and the Girls Club had already put a Negative Role Model Policy in place, so Chambers’ discharge was reasonable.

Court decision:

-          The court ruled that the discharge was justified by a BFOQ - Omaha Girls Club won.

“Religious institutions may lawfully discriminate based on the religious entities exception so long as the discrimination is consistent with the religion in question (Corp. of the Presiding Bishop v. Amos, 1987). For example, many religious schools take the position that employees are role models for students and forbid sex outside of marriage for all employees and discipline them for any infringements, including termination of employment.

As long as it is equally applied to both sexes as in Boyd v. Harding Academy, there is no Civil Rights violation…

This defense has been extended to organizations such as the Girls Club, which has as its fundamental mission setting a proper role model for young women (Chambers v. The Omaha Girls Club, 1987). In Chambers v. The Omaha Girls Club, a female employee of the Girls Club who was single and pregnant was discharged because it sent a message to teenage girls that was contrary to the Girls Club’s mission. Helping young girls maximize life opportunities, the Eighth Circuit of Appeals upheld the termination as a BFOQ and a justified business necessity (Chambers v. The Omaha Girls Club, 1987).”

http://asbbs.org/files/2010/ASBBS2010v1/PDF/F/Findley.pdf

“Recently, in Chambers v. Omaha Girls Club, Inc., the Court of Appeals for the Eighth Circuit held that the employer’s challenged business practice, specifically, the “role model rule,” did not violate Title VII under the disparate impact or disparate treatment theories since it was justified by a business necessity. Moreover, it was upheld as a bona fide occupational qualification (BFOQ).”

http://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1641&context=jcred

Group #1 - Chapter 6 Case Problem 9 - Dominick Vandenberg

Group #1 - Dominick Vandenberg 

 

Case Problem 9 – Liao Vs. TVA

In the case, we believe that the employer is required by Title VII to continue to give preference under the affirmative action program. It was their choice to hire her within good cause of that program, and unfortunately for them they have to follow the guidelines and restrictions of Title VII under that program. Furthermore, we feel as a violation of a voluntary affirmative action program cannot serve as the basis for a Title VII violation.  In conclusion, we feel as if the employer did not discriminate and was able to fire her.

In the findings and results of the case, it was found that TVA had every right to fire her and did not discriminate in any way shape or form. “the evidence would not support a finding that the defendant had otherwise violated the provisions of Title VII.” [1]

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[1] http://openjurist.org/867/f2d/1366/liao-v-tennessee-valley-authority-h-b

Group 1 - Chapter 6. Case 14.

There is not sufficient evidence to show that the employers were discriminating a specific class of people, since they hired another white person for the job.  However, since they had never hired a white male, it is possible that they were discriminating based on race and gender.  To prove this Walter could show that he was more qualified for the position than the other candidates and was purposely not hired solely because of his race and gender.  If he could prove this he should be able to get either money or an equitable remedy.  Since the job has already been taken it is unlikely that he would get the job.

Based on the evidence presented, the court decided that indeed that the employer was guilty of wrongful discrimination. They decided that Walter would receive payment for what he could have earned at a job that he did not take because he wanted to focus on getting this job.  They also awarded him $150,000 for mental distress and punitive damages to the price of $7000.