UNIVERSITY OF MISSISSIPPI
SCHOOL OF LAW
EMPLOYMENT DISCRIMINATION LAW
Professor Secunda
FINAL EXAM
Date: December 11, 2004 Time Allowed: 3 Hours, 30 minutes
Instructions
1. This is an open book examination. You may refer to any materials.
2. Please "sign" the following pledge by writing your examination number on the line after the pledge. DO NOT write your name on this examination or on any bluebook.
By the act of submitting my examination, I do pledge, on my honor, that I
have neither given nor received any improper assistance and that I will
report any improper assistance given or received by others of which I am
aware.
Exam No. ______________
3. No examinations may leave the examination room. Return your examination to the front of the room at the end of the examination.
4. The first thirty (30) minutes of the examination is recommended for the purpose of reading over the examination and organizing your thoughts.
GOOD LUCK AND HAVE A GREAT WINTER HOLIDAY!
DO NOT TURN TO THE NEXT PAGE UNTIL
INSTRUCTED
THREE QUESTIONS (100
Points)
QUESTION ONE (One Hour; 35 points)
Assume that you are an attorney in private practice in the State of Woodhull. You meet with a new client, Amy Able, on December 5, 2004.
In May of 2001, Amy received her MBA in finance from the
Soon after Amy began to work for the Bank, Barry complimented her on her ability, her excellent work, and her physical attractiveness. Soon thereafter, Barry attempted to establish a dating relationship with Amy, but she rejected his attempts. He became more aggressive, and she attempted to maintain a strictly professional relationship.
However, on two business trips she took with Barry, she made what she considers to have been serious errors in judgment, and had sexual relations with Barry. When she later told Barry this was a mistake, he became even more aggressive in his attempts to establish a romantic relationship. When she continued to reject his attempts, he said that she would be more successful in her career at the Bank if she had sex with him from time to time. She said that she could file a sexual harassment complaint against him, under the Bank’s sexual harassment policy. Barry laughed and said, “Go ahead. Two other girls complained about me. Their complaints were ignored, and they lost their jobs.”
For approximately three more years, Amy tolerated Barry’s sexual comments, occasional physical touching, and late night personal calls to her home. Finally, on a Friday afternoon, on August 15, 2004, Barry trapped Amy in a conference room, attempted to kiss her and, when she rebuffed him, attempted to force her to have sex with him. Amy eventually was able to break free from Barry and left the conference room. She immediately went to the office of Carla Clark, the Senior Vice President who supervises Barry, and told Carla what had just happened. She also told Carla about her treatment by Barry during the prior three years. Carla asked her, “Why didn’t you bring this to my attention earlier?” Amy responded, “I knew the Bank would do nothing to help me, and knew I would lose my job if I complained.” Amy then said she could no longer work at the Bank because of Barry, and told Carla that she was quitting her job.
In August of 2004, Amy’s annual salary was $150,000. Since she quit her job, she has been unable to find another job working for a bank, and has been unemployed.
Amy told you that she wants to sue Barry and the Bank for sexual harassment. She asked if she should simply bring a law suit in court, or should first file a charge with the EEOC. She has not gone to the EEOC office in Woodhull because she heard that the EEOC does not move quickly in its investigation of discrimination charges. She also has not gone to the fair employment practices agency in Woodhull that serves as a deferral agency for EEOC charges.
Amy asked you what damages she might be able to collect for the emotional pain and suffering she experienced during what she considers to be three years of sexual harassment. She really wants to punish the company with the largest verdict possible. She also wants to know if she can receive her lost pay, from mid-August of 2004 until now, and the pay she will lose from now until she is able to find a comparable job with another bank. Amy told you that she does not want to be reinstated in her old job.
A. Please discuss all employment discrimination law issues raised by this fact pattern. Please remember to discuss all potential remedies as part of your answer.
B. How does your analysis chance if instead of Amy Abel, Barry Bold's same conduct was directed at Derrick Domino, an effeminate male employee in the same Investment Banking Department?
C. If the case goes to trial and Abel receives $500,000 in compensatory damages and $500,000 in punitive damages, will she be able to collect the whole verdict?
QUESTION TWO (One Hour; 35 points)
Mosaic Corporation, a medical equipment manufacturer, has never been considered a model employer. For instance, when it first opened its doors in 1950, Mosaic had a written policy of only promoting white employees to managerial and supervisory positions. Mosaic also initially maintained an overt, racially discriminatory hiring policy.
In 1965, Mosaic rescinded its overt policies of racial discrimination, but still required a college bachelor's degree and the passing of an aptitude test for all promotions (the company did NOT, however, use a rank order selection process based on the test). As long as one had a bachelor's degree and passed the aptitude test, all candidates were considered equal, and ultimate selection was based on company seniority. As far as the aptitude test, Mosaic had an industrial psychologist study the various job requirements for managers and supervisors. Thereafter, the industrial psychologist constructed an examination based on what knowledge she believed applicants should have to be successful in their jobs. As far as the seniority system, it is based solely on how long the employee has been with the company and has remained the same since the company's opening.
By 2004, despite its "best efforts" to leave its racially discriminatory past behind, only 5% of Mosaic's managers and supervisors are black, even though on a yearly basis 25% of its candidates for promotion are black and 20% of the overall workforce is black (Mosaic has 100 employees). One current, black employee, Wanda Wannamaker, who has attempted on numerous occasions to obtain a promotion to a management or supervisory position only to fail each time, finally has said enough is enough.
Initially, Wanda was not able to obtain a job with Mosaic until 1965 because of past discriminatory hiring practices. Although she has a college bachelor's degree, Wanda has been denied a promotion because she has either failed the aptitude test (received a score less than 60) or was passed over because a white co-worker had more company seniority than her.
Wanda therefore decides to sue the company. And being a tireless proponent of equal justice and dignity for all, she not only wishes to sue on her own behalf, but on behalf of all former black applicants to Mosaic and on behalf of any current or former black Mosaic employee who was unfairly denied a promotion.
For evidence, Wanda will introduce statistics surrounding the latest round of promotions in 2003. That year, seven individuals were promoted (1 black, 6 whites) out of 30 applicants. As far as college bachelor degrees, 8 out of 10 black applicants had degrees, whereas 16 out of 20 white applicants had degrees. As far as the aptitude test, 4 out of 8 of the remaining black employees (including Wanda) passed the test, whereas 12 out of 16 of white employees passed the test. Finally, 1 black employee and 6 white employees were selected for promotions based on their seniority with the company. Wanda was not selected.
After hearing of Wanda's class action employment discrimination lawsuit, Mosaic responds by maintaining that it no longer either hires or promotes based on race. To the extent that there is any remaining racial disparity, Mosaic claims it is caused inadvertently by its neutral seniority plan.
A. Wanda comes to you (assume well within any EEOC time limits) and wants you to be class counsel for her employment discrimination claims against Mosaic. She only wants you to sue under Title VII, but wants to recover all potential relief. Please analyze Wanda's claims on two levels: (1) her ability to have the class certified; and (2) assuming that the class is certified, her ability to prove unlawful discrimination on the part of Mosaic for discriminatory employment practices.
B. Assume for this question only (i.e., Question II.B) that Wanda for the last 5 years has been working from home on only specific projects, has been handing in her completed work at the Mosaic office every two weeks, and receives a $10,000 payment from Mosaic every three months for compensation. Do these facts affect her ability to bring a Title VII claim?
C. As part of the EEOC's investigation into Wanda's allegations, the EEOC interviews Nellie Nervous, a 38 year-old white female supervisor at Mosaic. A year later, Nellie is fired by Mosaic for unsatisfactory work performance. She is replaced by Fiona Flamola, a 50 year-old white female employee. She comes to you wondering whether or not she has any potential claims against Mosaic.
D. If Wanda had agreed to arbitrate her employment claims with Mosaic, is such
an agreement binding? Assuming that it is, can the EEOC still bring an employment discrimination case based on her claims and recover individual- specific damages for Wanda?
QUESTION THREE (One Hour; 30 points)
Comment critically on the following statement:
"Section 1981 should be repealed as it needlessly confuses employment
discrimination law and defeats a number of important policy objectives
established by Title VII of the
Civil Rights Act of 1964."
In your answer, you should discuss the following: What is the
current state of labor law doctrine in this area? Do you favor changing or retaining the
present legal rules? What arguments
support your position, and what is your response to the best argument that could
be made in opposition? Integrate
cases, statutes, and policy arguments in supporting your answer