978-0078029165 Appendix B Part 3

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Appendix B-41

| Appendix B – Chapter Exercises

Chapter Exercise 3.3

A Case of Illegal Sexual Harassment?

* Jennifer Collins

Objective. The purpose of Exercise 3.3 is to provide a definition of sexual harassment, to illustrate

the basis of a sexual harassment claim, and to identify the implications for organizations.

Description. Accepting a theory presented at a lower court in Bundy v. Jackson, the Supreme Court

ruling in Meritor Savings v. Vinson is applicable to this case. If Ms. Smith can establish that her work

environment was hostile or otherwise unfavorable due to the sexual harassment, such a situation in

and of itself can constitute a violation of Title VII. It is not necessary to establish a connection

between the sexual harassment and some personnel action (e.g., the female was fired or not

promoted because she refused to submit to the harassment). In addition, the Supreme Court

established that the organization is liable when it is aware of the harassment and takes no action.

Thus, since the complaint was filed, presumably the organization may be considered liable for the

actions of its employees. The most recent cases decided by the Supreme Court apply to this case.

The “affirmative defense” established by Faragher does not help the employer in this case since the

policy is flawed.

From page 67- “Sexual harassment is one form of such illegal harassment. There were over 27,000

charges of illegal harassment in 2007 not including sexual harassment. In a much publicized case, the

EEOC settled a harassment case in 2008 with Tavern on the Green, a landmark restaurant located in

Central Park in New York City. The settlement was for over $2 million but also entailed substantial

remedial relief and carful court scrutiny in the future. The EEOC alleged that the restaurant’s

managers and others engaged in severe and pervasive sexual, racial, and national origin harassment

of female, black, and Hispanic employees and then retaliated against employees who complained.

The harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of

continued employment, or 2) the conduct is severe or pervasive enough to create a work

environment that a reasonable person would consider intimidating, hostile, or abusive.”

From page 67– “Sexual harassment filings in 2007 totaled 12,510, a 4 percent increase from the prior

fiscal year. Under Title VII, sexual harassment, like racial and ethnic harassment, is illegal since

it constitutes discrimination with respect to a person’s conditions of employment. These

conditions can refer to psychological and emotional workplace conditions that are coercive

or insulting to an individual. The EEOC has published Guidelines for employers dealing

with sexual harassment issues (go to www.eeoc.gov). According to these Guidelines, sexual

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harassment is defined as follows: unwelcome sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to

such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

(2) submission to or rejection of such conduct by an individual is used as the basis for employment

decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably

interfering with an individual’s work performance or creating an intimidating, hostile, or offensive

working environment.

A growing number of sexual harassment complaints are filed by males (16 percent in 2007). However,

harassment of an employee because of sexual orientation does not constitute illegal harassment

under Title VII (it probably does under applicable state or local laws prohibiting discrimination based

on sexual orientation).”

Table 3.3.1

Answers to Form 3.3.1

1. Does the alleged sexual harassment in Bowman constitute a violation of Title VII? Explain

your answer. If you are not ready to take a definitive position, explain what information you

require.

From page 68- “Two 1998 Supreme Court decisions provided clarification on employer liability for

sexual harassment by supervisors. In Burlington Industries, Inc. v. Ellerth and in Faragher v. City of

Boca Raton, the Court said that the employer is always liable when a hostile environment is created

by a supervisor that results in a tangible employment action (e.g., termination). However, the

employer may not be liable when there is no tangible employment action if it can be shown that the

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2. Do the alleged charges brought against Putnam County constitute a violation of Title VII? Is

the County liable? Explain your answer. What changes, if any, should the County make to

their sexual harassment policy?

As with Question #1, the basis for sexual harassment is unwelcome sexual advances, requests for

3. Do Nixon and Whitman have legitimate discrimination claims?

Mr. Nixon claims he was fired because of his relationship with Mr. Whitman, not because of his

alleged harassment by Commissioner Richards. The harassment could not therefore be associated

with the actual termination. Mr. Nixon may have a case if state law prohibits employment

discrimination based on sexual preference. However harassment during Mr. Nixon’s tenure may be

admissible, per Meritor Savings Bank v. Vinson (1986), and Burlington Industries, Inc. v. Ellerth, but

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4. For both cases: Could (or should) the organizations institute a no-dating policy that would

explicitly prohibit dating between supervisors and subordinates? Is such a policy legal?

The organizations can impose such a policy. Many organizations have adopted such policies.

A federal court of appeals, following the national trend, has ruled that an employer may enforce a no–

dating policy by terminating employees involved in a romantic relationship. McCavitt v. Swiss

5. In both cases, what if the plaintiffs were contingent or leased employees? Would the city

and county still be liable for Title VII violations?

The city and county may still be liable even if the plaintiffs are leased employees. Part-time

employees are covered by all EEO laws.

EEOC has developed guidelines for contingent or leased employees, Application of EEO Laws to

Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms. In this

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| Appendix B – Chapter Exercises

Chapter Exercise 3.4

Reverse Discrimination or Legal Affirmative Action?

Objectives. The purpose of Exercise 3.4 is to explore the controversial issues related to policies of

“affirmative action” and to provide some guidelines for students to follow with regard to the

relationship of affirmative action to personnel decisions, the “equal protection clause” of the U.S.

Constitution and Title VII of the Civil Rights Act. See the discussion on pages 71 and 72.

Description. The first case is actually the Supreme Court case Johnson v. Santa Clara County (1987)

that is described on page 71. Keep in mind there may be a more recent Supreme Court rulings on

affirmative action which may contradict the discussion presented in Chapter 3 and the implications of

the Johnson and Weber cases. The Position A statement is from the majority opinion in Johnson.

Position B, written by Judge Scalia, is the minority opinion.

The Supreme Court itself has been deeply divided by the politics of race lately. Chief Justice John

Roberts has repeatedly expressed overt hostility to what he has called the “sordid business” of

“divvying us up by race.” Be certain to get the Supreme Court 2009 opinion in Ricci v. DeStefano.

The second case is the Piscataway v. New Jersey, which was settled in 1997, a few weeks before the

Supreme Court heard it. Title VII prohibits preferential treatment. Most experts predicted that Ms.

Taxman would have prevailed in this case and that the Supreme Court would have provided a more

conservative direction to the state of affirmative action. Roger Clegg, general counsel for the Center

for Equal Opportunity, referred to the $433,500 settlement as “hush money.” (See Greenhouse, L.

Nov. 22, 1997. “Settlement ends high court case on preferences.” New York Times, A1, A12.). In this

case, there was no evidence of “manifest imbalance,” and the percentage of African-Americans on

the faculty exceeded that in the population of the area in question. The decision of which teacher to

lay-off should have been random (a drawing or a lottery), or based on performance or some other

“job–related” assessment.

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Table 3.4.1

Answers to Form 3.4.1

1. What position do you support? (A or B). What is the basis for your answer (e.g., a court

decision, the language of Title VII, EEOC Guidelines)?

The Position A statement is from the majority opinion written by Justice Brennan in Johnson v.

Transportation agency of Santa Clara County. 480 US 616 (1987). Position B, written by Judge Scalia,

is the minority opinion.

“Manifest imbalance,” reflecting substantial under-representation of women or minorities in

traditionally segregated job categories, allows an employer to voluntarily adopt an affirmative action

plan that can take race or sex into consideration without violating Title VII. An employer need not

2. Given the actual wording in Section 703J of Title VII (see Figure 33, page 42), which seems to

explicitly prohibit preferential treatment, how can an organization show preference to

women as in this case? Doesn’t position B seem more compatible with Section 703J?

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Section 703J (page 58) states that “nothing should be interpreted in this title to require…” but it does

not prohibit such consideration.

Section 703(j) was cited by Judge Scalia (who wrote Position B) and the Northern District Court of

California in Johnson as the basis for the rejection of the affirmative action plan (see text) and the

judgment of “reverse discrimination.” But the interpretation of laws is made in the context of the

3. To what extent did you take into consideration the great disparity in the number of male

and female dispatchers? What conditions are necessary for an organization to show

preferential treatment based on a protected class characteristic?

The Supreme Court made several references to the “manifest imbalance” if no female and 238 male

road dispatchers. Given this disparity, it is not difficult to discern the parameters of “manifest

imbalance.” For example, would an affirmative action that takes sex or race into consideration be

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4. To what extent did you consider the qualifications of the candidates in taking your position?

Did they have to be equally qualified? What if Jones had an interview score that was 10

points higher than Harrison?

Because the certified cut-off score was 70, an assumption that the performance of the individuals

5. Would you have a different opinion in this case if the defendant was a public agency in the

state of California? Could the Michigan State Police take race or gender into consideration

after defining a pool of qualified candidates as a part of their voluntary affirmative action

programs? Explain your answers.

California’s Proposition 209 banned preferential hiring and recruiting by state agencies to achieve

social parity. In April, 2009, California Atty. Gen. Jerry Brown told the California Supreme Court that

Proposition 209, the anti-affirmative action measure passed by voters in 1996, violates the U.S.

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Table 3.4.2

Answers to Form 3.4.2

1. Was Ms. Taxman a victim of discrimination under Title VII? Explain your answer, citing

pertinent cases and discussion.

This case is not like United Steelworkers v. Weber or Johnson v. Santa Clara County since at no time

was there any discriminatory practice nor were black teachers “underrepresented or underutilized.”

2. What does the term “manifest imbalance” mean to you? Is there “manifest imbalance” in

this case?

The majority members of the Supreme Court cited the intent of the law to be to correct “manifest

imbalances” which translated into economic imbalances. Affirmative action plans designed to correct

such imbalances are thus legal according to the majority of the Court in 1987. The Court, however,

also put severe restrictions on the use of affirmative action programs that take race or sex into

consideration.

3. What is the most important Supreme Court case that justifies your position?

Section 703(j) was cited by Judge Scalia and the Northern District Court of California in Johnson v.

Santa Clara County as the basis for the rejection of the affirmative action plan (see text) and the

judgment of “reverse discrimination.” But the interpretation of laws is made in the context of the

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| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

in 1987. The Court, however, also put severe restrictions on the use of affirmative action programs

that take race or sex into consideration.

To allow the use of a protected class characteristic to break ties at the end of a decision–making

process could promote ties in the process. This gets to the heart of the difficulties in the discourse on

affirmative action and preferential treatment. For example, some politicians have stated they are

against quotas and discrimination but favor affirmative action but only for those fully qualified. The

term “fully qualified” may allow for a process where there is a “tie” among the “fully qualified” and

the “tie” is then broken using a protected class characteristic, such as race.

4. If you decide for Ms. Taxman, what do you propose as the remedy? If Ms. Taxman had been

awarded the job, would Ms. Williams have redress through Title VII? Explain your answer,

citing applicable case law.

Recommendation on remedy for Ms. Taxman is as follows:

Reinstated with full seniority rights restored and compensated for the loss of pay with interest. If the

same process yielded Ms. Taxman keeping her job and Ms. Williams losing hers, the same redress

5. Should Universities be allowed to take race into consideration in admission decisions in

order to foster a more diverse student body? Explain you answer.

In Gratz v. Bollinger (2004) and Grutter v. Bollinger (2004), the Supreme Court ruled that race can be a

factor in college admissions since a social value may be derived from greater “diversity” in the

classroom (Grutter v. Bollinger). However, race cannot be an “overriding” factor in admissions

decisions (Gratz v. Bollinger). While these twin decisions only directly applied to public universities,

the decisions could have implications for private schools, other governmental decisions-making and

perhaps the business world.

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point-based systems for admission. Justice Sandra Day O’Connor, writing for the majority in the law

school admissions case (Grutter), stated that the Constitution “does not prohibit the law school’s

narrowly tailoring use of race in admissions decisions to further a compelling interest in obtaining the

educational benefits that flow from a diverse student body.”22 Justice O’Connor retired in 2006. The

Supreme Court is likely to revisit this issue soon. In reaction to the Supreme Court’s decision in

Grutter favoring a form of affirmative action where race can be a factor in decision making, the state

of Michigan amended their Constitution in 2006 with Proposition 2, banning race and gender

preferences in public education, employment, and contracting.”

The Supreme Court has been deeply divided by the politics of race. Chief Justice John Roberts has

repeatedly expressed overt hostility to what he has called the “sordid business” of “divvying us up by

race.” Be certain to get the Supreme Court 2009 opinion in Ricci v. DeStefano and be sure to track the

California challenge to Proposition 209 (The case is Coral Construction vs. San Francisco, S152934).

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Chapter Exercise 3.5

Joseph Garcia v. Hooters

Cameron v. La Vielle Maison

Objectives. The purpose of exercise 3.5 is to evaluate the concept of a bonafide occupational

qualification (BFOQ) in the context of customer preferences and business necessity. Two actual cases

are presented for discussion.

See page 62- “What if a company had data showing customers clearly prefer employees with certain

protected class characteristics? Pan American Airways tried this argument in Diaz v. Pan

America. They presented data showing the vast majority of their customers (overwhelmingly

male) preferred female flight attendants. The Supreme Court said that customer preference

was not a legally defensible reason to discriminate.”

Description. The two cases presented provide an excellent forum for discussion of the role of

customer preference and business strategy as justification for BFOQs. Table 3.5.1 presents

recommended answers for Form 3.5.1.

Table 3.5.1

Answers to Form 3.5.1

1. Was Mr. Garcia a victim of sex discrimination? Explain your answer in some detail based on

your understanding of BFOQs.

Although Hooters settled a similar lawsuit in 1997, Mr. Garcia was not a victim of sex discrimination.

While he could establish a prima facie case for discrimination, Hooters would provide an explanation

based on business necessity, arguing that Hooters was specifically catering to a male clientele with

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| Appendix B – Chapter Exercises

This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

Section 703(a) of Title VII states, “Where sex is a bonafide occupational qualification, reasonably

necessary to the normal operation of the business, it would not be unlawful to discriminate on the

basis of sex.” The Hooters case is a lawful BFOQ.

Eric Matusewitch, an EEO specialist, drew the following conclusions from his review of EEO cases

related to provocative attire: Employer dress and appearance requirements are legal if they are:

1. Related directly to the business needs of the company.

But the website reported that court records show that Grushevski and Hooters reached a confidential

settlement on April 13, 2009.

Grushevski was suing on behalf of “all males across the country who applied for the position of waiter

at a Hooters restaurant and were denied,” and suggested all Hooters franchisees be certified as

defendants.

In the “About Us” section of its website, for example, the company notes its legal battles regarding

the hiring policy.

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| Appendix B – Chapter Exercises

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to hire only women for the job of Hooters Girl.” Hooters has argued that they are in the “vicarious

sexual recreation” business and that female sexuality was thus a legal BFOQ.

In 1995, the Equal Employment Opportunity Commission investigated the company, but the

investigation never resulted in an EEOC lawsuit. At the time, the company waged a public relations

campaign to keep its policy. The company often cites the Rockettes as another example of when

women are the only candidates hired for positions.

The company says: “The element of female sex appeal is prevalent in the restaurants, and the

company believes the Hooters Girl is as socially acceptable as a Dallas Cowboy cheerleader, Sports

Illustrated swimsuit model, or a Radio City Rockette.”

2. Was Ms. Cameron a victim of sex discrimination?

In Pan American v. Diaz, the Supreme Court stated “discrimination based on sex is valid only when the

essence of the business operation would be undermined by not hiring members of one sex

exclusively.” Since this 1971 ruling, the courts have not allowed customer preference to support a

3. In principle, do you see these cases as the same in terms of your interpretation of legal

BFOQs, business necessity, “essence of the business,” or “job relatedness?”

The cases are different in the sense that Hooters illustrates a successful “essence of business” defense

while La Vielle Maison fails in that regard. The financial difference in the two situations may be

important. While males turned down for employment can find numerous employment opportunities

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| Appendix B – Chapter Exercises

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in other types of restaurants at similar rates of pay, the male only policy of the five–star restaurants

essentially eliminates women from the highest paying jobs in the industry. This is an unprecedented

paradox in U.S. employment/compensation practice. For all other female-dominated jobs (e.g.,

secretary, teacher, nurse), the highest paid positions are not restricted to men.

For the same reasons business necessity may also be argued in Hooter’s case, since the theme of the

restaurant includes attractive women. While La Vielle Maison 5-star French restaurants traditionally

only employ waiters, the argument is not based on the business model but instead on custom, which

may not hold under our law. Furthermore, “tradition” does not mean that women have not been

hired at 5-star French restaurants; it just means that it is not normally the case. Therefore using a

blanket rule of not hiring females violates EEO law. Finally, job relatedness is generally reserved for

statistical connections between job performance and hiring practices. Therefore in these cases

neither company could make a claim of job relatedness as a defense (Griggs v. Duke Power, 1971).

4. What if, in doing a background check on Ms. Cameron, it is discovered that Ms. Cameron

had quit a previous employer complaining that she had developed carpal tunnel syndrome.

Could management use this information and reject Ms. Cameron on this basis?

Management can ask why she quit that employer. Management can also ask if she can perform the

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Chapter Exercise 3.6

Hiring a Bank Teller

Lori Spina

Objectives. Exercise 3.6 gives students an opportunity to examine the relevance of the Americans

with Disabilities Act for a specific situation. The purpose is for students to consider appropriate and

inappropriate questions in regards to an employment interview and what in the background

information of the applicant can be taken into account in the selection process.

Page 77- “The ADA provides that qualified individuals with disabilities may not be discriminated

against by a private-sector organization or a department or agency of a state or local government

employing 15 or more employees, if the individual can perform the essential functions

of the job with or without reasonable accommodation.” Take note and make reference to Figure 3–8

regarding the ADA Amendments Act.

Description. This is a short case involving determining what are the “essential functions” of a job and

what is “reasonable accommodation.” The Individual Analysis portion of the exercise is estimated to

take 30 minutes of out of class preparation (provided Chapter 3 has already been read). Students

should be given 10-15 minutes for the Group Analysis. Class discussion should focus on the

“essential functions” of the bank teller’s job and if the bank would be required to make “reasonable

accommodations.” Students may discuss missing information regarding the cost of the

accommodations and whether the cost would present a hardship on the business.

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| Appendix B – Chapter Exercises

Table 3.6.1

Answers for Form 3.6.1

1. Does Anna have a case here? What are the critical variables?

Anna probably does have a case. Dave correctly did not attempt to discuss Anna’s disability. He also

made no mention of her wheelchair. However, Anna may have a case since Dave’s considerations

2. Under the ADA, what is a qualified individual with a disability? If Anna filed lawsuit, who

would have the burden of proving that Anna was (or was not) a qualified employee with a

disability? Is it Anna or the Bank?

As stated in Question #1, a qualified individual is a person who can perform the essential functions of

the job with or without reasonable accommodation.

Dave would have to establish that Anna could not perform the essential functions even after

providing reasonable accommodation in order to eliminate her from consideration for the position.

The Americans with Disabilities Act Amendments Act of 2008 makes important changes to the

definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and

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amendment that includes major bodily functions (e.g., “functions of the immune system, normal cell

growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and

reproductive functions).

The ADA Amendment also states that mitigating measures other than “ordinary eyeglasses or contact

lenses” shall not be considered in assessing whether an individual has a disability” and that an

impairment that is episodic or in remission is a disability if it would substantially limit a major life

activity when active.

3. What critical terms related to the ADA must be considered in evaluating the legal

implications of Dave’s decision? How do they apply in this case?

• Essential functions of the teller job; what are they?

4. Can expense or cost be a variable when considering “reasonable accommodation”?

Yes; see the EEOC guidelines on “undue hardship” (page 58) /size of the business, type of operation

and the nature and cost of accommodation may be considered.

Page 77- “Reasonable accommodations are determined on a case-by-case basis and may include

reassignment, part-time work, and flexible schedules. They also may include providing readers,

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5. What about Carl’s point that multiple sclerosis is a progressive disease and that Anna will

most certainly get worse, creating potential problems of absenteeism and health-care costs.

Can Dave consider this issue in his decisions?

6. Could Dave ask Anna about the nature or severity of her disability? Could he ask her about

the ability to perform certain job functions?

7. Based on Carl’s comments regarding the probability of Anna’s MS worsening, could Dave

require Anna to submit to and share genetic testing results as a condition of employment?

Could Carl use such information?

No; See Figure 3-9. The Genetic Information Nondiscrimination ACT of 2008 (GINA) prohibits an

employer from discriminating against an individual in the hiring, firing, compensation, terms, or

privileges of employment on the basis of genetic information of the individual or family member of

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CHAPTER 4 – CHAPTER EXERCISES

Chapter Exercise 4.1

Writing a Position Description

Objectives. The purpose of Exercise 4.1 is to give the student experience in writing a position

description (PD) and to consider the usefulness of the information gathered. The discussion regarding

the exercise is to consider the purposes to be served by the completed position description and, in

particular, the legal implications of personnel actions that are linked in some way to the data in the

position description.

Description. The exercise is very straightforward in terms of student responsibilities. However, the

quality of the completed position descriptions will vary. The estimated out of class preparation for the

Individual Analysis (Part A) is two hours. Students should be given about 30 minutes for the Group

Analysis (Part B).

disabled. The ADA provides that the PD will be used as evidence to determine the “essential

functions” of the job.

Student pairs could critique their position descriptions in the context of this mandate from the ADA

and determine to what extent their PD provides data relevant to these requirements. If the students

concluded that they are unable to define or identify “essential functions” pursuant to ADA or to

disability. You could present a description of a particular disability and have the student consider

“reasonable accommodation” in that context. For example, if a person was in a wheelchair, could that

person perform the “essential functions” of the job and, if not, could the job be changed in some