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20 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
whole or in part.
CHAPTER 11: EMPLOYMENT DISCRIMINATION AND DIVERSITY 23
whole or in part.
Some provisions expressly restrict a jurisdiction-conferring statute, such as 42 U.S.C. Section 405(h), which
Suppose that the lower court had determined that the Moonlight’s drivers and owners qualified as
employees for Title VII purposes. How might the course of this case have been changed? The lower court
would have most likely upheld its judgment. This issue then would not have been appealed to the United States
Supreme Court, at least not by Arbaugh. Y & H might have appealed the decision on a different ground, however
reversed and remanded, holding that the Ellerth/Faragher defense is not available in constructive discharge cases.
The PSP appealed. In Pennsylvania State Police v. Suders, the United States Supreme Court vacated and
remanded. To establish constructive discharge, a plaintiff alleging sexual harassment must show that the work
environment became so intolerable that resignation was a fitting response. An employer may then assert the
Ellerth/Faragher affirmative defense unless the plaintiff quit in reasonable response to a tangible employment action.
Under the holding of the U.S. Court of Appeals for the Third Circuit, the Ellerth/Faragher affirmative defense
would have been eliminated in all hostile-environment constructive discharge cases, but retained in other hostile-
environment cases (not involving tangible employment actions). How would the courts’ consideration of these
cases then differ from determinations accorded under the Supreme Court’s ruling in the Pennsylvania case?
As the Court explained, “[t]hat placement of the line, anomalously, would make the graver claim of hostile-
constructive discharge claim. It makes scant sense thus to alter the decisive instructions from one claim to the next
when the only variation between the two claims is the severity of the hostile working conditions.
If the plaintiff had resigned in response to an official act on the part of the employer, would the result
have been different? Yes, or at least the holding would have been different. Neither the U.S. Court of Appeals for the
might the result have been different? This action might have buttressed Suders’ case, as evidence of what the
employer knew and what the employee did. If the complaint had been responded to, action might have been taken to
24 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
stop, or at least suspend, the harassment and prevent Suders’ resignation. Depending on the ensuing circumstances,
there may not have been any question as to whether the employer could assert the Ellerth/Faragher defense
REVIEWING—
EMPLOYMENT DISCRIMINATION AND DIVERSITY
Amaani Lyle, an African American woman, took a job as a scriptwriters’ assistant at Warner Brothers
Television Productions working for the writers of Friends, the popular, adult-oriented television series. One of
her essential job duties was to type detailed notes for the scriptwriters during brainstorming sessions in which
they discussed jokes, dialogue, and story lines. The writers then combed through Lyle’s notes after the
meetings for script material. During these meetings, the three male scriptwriters told lewd and vulgar jokes
and made sexually explicit comments and gestures. They often talked about their personal sexual
experiences and fantasies, and some of these conversations were then used in episodes of Friends.
Lyle never complained that she found the writers’ conduct offensive. After four months, she was fired
because she could not type fast enough to keep up with the writers’ conversations during the meetings. She
filed a suit against Warner Brothers, alleging sexual harassment and claiming that her termination was based
on racial discrimination. Ask your students to answer the following questions, using the information presented
in the chapter.
1. Would Lyle’s claim of racial discrimination be for intentional (disparate-treatment) or unintentional
(disparate-impact) discrimination? Explain. Because Lyle has no direct evidence of discriminatory intent,
her claim would likely be for unintentional, disparate impact discrimination. She could argue that the
employer’s requirement that she type as fast as the writers of typing speed disproportionately affected those
in a protected class using the EEOC’s “four-fifths” rule.
2. Can Lyle establish a prima facie case of racial discrimination? Why or why not? It is unlikely that
Lyle could establish a prima facie case of unintentional discrimination. To do so, she would have to prove that
the employer’s typing speed requirement had a discriminatory effect, excluding members of a protected class
at a substantially higher rate than nonmembers. Under the EEOC’s “four-fifths” rule, she would have to show
that the selection (or retention) rate for members of a protected class was less than four-fifths, or 80 percent,
of the selection rate for nonmembers. This would be difficult to show given these facts.
3. When Lyle was hired, she was told that typing speed was extremely important to the position. At
the time, she maintained that she could type eighty words per minute, so she was not given a typing
test. It later turned out that Lyle could type only fifty words per minute. What impact might typing
speed have on Lyle’s lawsuit? Evidence that Lyle had misrepresented how fast she could type at the time
of her interview would not substantially impact her claim of racial discrimination, because it would be
considered after-acquired evidence of employee misconduct. The United States Supreme Court has held that
such evidence cannot shield an employer entirely from liability for discrimination. It could, however, be used to
limit the amount of damages that she could obtain if she was successful in her lawsuit.
4. Lyle’s sexual-harassment claim is based on the hostile working environment created by the
writers’ sexually offensive conduct at meetings that she was required to attend. The writers, however,
argue that their behavior was essential to the “creative process” of writing Friends, a show that
routinely contained sexual innuendos and adult humor. Which defense discussed in the chapter
CHAPTER 11: EMPLOYMENT DISCRIMINATION AND DIVERSITY 25
whole or in part.
might Warner Brothers assert using this argument? Warner Brothers can assert the writer’s sexually
explicit conduct during the meetings was a business necessity, because it was necessary for the writers to
freely discuss plot ideas and themes in creating the script for Friends. The television series has been popular
largely because of its adult humor and sexual innuendos, and without those elements, the show would not be
the same. Thus, some sexually explicit banter is necessary to write the script and Warner Brothers would be
able to claim this in their defense.
DEBATE THIS
Members of minority groups and women have made enough economic progress in the last
several decades that they no longer need special legislation to protect them. There is little doubt that
minorities and women suffered discrimination in the U.S. labor market for decades, if not longer. Today, in
contrast, this country has seen much growth in the average incomes of all American, regardless of race or
gender. The labor market is competitive, so employers who discriminate against minorities and women end
up suffering from higher costs compared to nondiscriminating employers.
Certainly there is less discrimination against minorities and women than there was one hundred years
ago. That does not mean, though, that we should scrap all legislation that protects these groups. More
progress needs to be made to create a color-. age-, race-, and gender-blind employment market. Without
existing anti-discrimination laws, those who suffer discrimination would have no place to term for redress of
their grievances.
EXAMPREP—
ISSUE SPOTTERS
1. Ruth is a supervisor for a Subs & Suds restaurant. Tim is a Subs & Suds employee. The owner
announces that some employees will be discharged. Ruth tells Tim that if he has sex with her, he can
keep his job. Is this sexual harassment? Why or why not? Yes. One type of sexual harassment occurs
when a request for sexual favors is a condition of employment, and the person making the request is a
supervisor or acts with the authority of the employer. A tangible employment action, such as continued
employment, may also lead to the employer’s liability for the supervisor’s conduct. That the injured employee
is a male and the supervisor a female, instead of the other way around, would not affect the outcome. Same-
gender harassment is also actionable.
2. Koko, a person with a disability, applies for a job at Lively Sales Corporation for which she is well
qualified, but she is rejected. Lively continues to seek applicants and eventually fills the position with
a person who does not have a disability. Could Koko succeed in a suit against Lively for
discrimination? Explain. Yes, if she can show that she was not hired solely because of her disability. The
other elements for a discrimination suit based on a disability are that the plaintiff (1) has a disability and (2) is
otherwise qualified for the job. Both of these elements appear to be satisfied in this problem.
whole or in part.
whole or in part.
CHAPTER 11: EMPLOYMENT DISCRIMINATION AND DIVERSITY 23
whole or in part.
Some provisions expressly restrict a jurisdiction-conferring statute, such as 42 U.S.C. Section 405(h), which
Suppose that the lower court had determined that the Moonlight’s drivers and owners qualified as
employees for Title VII purposes. How might the course of this case have been changed? The lower court
would have most likely upheld its judgment. This issue then would not have been appealed to the United States
Supreme Court, at least not by Arbaugh. Y & H might have appealed the decision on a different ground, however
reversed and remanded, holding that the Ellerth/Faragher defense is not available in constructive discharge cases.
The PSP appealed. In Pennsylvania State Police v. Suders, the United States Supreme Court vacated and
remanded. To establish constructive discharge, a plaintiff alleging sexual harassment must show that the work
environment became so intolerable that resignation was a fitting response. An employer may then assert the
Ellerth/Faragher affirmative defense unless the plaintiff quit in reasonable response to a tangible employment action.
Under the holding of the U.S. Court of Appeals for the Third Circuit, the Ellerth/Faragher affirmative defense
would have been eliminated in all hostile-environment constructive discharge cases, but retained in other hostile-
environment cases (not involving tangible employment actions). How would the courts’ consideration of these
cases then differ from determinations accorded under the Supreme Court’s ruling in the Pennsylvania case?
As the Court explained, “[t]hat placement of the line, anomalously, would make the graver claim of hostile-
constructive discharge claim. It makes scant sense thus to alter the decisive instructions from one claim to the next
when the only variation between the two claims is the severity of the hostile working conditions.
If the plaintiff had resigned in response to an official act on the part of the employer, would the result
have been different? Yes, or at least the holding would have been different. Neither the U.S. Court of Appeals for the
might the result have been different? This action might have buttressed Suders’ case, as evidence of what the
employer knew and what the employee did. If the complaint had been responded to, action might have been taken to
24 INSTRUCTOR’S MANUAL FOR BUSINESS LAW: COMMERCIAL LAW FOR ACCOUNTANTS
stop, or at least suspend, the harassment and prevent Suders’ resignation. Depending on the ensuing circumstances,
there may not have been any question as to whether the employer could assert the Ellerth/Faragher defense
REVIEWING—
EMPLOYMENT DISCRIMINATION AND DIVERSITY
Amaani Lyle, an African American woman, took a job as a scriptwriters’ assistant at Warner Brothers
Television Productions working for the writers of Friends, the popular, adult-oriented television series. One of
her essential job duties was to type detailed notes for the scriptwriters during brainstorming sessions in which
they discussed jokes, dialogue, and story lines. The writers then combed through Lyle’s notes after the
meetings for script material. During these meetings, the three male scriptwriters told lewd and vulgar jokes
and made sexually explicit comments and gestures. They often talked about their personal sexual
experiences and fantasies, and some of these conversations were then used in episodes of Friends.
Lyle never complained that she found the writers’ conduct offensive. After four months, she was fired
because she could not type fast enough to keep up with the writers’ conversations during the meetings. She
filed a suit against Warner Brothers, alleging sexual harassment and claiming that her termination was based
on racial discrimination. Ask your students to answer the following questions, using the information presented
in the chapter.
1. Would Lyle’s claim of racial discrimination be for intentional (disparate-treatment) or unintentional
(disparate-impact) discrimination? Explain. Because Lyle has no direct evidence of discriminatory intent,
her claim would likely be for unintentional, disparate impact discrimination. She could argue that the
employer’s requirement that she type as fast as the writers of typing speed disproportionately affected those
in a protected class using the EEOC’s “four-fifths” rule.
2. Can Lyle establish a prima facie case of racial discrimination? Why or why not? It is unlikely that
Lyle could establish a prima facie case of unintentional discrimination. To do so, she would have to prove that
the employer’s typing speed requirement had a discriminatory effect, excluding members of a protected class
at a substantially higher rate than nonmembers. Under the EEOC’s “four-fifths” rule, she would have to show
that the selection (or retention) rate for members of a protected class was less than four-fifths, or 80 percent,
of the selection rate for nonmembers. This would be difficult to show given these facts.
3. When Lyle was hired, she was told that typing speed was extremely important to the position. At
the time, she maintained that she could type eighty words per minute, so she was not given a typing
test. It later turned out that Lyle could type only fifty words per minute. What impact might typing
speed have on Lyle’s lawsuit? Evidence that Lyle had misrepresented how fast she could type at the time
of her interview would not substantially impact her claim of racial discrimination, because it would be
considered after-acquired evidence of employee misconduct. The United States Supreme Court has held that
such evidence cannot shield an employer entirely from liability for discrimination. It could, however, be used to
limit the amount of damages that she could obtain if she was successful in her lawsuit.
4. Lyle’s sexual-harassment claim is based on the hostile working environment created by the
writers’ sexually offensive conduct at meetings that she was required to attend. The writers, however,
argue that their behavior was essential to the “creative process” of writing Friends, a show that
routinely contained sexual innuendos and adult humor. Which defense discussed in the chapter
CHAPTER 11: EMPLOYMENT DISCRIMINATION AND DIVERSITY 25
whole or in part.
might Warner Brothers assert using this argument? Warner Brothers can assert the writer’s sexually
explicit conduct during the meetings was a business necessity, because it was necessary for the writers to
freely discuss plot ideas and themes in creating the script for Friends. The television series has been popular
largely because of its adult humor and sexual innuendos, and without those elements, the show would not be
the same. Thus, some sexually explicit banter is necessary to write the script and Warner Brothers would be
able to claim this in their defense.
DEBATE THIS
Members of minority groups and women have made enough economic progress in the last
several decades that they no longer need special legislation to protect them. There is little doubt that
minorities and women suffered discrimination in the U.S. labor market for decades, if not longer. Today, in
contrast, this country has seen much growth in the average incomes of all American, regardless of race or
gender. The labor market is competitive, so employers who discriminate against minorities and women end
up suffering from higher costs compared to nondiscriminating employers.
Certainly there is less discrimination against minorities and women than there was one hundred years
ago. That does not mean, though, that we should scrap all legislation that protects these groups. More
progress needs to be made to create a color-. age-, race-, and gender-blind employment market. Without
existing anti-discrimination laws, those who suffer discrimination would have no place to term for redress of
their grievances.
EXAMPREP—
ISSUE SPOTTERS
1. Ruth is a supervisor for a Subs & Suds restaurant. Tim is a Subs & Suds employee. The owner
announces that some employees will be discharged. Ruth tells Tim that if he has sex with her, he can
keep his job. Is this sexual harassment? Why or why not? Yes. One type of sexual harassment occurs
when a request for sexual favors is a condition of employment, and the person making the request is a
supervisor or acts with the authority of the employer. A tangible employment action, such as continued
employment, may also lead to the employer’s liability for the supervisor’s conduct. That the injured employee
is a male and the supervisor a female, instead of the other way around, would not affect the outcome. Same-
gender harassment is also actionable.
2. Koko, a person with a disability, applies for a job at Lively Sales Corporation for which she is well
qualified, but she is rejected. Lively continues to seek applicants and eventually fills the position with
a person who does not have a disability. Could Koko succeed in a suit against Lively for
discrimination? Explain. Yes, if she can show that she was not hired solely because of her disability. The
other elements for a discrimination suit based on a disability are that the plaintiff (1) has a disability and (2) is
otherwise qualified for the job. Both of these elements appear to be satisfied in this problem.
whole or in part.
