978-1285860381 Chapter 29 Solution Manual Part 2

Unlock access to all the studying documents.

View Full Document

Case: Teresa Harris v. Forklift Systems, Inc.1

Facts: Charles Hardy, president of Forklift Systems, frequently made inappropriate sexual comments

to Teresa Harris and other women at the company. He said to Harris, “You’re a woman, what do you

know?” and “We need a man as the rental manager.” He called her “a dumb ass woman” and suggested

that the two of them “go to the Holiday Inn to negotiate her raise.” He also asked Harris and other

female employees to get coins from his front pants pocket. He insisted that Harris and other women

pick up objects he had thrown on the ground. When Harris complained to Hardy, he apologized and

claimed he was only joking. While Harris was arranging a deal with one of Forklift’s customers, he

asked her, in front of other employees, “What did you do, promise the guy some sex Saturday night?”

Harris sued Forklift. The trial court ruled that Hardy’s comments might offend a reasonable

woman, but they were not severe enough to cause a serious impact on Harris’s psychological

well-being. The appeals court confirmed, and the Supreme Court granted certiorari.

Issue: To be a violation of Title VII, must sexual harassment seriously affect the employee’s

psychological well-being?

Holding: The Court held for Harris. Title VII is violated if the workplace is permeated with

discriminatory intimidation, ridicule, and insults that are sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment. This standard takes

a middle path between making actionable any conduct that is merely offensive and requiring the

conduct to cause a tangible psychological injury.

Question: Would Hardy’s behavior offend a reasonable woman?

Question: So why did the lower court rule against Teresa Harris?

Question: Did the Supreme Court agree?

Answer: No. Writing for the court, Justice O’Connor said that one or two swear words is not

Question: How can you tell if you are committing sexual harassment?

Answer: You might try looking back at the ethics checklist in Chapter 2. If you would be

Additional Case: Lyle v. Warner Brothers Television Productions2

Students often believe that a company can be held liable for even mild sexual behavior on the part of

employees. In reality, successful sexual harassment cases typically involve extreme behavior. The

following case is an example where extreme behavior was found not to be sexual harassment.

Facts: Amaani Lyle was a comedy writers’ assistant who worked on the production of the television

show Friends. The show revolved around a group of young, sexually active adults, featured

adult-oriented sexual humor, and typically relied on sexual language and gestures to convey its humor.

Before Lyle was hired, she had been warned in the interview that the show dealt with sexual matters

and that as an assistant to the writers, she would be listening to and transcribing their sexual jokes and

discussions about sex likely to be used for scripts. Lyle responded that sexual discussions would not

make her uncomfortable. She was hired as a writers’ assistant.

1 510 U.S. 17, 114 S. Ct. 367, 1993 U.S. LEXIS 7155 United States Supreme Court, 1993

2 2006 Cal. LEXIS 4719, Supreme Court of California, 2006.

Four months later, Lyle was fired because of problems with her typing and her transcription. Lyle

sued claiming the writers’ use of sexually coarse and vulgar language and conduct was sexual

harassment based on a hostile work environment. Warner Brothers filed a motion for summary

judgment claiming the behavior of the writers was not severe or pervasive. The trial court granted

Warner Brother’s motion and Lyle appealed.

Issue: Did the writers’ use of coarse and vulgar language constitute a hostile work environment?

Holding: No, the defendant’s motion for summary judgment was affirmed. According to the court,

Lyle testified that she had no recollection of any employee of the Friends production ever saying

anything sexually offensive about her directly, nor anyone asking her out on a date or sexually

propositioning her. No one ever demanded sexual favors from Lyle or physically threatened her.

However, there were a number of offensive discussions and actions that occurred in the writers’

meetings that Lyle was required to attend. For example, the writers regularly discussed their

preferences in women and sex in general. One writer spoke of his preference for blondes, a certain bra

cup size and “getting right to sex” and “not messing around with too much foreplay.” Another writer

discussed his love of young girls and cheerleaders, spoke of oral sex experiences, and told the group

that when he and his wife would fight, he would “get naked” and then they would never finish the

fight. A writer kept a notebook with graphic drawings that was sometimes left open on his desk or the

writers’ assistants’ desks. The writers also spoke openly in a demeaning manner about one of the

actresses on the show, making jokes about whether she was competent in sexually servicing her

boyfriend.

According to the court, in order to bring a successful hostile work environment claim, Lyle must

show that the conduct complained of was severe or pervasive to alter her work conditions and create a

hostile environment because of her sex. Thus, it is the difference in treatment based on Lyle’s sex, not

the mere discussion of sex or use of vulgar language that is the essence of her claim. A hostile work

environment claim is not established where a supervisor or coworker simply uses crude or

inappropriate language in front of an employee or draws a vulgar picture without directing sexual

innuendos or gender-related language at the employee or women in general. In addition, the court must

look carefully at the social context in which this behavior occurred.

Based on this, according to the court, the context of the show being a creative workplace focused

on generating scripts for an adult-themed show with sexual themes is significant in assessing the

existence of a hostile work environment. Both male and female writers discussed their sexual

experiences to generate material for the show. The record shows that the sexual antics did not involve

or were not aimed at Lyle or any other female employee. Moreover, there was no indication that the

vulgar discussions affected Lyle’s work hours or duties. While the conduct was certainly sexual in

nature, a court could not find that had Lyle been a man she would not have been treated in the same

manner.

Question: There was some graphic conversation at the writers’ table. How could the court not

find it created a hostile work environment?

Answer: The court felt that the comments were never directed at Lyle, her work conditions were

Question: Do you think it is meaningful that the writers warned Lyle in her interview that there

would be lowbrow humor?

Answer: The fact that Lyle was warned in the interview about the atmosphere is important to

show that she knew what she was getting into by accepting the position, but not wholly relevant to

her claim for hostile work environment. Warning that at atmosphere may be abusive does not make

Additional Assignment:

Students who researched sexual harassment policies could present their findings here.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits age discrimination against

employees or job applicants who are at least 40 years old. An employer may not fire, refuse to hire,

fail to promote, or otherwise reduce a person’s employment opportunities because he is 40 or

older.

Case: Reid v. Google, Inc.3

Facts: Google’s vice-president of engineering, Wayne Rosing (aged 55), hired Brian Reid (52) as

director of operations and director of engineering. Reid had a Ph.D. in computer science and had been a

professor of electrical engineering at Stanford University. At the time, the top executives at Google

were CEO Eric Schmidt (47), vice-president of engineering operations Urs Hölzle (38), founders

Sergey Brin (28), and Larry Page (29).

During his two years at Google, Reid’s only written performance review stated that he had consistently

met expectations. The comments indicated that Reid had an extraordinarily broad range of knowledge,

an aptitude and orientation towards operational and IT issues, an excellent attitude and that he

projected confidence when dealing with fast changing situations, was very intelligent, creative, and a

terrific problem solver. The review also commented that “Adapting to Google culture is the primary

task. Right or wrong, Google is simply different: Younger contributors, inexperienced first line

managers, and the super fast pace are just a few examples of the environment.”

According to Reid, even as he received a positive review, Hölzle and other employees made derogatory

age-related remarks such as: his ideas were “obsolete”, “ancient” and “too old to matter,” that he was

“slow,” “fuzzy,” “sluggish,” and “lethargic,” an “old man,” an “old guy,” and an “old fuddy-duddy,”

and that he did not “display a sense of urgency” and “lacked energy.”

Fifteen months after Reid joined Google, cofounder Brin emailed several executives about Google’s

payroll: “We should avoid the tendency towards bloat here particularly with highly paid individuals.”

A month later, Reid’s duties were assigned to two men who were 15 and 20 years younger. Google

asked Reid to develop two in-house educational programs but did not give him a budget or a staff.

Three months later, Reid was fired. Google says it was because of his poor performance and the

termination of the educational programs. Reid alleges he was told it was not related to the educational

programs or his performance but rather was based on a lack of “cultural fit.”

Reid sued Google for age discrimination. The trial court granted Google’s motion for summary

judgment on the grounds that Reid did not have enough evidence of discrimination. The Court of

Appeal overruled the trial court. The California Supreme Court agreed to hear the case.

Issues: Did Reid have enough evidence of age discrimination to warrant a trial? Should the summary

judgment motion be granted?

Excerpts from Justice Chin’s Decision expressing the unanimous view of the court: Reid offered

discriminatory comments that coworkers and decision makers made, and evidence that Google demoted

Reid to a nonviable position before terminating him and advanced changing rationales for his

termination. Google contends that the Court of Appeal should have applied the stray remarks doctrine,

i.e., should have categorized the alleged statements by Hölzle and Rosing as irrelevant stray remarks,

and disregarded them in reviewing the merits of the summary judgment motion.

[Justice O’Connor of the Supreme Court of the United States has] stated that “stray remarks’

—“statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional

process itself”—do not constitute direct evidence of decision makers’ illegitimate criterion in reaching

their decision.” However, Justice O’Connor explained that stray remarks can be probative of

discrimination.

3 50 Cal. 4th 512, 2010 Cal. LEXIS 7544; Supreme Court of California, 2010

Google contends that we should adopt the stray remarks doctrine so that California courts can

disregard discriminatory comments by co-workers and nondecisionmakers, or comments unrelated to

the employment decision to ensure that unmeritorious cases principally supported by such remarks are

disposed of before trial.

[S]trict application of the stray remarks doctrine, as urged by Google, would result in a court’s

categorical exclusion of evidence even if the evidence was relevant. An age-based remark not made

directly in the context of an employment decision or uttered by a non-decision-maker may be relevant,

circumstantial evidence of discrimination. In a later decision authored by Justice O’Connor, the United

States Supreme Court indicates that even if age-related comments can be considered stray remarks

because they were not made in the direct context of the decisional process, a court should not

categorically discount the evidence if relevant; it should be left to the fact finder to assess its probative

value.

[T]he stray remarks cases merely demonstrate the common-sense proposition that a slur, in and of

itself, does not prove actionable discrimination. A stray remark alone may not create a triable issue of

age discrimination. But when combined with other evidence, an otherwise stray remark may create an

ensemble [that] is sufficient to defeat summary judgment.

For the reasons stated above, we affirm the judgment of the Court of Appeal.

Question: Did the California Supreme Court find that there is enough to support a trial?

Question: What does the court say about stray remarks?

Additional Case: Smith v. City of Jackson4

Facts: The city of Jackson, Mississippi (the City) granted pay raises to everyone on its police force.

One of the City’s goals in granting these increases was to attract new recruits; therefore, officers with

less than five years of service received proportionately greater raises than their more senior colleagues.

Senior officers tended to be older. Some of these older officers filed suit under the ADEA claiming a

disparate impact, that the plan adversely affected them because of their age. The District Court granted

summary judgment to the City. The Court of Appeals affirmed.

Issues: Is disparate impact a violation of the ADEA? Were these police officers adversely affected

because of their age?

Holding: Judgment for the City affirmed. The language of Title VII and the ADEA is the same except

that the ADEA permits actions that are based on reasonable factors other than age (the so-called RFOA

provision). Congress included the RFOA provision because age (unlike, say, race) may affect an

employee’s ability to perform particular tasks. Although the pay plan in this case is less generous to

older workers than to younger workers, there is no specific test or requirement that has an adverse

impact on older workers. Indeed, it is clear that the City’s plan was based on reasonable factors other

than age, that is, the City needed to raise the salaries of junior officers to make these positions

competitive with comparable jobs in other departments. While there may have been other reasonable

ways for the City to achieve its goals, the one selected was not unreasonable.

Question: Can a plaintiff bring a disparate impact claim under the ADEA?

Answer: Yes. The language of the ADEA is very similar to that in Title VII and was enacted at

Question: Is the scope of a disparate impact claim under the ADEA as broad as it is under Title

VII?

Answer: No. The ADEA permits actions on the part of the employer that are based on reasonable

4 2005 U.S. LEXIS 2931 Supreme Court of the United States, 2005

Question: Did the City of Jackson base its decision on reasonable factors other than age?

General Question: Is it fair to give higher raises to younger officers?

Americans with Disabilities Act

Passed in 1990, The Americans with Disabilities Act (ADA) prohibits employers from discriminating

on the basis of disability. As with Title VII, a plaintiff under the ADA must first file a charge with the

EEOC. If the EEOC decides not to file suit, the individual may do so himself.

Additional Case: Toyota v. Williams

Facts: When Ella Williams’s doctor diagnosed her with carpal tunnel syndrome, Toyota transferred her

from an assembly line position to a job in Quality Control Inspection Operations (QCIO). Employees in

this department typically performed four different jobs, but Williams was initially assigned only two

tasks. Toyota then changed its policy and required QCIO employees to rotate through all four jobs.

Williams began to perform the “shell body audit.” After applying oil to the outside of cars, she

visually inspected each car for flaws. To perform this task, she had to hold her hands and arms up

around shoulder height for several hours at a time.

A short while after beginning this job, she began to experience pain in her neck and shoulders. She

asked permission to perform only the two tasks that she could do without difficulty. Williams claimed

that Toyota refused this request. Toyota said that Williams simply began missing work regularly.

Ultimately, Williams’s doctor told her she should not do any work of any kind. Toyota fired her.

The Court of Appeals for the Sixth Circuit found that Williams was disabled under the terms of the

ADA because her impairments substantially limited her in the major life activity of performing manual

tasks. The Supreme Court granted certiorari.

Issues: Was Williams disabled, within the terms of the Americans with Disabilities Act? Did Toyota

violate the ADA?

Holding: The Supreme Court reversed the appeals court, holding that to be disabled an individual must

have an impairment that prevents or severely restricts activities that are of central importance to most

people’s daily lives. The impairment’s impact must also be permanent or long-term. In this case, the fact

that the plaintiff could not work with hands and arms extended at or above shoulder levels for extended

periods of time, is not relevant because this is not an important part of most people’s daily lives. As

long as the plaintiff can tend to her personal hygiene and carry out personal or household chores, she is

not disabled.

Question: Could Williams perform her job at Toyota?

Question: Could Williams operate without assistance in her personal life?

Question: Was she disabled, under the terms of the ADA?

Question: Do you agree with this decision? Is it compassionate?

Answer: The court seemed concerned that, if the ADA covered every worker with carpal tunnel

Question: Why didn’t Toyota let her continue to perform just the two jobs she was capable of

doing?

Genetic Information Nondiscrimination Act

Suppose you want to promote someone to CFO, but you know that her mother and sister both died

young of breast cancer. Is it legal to consider that information in making a decision? Not since

Congress passed the Genetic Information Nondiscrimination Act (GINA). Under this statute,

employers (with 15 or more workers) may not require genetic testing or discriminate against

workers because of their genetic makeup.

Additional Case: Sutton v. United Airlines, Inc.5

United Airlines required its pilots to have uncorrected vision of at least 20/100. It refused to hire twin

sisters with 20/200 vision, even though their vision could be corrected to 20/20. The sisters sued under

the ADA, claiming that United Airlines was discriminating against them because of a disability.

The Supreme Court held that the ADA did not apply because the sisters were not disabled.

Although they could not satisfy the requirements of a particular job, airline pilot, they were not

substantially limited in a major life activity–namely, working. There were many other jobs they could

hold, such as flying instructor.6

Question: What is a disabled person?

Question: The twin sisters had 20/200 vision. Were they disabled?

Question: Could you argue that they were not disabled?

Question: But didn’t their impairment prevent them from getting the job they wanted?

Answer: It may have prevented them from getting that particular job, but they were eligible for

Question: How many Americans currently have some disability as defined by the ADA?

Question: How many people have correctable disabilities?

Answer: According to the Supreme Court, more than 160 million Americans have a correctable

Multiple Choice Questions

1. When Brooke went to work at an advertising agency, his employment contract stated that he was,

“at will and could be terminated at any time.” After 28 months with the company, he was fired

without explanation. Which of the following statements is true?

(a) The company must give him an explanation for his termination.

(b) Because he had a contract, he was not an employee at will.

51999 U.S. LEXIS 4371.

(d) He could be fired for any reason.

(e) He could be fired for any reason except a bad reason.

2. CPA QUESTION An unemployed CPA generally would receive unemployment compensation

benefits if the CPA ____.

(a) was fired as a result of the employer’s business reversals

(b) refused to accept a job as an accountant while receiving extended benefits

(d) left work voluntarily without good cause

3. During a job interview with Venetia, Jack reveals that he and his wife are expecting twins. Venetia

asks him if he is planning to take a leave once the babies are born. When Jack admits that he would

like to take a month off work, he can see her face fall. She ultimately decides not to hire him

because of the twins. Which of the following statements are true?

(a) Venetia has violated the FMLA.

(b) Venetia has violated the Pregnancy Discrimination Act.

(d) All of the above.

(e) None of the above.

4. Which of the following statements is true?

(a) In about half the statutes, employees have the right to bring guns into their workplace.

(b) In about half the statutes, employees have the right to bring guns into their workplace parking

lot.

(d) None of the above is true.

5. Alpha Company’s workers go on strike. The company hires replacement workers so that it can

continue to operate its business. When the strike end, Alpha must rehire the original workers if the

strike was over ____.

(a) wages

(b) a ULP

(d) None of the above

Case Questions

1. When Walton Weiner interviewed for a job with McGraw-Hill, Inc. he was assured that the

company would not terminate an employee without “just cause.” Weiner also signed a contract

specifying that his employment would be subject to the provisions of McGraw-Hill’s handbook.

The handbook said, “[The] company will resort to disnmissal for just and sufficient cause only, and

only after all practical steps toward rehabilitation or salvage have been taken and failed. However,

if the welfare of the company indiciates that dismissal is necessary, then that decision is arrived at

and is carried out forthrightly.” After eight years, Weiner was fired suddenly for “lack of

application.” Does Weiner have a valid claim against McGraw-Hill?

Answer: The court held that the handbook had created a contract between Weiner and

2. Hugo’s sister posted a message on his Facebook page asking him how his evening as a

bartender had gone. He responded with complaints that he had not had a raise in five years and

that his tips “sucked.” He also called customers “rednecks” and stated that he hoped they

choked on glass as they drove home drunk. Can Hugo’s boss fire him for these comments?.

3. You Be the Judge: WRITING PROBLEM Apex gave Marcie an employment

handbook stating that (1) she was an at-will employee, (2) the handbook did not create any

contractual rights, and (3) employees who were fired had the right to a termination hearing. The

company fired Marcie, claiming that she had falsified delivery records. She said that Apex was

retaliating against her because she had complained of sexual harassment. Apex refused her request

for a termination hearing. Did the employee handbook create an implied contract guaranteeing

Marcie a hearing?

Argument for Apex: The handbook could not have been clearer—it did not create a contract.

Marcie is an employee at will and is not entitled to a hearing.

Argument for Marcie: Apex intended that employees would rely on the handbook. The company

used promises of a hearing to attract and retain good employees. Apex was entitled to a hearing.

4. Triec, Inc. is a small electrical contracting company in Springfield, Ohio, owned by its executives,

Yeazell, Jones, and Heaton. Employees contracted the International Brotherood of Electrical

Workers, which began an organizing drive, and six of the 11 employees in the bargaining unit

signed authorization cards. The company declined to recognize the union, which petitioned the

NLRB to schedule an election. The company then granted several new benefits for all workers,

including higher wages, paid vacations, and other measures. When the election was held, only two

if the 11 bargaining members voted for the union. Did the company violate the NLRA?

Answer: Yes, the company violated the NLRA by extending benefits during an organizing

campaign, shortly before the election. An employer may not interfere or punish any worker, nor

5. Sally is sent home from school with the chicken pox. Her father takes her to a pediatrician

who says that she will be fine in about a week and in the meantime just needs bed rest and

plenty of fluids. Is Sally’s father entitled to leave under the FMLA to care for Sally?

Answer: No. There appears to be no continuing treatment by a health care provider that would

Discussion Questions

1. Debra Agis worked as a waitress in a Ground Round restaurant. The manager informed the waitress

that “there was some stealing going on.” Until he found out who was doing it, he intended to fire

all the waitresses in alphabetical order, starting with the letter “A.” Dionne then fired Agis. Does

she have a valid claim against her employer?

2. ETHICS: Should employers be allowed to fire smokers? Nicotine is highly addictive and many

smokers begin as teenagers, when they may not fully understand the consequences of their

decisions. As Mark Twain, who began smoking at 12, famously said, “Giving up smoking is the

easiest thing in the world. I know because I have done it thousands of times.”

3. Noelle was the principal of a charter school and an employee at will. The head administrator

imposed a rule requiring cafeteria workers to stamp the hands of children who did not have

sufficient funds in their lunch accounts. Some of these children were entitled to free lunches, others

needed to ask their parents to replenish their accounts. Noelle directed the cafeteria workers to stop

this humiliating practice. The administrator fired her. Does Noelle have a valid claim for wrongful

termination?-

Answer: Is Noelle refusing to violate the law, performing a legal duty, exercising a legal right or

4. ETHICS As the manager of BigBox Store, you are afraid that, if your workers unionize, you will

not be able to compete against stores with a non-union workforce. You would very much like to fire

Geraldo, the employee who is leading the unionization effort. Of course, you know this action

would be a violation of the NLRA. But you also know that, if you were found to have violated the

law (after years of litigation), you would simply be required to reinstate Geraldo, pay him some

back wages, and post a notice promising never do it again.7 (After all that time, Geraldo probably

7<FTN> House Report 110-023 – EMPLOYEE FREE CHOICE ACT OF 2007. </FTN>

would not even want his BigBox job back.) In the meantime, all the other employees would be so

scared, they would not support the union. This strategy is the most cost effective, but is it the right

thing to do? What would Mill and Kant say?

5. Despite its detailed dress code for employees, Starbucks stores permitted workers to wear multiple

pins and buttons, some of which, but not all, were related to its employee-reward and

product-promotion programs. When a union tried to organize employees, management prohibited

workers from wearing more than one pro-union pin at a time. (One employee had tried to wear

eight union buttons.) is this rule an ULP?

Answer: Although the NLRB ruled that this prohibition was an ULP, the 2nd Circuit overruled the

6. Catherine Wagenseller was a nurse at Scottsdale Memorial Hospital and an employee at will. While

on a camping trip with other nurses, Wagenseller refused to join in a parody of the song, “Moon

River,” which concluded with members of the group “mooning” the audience. Her supervisor

seemed upset by her refusal. Prior to the trip, Wagonseller had received consistently favorable

performance evaluations. Six months after the outing, Wagonseller was fired. She contends it was

because she had not mooned. Should the hospital be able to fire Wagonseller for this reason?

Answer: The Arizona Supreme Court ruled that the hospital had violated public policy by firing

7. You be the Judge Writing Problem: Nationwide Insurance Co. circulated a memorandum asking

all employees to lobby in favor of a bill that had been introduced in the Pennsylvania House of

Representitives. By limiting the damages that an injured motorist could never recover from a

person who caused an accident, this bill promised to save Nationwide significant money. Not only

did John Novosel refuse to lobby, but he privately criticized the bill for harming consumers.

Nationwide was definitely not on his side—it fired him. Novosel filed suit, alleging that his

discharge had violated public policy by infringing his right to free speech. Did Nationwide violate

public policy by firing Novosel?

Argument for Novosel: The United States Constitution and the Pennsylvania Constitution both

guarantee the right to free speech. Nationwide has violated an important public policy by firing

Novosel for expressing his opinions.

Argument for Nationwide: For all the high-flown talk about the Constitution, what we have here

is an employee who refused to carry out company policy. If the employee prevails in this case,

where will it all end? What if an employee for a tobacco company refuses to market cigarettes

because he does not approve of smoking? How can a business operate without loyalty from their

employees?

8. ETHICS Edward Snowden was a contractor at the National Security Agency (NSA) who publicly

released a huge number of highly classified documents. From these files, the world learned for the

first time that the NSA had been collecting vast amounts of information about the email, mail, and

telephone usage of millions of people, many of the American citizens. In releasing this data,

Snowden had embarrassed U.S. officials and possibly damaged spy operations. However, the

NSA’s own auditor found that the NSA had exceeded its authority. Two federal judges ruled that

the NSA had violated the Constitution. Because Snowden broke the law, he was not protected by

the whistleblower statutes. He sought asylum overseas because if he returned to the United States,

he faced life in prision. Should he be offered amnesty? A reduced sentence? How important is it to

encourage whistleblowing?