Chapter 13 PROCEDURES AND REMEDIES
Labor & Employment Law 107
Case Questions
13.1, Desert Palace Inc. v. Costa, p. 474
1. (Q.) What is a mixed motive case? Give an example from the text.
(A.) A mixed motive case is one where an employment decision is made, such as failure to
2. (Q.) What remedy options exist in a mixed motive case where the jury determines that the
employer demonstrated that it would have taken the same employment action of
termination in the absence of the impermissible motivating factor?
(A.)
cases. An exam
violation of Title VII based on gender involving the termination of a woman would be
Chapter 13 Procedures and Remedies
13.2, Albemarle Paper Co. v. Moody, pp. 481
1. (Q.) In Albemarle did a showing that the employer had not acted in bad faith relieve the
employer from a back pay obligation?
2. (Q.) Why did the district court in Albemarle refuse to order a back pay remedy?
(A.) The district court refused to order a back pay remedy for two reasons:
3. (Q.) Albemarle that it has
unfettered discretion in fashioning a remedy?
(A.) No. The Supreme Court does not agree that the district court has unfettered discretion
13.3, EEOC v. Peoplemark, p. 482
1. (Q.) Program
Peoplemark. Review the facts to see how the EEOC used administrative subpoenas to
obtain over 18,000 pages of documents in 2006 and 2007 from Peoplemark, and then
filed a complaint in the federal court on May 29, 2008. Where did the EEOC go wrong
in this litigation?
(A.) The court stated that EEOC was basing its whole case on some
2. (Q.) State the rule applicable in this case that allows a prevailing defendant to pursue
ess fees, and certain other costs.
Chapter 13 Procedures and Remedies
Labor & Employment Law 109
13.4, Steelworkers v. Weber, p. 490
1. (Q.) State the facts that led Kaiser to contract with the union concerning the affirmative
action training program.
(A.) Less than 2 percent of the craft workers at the Gramercy plant were black, and despite
the fact that 39 percent of the surrounding population was black, Kaiser was having no
2. (Q.) What did the Court state was the question before it?
(A.) The question before the Court was whether Title VII forbids a private employer and
plan.
3. (Q.) Do you believe that the Supreme Court applied Section 703(d) as written by Congress in
this case?
(A.) Congress in Section 703(d) had forbidden all forms of discrimination. The Supreme
4. (Q.) Does the Court set guidelines for what are permissible and impermissible affirmative
action plans?
(A.) The Court chose not to define in detail the line of demarcation between permissible and
impermissible affirmative action plans. It did set forth certain guidelines for permissible
Chapter 13 Procedures and Remedies
Labor & Employment Law 110
rancisco, p. 496
1. (Q.) Did the district court determine that the decision to rescore the components of the exam
was not a race- and gender-conscious act?
2. (Q.)
unnecessarily trammel the interests of nonminorities?
(A.) The tests were rescored to achieve a particular racial result. It trammeled the interests of
3. (Q.)
discrimination applicable to white male police officers?
13.6, Gilmer v. Interstate/Johnson Lane, p. 502
1. (Q.)
discrimination charge?
(A.) Not exclusively. ADEA claimants subject to an arbitration agreement will still be free to
2. (Q.)
case from waiver?
(A.) No such intent to preserve an individu
3. (Q.) Did the Court hold that the Alexander v. Gardner-Denver decision precluded arbitration
of employment discrimination claims?
(A.) No. The Court distinguished the present case from the Gardner-Denver decision. It
stated the Gardner-Denver decision involved the issue of whether arbitration of
Chapter 13 Procedures and Remedies
Labor & Employment Law 111
13.7, Hall Street Associates, LLC v. Mattel, Inc., p. 503
1. (Q.) Can the parties mutually agree to have a court vacate, modify or correct an award under
2. (Q.) What did the Court mean when
provisions, Sections 9-11, as substantiating a national policy favoring arbitration with
13.8, EEOC v. Waffle House, Inc., p. 504
1. (Q.) How did the Supreme Court majority respond to the Court of Appeals determination
njunctive relief in a situation where an
employee signed a mandatory arbitration agreement?
(A.) The Supreme Court disagreed. The majority opinion of the Court, written by Justice
2. (Q.) Is it possible for the EEOC to pursue entirely victim-specific relief and yet be seeking to
vindicate a public interest? Explain.
(A.) Whenever the EEOC chooses from among the many charges filed each year to bring an
enforcement action in a particular case, the agency may be seeking to vindicate a public
Chapter 13 Procedures and Remedies
Labor & Employment Law 112
3. (Q.)
a j
(A.) Eric Baker was a short-
fired by the company after suffering a seizure at work, his own determination that such
him to the EEOC, where he was interviewed by an equal
13.9, Beverly Enterprises, Inc. v. Herman, p. 510
1. (Q.) Did the OFCCP violate the plaintiff-government-
against an unreasonable administrative search by the federal government?
(A.) Selection of the government contractor for an administrative search by the OFCCP to
2. (Q.) Are sanctions issued against government contractors calculated to punish them for
failure to live up to their affirmative action responsibilities under these contracts?
13.10, Saint Francis College v. Al-Khazraji, p. 514
1. (Q.) Why did the plaintiff bring a Section 1981 claim rather than rely on a Title VII claim?
(A.) The plaintiff had waited three years after he was denied tenure to bring his case to
Chapter 13 Procedures and Remedies
Labor & Employment Law 113
2. (Q.) Can a Section 1981 claim encompass a charge of discrimination by one Caucasian
against another?
(A.) Yes. The Court stated:
We have little trouble in concluding that Congress intended to protect from
3. (Q.) Did the plaintiff prove that St. Francis College had discriminated against him because of
his Arabian ancestry?
(A.) The Court did not reach this issue. The Supreme Court settled the question of whether
Chapter Questions and Problems, p. 518
1. (Q.) What remedies are available to individuals charging discriminatory employment
practices?
(A.) There are principally four procedures that may be followed to remedy discriminatory
2. (Q.) What guidelines did the Weber Court set forth for permissible affirmative action plans?
(A.) The Court set forth the following guidelines for a permissible affirmative action plans:
3. (Q.) On what authority do federal agencies require bidders on government contracts to
formulate and carry out affirmative action plans?
4. (Q.) If the program referred to in Adarand Constructors, Inc. v. Pena reserved a percentage of
–
presumptions to identify who were disadvantaged subcontractors, used an economic
Chapter 13 Procedures and Remedies
Labor & Employment Law 114
standard to identify the disadvantaged subcontractors eligible for the program, would
(A.) The Adarand Court determined that all racial classifications imposed by federal, state, or
5. [Burden of proof, Section 12.2 and 13.3.] The plaintiff, Lerma, sufficiently satisfied his burden
of establishing a prima facie case. The court applied the model for establishing a prima facie
case of disparate treatment of Title VII discrimination from McDonnell Douglas Corp. v.
Green, set forth in Section 12.2. Lerma belongs to a racial minority. He applied and was
qualified for the job in question, and despite his qualifications he was rejected. Although
6. [Bottom line, disparate impact, or sex specific, Section 12.2 and 13.3.] Under Griggs v. Duke Power
Company [Section 12.2
criterion is job related only when that criterion has a disparate impact on a statutorily
protected group. In this case the employer has attempted to show that no disparate impact
7. [Public sector AAPS, Sections 13.4.] Under Wygant a majority of justices recognized that race-
conscious affirmative action quotas are permissible where there is convincing evidence of
prior discrimination by the governmental unit involved. Such is the standard that must be
applied to this case.
Chapter 13 Procedures and Remedies
8. [Executive Order 11246, Section 13.7.] Debarment is proper in this case. The bank had agreed
to abide by Executive Order 11246, which includes a provision authorizing the Secretary to
examine books, records, and accounts of the contractor to ensure compliance. Despite the
fact that the bank had been checked for compliance previously, the Secretary is empowered
to enforce compliance in this case be-cause the last investigation was three years earlier.
9. [Burden of proof and disparate impact cases, Section 12.2.] The Supreme Court concluded that
discrimination in promotion. The matter was remanded for the lower court to evaluate the
10. [Reverse discrimination, voluntary AAPs, Sections 13.4 and 13.5.] The decision to retain Mr.
he was the only black administrator, but had less seniority than Ms. Cunico, who was white.
Under Wygant such a layoff is of dubious legality.
The school district did not justify that the AAP was remedial in nature. The court stated
Chapter 13 Procedures and Remedies
Labor & Employment Law 116
11. [Disparate Impact under Title VII, Section 12.2 and 13.3.] A disparate impact claim requires the
identification of a specific facially neutral employment practice causally responsible for an
identified statistical disparity. The statistical imbalance in this case was not the result of any