Answer the following Multiple Choice
1. An employee has been constructively discharged from his employment when:
a. he is given constructive criticism of his prior performance in his exit interview.
b. he is formally terminated under circumstances favorable to the employer.
c. he resigns to avoid being laid off during a slow period.
d. he resigns because working conditions are so intolerable that no reasonable person should be expected to endure them.
2. True or false: The defense of bona fide occupation qualification (BFOQ) is available to an employer anytime he/she is sued for discrimination.
3. An employer may legitimately forego hiring individuals of a given gender if:
a. doing so would pose a great logistical and/or financial (economic) hardship.
b. doing so would anger her customer base.
c. the employer’s current employees refuse to work with an individual of a different gender.
d. such policy of exclusion is consistently implemented.
4.True-False: Employer grooming codes for EEs are always illegal because they allow employers to impose different standards on men and women.
5. When fewer members of a group, defined by a protected category, occur in a workforce than would reasonably be expected, on the basis of their availability in the work pool, that group is
a. the victim of reverse discrimination.
b. unemployable.
c. the victim of illegal discrimination.
d. underrepresented in the labor force.
6. True or False: The Courts will never find an employment contract unless there is a written agreement between the worker and the employer.
7. Porter seeks accommodation for a religious practice unique to the Heavenly Masters. Porter’s employer has never heard of this religion. In order to determine whether Porter’s demand for accommodation is truly based on religion, the employer must determine whether
a. the Establishment Clause of the First Amendment to the U.S. Constitution is involved.
b. it is a registered religion.
c. it is based on a closely held belief and whether the belief occupies the place of religion in the employee’s life.
d. it is based on a popularly held belief in the local community and whether that belief occupies the place of religion in the employee’s life.
8. True or False: Statistically older workers are less reliable, less hard working and committed and have a higher rate of absenteeism due to health concerns.
9. True or False: If someone has no disability but others think s/he has one, that person is protected by the ADA against disability discrimination.
10.True or False: Monica, age 39, is terminated from her job. Her employer tells her that changes in the Company’s customer environment have made older, more mature individuals better suited for her job selling hospital supplies to retirement communities. Regardless of whether that statement is true about the Company’s market, Monica has a great basis for a claim of age discrimination.
11. An individual is qualified for a position for purposes of Age Discrimination if:
a. she is able to meet each and everyone of the employer’s job requirements.
b. she has held a similar position, with another business.
c. an employer has failed to specify the conditions under which an applicant or employer would not be qualified.
d. she is able to meet all the employer’s essential job requirements with a reasonable accommodation.
12. An employer wishing to use age as a BFOQ in defending itself against an age discrimination suit, must show, among other things that:
a. they fall within the ambit of the US Supreme Court’s ruling in Brown v. Board of Education.
b. no individual above the cutoff age has ever performed the job denied the plaintiff.
c. it is statistically unlikely that age is not a legitimate factor upon which to base employment decisions.
d. some individuals within the excluded age group possess a disqualifying trait that cannot be ascertained except by reference to age.
13. A religious organization will generally be exempt from the prohibitions in Title VII
a. unless it is a religion no one has heard of.
b. unless it is purely secular organization.
c. except in areas where the employment is in an area of purely non-religious activities – such as running the book store or working as a janitor.
d. if it is relieved of such obligations by the EEOC’s Office in the Vatican.
14. True or false: From among the reasonable accommodations available to accommodate an employee’s religious practices, an employer must select the most reasonable for the employee.
15. An employer’s duty to accommodate the religious practices of an employee is limited by:
a. the concepts of reasonableness and undue hardship.
b.the degree to which the religion involved is recognized.
c.the 1st and 14th Amendments to the U.S. Constitution.
d. the Free Exercise Clause.
Essay portion
Instructions:
1. Ralph a 40 year old college student, married, with three kids, was hired as a waiter by Bertha, the owner of Big B’s Eatery. The restaurant was mainly a family restaurant, and Ralph was impressed that the management had a progressive policy regarding sexual harassment and discrimination. The policy on page 5 of the Employee Handbook was very clear that Big B’s Eatery would not tolerate harassment of any kind. If any employee feels harassed they were to report the incident to Bertha, the owner immediately.
Unknown to Ralph, on Tuesdays after 10 PM the restaurant became a strip club featuring male dancers with a female-only clientele. Though Ralph was only a waiter, he was told that on Tuesdays he should expect to stay late and be prepared to wear a costume consistent with the theme for the night. To his surprise, and humiliation, the first night Ralph was dressed in a cowboy outfit, wearing tight shorts under chaps, no shirt, a tight leather vest and cowboy boots and hat. Another night he was a police officer wearing blue shorts, a holster, toy pistol and handcuffs. When Ralph complained to Bob, the only other male waiter, he was told “to get over it – even enjoy it.” “If you work it right,” Bob said with a smile and a wink “the tips are great and there are other “fringe” benefits as well!” Ralph did not ask what he meant. Bob went on to say, “Besides, the restaurant was in bankruptcy until Bertha started her Tuesday night specials.” In short, he said “the customers like Tuesday’s more than any other night. And our jobs depend on big Tuesdays.”
Bertha lavished unusual attention on Ralph. She often insisted on inspecting Ralph’s outfit before work and frequently entered his, the men’s, dressing room, without knocking. One time she tucked his shirt in, pulled his holster tighter and patted him on the backside. When Ralph asked her to stop and to knock first before entering the bathroom where he dressed. Bertha laughed, then became very serious and said, “ Around here, Ralphie-boy, its Bertha’s way or the highway. Don’t forget it.”
Ralph soon got over his “shyness” and figured out what it took to earn great tips. He performed for the ladies, dancing through the aisles, swiveling his hips and pointing his finger at certain ladies and acting like it was a pistol. But he always refused to participate on stage. Then one night things got out of hand and Ralph had a sexual encounter with a waitress. She told everyone and soon things soon got worse for Ralph. He kept working for 3 more months though he was miserable and felt guilty. He had to keep working. Ralph’s wife lost her job and his son was in the hospital.
Ralph was consistently pinched and grabbed by drunken women, including the female bartenders, who often refused to fill his drink orders without a kiss. The female workers regularly called him “Meatdish” and “Long John”. Finally, fed up Ralph told Bertha that even though he needed the money, he could not tolerate working Tuesday’s anymore. Bertha, touching his holster and patting his rump, said she would take him off Tuesdays provided he would “escort” her to after-work parties on Monday nights. Ralph refused. Soon his hours were dramatically reduced.
Ralph came to you, his lawyer, for advice and redress. He tells you his story and asks what he can do. You patiently explain to Ralph there are two theories of sexual harassment to pursue. What are they? What are the required elements of each theory? What evidence supports Ralph under each theory and for each element? What one fact hurts Ralph’s claim the most and why?
2. How, if at all, is the prohibition against discrimination based on disability and religion substantively different from its prohibitions against discrimination on the basis of gender and race?
3. Gorton is HIV positive. He is also has severe allergies. The medication he takes to control the debilitating effects of his allergies causes his nasal membranes to dry out, resulting in frequent nosebleeds. Even though his allergy medications control the most severe symptoms of his allergies, they do not keep him from sneezing frequently in the presence of popular perfumes. It would be extremely expensive for the bank to install air filters that would rid the air in the bank of the types of fragrances that trigger Gorton’s sneezing. The essential functions of the job require sitting at a desk in an open-air bank lobby talking to prospective customers to determine how the bank can best meet their needs. He has performed this job before and, with the possible exception of his recent health issues, is very qualified to do this job. Yet after telling the bank of his conditions, including showing them a picture and price of the airfilter, the HR manager refused to hire Gorton. In fact he escorted him off the bank premises while holding a handkerchief over his face. Gorton sued based on the Americans with Disability Act (ADA). Who wins and why? Would it matter if Gordon never told the bank about his HIV and allergies? If no, why not? If yes, how does it effect the outcome?
4. The employees of Alexander Hotel are unionized. The owner has cultivated a friendship with several union stewards - they drink and play cards together. Once stewards are drunk the owner discreetly solicits information from themabout the union’s bargaining strategies and operations; he shares false information with them about his fear that the business is in financial trouble. In this way he learns ahead of time when union activities adverse to his interest will begin,allowing him to sabotage them. He knows what prospective employees are particularly sympathetic to the union and makes sure not to hire them. And hediscreetly discloses false data suggesting the Hotel is in financial trouble to discourage the union from asking for raises. When they do ask for raises he stonewalls the negotiations by insisting that he cannot afford the raises but refuses to open his books when they request verification. Discuss the legality of these practices.