EMPLOYMENT DISCRIMINATION EXAM QUESTIONS

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EMPLOYMENT DISCRIMINATION EXAM QUESTIONS

Actual Qs and Ans Expert-Verified Explanation

This Exam contains:

-Guarantee passing score -100 Questions and Answers -format set of multiple-choice -Expert-Verified Explanation

Question 1: Broad impartiality

Answer:

You have to be impartial in selecting the rules themselves. Keep in mind the impact of the rule

See: Griggs

Question 2: EEOC prescribes three ways to validate a Business Necessity test:

Answer:

i) Content validity: content of the test is representative of the content of the job (1) E.g. you have to do

something on the test you'd have to do on the job or you're tested on info you have to use to do the job ii) Criterion validity: performance on the test is criterion that predicts performance in the job (1) Arguably the most powerful form of proof if you can get it (2) Best for ? if they can show a test with few inferential steps between the criterion and the job (3) In Lanning, ? argued and won criterion validity-running predicts performance on the job. ? could have argued ? used construct validity and the test simply measured running ability, not job iii) Construct validity: Test performance correlates with some form of a "construct" for what you need to do the job (1) This requires an extra inferential step (2) E.g. Dothard v.Rawlinson: Strength is the construct for what you need to be a prison guard and Alabama argued that height and weight were correlated (3) Arguably the weakest; you'd rather rely on the other two if possible iv) All three are valid ways to validate a test, and all three could be implicated in the same case

Question 3: General Electric v. Gilbert, US 1976

Answer:

discrimination against pregnant women not sex discrimination, discrimination against a medical condition that's not covered under Title VII

a) Employer's insurance policy covers non-occupation related disabilities but specifically excludes

pregnancy

b) Held: this was not a violation of Title VII because it was not directly discriminatory due to gender i)

The distinction is between pregnant and non-pregnant people, not between men and women (1) Unprotected trait is what's at stake, even if it happens to be linked with a protected trait (2) Everyone gets the same benefits; it's a facially neutral policy that incidentally has a unique effect on women (3) Women already get a disproportionate amount of the benefits from the policy (4) Employer and the court used cost to justify treating pregnancy different (5) The court painted pregnancy as a choice (6) Men don't get more coverage than women ii) If Title VII was meant to protect pregnant women, Congress would have included it iii) The Court reasoned that pregnancy was just "different" (1) They conceded that there could have been a pretext, but in this case, pregnancy is just different

c) Dissent: This isn't facially neutral because a guy could get a vasectomy or something like that; they

chose to exclude only the thing that affects only women i) Attacked the proposition that because pregnancy has a voluntariness notion, that it should be treated differently (1) After all, sports injuries and vasectomies are voluntary but covered ii) Didn't like that the majority seemed to require ? to prove pretext to succeed. Blackmun pointed out that this case was not overruling Griggs on this point iii) Also, GE had a bad enough track record that it's highly probable that this was targeted to women

d) Viewed through different models i) Impartiality (1) Narrow: What the Court used to justify that men

and women were treated equally--treating individual men and women the same (2) Broad: all ailments men can suffer are covered, including prostate cancer, but not all conditions are covered for women. It's not impartial. (a) Look at the intent of the policy-was it to enforce stereotypes that women belong at home? ii) Bottleneck (1) Employers' concerns about pregnancy and childbirth broadly limit women's job opportunities

e) Could ? have alleged DI? i) There's certainly an impact on women that men don't have ii) BN/JR: ?

would have to show how costs drove the decision to exclude pregnancy f) Congress acted quickly to address this case with the Pregnancy Discrimination Act of 1978 Question 4: Proving pretext/rebutting the LNR [most important/contested part of D/T claim]

Answer:

i) What evidence is necessary to prove pretext?

(1) Statistics are often relevant (2) Were employees who were white, etc. treated the same?(3) How did the defendant treat the plaintiff?(4) There are many possibilities ii) What happens when the plaintiff rebuts the LNR? There are several possibilities...(1) Plaintiff wins as a matter of law (2) ? wins if ? has insufficient evidence of discrimination (3) The case goes to the jury/factfinder

iii) This has been a huge issue often fought about

Question 5: Slack v. Havens (1975)

Answer:

Ruling: unlawful for employer to make decision b/c of race even if based on true stereotype or stereotype w/o animus; also this case has clear direct evidence of discrimination; animus not req'd, just differential treatment

1) 4 black employees asked to do dangerous cleaning, they refuse and get fired -> supervisor all but admitted being racist; rare smoking gun; note that title VII doesn't just prevent denigrating discrimination, it prohibits all discrimination; even if manager claims racist comments were meant as compliments, still made treated differently based on race

2) employer argues that he may have been racist, but they were fired for insubordination, not b/c of race

Held: liability of disparate treatment

1) Actions of supervisor are imputed to the employer under 42 USC 2000e(b)

• agency

• causal link

• ratification

-> TLDR: you can only sue the employer - if employer can say they aren't liable for the employee's conduct, under statute there is nobody to sue

2) There was a causal relationship b/w discrimination and firing: If they hadn't been treated in a discriminatory manner, they never would have had to choose b/w tolerating discrimination and being insubordinate -> However if they always fired for insubordination, no matter what the reason, it would seem to weaken the causal relationship

3) Employer itself ultimately ratified the discriminatory behavior by giving effect to supervisor's conduct -> court assumes that the employer knew why this all originally happened...but how should we address it when they don't -> here the management were in the best position to know so they should have known Question 6: Step 2 of MD Framework: Employer's Legitimate Nondiscriminatory Reason

Answer:

Elements:

-> Defendant -> Admissible evidence (only burden of proof) -> Articulate a legitimate, non-discriminatory reason (LNR) for the adverse employment action.

-> Texas Dept. of Community Af airs v. Burdine, Tex Dept of Community Affairs v. Burdine: defendant only has burden of production as to LNR, plaintiff always has burden of persuasion (1) ? always retains the burden of persuasion in an employment discrimination case. ? has the burden of presenting evidence sufficient to support an LNR (2) This is a very low bar to clear. ? only has a burden of production, not a burden of persuasion. Need not be a "good" reason, just not an illegal one.(a) The fact that the employer misjudged the qualifications isn't determinative, but it could be relevant to pretext showing.(b) If the LNR is totally irrational, that's also relevant to pretext, because an employer probably wouldn't really be that dumb.(3) If defendant doesn't offer a LNR, fact-finder must find discrimination under Burdine; motion for summary judgment or JNOV (4) If plaintiff proves its prima facie case and defendant offers a LNR but can't produce any admissible evidence to back this up, fact-finder must find discrimination through SJ or JNOV per Burdine.(a) Testimony would be sufficient evidence to back up an LNR (5) If the plaintiff proves its prima facie case, and the defendant offers a legitimate, non-discriminatory reason (LNR) and produces some admissible evidence but the fact-finder wouldn't be persuaded: (a) Permits, but does not compel the fact-finder to infer the ultimate fact of intentional discrimination (b) Just enough evidence that a fact-finder could be persuaded. But fact-finder doesn't need to be persuaded. Burdine.(c) A party's dishonesty about a material fact can be inferred as affirmative evidence of guilt (d) Jury verdicts get a lot of deference

Question 7: EEOC v. Consolidated Service Systems

Answer:

word-of-mouth recruiting ? D/T; court won't apply Title VII against community it was designed to support

a) Korean-American-owned housekeeping company has employees who are, perhaps unsurprisingly,

like 80% Korean in a 1% Korean city

b) EEOC brings suit alleging systemic disparate treatment: i) The theory: They only want Korean

workers, so they only advertise these positions through word of mouth within the Korean community ii) They also brought a disparate impact claim but it lost on an idiosyncratic 7th Circuit thing where Posner said that word of mouth isn't even a "practice" by an employer that can give rise to disparate impact liability

c) Held: No unlawful discrimination because the employer's proffered LNR is actually the real reason i)

They say, and the court believes, that . . . (1) Word of mouth is cheaper than other ways to advertise and they don't really have to do anything else to get enough applicants (2) It works better because if someone was referred by an existing employee, it means the employee was willing to stick his neck out for them ii) Court really doesn't want to stick it to a bunch of immigrants who are trying to work their way up the ladder in about the only way they can (1) Posner just comes out and says it: The defendants are the type of people Title VII was made to help so we aren't going to let the EEOC use it to punish them for not actively trying to recruit white people (2) Also, like in Sears, sticking together and recruiting from