EMPLOYMENT DISCRIMINATION LAW
April 24, 2002
Professor Oppenheimer

FINAL EXAM INSTRUCTIONS

This final exam is a take home exam. It will be distributed in our last class, on Wednesday, April 24, 2002, and must be returned on Monday May 6, 2002 by turning it in to the Law School Faculty Center between 9:30 a.m. and 6:00 p.m.

The exam answer must be limited to 2500 words, without footnotes or endnotes. It should be double spaced, and if word processed, in at least a 12 point type. For comparison purposes, please note that these instructions are printed in a 12 point type. By contrast, this is a 10 point type, and is unacceptable.

You are free to consult your casebook, your notes, cases, hornbooks, commercial outlines, or any other written sources in preparing your answer. You may not, however, confer with any other person regarding the exam until all exam answers have been turned in. This includes posting questions on internet sites or otherwise seeking information from other persons with an intervening electronic source.

You should not find it necessary to do any independent research to answer this question, although you may do so if you wish. You should be able to answer the question by relying on the course reading and your class notes.



Patricia Parris, a 27 year old woman, has come to see you for advice. Ms. Parris began working for the DefenseCo Company six months ago as a salesperson. DefenseCo manufactures molds for producing plastic devices, including housewares and armaments. Ms. Parris was hired to sell houseware molds, a job paying $32,000 per year in salary, with no opportunities for commissions. She got the job by responding to an ad in the newspaper. When she interviewed for the job, there was no mention of other possible sales jobs at DefenseCo.

Soon after she began working at DefenseCo, Ms. Parris learned that the company also employed salespersons to sell armaments molds. These jobs paid a base guarantee of $24,000 a year, with final compensation based entirely on commission. The annual commissions for the armaments salespersons ranged from $30,000/year to $72,000/year, with an average of $48,000/year.

When Ms. Parris learned of the armaments sales jobs, she asked her supervisor, Charles Major, how she could apply. He informed her that although the houseware mold sales jobs were open to any college graduate, the armaments molds sales jobs were only open to veterans of the United States Armed Forces. Mr. Major explained that because Ms. Parris had never served in the military (as he knew from her employment application), she was thus ineligible for these positions.

Ms. Parris has learned that DefenseCo has 50 houseware mold salespersons and 50 armaments mold salespersons. All of the armaments salespersons, and 10 of the houseware salespersons, are men.

Soon after she began working for DefenseCo, Mr. Major began making comments that Ms. Parris found very upsetting. The comments fell into two categories. The first were comments directed to her that concerned his views regarding the proper place of women in American society. He repeatedly asked her if she didn't agree that women should stay home raising children, that spending money educating women was a waste of resources, and that women couldn't really think with their brains, only their hearts. The second were comments made in her presence, but not directed to her in particular. They concerned his sexual "prowess," and were often made using sexually explicit and graphic language.

On every occasion that Mr. Major directed any of the category one questions to Ms. Parris, she responded by telling him: "Charles, I find your views hostile to women and your question highly offensive; please desist from making such comments!" His response was to laugh and wink at her.

On every occasion that Mr. Major made any of the category two comments in Ms. Parris presence, she responded by telling him: "Charles, you make me sick. How can I get any work done when you make me want to vomit? If you don't stop right now I'm going to hire a lawyer!" Once again, his response was to laugh and wink at her.

Last Monday Ms. Parris came to work and found that Guy Friendly, a young man she knew in college, had started as an armaments molds salesperson. She was furious when he told her his military experience was six months basic training plus two weeks each summer in United States Army Reserves camp, and that from his interview with Mr. Major he expected to make over $50,000 in his first year on the job. When Mr. Major came around that morning and started telling Mr. Friendly about his sexual exploits the prior evening, Ms. Parris walked out of the sales office and into the DefenseCo Human Relations office. She told Bonnie Frank, an HR supervisor, about Mr. Major's comments (Categories one and two) and asked to be transferred immediately.

Ms. Frank interviewed Ms. Parris on the spot, then sent her home until further notice on paid leave. That afternoon she interviewed Mr. Major and several of Ms. Parris' co-employees. She concluded that Ms. Parris' descriptions of Mr. Major's comments were accurate. She then conferred with the DefenseCo Director of HR and with Mr. Major's supervisor, who together decided to terminate his employment. On Tuesday morning, Mr. Major was fired for "using inappropriate language in the work place."

Tuesday afternoon Ms. Frank informed Ms. Parris that Mr. Major had left DefenseCo, and that Ms. Parris should return to work in the housewares molds sales department on Wednesday. When Ms. Parris arrived Wednesday morning, she found that her co-employees seemed uncomfortable with her. They were outwardly courteous, but they seemed cold toward her. She went to Ms. Frank and asked if she could be transferred; Ms. Frank said there were no other positions for which she was eligible. Ms. Parris asked if she could transfer to the armaments molds sales force; Ms. Frank explained that she was unqualified because she lacked military experience.

When Ms. Parris asked Ms. Frank why DefenseCo restricted its armaments molds sales jobs to veterans, Ms. Frank explained that the company suspected that military procurement officers felt more comfortable with military veterans, and were thus more likely to place orders with them. DefenseCo has no empirical data supporting its suspicion.

No one at DefenseCo knows yet, but when Ms. Parris applied for the job with DefenseCo, she submitted a resume which falsely stated that she had a Bachelor of Science degree in Business Administration. In fact, her degree is in Physics. She misstated her degree on her resume because she felt that people seemed intimidated by her physics degree, and she thought a degree in business made her better suited to a sales job.

DefenseCo has no formal anti-harassment policy, and offers no anti-harassment training to its managers or employees.

DefenseCo has an absolute policy of firing any employee caught engaging in any deceptive conduct. Pursuant to this policy, the son of the CEO was fired from his position of vice president last year when he called in sick to spend a day playing golf.

Ms. Parris resides in a state in which there is no state anti-discrimination law. She is considering bringing a civil action under Title VII of the 1964 Civil Rights Act.

Please advise her regarding the claims she should consider bringing, the remedies she should seek, the likelihood of success on each claim, and the major problems you foresee.