EMPLOYMENT DISCRIMINATION
Prof. Brant
Final Examination
Fall 1991

Instructions

1. What you may bring into the examination:

(a) Your textbook;

(b) Your statutory supplement (the white book);

(c) Your class notes:

(d) Any outlines or study materials that you played a substantial part in preparing.

2. Canned briefs, Gilberts, Emanuels, Nutshells & the like may not be brought into the final examination room.

3. Two hours will be allotted for the examination. Blue books will not be passed out for the first 15 minutes. This time should be spent reading and thinking about the questions before you begin writing your responses. You may use scratch paper to begin outlining your answers during this initial 15-minute period.

4. There will be one essay question on the final examination.

5. In answering this essay question, you should rely upon case and statutory law from the textbook, the statutory supplement, the handouts and upon our class discussions.

6. You will not be expected to rely upon the Civil Rights Act of 1991 in answering the essay question. Students who wish to discuss the new Act in their answers may do so, and will receive additional points for accurate and thoughtful analysis. However, you should try to fully discuss all issues raised by the question before you attempt to gain extra points by comparing and contrasting results under existing law to the results that would be expected to result from application of the new Civil Rights Act of 1991.

7. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION! There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.

8. Individuals who plan to graduate in January, 1992 should place a large "S" (for Senior) on the front cover of their first blue book.

9.Write on only one side of each page in the blue books.

QUESTION ONE:

Oprah Jackson, a black female, graduated first in her class from Uppity Ivy Law School, and was Editor-in-Chief of the Law Review. During her third year of law school, she was recruited by Inordinately Large Law Firm (ILL-F), which employed over 400 attorneys and had 9 offices world-wide. When ILL-F recruited her, the partners told her that (following King & Spalding), they could make no representations about partnership occurring "as a matter of course," but that she would always be treated "just like any other associate" and given no special privileges or burdens on account of her race or gender. Oprah said that was enough for her, and accepted their offer to begin work as an associate in their Boston office shortly after her graduation.

Oprah passed nine relatively happy years with ILL-F. She chose to specialize in estate planning, where she regularly billed over 2300 hours per year. (The average ILL-F associate billed 2170 hours per year.) However, in the beginning of Oprah's tenth year with the firm (when she first became eligible for partnership) the senior managing partner decided to step down and a bitter internal power struggle took place. To resolve the matter, ILL-F brought in a new managing partner from outside the firm, the highly regarded Jefferson Beauregard Davis ("Beau") and things began to change for Oprah.

Beau brought a handful of loyal associates with him, all litigation specialists. One of these associates, Charles Witherspoon III (Chuck) became passionately attached to Oprah. He pursued her constantly, asked her for dates, intimated that a liaison with him would secure her partnership status, and generally importuned her at every opportunity. Oprah rebuffed these advances without exception, but never complained to anyone at work about Chuck's conduct. Oprah was well aware that Beau treated Chuck like a favorite son, and she did not want to risk offending Beau so close to her partnership evaluation period.

After a few months of Oprah's rejections, Chuck's tactics became less flattering and more threatening, in nature. First, Chuck boasted that he was paid $22,000 more per year than Oprah, even though he was two years junior to her in seniority. He offered to petition Beau to increase her salary if she would have an affair with him. He also told her that Johnny Jessup, a male associate in the estate Planning department who had the same seniority as Oprah, made $8,000 more per year than she did.

These salary discrepancies infuriated Oprah, especially since she knew that neither Chuck nor Johnny had ever billed more than 2000 hours per year. Again, she was afraid to discuss this matter with anyone, since the new power shift in the firm had made it difficult to tell who could be trusted. However, when Chuck took to cornering her in the law library to explain the best parts of his favorite pornographic movies, Oprah began calling in sick, missing time at work and evading the office. She began to volunteer for ministerial, uncomplicated assignments that took her out of the office frequently, and avoided more challenging assignments that were offered, since they would have increased her exposure to Chuck.

When Oprah came up for partnership, the discussion between the partners ran as follows. The Chairman of Oprah's department praised her intellect, her client skills, her industry and stated that she would make a first-rate partner and that he recommended her unconditionally. In response to questions, he conceded that her billable hours had fallen off recently and that she did not seem to be as eager to take on substantial work, but he felt she probably had some personal problem that would resolve itself and that she would be back to her old hardworking, dependable self in no time.

Several other partners commented that Oprah wore her hair longer than they felt was appropriate, and that she occasionally adopted a "corn-row" style that they felt presented an unprofessional appearance. Beau stated that he had heard from Chuck that Oprah was lazy, goofed off a lot, and thought she was a "shoo-in" for partner simply because the firm had never had a black female partner before. Beau stated that he found such an attitude highly offensive. Beau also noted that he didn't like the fact that Oprah often wore pants to the office.

Following this discussion, Oprah's partnership bid was voted on and rejected, 89 in favor, 93 opposed. She was told by the partnership that she had three months to locate other employment under ILL-F's "up or out" policy, but that the firm would give her a good reference and permit her to use office space and secretarial assistance in finding other employment.

Ten other associates in ILL-F's Boston office were eligible for partnership at the same time as Oprah. Three were female, seven were male and none were black. Six of the seven male candidates were promoted to partners, while only one of the three women candidates was promoted. Each of the two women who were not made partner had made a habit of wearing pants to the office, and in each case, this practice was commented on unfavorably by the partnership. The woman who was promoted to the partnership wore only suits with skirts, high heels and feminine dresses.

After the partnership vote, Oprah consulted with some of the partners who were sympathetic to her plight. She learned that in all of ILL-F's out-of-state offices, a total of five black associates, all male, had been passed over for partnership that year. She was also told that in previous years the firm had made several exceptions to its "up or out" rule for white associates who failed to make partner, and that these individuals had been permitted to stay on for as many years as the firm found their services useful.

Oprah consulted an attorney, who complied with all applicable administrative prerequisites, and timely filed a civil action against ILL-F, alleging race discrimination under Section 1981, race and sex discrimination under Title VII, Equal Pay Act violations and sexual harassment.

Discuss and resolve all issues presented by this litigation, specifically considering the strength of each of Oprah's claims, and the defenses ILL-F is likely to raise in response to those claims.