EMPLOYMENT DISCRIMINATION
Prof. Brant
Final Examination
Fall 1992

DIRECTIONS

1. What you may bring into the examination:

A. Your textbook,

B. Your statutory supplement,

C. Your class notes,

D. Any outlines or study materials that you played a substantial part in preparing.

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

3. Three hours will be allotted for the examination. Blue books will not be passed out for the first 30 minutes. This time should be spent reading and thinking about the question before you begin writing your response. You may use scratch paper to begin outlining your answer during this initial 30 minute period.

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

5. In answering the essay question, you should rely upon case law from the textbook and handouts, our class discussions, and statutory materials, including the Civil Rights Act of 1991.

6. DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION!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.

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

QUESTION

In the summer of 1992, Roger Meinhold, a 28-year old black male, was hired by Disneyworld in Orlando, Florida to portray one of the pirates in their "Pirates of the Caribbean" attraction. The job paid $7.00 per hour, and provided for 50-cent hourly pay increases every six months. While this was low pay for someone with 4 years of acting experience, Roger felt it was enjoyable, steady income until he broke into television soap operas or commercials.

During a break in their work, Roger struck up a conversation with Susie Sassafras, a fair-skinned, red-headed "wench" whose job entailed being repeatedly abducted by the pirates. In the course of their conversation, Susie told Roger that she had been hired at an initial salary of $8.00 (despite her complete lack of any relevant job experience). When Roger asked her how she had negotiated that salary, Susie smiled and said that she was having an affair with Jefferson Morgan, who supervised all the employees on Pirates of the Caribbean and who had personally been responsible for hiring Susie. Susie also mentioned that she was permitted to take up to four breaks a day, while Roger was only permitted a maximum of two breaks. Roger was not pleased by this conversation, but he decided there was probably nothing to be done about the matter.

Later that spring, Roger noticed that Susie seemed to be depressed and unhappy and asked her out for a drink after work. Susie agreed, and during the course of the cocktail hour, confided to Roger that she was pregnant and that Jefferson refused to admit that he was the father. Jefferson wasn't talking to her and Susie told Roger that she didn't know what to do. She was sure that Disney would fire her if they found out, since Disney strongly disapproved of unmarried women having children. She was also afraid that she would be unable to get another job, since no company would want to hire someone who would need time off right away to have a baby.

Roger asked whether Susie had looked into Disney's benefits and Susie said yes, and their policies really upset her. It seemed that Disney provided the same coverage for pregnancy as for other employee disabilities if an employee became pregnant, but if the dependent spouse of an employee became pregnant, the benefits for their pregnancy were luxurious, including unlimited hospital time, and assistance in funding a nanny to stay at home with the mother and child for the first three months of the child's life. No such provisions were available for other spousal disabilities. Susie said she'd quit her job and marry Jefferson in a minute, just to get the spousal disability benefits. Roger advised Susie to hang in there and keep working as long as she could.

In the summer of 1993, a intermediate-level supervisory position opened up and Roger applied for the position. Roger was given a standardized test to measure his "management skills" and was interviewed by a team of three Disney officials. The interview was not graded numerically, but each of the supervisors wrote down their comments on the evaluation form.

Susie applied for the same supervisory position. Roger's score on the standardized test was 88/100; Susie's was 74/100. However, Susie got the job. After the announcement came out, Roger went to his supervisor and asked for an explanation. Roger was told that Susie had gotten the job not because of Jefferson's influence, but because Disney (a) needed more women in management slots, (b) had a "weak track record" on promoting black men and (c) because someone on the interview team had raised doubts about Roger's sexual orientation.

Roger asked for more information about reason (c) and his supervisor showed Roger his evaluation form for the interview. one member of the official panel who had conducted Roger's interview had written: "This guy is too warm and fuzzy for my taste. He smiles all the time and his voice doesn't sound very authoritative. I don't think he's tough enough to discipline a subordinate. Besides, he wore a lavender sweater to the interview and I thought I saw a bracelet on his wrist-- could he be gay?"

Roger was in fact gay, but he had been very discreet about this on the job, since he knew that Disney had a strict policy against employing homosexuals. Roger decided that if Disney wasn't going to recognize his capabilities, then he was not going to bother to conceal his true nature. Roger began wearing earrings and other visible jewelry to work (even when he was not wearing his pirate costume) and began to walk and speak in a decidedly more effeminate manner.

Roger's colleagues were not slow to pick up on the change in his behavior. One of Roger's fellow pirates left a gay magazine centerfold taped to Roger's locker, and another asked Roger if he liked "white boys." Roger laughed it off, but yet another co-worker began calling him "Queen of the Night," and the name stuck.

After two or three weeks, Roger's supervisor called him in and asked Roger whether he was gay. Roger refused to answer, since he knew that Jefferson Morgan was extremely homophobic, and would not hesitate to enforce Disney's policy. Jefferson pressed Roger to be candid, but Roger simply said that he was not prepared to answer questions about his private life. About a week after this interview with Morgan, Roger received a letter telling him not to return to work. The letter was signed by Jefferson, and stated that Roger was being discharged for "insubordination and failure to conform to company policies."

Disney found out about Susie's pregnancy that fall and she was also terminated. Her performance in the job had been average, and she was reprimanded in August for taking three sick days without documentation. The employee handbook stated that medical documentation was required if an employee missed more than two days in a single month. However, Susie knew of several males in her department who had taken more than two sick days and not received a written reprimand. Susie's termination letter stated that she was being terminated for poor job performance and failure to conform to company policies, which required all employees to serve as positive role models for America's youth.

Roger and Susie would like you to represent them. They have compiled a list of Disney's track record in promoting women and minorities. Only 6% of Disney's management positions involving the supervision of 5 or more employees are currently filled by women, and less than 1% of those positions are filled by minorities. Susie also discovered that women do substantially worse on the standardized "management skills" test than men. (The average score for males is 72, the average score for women is 60).

Assume none of the issues presented above is timebarred, and ignore any actual or potential conflict of interest. Describe what claims you would file on their behalf, what (if any) further discovery you would conduct and anticipate any defenses that Disney might raise in response to your complaint. Finally, discuss how you would expect a court to resolve the case. Assume that the Civil Rights Act of 1991 will apply to the litigation.

N.B. You may use only statutes and Supreme Court case law to predict how you would expect the court to resolve this case.