EMPLOYMENT DISCRIMINATION
Prof. Brant
Final Examination
Fall 1993

DIRECTIONS

1. The examination is "open universe." There is no restriction as to the type of materials you may bring with your into the examination.

2. 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.

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

4. 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.

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 DO NOT CITE A CASE WITHOUT FURTHER DISCUSSION!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

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

QUESTION

Roger Dodger was hired by Nuva Law School as an Associate Professor of Law in 1988. Nuva had a faculty of twenty full-time teachers; nineteen males and one female. Roger became eligible for promotion to full Professor with tenure in September of 1991. During the deliberations of the Tenure Committee, various professors made the following observations about Roger.

PROFESSOR #1: "He's not a good teacher because he isn't tough with students. He spends all his time in Torts telling stories about the parties and sympathizing with the victims, just like the feminists. He's too wimpy."

PROFESSOR #2: "I'm not impressed with his scholarship either. He doesn't write real law review articles, he just tells personal stories about women and minorities he has known who get shafted by the legal system. While he has been published by some prestigious journals who like that trendy stuff, it's not analytical scholarship, in my eyes."

PROFESSOR #3: "Well, I think there's a place for telling stories in law schools, but I have another problem with Roger. I've heard from some reliable sources that he sleeps with his students. That's not appropriate behavior for anyone, male or female, regardless of how they teach or write."

Roger's promotion application was rejected, and he was told he could reapply next year. When Roger asked the chair of the Tenure Committee what he should do to improve his chances for tenure, the Chair told him: "You need to change your image. Why don't you play basketball during the lunch hour with the rest of the guys? That would make people more comfortable with you. Of course, you also need to produce some real scholarship. That storytelling stuff is for women."

One month later, with great trepidation, Roger attended his first "pick up" basketball game. The women's basketball team was practicing on the adjacent court. During the course of the game, the women's basketball coach -- Mike Mastiff -- became enraged at a player who missed a shot. Coach Mastiff called the entire team off the court and cursed them loudly, using sexually explicit language. Roger immediately walked over to the Coach and quietly asked him to stop using that kind of language around his players. Coach turned red in the face and threatened to swing at Roger. At the top of his lungs, Coach hollered: "Listen, you little jerk, I don't tell you turkeys how to teach--don't tell me how to coach!"

Roger did not pursue the conversation. When he went back to his basketball game, Professor Halley of the English Department told Roger not to "act like an old maid." Another player, a student at the law school, reported the incident to his fellow students. During the next few weeks, Roger's students would frequently use sexually explicit language whenever he walked by, and then call after him, "Oops, sorry Professor." Pictures of the "Church Lady," (a Saturday Night Live caricature) were anonymously left on Roger's office door. Roger never returned to the gym.

In September of 1992, Roger reapplied for promotion and tenure and his application was again rejected. Roger consulted an attorney, complied with all administrative prerequisites for a Title VII action, and filed suit against Nuva Law School and its Board of Trustees. Roger claimed that he had been discriminated against and harassed on the basis of his gender. He claimed that the School expected him to teach, publish and behave according to "stereotypically male standards," and that his teaching and scholarship would have been acceptable to the faculty had he been female. He also argued that the school's scholarship requirements in particular operated to exclude "feminist-oriented male faculty."

Nuva defended its decision by stating that Roger's scholarship was insufficiently "serious and analytical," and that he had engaged in sexual misconduct with students. In discovery, the Law School produced affidavits to prove that Roger had engaged in sexual relations with two of his students. Sexual relationships with students were specifically prohibited by the Faculty Manual, which was incorporated by reference into Roger's employment contract with the Law College. Failure to comply with the terms of the Faculty Manual could be the basis for disciplinary action. However, Roger was able to prove that the sole female professor at the law school -- Mary Mason, had also become sexually involved with a student, whom she later married. Professor Mason was never penalized in any way for her conduct. Roger also argued that the allegations of his sexual misconduct had not entered into the decision making process, but had instead been generated as a trial defense.

During the discovery process, Roger learned that the Law School had hired Mary at a starting salary of $32,000, while Roger's starting salary had been only $28,000. Roger and Mary had equivalent academic credentials, had both spent three years in private practice and both taught the same number of credit hours. However, being the only female professor at the Law College, Mary served on significantly more committees than Roger. The Law College took the position that a higher salary had been necessary to attract the first woman to an all-male faculty.

At trial, both of the students who had submitted affidavits charging Roger with sexual misconduct recanted. The students said that they had been encouraged to fabricate their statements by the Dean, who promised to find good jobs for them in exchange for their cooperation.

Roger requested a jury trial, which was denied. Following a three-day bench trial, both parties filed cross-motions for summary judgment and the district court made the following findings of fact:

(1) The Law College maintained requirements for analytical scholarship that were neutral on their face.

(2) Those requirements did not operate to disproportionately exclude male faculty, since the faculty's composition was 95% male.

(3) The school's allegations of sexual misconduct on Roger's part were unfounded and false.

(4) Gender did play a role in the school's decision to deny Roger his promotion and tenure, since the comments of Chair of the Tenure Committee indicated that sexual stereotyping had influenced the decision-making process.

(5) However, the school's final decision denying tenure to Roger was based on his failure to conform to traditional, gender-neutral standards for scholarship and teaching.

(6) The school was permitted to offer different starting salaries to male and female professors based on "market conditions" and upon the school's desire to provide a "role model" for female students.

(7) Roger could not make out a claim for sexual harassment because only females could be sexually harassed.

The District Court accordingly granted the Law College's motion for summary judgment on all issues, and denied Roger's motion.

You have been retained to represent Roger on his appeal from the district court's decision. Based on the facts provided, identify and discuss all the arguments Roger might raise on appeal. You should indicate which arguments, if any, are likely to be successful in persuading the Court of Appeals that the District Court's decision was clearly erroneous. You may also raise arguments or issues that were not considered by the District Court.