GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer.
DIRECTIONS
1. This exam is "open universe." Any source materials may be used.
2. Three hours have been allotted for the examination.
3. 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.
4. You must turn in your examination and scratch paper with your answer.
5. You may not discuss this examination with anyone, either while you are taking it, or at
any time during the examination week.
GOOD LUCK!
Ginger Cornwell had just gotten her first job. She was really psyched. She was going to work as a fitness trainer and aerobic instructor at the Body Beautiful Spa, which was the best equipped and most popular fitness facility in Santa Monica. It had 3 indoor tracks, handball and racquetball, two pools, darling spa facilities and over 40 persons on the professional fitness staff. The best part of the new job was Erica Jonge, the gym's outgoing general manager. Erica really liked Ginger, and was always happy to discuss new dance moves in Ginger's aerobics classes, or to admire a new outfit. Of course, as Suzi Saffel told Ginger, being Erica's "pet" could be dicey, since Erica liked to involve herself in every aspect of her mentee's lives, especially their romantic lives.
Erica constantly asked Ginger about boyfriends, exclaiming "you're too cute to be all alone!" She exclaimed over Ginger's breasts when she saw her in the shower, and asked to borrow her leopard thong underwear. Erica hugged Ginger constantly, and insisted on kissing her goodbye each day, even when Ginger said she wasn't comfortable hugging and kissing other women. Erica just said, "oh, I do that to everyone, you'll just have to put up with me." And Ginger did.
The trouble began when Erica set Ginger up on a date with Erica's brother -- Geoffrey. The date was a disaster. Geoffrey was handsome and charming -- and not used to taking "no" for an answer. Ginger came home mussed, rumpled and angry, with smeared lipstick and a tear in her new dress. She refused to tell her roomate what had happened, saying she simply didn't want to discuss it and would never go out with Geoffrey again.
After the failed date, Erica's treatment of Ginger at work changed markedly. She stopped being friendly and supportive, and she cut Ginger's hours so much that Ginger lost her health care coverage, which was only afforded to full-time employees. Ginger never complained, and decided that the best approach was to do nothing and let Erica "get over it."
After she'd worked at the fitness center for two months, Ginger discovered something that really annoyed her. The club's aerobics classes and workout rooms had mixed male and female clients, but personal trainers were only assigned to clients of the same sex. Ginger had thought this system was just fine. Then she talked to Jimmy, one of the male trainers. Jimmy told Ginger that male clients tipped, on average, 30% of the hourly training fee after every session with a personal trainer. Ginger was shocked. The female clients tipped their trainers an average of 10%. Ginger had thought this was low, until she asked around and learned that all the women trainers received tips at roughly this level. This meant that male trainers took home significantly larger wages than female trainers, even though both received the same hourly wages and the same percentage of client fees from the health club.
Ginger cornered Erica at the desk one Sunday morning and made an impassioned pitch to let her market herself to male clients. Ginger told Erica that several male clients had told her they'd like to work with her. Erica said that might be true, but so long as the women clients only wanted to work with female trainers, it wouldn't be fair to make an exception to the rule that only benefitted female employees. Ginger raised the difference in tips, and Erica said "I can't do anything about that -- it's not my fault." Ginger took home several sets of club towels and free weights that day, telling her roomate that "everyone else does it, and besides, I'm so mad at that Erica I could scream."
Ginger's friend Pat wanted to work at the Spa, so Ginger brought Pat's resume to Erica. Erica glanced disdainfully at the resume and said: "She lives in the East Side -- it's all riff-raff over there. I've never hired anyone from that neighborhood." The East Side is 85% black, and Pat was biracial. Ginger said: But Pat's really sweet, she's just like Tabitha!" (Tabitha was the club's only black aerobics instructor.) Erica responded: "Tabitha was raised in Glendale. That's wall-to-wall doctors and lawyers. She knows how to treat our clientele. I won't hire some trashy person from the East Side. Those people can't talk or dress, and they'll drive off the customers we want. I won't hear anything more about it."
Ginger and Jimmy began dating that month, and Ginger became pregnant. Ginger was very excited about being a single mom, and she told Jimmy she didn't think they should rush into marriage. Ginger told Erica about the pregnancy, explaining that she wanted to work as long as possible. Erica gave Ginger 30 days notice, and told her to start looking for another job. Ginger wailed desperately, and Erica said: "You're just a low life little tramp. I was so wrong about you. I should have listened to my brother. He said you climbed all over him, and he just couldn't respect a woman who was that fast." Ginger screamed that this was not true and said: "Your brother attacked me! He's an animal!" Erica fired Ginger on the spot. Jimmy continued to work for the Spa.
Erica later learned from Suzi Saffel that Ginger had taken Spa property (the towels and free weights) home. Erica wrote a letter to Ginger, explaining that she could be prosecuted for theft, and that she should never apply to work at any Spa facility again. She also told Ginger that any reference calls she received would be told that Ginger was a thief and lived an immoral lifestyle.
The Spa has over 15 full time employees, and is a "covered employer" for Title VII purposes. Assume none of the possible claims are time-barred. The Spa has a detailed policy prohibiting sexual harassment, which requires charges to be brought directly to the general manager.
Discuss and resolve all issues.