Deck 19: Business and Employees: Employment Discrimination

Question 1

Gonzalez v. El Dia, Inc. 304 F.3d 63 (1st Cir. 2002)
¿La Empleada con Manias de Vieja y El Empresario con Responsabilidad?
Facts
Lydia Gonzalez, 58, (plaintiff) worked as a reporter by El Nuevo Dia , a Puerto Rico newspaper. Her supervisor, Maria Luisa Ferre, often said that Ms. Gonzalez's demeanor and couture were "[o]ut of style" and "colorless," and her coiffure was "like Phyllis Diller." Ms. Ferre also said that Ms. Gonzalez was old-fashioned (viz., "manias de vieja," or "old person's ways") and that she should have retired and gone to live with her grandchildren in Florida long ago. Ms. Ferre also taunted Ms. Gonzalez by saying that she would not live long enough to see her grandson play major league baseball.
Ms. Gonzalez asked Ms. Ferre if she could be assigned to cover fashion shows, but Ms. Ferre balked at the idea. Ms. Gonzalez than asked, "You want me to look like a Vogue model?" Ms. Ferre simply stared at her and then assigned younger reporters to the fashion shows, telling Ms. Gonzalez, "Dona Lydia, I don't know what I'm going to do with you."
Jorge Mercado, the director of the human resources department at the newspaper, frequently stated that Ms. Gonzalez had "manias de vieja." Mr. Mercado would often accost Ms. Gonzalez when he visited the department in which Gonzalez worked by calling her "Mom," and comments such as, "Are you still here?" or "I thought you had been discharged or terminated a long time ago."
Following a serious work-related injury in April 1997, Ms. Gonzalez took medical leave while receiving treatment and rehabilitative therapy. During Ms. Gonzalez's medical leave, Ms. Ferre contacted the El Dia human resources department regarding retirement packages which might be offered Gonzalez.
During one discussion during her leave, Ms. Ferre asked Ms. Gonzalez whether she would like to retire, adding, "Look, you are already 63 years old and your health is not good." Ms. Gonzalez offered to return to work immediately, but Ms. Ferre rejected her offer and advised Gonzalez to take a vacation and return to work on July 1. Ms. Gonzalez had no remaining paidvacation time, and was in difficult financial straits.
Ms. Ferre arranged for a $6,000 advance on salary for Ms. Gonzalez, which Ms. Ferre believed was part of a voluntary retirement package the two had agreed to. Four days later, Ms. Gonzalez was presented with a resignation, release, and compensation agreement.
Ms. Gonzalez refused to retire and returned to work 3 days later, when she signed a note agreeing to repay the $6,000. Ms. Gonzalez then took work from a competing newspaper in order to meet her repayment obligations on the note. Working for a competing newspaper was a violation of the conflict-of-interest clause in her contract. She was then terminated and filed suit for violations of the ADEA. The district court granted summary judgment to El Dia.
Judicial Opinion
CYR, Senior Circuit Judge
Under the ADEA, an employer may not "discharge … or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] age." El Dia acknowledges that Gonzalez established a prima facie case under the ADEA.
[T]he burden of proof [then] shifts to the defendantemployer to articulate a legitimate, nondiscriminatory basis for its adverse employment action. The plaintiffemployee may meet her burden of proof by showing that the employer's proffered reason for the challenged employment action was pretextual.
El Dia met its burden by identifying a nondiscriminatory basis for the Gonzalez discharge: i.e., her acceptance of employment as a reporter for a competing newspaper, in direct violation of the conflict-of-interest provision in the employee collective bargaining agreement (CBA).… the burden then shifted back to Gonzalez to prove that the nondiscriminatory basis assertedly relied upon by El Dia was merely a pretext, and that age animus was the real reason for her termination.
"[Federal courts] do 'not sit as a super-personnel department that reexamines an entity's business decisions.' 'No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [the ADEA does] not interfere.'" Accordingly, in order to establish that an age-based animus nonetheless constituted a motivating factor in the decision to terminate her employment, Gonzalez relies upon varieties of evidence.
The Ageist Remarks
"[S]tray workplace remarks," as well as statements made either by nondecision makers or by decision makers not involved in the decisional process, normally are insufficient, standing alone, to establish either pretext or the requisite discriminatory animus.
Secondly, it is far from clear that the alleged remarks bespeak any age-based animus at all. Some statements, such as those made by Mr. Mercado, merely displayed a measure of surprise that Gonzalez was still employed at El Dia , without either asserting or implying that she was too old to be working. Moreover, Mr. Mercado's alleged use of the salutation "Mom"-though no doubt insensitive, perhaps even rude-hardly constituted a self-sufficient foundation for an ADEA claim, especially since these particular attributions-motherhood and advanced age-plainly are not synonymous.
[T]he Spanish phrase "manias de vieja" ("old ways") did not unambiguously connote that Gonzalez was old, let alone too old, but rather that she acted in ways which did not appear in keeping with a person her age. [S]uch terms "apply more to a person's state of mind than to a person's age."
The Fashion Show Co verage
Given her acknowledged penchant for old-fashioned clothing and hairstyles, it seems much more plausible to attribute El Dia 's decision to the fact that Gonzalez was insufficiently attuned to current fashions; and, therefore, that her representation of El Dia at fashion shows could very well reflect adversely upon its business image in such circles.
The Remarks Made by Ms. Ferre [in the leave discussion]
On June 12, Ms. Ferre adverted to Gonzalez' age while the two were discussing Gonzalez' vacation plans and the retirement offer which had been made to her. Of course the mere tender of a retirement proposal does not evince the requisite discriminatory animus. Moreover, even viewed in the light most favorable to Gonzalez, Ms. Ferre's statement plainly conveyed the rational concern that retirement might prove the more prudent course, especially since Gonzalez had been experiencing serious health problems, as well as financial difficulties.
Gonzalez ignores the fact that, arguably at least, she engaged in a series of infractions. She defaulted on a promissory note which she had insisted that Mr. Mercado draw up, and thereafter deliberately went to work for a competing newspaper in direct contravention of the CBA. Thus, no rational jury reasonably could conclude that El Dia lacked "just cause" to terminate Gonzalez.
Affirmed.
Case Questions
1. Describe how the burden of proof works in discrimination suits.
2. What workplace rules would you put in place to avoid these types of lawsuits?
3. Explain how the human resources manager and the supervisor could have handled the issues with Ms. Gonzalez in a way that would have avoided the litigation.

Answer 1

Brief History of the case:
The case is that of age discrimination against an employee G by her employer. The employer had made several derogatory remarks against person G and allotted her poor meaner works. When person G had fallen sick and taken sick leave the employer sought voluntary retirement from her. However person G refused to do so and took a loan of $ 6, 000 from her employer by writing a note and accepted a work from another competing news paper in order repay the $ 6, 000 loans. She was dismissed.
Age Discrimination in Employment Act
The Age Discrimination in Employment Act prohibits an employer from making inquiries regarding her/his age directly and not offering assignments because of the employee's age when the employee is competent enough to do so.
1
Once the plaintiff launches a discrimination suit against an employer or defendant then the defendant has to prove to the court that the challenged decision does not contain any discrimination towards the plaintiff but taken in the regular course of work.
Also the Plaintiff has to prove to the court that the defendant's action is that of malice and is intent on showing discrimination. So that's how burden of proof works in suits of discrimination.
2
The work force is to be given certain instructions not to use comments or discuss regarding age or other factors which may bring up a discrimination issue with the employer. The work force is also to be educated regarding these issues so that further trouble can be avoided, adverse effects of lawsuits against the firm to be predicted in advance. Employees must be motivated for not indulging in these practices, so that company can save themselves from huge penalties.
3
A HR manager and a counselor certainly could have handled the situation in a better manner. They could have personally interviewed both the employer and the plaintiff to get a better understanding regarding the case. Also they could have initiated cultural diversity educational programs to avoid any such incidents. Supervisor needs to take the charge of the situation and do the needful efforts to control the situation before it gets worsen.

Question 2

Determine whether each of the following would be sexual harassment.
a. A manager who referred to female customers as "bitchy" or "dumb," flirted with an employee's female relatives, and told of spending a weekend at a nudist camp [ Gleason v. Mesirow Financial, Inc., 118 F.3d 1134 (7th Cir. 1997).]
b. A manager who told a single, pregnant female employee that he disapproved of premarital sex [ Brill v. Lante , 119 F.3d 1266 (7th Cir. 1997).]
c. Calendar photographs of women in swimwear posted in a co-employee's work-station [ Guidry v. Zale Corp., 969 F. Supp. 988 (M.D. La. 1997).]
d. A supervisor who called his wife "ignorant" and women in his department "dumb" and used the term "gals" for all his female employees [ Penry v. Federal Home Loan Bank of Topeka , 970 F. Supp. 833 (D. Kan. 1997).]
e. A supervisor who referred to the architecture of a shopping mall as looking like "two hooters" and a "bra bazaar," while having dinner with an employee on a business trip [ Penry v. Federal Home Loan Bank of Topeka , 970 F. Supp. 833 (D. Kan. 1997).]

Answer 2

Sexual Harassment : It signifies prohibited behavior at work place or at other professional place. Prohibited Behavior has not been defined anywhere it is to in seen case to case but the it in all cases prohibited behavior is to unwanted and causes harm to the public.
a .As per the facts the references made by the manager are to be treated as sexual harassment because he referred to female customers using derogatory language which is having sexual references. Also he attempts to flirt with the female relatives of the staff is to be treated as sexual harassment because is trying to lure them into a sexual trap.
Thus, the case is to be treated as a sexual harassment.
b .As per the facts the remarks of the employee to his pregnant female colleague are personal opinions regarding an issue and had nothing to do with sexual harassment. He has not asked his colleague for a sexual favors neither he gives any sexy comment or remarks.
Thus it can be concluded that it is not the case of sexual harassment.
c .As per the facts if an employee is posting calendar pictures of women in bikini or swim suits in his colleague's work station that action is to be considered as a sexual harassment because he is indirectly trying to provoke her or hurt her ego. Person is creating a hostile environment for his colleague.
Thus it can be concluded that it is the case of sexual harassment.
d .As per the facts the Supervisors denoted his wife, colleague and other female employees with different name. It is to be noted that references to his wife, customers and employees cannot be treated as sexual harassment because they were not reference of sexual provocation.
Thus it can be concluded that it is not the case of sexual harassment.
e .As per the facts it is not clear that employee is male or female. Now if the employee is male then the references of the supervisor cannot be considered as sexual harassment even though they have sexual references but they were not meant to provoke the other employee. Derogatory remarks were used for the architecture of shopping mall.
However if the employee was a female then the references made by supervisor for the architecture of shopping mall will be considered as sexual harassment even though it does not meant to provoke the other employee, but that will create a hostile environment and might hurt her ego.
Thus it can be concluded that it may or may not be the case of sexual harrasement.

Question 3

Which of the following would be a violation of the Pregnancy Discrimination Act?
a. Providing additional sick leave for new mothers
b. Giving a new mother a promotion upon her return to work
c. Giving a pregnant woman a job promotion
d. All of the above

Answer 3

Pregnancy Discrimination Act:
The Pregnancy Discrimination Act prohibits employers from showing any sort of discrimination towards pregnant women. The law hinders actions such as stopping the promotions because of pregnancy, removing them from the job or not providing them with maternity leave.
• The option "B" is not correct because giving a new mother promotion once she comes back is actually the opposite of discrimination. Hence, the answer cannot be treated as discrimination and is not in violation of the Pregnancy discrimination Act.
• The option "C" is not correct because giving a pregnant woman a promotion is actually the opposite of showing discrimination. Hence, it is not in violation of the Pregnancy discrimination Act.
In this question, the correct answer is the option "A". It is because the company is showing discrimination towards pregnant women by sanctioning them sick leave when they are not in requirement of sick leave.
Therefore, the correct option is

Question 4

The Masonic nursing home has mostly female occupants and hires fewer male attendants than female ones. Home administrators maintain that the female occupants (for privacy reasons) would not consent to intimate personal care by males and would, in fact, leave the home. A substantial portion of the women at the home are "total care" patients who require assistance in performing virtually all activities, including bathing, dressing, and using toilets, catheters, and bedpans. In a suit brought by a male nurse's aide who was denied employment, who would win? [ Fessel v Masonic Home, 17 FEP Cases 330 (Del. 1978)]

Question 5

James Richter belongs to a church in which working on Sundays is considered a violation of a commandment. James works at a restaurant as a server and has asked not to have to work on Sundays. Which of the following can an employer do in response to James' request without violating Title VII?

A) Terminate James for his refusal to comply with schedule needs for the business
B) Demote James to a different job where scheduling will be easier for the employer
C) Make a reasonable accommodation for James' religious request but not for employees who just request a schedule change
D) Allow James to work only 32 hours per week if he will not work on Sundays

Question 6

Patrick Brady, 19, who has cerebral palsy, had worked for two years as a pharmacy assistant at a local pharmacy. He had no incidents at work there and was given a good recommendation from his employer. He then applied at Wal-Mart for a pharmacy aide position and went right to work in the Wal-Mart pharmacy. After a few days as a pharmacy aide, he was transferred to the job of collecting shopping carts and garbage in the parking lot. His supervisor, Ms. Yem Hung Chin, said Brady was "absolutely awful," and she "wanted [him] away from [her] prescriptions." Although Wal-Mart had an institutional "coaching policy," she never approached Brady about participating in it, because "I really didn't think it kind of applied. I didn't know how to teach him to find names better.…" Brady was never given the 90-day probationary period given to other employees, nor was he given any training.
When he met with the store manager about his parking lot job, he was transferred to the bakery with no training and no uniform. When he asked to return to the pharmacy, he was given a work schedule that conflicted with his community college class schedule, something he had noted on his application for employment in describing his availability. Frustrated, Brady quit and filed suit. Explain his rights under the Americans with Disabilities Act. Discuss Ms. Chin's statements and anything else Wal-Mart did that might be used as proof of discrimination. [ Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008).]

Question 7

When are affirmative action plans required?

A) Under Title VII, all employers with 15 or more employees must have an affirmative action program
B) All government contractors
C) When quotas are needed
D) When courts order a remedial program

Question 8

Which of the following is an example of BFOQ?

A) Requiring that all employees in a nursing home that has only female patients be female
B) Requiring all male employees at a business because customers prefer male employees
C) Requiring that all employees who work in operating rooms speak English
D) All of the above

Question 9

Who issues a right-to-sue letter?

A) The Department of Labor
B) The EEOC
C) A federal district court judge after a complaint is filed at the EEOC
D) The employer of the employee bringing suit

Question 10

Which of the following would not be a violation of the Age Discrimination in Employment Act?

A) Advertising in a job notice that "all applicants must have a youthful appearance"
B) Refusal to promote someone over 55 to management positions because of the long-term needs of the business
C) Asking, "Do you think you can keep up with a younger work force?"
D) Hiring a 25-year-old instead of a 35-year-old

Question 11

Chescheir v. Liberty Mutual Ins. Co. 713 F.2d 1142 (5th Cir. 1983)
Why Can He Go to Law School But I Can't? The Case of the Law Student Claims Adjuster
Facts
Liberty Mutual Insurance Company (defendant) has a rule prohibiting its adjusters and first-year supervisors from attending law school. This "law school rule" was proposed and implemented on a national basis by Edmund Carr, a vice president and general claims manager, in November 1972.
Joan Chescheir (plaintiff) was hired by Liberty Mutual's Dallas office in March 1973 as a claims adjuster.
In August 1976, Wyatt Trainer, the claims manager at the Houston office, received an anonymous letter informing him that Ms. Chescheir was attending law school. After consulting with his assistants and superior, Mr. Trainer fired her after she admitted she was attending law school.
Charity O'Connell also worked in the Houston office as a claims adjuster during the same period as Ms. Chescheir. During a coffee break with a new employee, Timothy Schwirtz (also an adjuster), Ms. O'Connell relayed the story of Ms. Chescheir's firing. Mr. Schwirtz then said, "Oh, that's strange, because when I was hired, when Wells [Southwest Division claims manager] interviewed me, he told me that I could go to law school and in fact if I came down to the Houston office, there were law schools in Houston." Ms. O'Connell then went to her supervisor and told him she also was attending law school. She refused to quit law school and was fired.
William McCarthy, Liberty's house counsel in its Houston office, attended law school while working as an adjuster and was retained as house counsel upon his graduation. Mr. McCarthy's supervisors were aware of his contemporaneous law school career. Alvin Dwayne White was employed as an adjuster in Liberty's Fort Worth office and asked for a transfer to Houston so he could attend law school. He was given the transfer and attended law school in Houston. James Ballard worked as an adjuster in Houston, attended law school, and was promoted to supervisor while in law school.
Supervisors and employees were aware of his law school attendance, but the law school rule was not enforced against him.
Ms. Chescheir and Ms. O'Connell both filed complaints with the EEOC and filed suit in federal district court. The court found that Liberty Mutual had violated Title VII. Both women were given back pay. Liberty Mutual appealed.
Judicial Opinion
GOLDBERG, Circuit Judge
Title VII applies … not only to the more blatant forms of discrimination, but also to subtler forms, such as discriminatory enforcement of work rules.
The district court made multitudinous findings of subsidiary facts and concluded in a finding of ultimate fact: "The defendant applied its law school rule differently to male and female employees."
It is clear that the plaintiffs are members of a protected group and that there was a company policy or practice concerning the activity for which the plaintiffs were discharged; thus the first two elements of the test are met. It is also clear that minority employees were disciplined without the application of a lenient policy, and in conformity with a strict policy. All women known to violate the law school rule were immediately discharged. Furthermore, even potential violations of the rule by women were investigated promptly. An anonymous letter was sufficient to trigger an investigation of Chescheir, and the fact that Chescheir was attending law school moved the company to interrogate another woman.
The only remaining element of the prima facie case is a finding that male employees either were given the benefit of a lenient company practice or were not held to compliance with a strict company policy. This is the element upon which Liberty Mutual focuses its attack. Recasting Liberty Mutual's argument slightly, it claims that other males were strictly disciplined in accord with the law school rule, and that Liberty Mutual never knew that McCarthy, White, and Ballard were attending law school. Thus, claims Liberty Mutual, the third element was not met.
We are not persuaded. First, our review of the record does not disclose any males in the Southwest Division who were discharged because of the law school rule. Second, even were we to accept Liberty Mutual's contention that it did not actually know McCarthy, White, and Ballard were attending law school, we would still affirm the judgment. The operative question is merely whether Liberty Mutual applied a more liberal standard to male employees. The district court found that there were widespread rumors that McCarthy and Ballard were attending law school.
That Liberty Mutual applied its law school rule discriminatorily finds firm support in the record; all four elements of the prima facie case are present.
Once Chescheir and O'Connell established a prima facie case of discrimination, the burden shifted to Liberty Mutual to present a justification. The district court found that Liberty Mutual offered no justification.
Accordingly, the judgment of the district court is affirmed.
Case Questions
1. Had any male employees ever been fired under the rule?
2. Were there examples of disparate use of the rule?
3. Give an example of some facts that would have supported a defense theory that there were non-discriminatory reasons for the terminations.

Question 12

Which of the following questions asked during an interview would be a violation of the Americans with Disabilities Act?

A) Do you have 20/20 corrected vision?
B) How many days were you sick last year?
C) Do you drink alcohol?
D) Are you currently using illegal drugs?

Question 13

Wendy Drumm, 52, began work in 2003 as a creative director for CVS Pharmacy, Inc. ("CVS") and worked there until 2007, when her employment was terminated. Ms. Drumm's immediate supervisor claimed that when Ms. Drumm started her job at CVS, there were problems with her performance from 2003 through 2006. The claims of Ms. Drumm's supervisor were based on complaints she had received from CVS employees and business partners about Drumm's professionalism and demeanor. For Drumm's 2005 year-end review, her supervisor rated Drumm as "needs improvement." However, Drumm also received a salary increase, a bonus, and some stock options in the company in 2003 through 2006.
CVS uses a shorthand system of three names corresponding to the letters C , V , and S to describe its targeted customer base. The name Sophie refers to a "customer paradigm of a woman over the age of 65." According to Price, Sophie "is the heart and so[ul] of our marketing focus." The other two names are Caroline, who represents the youngest segment, and Vanessa, who represents the middle customer segment.
In late March 2007, Drumm's supervisor met with her to discuss marketing strategy and said, "Wendy, we know all about your Sophie contemporaries. There is no need to contemplate your paradigm. There is no empirical mystery here. We need a younger, fresher missionary for Creative. And Wendy, let's face it, that is not within your scope and that is a problem for you."
Drumm was fired in May 2007. A 37-year-old woman took Ms. Drumm's position. Does Ms. Drumm have a case of age discrimination? [ Drumm v. CVS Pharmacy, Inc., 701 F. Supp. 2d 200 (D.R.I. 2010).]

Question 14

Which is a defense to Equal Pay Act suits?

A) Merit systems
B) Union scales
C) Experience
D) All of the above

Question 15

Which of the following organizations would be exempt from Title VII?

A) Companies with 5 employees
B) Labor unions
C) Employment agencies
D) Both b and c

Question 16

Ricci v. DeStefano 557 U.S. 557 (2009)
Fighting Fire with Stats
Facts
In 2003, 118 firefighters in the city of New Haven, Connecticut took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (City) were infrequent, so the stakes were high. Exam results determined which firefighters would be considered for promotions during the next two years, and their order for consideration. Many firefighters, including Frank Ricci, studied for months, at considerable personal and financial cost.
The examination results showed that white candidates had outperformed minority candidates. Seventy-seven candidates completed the lieutenant examination-43 whites, 19 blacks, and 15 Hispanics.
Of those, 34 candidates passed-25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination, which meant that the top 10 candidates, all white, were eligible for an immediate promotion to lieutenant. Subsequent vacancies would have allowed at least three black candidates to be considered for promotion to lieutenant.
Forty-one candidates completed the captain examination- 25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed-16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Nine candidates were eligible for an immediate promotion to captain-seven whites and two Hispanics.
Some firefighters argued that the test results should be discarded because the results were discriminatory. They threatened a discrimination lawsuit if the city made the promotions on the basis of the tests. Other firefighters said the exams were neutral and fair, and threatened a discrimination lawsuit if the city, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end, the city threw out the examination results. Mr. Ricci and others filed suit.
The federal district court found that there was discrimination against the white and Hispanic firefighters, and the city (respondents) appealed. The appellate court reversed the district court's decision.1 The firefighters (petitioners) appealed to the U.S. Supreme Court.
Judicial Opinion
KENNEDY, Justice
Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." An employer may defend against liability by demonstrating that the practice is "job related for the position in question and consistent with business necessity." Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs.
As the District Court put it, the City rejected the test results because "too many whites and not enough minorities would be promoted were the lists to be certified." Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race.
Whatever the City's ultimate aim-however well intentioned or benevolent it might have seemed-the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.
Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage racebased action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system.
Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of "practices that are fair in form, but discriminatory in operation."
Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.
The City argues that its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparateimpact liability in violation of Title VII.
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence-let alone the required strong basis in evidence-that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City's discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. Reversed.
Case Questions
1. Explain what happened on the exam and why the city decided to disregard the exam results.
2. What does the Court establish as the law applicable to "tossing" exam results?
3. What is the Court trying to balance in interpreting the law?

Question 17

Jim Soliday, 58, is deaf, but was able to work as a supervisor for twelve 7-Eleven stores through lipreading and the use of a fax machine and online resources to communicate with the stores, enabling them to transfer data and allowing him to review the data. He used text pagers to communicate with managers, field consultants, market managers, and headquarters. Mr. Soliday purchased all of the additional equipment himself. After 26 years of service to 7-Eleven, a new executive was hired who ended Mr. Soliday's self-created means of communication. Without electronic and fax communication, Mr. Soliday could not do his job effectively and was fired. Mr. Soliday filed suit against 7-Eleven alleging a violation of the Americans with Disabilities Act. Should he recover? What are the standards for ADA accommodation? [ Soliday v. 7-Eleven, Inc., 2011 WL 2413656 (M.D.Fla.).]

Question 18

Scrapbook, Inc. has a policy that it will not hire women with young children at home for the company's day shift because its owners believe that women need to be at home with their children during the day. Scrapbook will hire men who have young children at home for the day shift. Scrapbook's policy is what?

A) An example of disparate treatment under Title VII
B) An example of an owner exemption that is not prohibited under Title VII
C) Not a violation of Title VII as long as Scrapbook has an equal number of male and female employees
D) A violation of the Glass Ceiling Act