The Class Maledictorian Hypo
July 31, 2004Don, over at All Deliberate Speed (”a civil rights blog, devoted to discussions of topics of interest in civil rights law”), has posted an interesting sex discrimination “hypo” (as hypothetical situations having little resemblance to real life legal questions are known in law schools across America).
So I’m reading this hypo, and my first thought is: “that’s a law school exam question for sure.” Floating back across all the years (I graduated in ‘82) the very thought causes fleeting pangs of performance anxiety. (Believe it or not, I still have “school dreams,” in which I have a final in a class I haven’t been to all semester.)
Imagine how I felt arriving at the end of Don’s post and seeing this:
Perhaps George of the Employment Blawg . . . can be persuaded to weigh in on this from an employer’s perspective.Exam time. But I’ve been taking this class for almost 20 years now.
Sure Don, anytime. This hypo is a good one, and it beats preparing my taxes for the August 15th extension deadline (can you spell p-r-o-c-r-a-s-t-i-n-a-t-e-?)[My first analytic step, as it was on a law school exam, or working on a legal issue today, is to isolate key facts and separate the questions to be answered, done here using changed font and paragraph breaks not in the original hypo]
Say you are an employee of a museum controlled by the federal government, working in the conservation department.I will have to concede that Don has largely got it right, but since he asked, let me go at it . . . I may have found a nuance or two that would earn me an “A” and drop Don to a “B” (sorry, dude, it’s all a game)
Let us assume further that you are female, as are all other members of the conservation department at this museum.
An Indian artifact belonging to the museum needs to be conserved, but according to the members of the tribe that created the item, this artifact is a “male object” and may only be handled by men.
Is it legal, under currently existing antidiscrimination law, to prohibit female employees from conserving the object and to transfer you to another museum for one week in exchange for a male conservation employee from that museum? (The male employee is permitted to conserve the object and then returns to his home institution.)
Should such catering to the religious/cultural prejudices of the creator tribe be the policy of our federal government?
Does your answer change if the item is still owned by the tribe but they wish to permit its display subject to the condition that it only be handled by men?
First, let’s address the fact that the museum is controlled by the federal government.
At first glance, this is an irrelevant fact. The discrimination issue will be decided under Title VII of the Civil Rights Act of 1964, regardless of the employer, right?
Not so fast, guy. There are no irrelevant facts on law school exams. (God knows real lawsuits are swimming with them, and often your job on summary judgment is to make relevant facts appear irrelevant; in contrast to law school, where you must diligently search for the relevance of all stated facts).
So let’s look at that assumption about Title VII. It only applies to employers, as defined in 42 USC 2000e(b):
The term “employer” . . . does not include (1) the United States, a corporation wholly owned by the Government of the United States . . .I believe this federal museum would therefore not be an employer under Title VII. However, I’m sure there are nondiscrimination rules for federal employment that would apply, but don’t know where they are to be found. Government contractors would be under Executive Order 11246.
So in the end, what’s the difference? If nothing else, whoever discovers that the other party is applying the wrong statute gains the tactical advantage of showing the judge the other side has egg on their face, whereas he/she is on top of the game. Nothing like starting a case off by making the plaintiff amend the complaint to gain a little psychological edge.
The only significance I see in the fact that all other members of the conservation department at this museum are women is that this provides the reason for the employee swap between museums that is proposed.
I would expect extra points from the professor — and definitely a better shot at winning summary judgment — if I focused primarily on the prima facie case, instead of falling for the nuanced and intriguing issue of the BFOQ and whether the tribal religious aspect of the sexism justified the transfer.
This is a good example to students and practitioners alike of the importance of a “checklist” and “elements” approach to issue analysis. One of the elements of a discrimination claim is an actionable adverse employment action. In many cases, such as termination, the presence of this element is obvious, but in others, such as this one, its absence may be the key to a defense victory. Not every difference in treatment motivated by sex is actionable. If your gut instincts didn’t tell you “what’s the big deal about a one-week transfer?” (mine did) then the “elements” approach would flag this issue.
Here in the Eighth Circuit, the Court “has squarely held that a decision to transfer an employee to another city, a transfer that the employee did not want, is not an adverse employment action of sufficient consequence to justify an action under Title VII, assuming . . . that the job to which the employee is being transferred is of equal pay and rank and with no material change in working conditions.” LePique v. Hove, No. 99-1877WM (8th Cir. 2000)
Summary judgment granted. Who cares about BFOQ?
Oh yeah, the professor does — and maybe the judge is curious, if unlikely to want to go there in his/her ruling.
It’s true that EEOC regulations provide that: “The refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers” is not justified by the BFOQ defense, which is to be be “interpreted narrowly.”
But there’s an interesting twist, (gaining me extra points). The section quoted has an exception: “except as covered specifically in paragraph(a)(2),” which says: “Where it is necessary for the purpose of authenticity or genuineness,the Commission will consider sex to be a bona fide occupational qualification, e.g., an actor or actress.” True enough, Don cites this exception, but not the following creative argument. This exception is specifically tied to the preferences of third parties, i.e., it is genuineness in their eyes that is relevant. In the actor or actress example, it is obviously not all audiences that require a woman to be played by a woman; some prefer, or at least tolerate, transvestism.
Here, through tribal eyes, the restoration of this work will not be authentic or genuine if performed by a woman; instead it will have been ruined by being handled by a woman.
And here — ta-dah – is where my answer changes (slightly) if the item is still owned by the tribe but they wish to permit its display subject to the condition that it only be handled by men. If this is an important enough Indian artifact for the museum, then the authenticity — or integrity — of the larger exhibition might be impaired by the inability to restore and display it, thus affecting many more people than just the tribe. Plus, Title VII excludes Indian tribes, so they could hire a man directly and be as discriminatory as they like.
Finally, there is this question: “Should such catering to the religious/cultural prejudices of the creator tribe be the policy of our federal government?” Should it or is it? Hey, professor, this is an employment discrimination class, not Indian law, so I’d have to go far afield in research and delve deeply into federal Indian law to answer whether it is federal policy already. Should it? You bet. We killed them and stole their land, it’s the least we can do.
Credit for this gem goes to this law student (Amber), who is a second year at Harvard and therefore no doubt a slight notch above yours truly (I was Coif at Indiana, so I’m no slouch, but I was rejected by U. of Chicago, the only one of the tip-top law schools to which I applied).
Amber maintains a blog named Class Maledictorian. If this reflects that she was actually a valedictorian, she’s again got me by a hair. The prefix “mal,” meaning “bad” used in this context suggests she is a brainy intellectual who in her current youth is prone to some behaviors that would be expected of “lesser” students, but not of “A students.” If so, then she and I have something in common, though I have put some decades between myself and those days of student excess, and am now a somewhat curmudgeonly 46-year-old father of three who wants my kids to do as I say, not as I did.
Now I’m off to bed and, no doubt, sweet dreams of law school. . .
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Comment by Amber
Hey George, thanks for providing your thoughts on this issue (through a much more rigorous analysis than anyone else, I might add).
A few points:
-I’ve never been the valedictorian anywhere, so no modesty is required. The blog name stems from my tendency to be rather free with maledictions. I was also somewhat poorly behaved as a teen, so you nailed me on that one.
-It’s not a hypo or test question but an actual set of facts related to me by an employee of one of the Smithsonian museums here in D.C. It smells bad, but I agree that it’s probably legal.
-Good luck on your taxes!