Please read the statement of facts then answer the below questions. Answer shoul

Question

Please read the statement of facts then answer the below questions. Answer should be 2 - 3 pages. Thank you.

STATEMENT OF FACTS

Karla is a recent graduate of an accredited university. Karla has just received her MBA in Finance and Accounting. Karla was an outstanding student at the university and is heavily recruited by a number of firms. ABC Partnership is an investment planning firm that makes investment for the private and public sector investors. ABC Partnership makes a strong bid to ascertain Karla services. Mr. Jones, a partner at ABC Partnership, informs Karla, that if she joins his partnership and if she does a good job, she will become a partner within five years. Mr. Jones explains to Karla, that she would come into the partnership as an agent/independent contractor. Initially she would be trained in how to secure and manage accounts. During the training period, she would receive a salary. After three months of training, Karla would then be allowed to manage the accounts on her own. It would be up to her to ascertain clients and she would also manage their accounts. Her business cards would have her name, but the contact information would be the address and phone number of the partnership. Also, Karla would have to keep them informed on her progress in securing accounts and also she would report to a partner who would evaluate her and also go over the accounts. Karla would not receive a salary, but would be paid a commission based on the number of accounts she secured. Karla would be paid once a month. Also, Karla would enter into an annual contract. During the contract period, if her performance was satisfactory, her contract would be renewed. Furthermore, if there was any confusion as to her status with the Partnership, Karla would be an “employment at will†employee. Karla signed a contract containing the aforementioned terms and conditions.

For the first two years, Karla was number one in securing accounts for the partnership. Karla received a number of commendations for her performance from her presiding partner and also from the clients. During the first two years, Karla earning exceeded all of the other independent contractor/agents of the partnership. One criticism of Karla was that she was extremely aggressive and at times had a difficult time getting along with the other independent contractor/agents. Some felt that her aggressive behavior was unbecoming of a woman.

In the third year, Karla had to do jury duty. Karla was chosen to be on a jury for a case that lasted six months. Karla was not allowed to have contact with the public during the trial. Consequently, in the third year, Karla was unable to manage the accounts. The partnership had another managing partner handle the accounts. However, during the third year, Karla earnings fell.

In the fourth and fifth year, Karla regained her top position. Again she was number one in earnings, account management and sales. However, Karla discovered some accounting irregularities in other accounts. Karla discovered that at times investments were made in the partnership name, but the funds for the investment came from accounts of clients. Karla became concerned because the funds were being misappropriated and the earnings were be diverted to the private account of the partners. Karla brought this to the attention of her managing partner and the managing partner told Karla to ignore the accounting irregularities and just do her job. Karla went through the chain of command to stop this unlawful accounting practice. Getting no results, Karla notified the SEC. The SEC notified the partnership that they were initiating an investigation. The SEC went public about the notification concerning the commencement of the investigation.

Upon being notified, the partnership suspected that Karla notified the SEC. The partners contacted a number of Karla's clients and told them that Karla was mishandling their accounts and that the clients should use another agent in the partnership. Furthermore, the partners colluded with some of the agents to make things very uncomfortable for Karla, hoping that she would resign. When Karla applied to become a partner, they denied her application. The partnership gave the following reasons:

1. Karla's poor performance in the third year, which meant that she was inconsistent.

2. Many were concerned about her aggressive behavior and mannerism.

3. She did not get along with others in the partnership.

4. Her most recent evaluation was poor and substandard and the evaluation was based on subjective criteria.

5. That there was a misleading statement in application. She stated in her application that she belonged to a number of organizations, but upon investigation, she was not a member of some of the organizations.

6. That the commendations she received was due to a bureaucratic error.

7. Karla could not work overseas because many nations had customs prohibiting women from working in certain occupations.

8. Statistically, there was a clear over representation of men to women in the organization.

9. During discovery, Karla’s representative found out that some of the information was inaccurate.

10. Another explanation for the action was that the partnership was getting more and more foreign clients and foreign clients prefer dealing with men.

After the denial, Karla filed an action with the EEOC. While the EEOC was doing the investigation, ABC partners made a number of statements on why she was denied the promotion. At trial, they changed they came up with different explanation on why she was denied the promotion. Furthermore, it was learned later on that there were negative comments about women in the partnership and that on many occasions there were derogatory jokes placed on the websites about women in the firm. One specific posting came from the partner that last evaluated Karla.

Question: Analyze this case in terms "Disparate Treatment" of Title VII of the Civil Rights Act of 1964. Note, are there any exemptions? Does Title VII apply? Can Karla meet the proof standard for †Prima Facieâ€? The standard the employer must apply to “articulate legitimate non-discriminatory reasons for the actionâ€? Karla proving the partnership’s defenses is false and are a “pretext for discriminationâ€. Note be sure to discuss the “proof standards†that must be met in for Karla and the Partnership. (Answer should be 2 - 3 pages) Thank you.

Explanation / Answer

Title VII prohibits discrimination in hiring, firing, training, promotion, discipline, or other workplace decisions on the basis of an employee or applicant’s race, color, gender, national origin, or religion. Included in the prohibitions are discrimination in pay, terms and conditions of employment, training, layoffs, and benefits. Virtually any workplace decision can be challenged by an applicant or employee who falls within the Title VII categories. (See Exhibit 2.6 , “Title VII Provisions.â€)

Title VII applies to employers, unions, and joint labor and management committees making admission, referral, training, and other decisions, and to employment agencies and other similar hiring entities making referrals for employment. It applies to all private employers employing 15 or more employees, and to federal, state, and local governments. (See Exhibit 2.7 , “Who Must Comply.â€)

Title VII applies to public (governmental) and private (nongovernmental) employees alike. Unlike labor laws that do not apply to managerial employees or wage and hour laws that exempt certain types of employees, Title VII covers all levels and types of employees. The Civil Rights Act of 1991 further extended Title VII’s coverage to U.S. citizens employed by American employers outside the United States. Non-U.S. citizens are protected in the United States but not outside the United States.

Undocumented workers also are covered by the law, but after the U.S. Supreme Court’s 2002 ruling in Hoffman Plastic Compounds, Inc. v. NLRB, the EEOC reexamined its position on remedies for undocumented workers. In Hoffman, the Court said that U.S. immigration laws outweighed the employer’s labor violations; therefore, the employee could not recover back pay for violations of the labor law. The EEOC had been treating undocumented worker claims of employment discrimination under Title VII like violations against any other worker. After Hoffman, the EEOC said that employment discrimination against undocumented workers is still illegal, and they will not ask their status in handling their discrimination claims, but Hoffman affected the availability of some forms of relief, such as reinstatement and back pay for periods after discharge or failure to hire.

Exemptions under Title VII are limited. Title VII permits businesses operated on or around Native American reservations to give preferential treatment to Native Americans. The act specifically states that it does not apply to actions taken with respect to someone who is a member of the Communist Party or other organization required to register as a Communist-action or Communist-front organization. The law permits religious institutions and associations to discriminate when performing their activities. For instance, a Catholic priest could not successfully sue under Title VII alleging Religious discrimination for not being hired to lead a Jewish synagogue. (See Exhibit 2.8 , “Employees Who Are Not Covered by Title VII.â€) In the case of Petruska v. Gannon University, included at the end of the article, the employee was not able to effectively bring her claim for gender discrimination because of this limitation on religious claims.

Nonfederal employees who believe they have experienced employment discrimination may file a charge or claim with the EEOC. An employee filing such a claim is called a claimant or a charging party. Employers should be aware that it costs an employee only time and energy to go to the nearest EEOC office and file a claim. By law, the EEOC must in some way handle every claim it receives. To discourage claims and ensure the best defense when they arise, employers should ensure that their policies and procedures are legal, fair, and consistently applied. Regarding the ease of bringing EEO claims, there is good news and bad news for employers. The good news is that the vast majority of charges are sifted out of the system for one reason or another. For instance, in fiscal year 2007, of the 82,792 charges filed with the EEOC, 12.2 percent were settled, 17.8 percent had administrative closures (failure of the claimant to pursue the claim, loss of contact with the claimant, etc.), 59.3 percent resulted in findings of no reasonable cause, and reasonable cause was found in only 5.0 percent of the charges.

The bad news is that the EEOC’s success rate in litigation was 91.5 percent with a total monetary recovery of over $345.5 million. For years the EEOC’s success rate has been at least 90 percent. Those are not good numbers for employers tangling with the EEOC. The best defense is a good offense. Avoiding trouble in the first place lessens the chances of having to deal with the EEOC and therefore the chances of probably losing.

Nonfederal government employee claims must be filed within 180 days of the discriminatory event, except as noted in the next section involving 706 agencies. For federal employees, claims must be filed with their employing agency within 45 days of the event. In a significant U.S. Supreme Court case, National Railroad Passenger Corp. (Amtrak) v. Morgan, these deadlines were made a bit more flexible by the Court for harassment cases. In the Morgan case, the Supreme Court said that since on-the-job harassment is part of a pattern of behavior, if a charge is filed with the EEOC within the statutory period, a jury can consider actions that occurred outside the statutory period. That is, the violation is considered to be a continuing one, so the claimant is not limited to only evidence relating to the specific event resulting in the lawsuit. Note, however, that in May 2007, the U.S. Supreme Court held that it was not a continuing violation each time an employer issued a pay-check based on gender-based wage discrimination. In Ledbetter v. Goodyear Tire and Rubber Co., Inc., the Court rejected the paycheck accrual rule that would have allowed the employee to restart the statute of limitations each time she was paid. The Court distinguished Morgan by saying the act of wage discrimination was a discrete act rather than a pattern, and, thus, did not merit the same treatment as the harassment in the Morgan case.

The reason for the fairly short statute of limitations is an attempt to ensure that the necessary parties and witnesses are still available and that events are not too remote to recollect accurately. Violations of Title VII may also be brought to the EEOC’s attention because of its own investigation or by information provided by employers meeting their record keeping and reporting requirements under the law.

You should be aware that the filing process is different for federal employees, although the EEOC is seeking to make it conform more closely to the nonfederal employee regulations. Federal employees are protected by Title VII, but the procedures for handling their claims simply follow a different path.

Since most states have their own fair employment practice laws, they also have their own state and local enforcement agencies for employment discrimination claims. Most of these agencies contract with the EEOC to be what is called a “706†agency (named for section 706 of the act). On the basis of a work-sharing agreement with the EEOC, these agencies receive and process claims of discrimination for the EEOC in addition to carrying on their own state business. Title VII’s intent is that claims be conciliated if possible. Local agencies serve as a type of screening process for the more serious cases. If the complaint is not satisfactorily disposed at this level, it may eventually be taken by the EEOC and, if necessary, litigated. State and local agencies have their own procedures, which are similar to those of the EEOC.

If there is a 706 agency in the employee’s jurisdiction, the employee has 300 days rather than 180 days within which to file. If an employee files his or her claim with the EEOC when there is a 706 agency in the jurisdiction, the EEOC defers the complaint to the 706 agency for 60 days before investigating. The employee can file the complaint with the EEOC, but the EEOC sends it to the 706 agency, and the EEOC will not move on the claim for 60 days. In further explaining the process, reference will only be made to the EEOC as the enforcing agency involved.

If the parties choose not to mediate the charge or if the mediation is not successful, the charge is referred back to the EEOC for handling. The EEOC investigates the complaint by talking with the employer and employee and any other necessary witnesses as well as viewing any documents or even visiting the workplace. The average time for an investigation is about 182 days.

After appropriate investigation, the EEOC makes a determination as to whether there is reasonable cause or no reasonable cause for the employee to charge the employer with violating Title VII. Once there has been an investigation and a cause or no-cause finding, either party can ask for reconsideration of the EEOC’s decision.

The Civil Rights Act of 1991 also added jury trials to Title VII. From the creation of Title VII in 1964 until passage of the 1991 Civil Rights Act 27 years later, jury trials were not permitted under Title VII. Jury trials are now permitted under Title VII at the request of either party when compensatory and punitive damages are sought.

There is always less predictability about case outcomes when juries are involved. Arguing one’s cause to a judge who is a trained member of the legal profession is quite different from arguing to a jury of 6 to 12 jurors, all of whom come with their own backgrounds, prejudices, predilections, and little knowledge of the law. Employers now have even more incentive to ensure

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