Common Legal Practice - Assignment Example

Note: This is to inform you that your professor’s comments are not completely what our sources tell us. I have pasted copied cites from the cases you bought which I used, just below the comments of your professor in each case. If you compare, assuming the cases you bought is reliable, there are cases where the professor is correct but there are also cases in which he/she is wrong. He/she might have different sources. As for the ones that I submitted to you earlier, all of them are copied inside texts citations in the discussion of all of the other cases. When I compared with what you provided me, I actually noticed that there are differences but I presumed that what I copied from the cases cited are true, hence, there are differences. But what I am concerned is that your professor has considred wrong some which are correct and allowed others which are not the same with what we have. This is what I do: for the cites which did pass the attention of the professor, which although different from those you bought, I will not change any more, but those which are based on what you bought and the professor wronged it, I have no further remedy than to let you know that such is the case. But my general guide now for the cites is to copy what you bought because I believe, they are more reliable and at least we can show. I am still doing the paper, I just let you know possibilities of professor’s error. I also noticed that his/her analysis is different from what I had, may be because he is using a different copy from what we have. This is particularly true in the case of Diaz vs. Pan American Airways. With all due respect, this type of work normally takes longer that other tasks because of the requirement of the professor. If you could add additional price per page, I would be very grateful since, I have also to make some sacrifice to follow in detail the professor’s comments and instructions including his/her alleged errors. Thank you, Writer No. 49 I repeat this is not yet the paper but this is just to inform you what is happening. Case brief insutrctions: Revision instructions: Thank you for your work on the case briefs, although the briefs do not show a level of detail that demonstrates a deep or thorough understanding of the cases or the BFOQ defense. You need to include the significant facts in your discussion of the cases in the CLAE and use the full rationale of the case to help develop your thesis on whether the BFOQ defense should continue to be available. You considered and addressed the questions listed in the instructions for this assignment, but the briefs do not demonstrate an understanding of the BFOQ defense or its development. Additionally, there were errors in the facts or the holdings of some of the case you described. You must read the cases much more carefully.} Please note that common legal practice is to write about cases in the past tense. See Dworsky, The Little Book on Legal Writing, page 61. Also note that none of your case cites were correct, so focus on correct form in your CLAE. Topic (Case Brief)- Critical Legal Analysis Essay 1. Diaz v. Pan Am. World Airways, Inc., 311 F.Supp. 559 , 311 F.Supp. 559 {The assignment specified that the briefs need to include the correct cite to the cases. The case name must be either underlined or italicized (Rule 12.2(a) in the ALWD Manual), and each case must have a court abbreviation and date in a parenthetical at the end of the cite (Rules 12.6 and 12.7). This must have (Xth Cir. 19xx) at the end.} 311 F.Supp. 559 Celio DIAZ, Jr., individually and on behalf of all others similarly situated, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., a New York corporation licensed to do business in the State of Florida, Defendant. No. 69-206-Civ. United States District Court, S. D. Florida. April 8, 1970. {The assignment specified that the briefs need to include the correct cite to the cases. The case name must be either underlined or italicized (Rule 12.2(a) in the ALWD Manual), and each case must have a court abbreviation and date in a parenthetical at the end of the cite (Rules 12.6 and 12.7). This must have (Xth Cir. 19xx) at the end.} Issue: The issue was whether or not gender or sex is a valid bfoq for the job of a flight attendant. Holding: The court decided that sex or gender was a valid bfoq for the job of a flight attendant. The plaintiff was also found not individually qualified for the position of Pan Am flight attendant on the ground of age, apart from his sex. {This is incorrect. The court held that gender was not a BFOQ for flight attendants.} I disagree, becoz it was Congress who made as Bfoq FOLLOW INS ON ALWD MANUAL Facts: Pan American World Airways employer implemented a policy to hire females only for flight attendants thereby discriminated male applicants. Diaz, who is male, and others similarly situated wanted to work as flight attendant. When sued by Diaz and others, Pan Am invoked the affirmative defense that gender was a valid bfoq for the job of a flight attendant. It argued using past experience and customers’ preference for female as females as light attendants. Diaz argued before the court that passenger preference for flight attendants of a particular sex cannot justify an airlines restriction of employment opportunities to that sex. The EEOC as did the plaintiff's, argued that no bona fide occupational qualification exception could be or had been shown. Rationale: The court, not the EEOC, has the final responsibility for making findings of fact and for interpreting the statute in this action under Section 706. The Court cannot in justice accept the EEOCs interpretation which it finds to be inconsistent with the statutory language and the legislative history. The court cited the fact that Congress has indicated that customer preference may be considered under the limited "bona fide occupational qualification" exception to the general prohibition against discrimination on grounds of sex, but that Congress did not include any such exception to its general prohibition against discrimination on grounds of race or color. Examples of valid discrimination under this category include preference of a French restaurant for a French cook, the preference of a professional baseball team for male players, and the preference of a business which seeks the patronage of members of particular religious groups for a salesman of that religion as cited by Congressional records. Policy issues: The court decided using clear legislative history where customer preference can provide a basis for an employers selecting employees on the basis of their sex when the preference is a legitimate one, related to differences in the ways in which the work will be performed by persons of different sexes, and the manner in which such performance will be received by the customer because of such differences. The court pointed out that it was Congress, which allowed the exception as could be seen in"Interpretive Memorandum”, submitted to Senate during the debate of the Civil Rights Bill. What is your opinion about the result and the issue of fundamental fairness? On the fundamental fairness, I agree with the court generally but this would seem to be not very consistent with a case where it was held that sex was a valid bfoq only in case privacy is an issue. The court however explained that it was Congress which provided for the exception hence, it did not agree with EEOC. {This description is inaccurate because you have misread the holding in the case.} {Generally a case should be written about in the past tense. See Dworksy, page 61.} note: I disagree with the professor that I misread the case. The court really held that there was bfoq, as opposed to what professor believes. You can read the conclusion of the original case. 2. Weeks v. Southern Bell Tel. & Tel {This cannot be abbreviated. See page 411 in the ALWD Manual.} Co., 408 F.2d 228, 235 {Not needed for this general cite to the case.} (5th Cir. 1969) 408 F.2d 228 70 L.R.R.M. (BNA) 2843, 1 Fair Empl.Prac.Cas. 656, 12 A.L.R.Fed. 1, 1 Empl. Prac. Dec. P 9970 Mrs. Lorena W. WEEKS, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellee. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellant, v. Mrs. Lorena W. WEEKS, Appellee. No. 25725. United States Court of Appeals Fifth Circuit. March 4, 1969, Rehearing Denied March 28, 1969. Issue: The issue is whether or not it is a valid bfoq to discriminate {?}a woman for the position of switchman in a telephone company on the ground that the woman’s fetus might be in danger. {This is an inaccurate statement of the issue.}. Check Holding: The court concluded that there is employment discrimination based on sex. Facts: Mrs. Weeks, an employee of the company for 19 years, claims that the Company’s refusal to consider her application for the position of switchman constituted discrimination based solely on sex, in violation of 42 U.S.C Sec. 2000e-2. {42 U.S.C. 20002-2 (2000). See Rule 14 in the ALWD Manual.} I just followed the wordings that you sent me. She wanted that she would be awarded the position and damages. On June 2, 1966, Mrs. Weeks filed with the Equal Employment Opportunity Commission. {This is not relevant to the issue for which you are discussing the case.} We are discussing facts here. After investigating of the position of switchman, the duties of the position of switchman, the Commission decided that there was reasonable cause to believe that the Company had violated the Act. {This description needs to include these important legal facts. What were the requirements of the job? Could a woman perform them? What were the employers concerns about hiring a woman?} ok Rationale: The court decided that the only issue in the BFOQ is the capability of the applicant or employee to perform the present function not to be too concerned with the future generation. {This needs to be specific to the case. How was a woman able to perform the functions of the job?} specific what ? Policy Issues: The policy of the law is to really have a narrow exception to employment discrimination {?} based on sex. In deciding in the case the court said that labeling a job strenuous simply does not meet the burden of providing that the job is within the bona fide occupational qualification exception. The principle of non-discrimination requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group. {Quotations belong in double quotation marks, not single.} ?? The Court agreed that an employer has the burden of providing that it had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. {This reads like a quote.} Southern Bell has clearly not met that burden of proof. They introduced no evidence concerning the lifting abilities of women. Rather, they would have the court assume, on the basis of a stereotyped characterization that few or no women can safely lift 30 pounds, while all men are treated as if they can. {Your facts do not discuss the lifting requirements of the job.} What is your opinion about the result and the issue of fundamental fairness? I think that to have that general rule or principle of non-discrimination, the burden of proof should be on the employer that its practice or policy is a valid bfoq. {Work on expanding your evaluation of the cases for a better discussion in your Essay.} OK 3. Norwood v. Dale Maintenance System, Inc. and Standard Oil Realty Corp, Inc, 590 F.Supp. 1410, (N.D.Ill.1984) 590 F.Supp. 1410 Vera NORWOOD, Plaintiff, v. DALE MAINTENANCE SYSTEM, INC. and Standard Oil Realty Corp., Inc., Defendants. No. 82 C 5423. United States District Court, N.D. Illinois, E.D. June 6, 1984. Issue: The issue is whether it is wrong to discriminate by reason of sex when the job at stake is the janitor for a day shift washroom attendant position. Holding: The court upheld the fact that sex is bfoq in the job of a janitor inside a comfort room. Facts: Plaintiff Vera Norwood (Norwood) is a female who has been employed by defendant Dale Maintenance System, Inc. (Dale). OK {The independent contractor status is not relevant to the BFOQ issue so do not include it in your Essay.} OK A Norwood’s supervisor told Norwood, a female, that a male was selected for the men’s washroom attendant position because Dale determined that a male was best suited for the particular job. {You need to include why the employer took that position. It is relevant to the outcome of the case.} Norwood filed a charge of sex discrimination against Dale with the Illinois Fair Employment Practices Commission (FEPC). {This also is not relevant.} Dale and Standard Oil pleaded bfoq for the day shift washroom attendant positions. According to defendants, this policy is reasonably necessary to their normal business operations and protects the privacy interests of Standard Oils tenants and guests. {This is the heart of the case, so the specific facts are necessary to understand the employers and the courts position.} Rational{e}: In certain situations the privacy rights of individuals justify sex-based hiring by an employer. The situations where privacy rights have been recognized has a bfoq involve those occupations which require an employee to work with or around individuals whose bodies are exposed to varying degrees Examples supported by different jurisprudence include staff nurse in health care facilitys labor and delivery area, nursing assistants in home for the elderly and sales-persons in clothing store. {This is a general rationale; it is not the rationale for this courts decision in this case. Here, the court found that male tenants who were using the bathroom would have their privacy infringed by a female attendant because they would have to wait for her to leave or she might walk in on them. The court also discussed alternatives that were not practically or financially possible and related to the essence of the business test.} Policy Issues: The court in the case of Norwood {The case name must be underlined or italicized.} decided that it was not wrong to discriminate by reason of sex when necessary to protect the privacy of clients in cleaning the comfort rooms. Privacy in this case is closely intertwined with the essence of business standard for the employer. Without the privacy of clients there would be no use for the comfort room. What is your opinion about the result and the issue of fundamental fairness? In my opinion, the court {decision} is fair because I could not imagine how {?} male janitor having an unlimited access to females comfort room and vice versa. {What about the alternatives proposed and rejected by the court? Do you agree with the courts decision on those?} Study, what are those? 4. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Circ. Cir. 1981) 653 F.2d 1273 26 Fair Empl.Prac.Cas. 815, 63 A.L.R.Fed. 395, 26 Empl. Prac. Dec. P 32,060 Delia L. FERNANDEZ, Plaintiff-Appellant, v. WYNN OIL COMPANY, a corporation, and Wynn's International, Inc., a corporation, Defendants-Appellees. No. 79-3598. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 1981. Decided Aug. 17, 1981. Issue: The issue as advanced by plaintiff is whether a woman may be denied promotion on the ground of sex. {Your issue statements need to be specific to the case. This could be applied to many cases.} OK, discuss the position Holding: The court ruled that since that the woman lacks the necessary qualification rule on discrimination does not apply. {Again, this needs to be specific to the case.} Facts: Fernandez appealed a judgment in favour of her former employer on her claim of sex discrimination. The district court found that the employers decision not to promote Fernandez was based on her lack of qualifications rather than her sex and was consequently justified by a valid business purpose. Alternatively, it found masculine gender a bona fide occupational qualification since the job sought required dealings with nations that may refuse to transact business with women. {This is incorrect.} why? Rationale: Sex discrimination is not an issue if the person is not qualified in the first place. The record supports the district courts findings. Testimony was presented that Fernandez was not proficient in the English language and had difficulty with articulation. She had no secondary education. {This information needs to be in the Facts section.} Fernandez has failed to demonstrate that the district court erred in failing to find her qualified for the DIO position. If an applicant is not qualified for the job in question, she has failed to establish a prima facie case. The findings of the district court for masculine gender a bona fide occupational qualification for the Supreme Court did not sustain the position in question. {This sentence is not clear.}NOT CLEAR The Supreme Court said that the district court erred in its factual findings and legal conclusions. {The court that issued this decision was the Ninth Circuit Court of Appeals, not the Supreme Court.} Check, don’t use Supreme Court if not sure Policy Issues: Economic considerations are virtually never a factor, when the court rejected the argument that being male was a bfoq for an executive position with an international corporation. {This does not clearly explain the rationale.} The Court cited that Congress did not intend the Civil Rights act to saddle business with unqualified employees. What is your opinion about the result and the issue of fundamental fairness? I believe the ruling of the court is fair. {This asks about your opinion about the result and the issue of fundamental fairness, not whether the ruling is fair.} I disagree with the prot 5. U.S. EEOC v. Sedita, 816 F.Supp 1291, 1295 (N.D.Ill.1993) 755 F.Supp. 808 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. Audrey SEDITA, d/b/a Women's Workout World, et al., Defendants. No. 87 C 2790. United States District Court, N.D. Illinois, E.D. January 31, 1991 Note: What was orginnally place was copied from one of the cases and the professor upheld it but as per cases you bought, they have different cites. Issue: The issue is whether a fitness center could justify hiring only single sex. Holding: The court answered no. Facts: Plaintiff sued Sedita for the latters club discriminatory practice of hiring single sex, all female in a health club. EEOC sustained plaintiff and before the court, it argues that the defendants cannot prove a factual basis for the clubs hiring policies. The defendants contended that it is clear that a factual basis for their hiring policy exists because their clients have consciously chosen to join an all female health club and presented Audrey Seditas deposition testimony as evidence of a factual basis. Ms. Sedita explained that all members have, in the past, been disturbed by the presence of males in the club. {This needs to focus more on the evidence presented about the loss of business if men were hired.} Rational: The court also found that the defendants have failed to prove that no reasonable alternatives exist to their discriminatory hiring policy. The court is equally unpersuaded by Ms. Seditas testimony that club members will leave Womens Workout World if the club hires males. The EEOC made suggestions for employer to be able to hire male employees by changing the duties of the jobs in question. Despite the fact that plaintiffs suggestions were undeveloped, the court does not believe that they were unreasonable, or that they could be rejected on their face. The defendants had the burden of refuting these suggestions, and proving that they would not be feasible at Womens Workout World. Policy Issues: The court emphasized that the purpose of the defendants business operation is to provide individualized fitness and exercise instruction to the clubs women members, hence, its need prove that it cannot achieve its business purpose without engaging in single sex hiring. The burden of proof that it is bfoq is the employer, otherwise, there is discrimination. The Court recognized the fact that there is abundance of health clubs in this country hiring both men and women to work at the clubs, seemingly without disturbing the privacy interests of their clientele. Therefore, the court could not find that the defendants are presenting some objective, empirical evidence to prove that sex-based hiring is justified at their club. What is your opinion about the result and the issue of fundamental fairness? The court in my opinion showed fairness in deciding this case. 6. Olsen vs. Marriott intern, 75 F.Supp2d 1052 {This cite is completely incorrect..} 75 F.Supp.2d 1052 Ralph P. OLSEN, Plaintiff, v. MARRIOTT INTERNATIONAL, INC., a Delaware corporation, d/b/a/ Marriott's Camelback Inn, Defendant. No. CIV97-1506PHX-ROS. United States District Court, D. Arizona. November 22, 1999. {This cite is completely incorrect..} Issue: Whether or not gender is a bona fide occupation qualification (bfoq) for the Position Massage Therapist. Holding: The court held that it was not a bona fide occupation qualification. Facts: In 1993, Ralph Olsen applied for a position as a massage therapist at Marriotts Camelback Inn. The Marriott refused to consider Mr. Olsen for the position because he is male and customers prefer female for therapist. Mr. Olsen filed this action alleging that the Marriotts failure to hire him constitutes overt sex discrimination in violation right under the law. The Marriotts invoked a bona fide occupational qualification on the basis of the percentage of massage therapists necessary to satisfy customer requests for female therapists. Rationale: In the hierarchy of values, there is greater need to protect customer’s privacy rather that favouring consumers preference for purposes of justifying bfoq. {What does this mean?} Even if the BFOQ could be recognized for customer preference based on privacy, the Marriott has not offered evidence to create a genuine issue of material fact with respect to whether privacy interests are the reason its clients choose female massage therapists far more often that males. The Marriott utilizes customer preference as a proxy for privacy concerns on the assumption that privacy concerns are the basis for its customers’ preferences, but it offers little reliable evidence in support of this assumption. Policy Issues: The Marriotts request using customer preference, if granted, would result in an unprecedented and improper expansion of the BFOQ defense unfettered by any objective limitations related to job functions or privacy concerns and constrained only by customer preference, whatever its basis. Courts, including the Ninth Circuit, have rejected such expansive interpretations of the BFOQ defense, since the policy of the law is narrow exception to sex discrimination. {This needs to better explain why customer preference has been found an inappropriate basis for a BFOQ.} What is your opinion about the result of the issue of fundamental fairness? My opinion about the result and the issued of fundamental fairness is that the court is fair. It had clearly pointed out the prevalence of the human right of privacy over financial consideration. {This is not explained in the case description.} 7. UAW v. Johnson Controls, 499 U.S. 187, 206, 111 S.Ct. 1196, 1207, 113 L.Ed2d 158 {None of this is necessary. See page 63 in the ALWD Manual.} (1991) 111 S.Ct. 1196 113 L.Ed.2d 158 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Petitioners v. JOHNSON CONTROLS, INC. No. 89-1215. Argued Oct. 10, 1990. Decided March 20, 1991. Syllabus Issue: Whether or not sex or gender is a BFOQ in a manufacturer of a battery. {?} Holding: The court decided that this is not a BFOQ. Facts: Respondents battery manufacturing company announced a policy barring all women, except those whose infertility was medically documented, from jobs involving actual or potential lead exposure exceeding the OSHA standard. Petitioners, a group including employees affected by respondents fetal-protection policy, filed a class action in the District Court, claiming sex discrimination violative of Title VII of the Civil Rights Act of 1964, as amended. The court granted summary judgment for respondent, and the Court Of Appeals affirmed. {The facts need to be expanded to explain more about the health concern and how it affected men as well as women.} ?? Rationale: The court said that respondent could not establish a BFOQ through its fetal-protection policy. It cited that fertile women, as far as appears in the record, participate in the manufacture of batteries as efficiently as anyone else. It disagreed that also the respondents professed concerns about the welfare of the next generation do not suffice to establish a BFOQ of female sterility. It said Title VII, as amended by the PDA, {?}mandates that decisions about the welfare of future children be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents or the courts. {This needs to further explore the essence of the business concerns that the Court addressed.} Policy Issues: The Supreme Court has repeatedly emphasized that the BFOQ defense is a narrow exception to the general prohibition of sex discrimination contained in Title VII. One possible bfoq is on ground of the essence of business. To inquire on whether such ground is complied with, there is a need to focus on whether both men and women possess the skills or abilities required to perform the central tasks of the job or the central mission of the employer. The court said that the job of making batteries, not concern about the welfare of the next generation, constituted the essence of Johnson Controls business. {This is the rationale, not a policy issue.} What is your opinion about the result and the issue of fundamental fairness? I submit that the decision of the court is fair. Attached: Weeks v. Southern Bell.doc USEEOC v. Sedita.doc UAW v. Johnson.doc Olsen v. Marriott International.doc Norwood v. Dale Maintenance.doc Fernandez v. Wynn Oil.doc Diaz V. Pan American World Airways.doc 25725.doc Read More