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Wednesday, March 3, 2010

1:AM - Cat's Pawing Hour

Spent all evening writing, and now half of my huge legal memo is in reasonably decent draft form.  Luckily there's still tomorrow to draft out the next half.

We have an interesting scenario to work with. The law we are working under is employment discrimination, namely Title VII of the Civil Rights Act of 1964, which makes it unlawful for employers to terminate employees of protected groups -- one of those groups being sex -- because the employee is a member of that group. Our problem involves an intersex individual, which, if you are like the rest of my class, is a new term for you. It's, I suppose, a more PC way of saying hermaphrodite. In our scenario, the supervisor of the intersex woman walked in on her in the bathroom, and saw a little more than anyone ever wants to see of any one of their coworkers, and thereafter immediately began treating the intersex woman differently. The intersex woman was later discharged by the human resources manager for increasing absences and tardiness. The intersex woman is claiming that she was unlawfully discharged on the basis of discrimination under Title VII.

There are two issues here: (1) does Title VII's protected class of "sex" include intersex individuals, and (2) may a subordinate supervisor's discrimination be imputed to a non-discriminating employer under a special type of vicarious liability called "cat's paw"? (I'm not going to tell you why it's called cat's paw... well, ok, it's based on a fable in which a monkey tells a cat to retrieve some nuts out of a fire, and the cat keeps going in and burning his paw, while the monkey sits back and enjoys his nuts; basically the theory is that the subordinate is using the employer as a puppet to achieve her discriminating purpose.)

This is a partnered activity, and my partner is taking the intersex issue, while I am taking the cat's paw issue. Also, we are representing the bad guy -- the employer. Dun dun dun. (Reprehensible, I know, but it's better than my last pretend client, who was a child molesting priest. Who knew law school could be so salacious?)  But seriously, while personally I think, yes, intersex people should be protected under Title VII too (that's partially why I didn't want to take that issue -- too much personal bias on my part... although, if we were representing the plaintiff, that might have made me a good advocate), I actually also think it is important to protect not only employees but employers in discrimination cases. It is important to achieve a balance that serves both the remedial purpose of Title VII -- to provide an avenue of relief for plaintiffs with legitimate claims -- and the deterrent purpose of Title VII -- to encourage employers to create non-discriminating workplaces.

So my argument is basically that we need to apply a test that provides an opportunity for employers to break the causal link between a subordinate's bias and the employment decision, which might be completely legitimate and untainted by the bias, since the subordinate is not the one making the decision.  The test involves an independent investigation by the employer into the circumstances surrounding the termination which would allow the employer to consider whether there might be concern over discrimination tainting the decision-making process.

I have drafted the portion arguing for the test (in about 9 lovely pages), and tomorrow I will tackle the application of the independent investigation to the facts of our case.

Ugh. It's kind of exciting to talk about a problem once you start to really understand it, but it also kind of makes me want to die getting to that point, and then having to write it all out so it makes sense and is convincing. This too shall pass.

Oh, but then, after this draft, I will have to finalize and polish the brief, make it perfect. Because my partner and I want to win best brief (tall order, but it can't hurt to have aspirations). Then, the worst thing of all -- we have to orally argue our cases in front of a three-judge panel, one of whom will be an actual judge from the Oregon Supreme Court. I'm gonna need a Xanax or a shot before that happens. Seriously.

So that's where I'm at. If anything I have said so far (very undetailed explanation of a very complicated problem) sounds completely bonkers, feel free to say, "Hey, Sra, that's nuts, because..." Cause I'm trying to see both sides of my cat's paw issue so I can properly prepare for the oral gauntlet. I probably haven't given you enough to really work with though.

It's now 1:27 AM. I get really rambly when I'm sleepy. Good night.


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2 comments:

miss. chief said...

wow, and I thought my ten minute presentation of Baroque art in Spain was tough, haha. Thanks for putting it all into perspective. Things could be so much stressier!

miss. chief said...

wow, and I thought my ten minute presentation of Baroque art in Spain was tough, haha. Thanks for putting it all into perspective. Things could be so much stressier!

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