Monochromatic personnel scanning at TechMark.

Swinkin, Robert ; Armandi, Barry ; Sherman, Herbert 等

CASE DESCRIPTION

The primary subject matter of this case concerns sexual discrimination. Secondary issues examined include appraising employees and management ineffectiveness. The case has a difficulty level of four, appropriate for senior level courses. The case is designed to be taught in two class hours and is expected to require two hours of outside preparation by students.

CASE SYNOPSIS

This field-based case provides a powerful example of how changing market forces and changes at the top of an organization can uncover core operational problems, which corporate growth and profitability have been allowed to fester. It is also a cautionary tale. A company may espouse equality, empowerment and management, but failure to train, execute and enforce these policies may have substantial repercussions.

This is a case with misdirection and a twist ending; a grievance based upon racial discrimination. It is not evident from the case what the ethnic origins of the people involved are in the case although perhaps the students might hazard a guess as to Katherine's national origin given the mention of Mexico and Latin America.

Moreover, the case seems to focus more on Pat's maintaining her "old girls network" and indoctrinating new employees into that network. Katherine seems to be a maverick, someone always bucking the system, and therefore is not allowed to join Pat's "tea party." Katherine is ostracized by most of the workers in her unit and even Gloria, the top performer in the group, does not go out of her way to challenge the way Pat manages the group. The group dynamics of the participants in the case seem to hold the students' attention therefore creating the "smoke and mirrors" for the astonishing finale.

INSTRUCTORS' NOTES

Intended Instructional Audience & Placement in Course Instruction

This case was primarily developed for upper level undergraduates taking an introductory course in human resource management since the focus of the case requires students to make a determination as to whether racial discrimination occurred in the workplace. Specifically, the students would need to analyze Techmark's employee's recent promotions relative to the Civil Rights Act of 1991. The case may also be employed in an introductory undergraduate management course (perhaps after the section on staffing), and a management strategy course (after the section on strategy implementation and tactical plans) although it lacks critical information (financial statements, description of personnel, personnel practices, etc ...) about the firm that would allow for a balanced SWOT analysis.

The case should be introduced after students have read the chapters on understanding the legal environment of business, appraising employees, and complying with workplace justice laws (Kleiman, 2004, Chapters 2, 8, 11; Byars and Rue, 2006, Chapters 2, 3, 11). Since the case covers numerous chapters in each text, and has many confounding elements, it is recommended that the case be employed as a sectional or comprehensive case rather than an end-of-chapter case. In its secondary uses, the case could serve as an end of chapter case dealing with HRM issues in an introductory management course (Jones and George, 2006, Chapter 12; DuBrin, 2006, Chapter 10) or could serve as a introductory or end of chapter case dealing with tactical and operational issues (Thompson, Gamble, and Strickland, 2004, Chapter 8; Pearce and Robinson, 2005, Chapter 9).

LEARNING OBJECTIVES

The overall purpose of this case is to introduce students to the nuances associated with discrimination and affirmative action laws as they apply to employee evaluation and promotion. Students obtain a "real-world" feel of the situation through character dialogue and tacitly experience some of the difficulties that Katherine encountered when trying to contribute to the firm. Specific learning objectives are as follows:

1. For students to obtain a basic understanding of the antidiscrimination laws as they apply to the work environment.

2. For students to understand the idiosyncratic nature of managing and being managed in a fast-growth firm.

3. For students to discern the real problem in this case given the complicating factors and disguised nature of the problem.

4. For students to make a judgment (based upon the facts case and the presiding laws on discrimination) whether or not Katherine has a prima facie case.

5. For students to decide, assuming Katherine does have a prima facie case, whether or not Katherine should win her case and what would be an acceptable remedy.

TEACHING STRATEGIES

Preparing the Student Prior to Case Analysis

There are several approaches, none of which are mutually exclusive, that an instructor may employ in terms of utilizing this case. It is strongly recommended that, regardless of which course this case is to be employed with, students should have some exposure to antidiscrimination law. Some background information can be gleaned from such websites as http://www.eeoc.gov/types/race.html (EEOC's definition of race discrimination), http://www.eeoc.gov/facts/qanda.html (discriminatory practices), http://www.usdoj.gov/crt/emp/faq.html (the justice department's site on frequently asked questions) and http://www.lawzilla.com/content/fed-emp-300.shtml (facts about EEOC mediation).

Secondly, it is also recommended that students have some grounding in employee compensation and evaluation (http://trmep.tamu.edu/cg/overheads/oh8-5.html; http://www.accelteam. com/job_interviews/job_selct_interviews_01.html). The above information may be delivered prior to assigning the case by using at least one (1) of the follow methods:

1. a short lecture, student presentation, discussion session, and/or reading assignments on aforementioned topics.

2. a guest lecturer from a human resource manager and/or EEOC compliance officer.

Case Method

Although most of the students in a marketing or management strategy course may have had some exposure to the case method, it behooves the instructor to provide the students with a review to the case method of analysis. In the traditional case method, the student assumes the role of a manager or consultant and therein takes a generalist approach to analyzing and solving the problems of an organization. This approach requires students to utilize all of their prior learning in other subject areas although the focus should be on the current course content. It is strongly suggested that students prepare for the case prior to class discussion, using the following recommendations:

1. allow adequate time in preparing the case

2. read the case at least twice

3. focus on the key issues

4. adopt the appropriate time frame

5. draw on all your knowledge of business. (Pearce and Robinson, 2005)

The instructor's role in case analysis is one of a facilitator. The instructor helps to keep the class focused on the key issues; creates a classroom environment that encourages classroom discussion and creativity; bridges "theory to practice" by referring back to key concepts learned in this or prior courses; and challenges students' analyses in order to stimulate further learning and discussion. There are several variations of the aforementioned approach including: written assignments, oral presentations, team assignments, structured case competitions, and supplemental field work. (Nicastro and Jones, 1994)

Regardless of the variation employed, it is recommended that the students' work be evaluated and graded as partial fulfillment of the course's requirements. However, if this case is not employed as a comprehensive case, it is not recommended that this case (and its related assignments) have a large weight or impact on students' overall course standing.

Using Case Questions

Whether or not the instructor assigns questions for students to analyze with the case is usually a matter of educational philosophy and student readiness. Naumes and Naumes (1999), for example, thought that if the questions were handed out with the case "students will tend to focus only on the issues specifically raised by the questions ..." (p.86). Lynn (1999), on the other hand, noted that the use of assignment questions provided students with more concrete guidance in case preparation and analysis; specifically directing them to consider the decision to be reached.

In deciding whether or not to assign questions, the instructor should first answer the following questions:

1. What is the level of course instruction?

2. What type of case is being taught? (Iceberg, incident, illustrative, head, dialogue, application, data, issue, or prediction--see Lundberg et. al., 2001 for full descriptions.)

3. What is the instructor's preliminary assessment of the students' ability to be self-directed learners?

4. What are the students' previous experience with case instruction?

5. If the students have already been exposed to the case method, what types of cases have they been exposed to? Case incidents (1-2 page cases with questions)? Short cases (3-8 page cases with and/or without case questions? Comprehensive cases (greater than 8-15 pages) Harvard-style cases (greater than 15 pages)? (David, 2003)

6. What is the instructors preferred method for case instruction? (For example, "sage on the stage", "guide on the side", "student as teacher" (student-lead discussions), "observer and final commentator" (open class discussion with faculty summation), etc....

As per objective #3, this case requires that students maintain their focus when analyzing this case and not get caught up in the various side issues embedded in the case.

The authors believe that this case would work far better if the instructor were not to hand the question in advance since the case has numerous complicating factors that tend to obfuscate the problem. It is very easy for a student to stray from the immediate problem (the discrimination grievance) and to become mired in the numerous facts in the case. We believe that the real test for students will be in their ability to wade through the case, recognize the real problem, and address the in equities caused by the improper evaluation and compensation systems of the firm.

Role-Playing (85 minutes)

Role-playing enacts a case and allows the students to explore the human, social, and political dynamics of a case situation. This case lends itself quite well to a role playing exercise since the filing of discrimination charges can be enacted through a confrontational venue; a mock court.

Prior to role-playing the case part, students should be asked to not only read the case part but to answer the following questions:

1. Who are the key participants in the case? Why?

2. What is the "role" of each of these participants in the organization?

3. What is their motivation or rationale for their behavior?

4. What is the "charge" in this case and is there prima facie evidence to support such charges?

The instructor may either go through these questions prior to case enactment or wait for the role playing exercise to be completed in order to use this material to debrief the class.

Step 1: Assignment of Roles & Instructions (10 minutes)

The class as a whole should be employed for this exercise. Given the class, the instructor can determine how many jurists will be needed, whether a student will play the role of the judge (although this role is suggested for the instructor), and how many witnesses will be available to testify in court. At least the top three key characters of the case (Katherine Anderson, Mike Arend and Pat Hagen) will need to be role played as well as their respective attorneys (assume that Katherine will be suing Pat and Mike who are represented by the firm's attorney) and there should be a student assigned for each witness called in to testify on behalf of Katherine and the Pat. Appendix A has a brief description of the three key characters including a description of possible witnesses that may be called by either party.

Step2: Enactment (50 minutes)

The instructor or the student playing the role of the judge should start the court hearing by summarizing the situation and then asking each attorney to make an opening statement. The instructions to the students playing the attorneys is that they need to "win at all cost" and therefore: a) a settlement is out of the question; b) they will conduct a very aggressive cross examination. The instructions to the students playing Mike and Pat is to absolutely deny that Katherine's race, age, or gender impacted their treatment of Katherine in general and certainly did not play any role in the most recent promotion decisions.

Step 3: Debriefing (20 minutes)

The instructor might want to ask the following questions:

1. Did the jury reach a verdict? If in favor of the Plaintiff, what was the settlement?

2. Did you agree with the jury's verdict? Why or Why not?

3. Evaluate each attorney--did they do a good job in making their case?

4. Evaluate the Plaintiff and the Defendants--were they believable?

5. Evaluate the witnesses--were they believable?

The instructor should then have the class as a whole comment on the results of the role-play and determine with the class their overall analysis of the situation. Students should also be given the opportunity to comment on the role-playing exercise as a learning instrument. The instructor might ask the class the following questions:

1. Did this exercise animate the case? Did students get a "feel" for the issues surrounding the discrimination suit?

2. What were the strengths and weaknesses of the exercise? What changes would they make to the exercise given their experiences with it?

The debriefing session should produce closure for students by connecting HRM practices and EEOC laws with case specifics and the results of the role-playing exercise.

PRELIMINARY CASE ANALYSIS

Discussion of Embedded, Underlying Problems and Complicating Factors

There are several concerns that run throughout this case that students may note in their analyses but that are not directly attributed to the problem at hand, the discrimination suit. The following represents a short discussion of these topics.

1) Laissez-faire manager. Mike Arend, as Senior Director, was faced with an insurmountable workload. Managing relationships with three key distributors, with responsibility for nearly a quarter billion dollars in annual revenue would be a sizeable enough task for even the most capable corporate officer. The position was essential from both a strategic and tactical standpoint. It also required frequent travel and had him reporting to the highest echelons of executive management. How then could he expect to be fully aware of the individual strengths and weaknesses, talents and shortcomings of this Telesales group that was also his charter? How attuned could he be to the daily workings of his team?

2) Lack of professional supervision. Had the Telesales group been comprised of seasoned, senior sales people, this might have been less of an issue. Unfortunately, as it was comprised largely of impressionable college graduates and older former line workers for whom TechMark was their first professional experience, this lack of oversight was clearly a problem in the organization.

Of course, Mike had not been aware that there was any lack of oversight and professional mentoring. He had assumed that Pat Hagen was actively managing the team. After all, Pat had worked with him over the course of a decade and in many ways helped support his rise through the corporate ranks. She had always proven herself capable and extremely loyal. How could he possibly question her leadership abilities or dedication to the job?

3) Profits over Process. Although the corporation was prospering, signs indicated poor administration of the unit--failure to do timely performance reviews, inability to answer key questions about the group's activity during audits, ignoring Katherine's apprehensions, etc.--Mike chose not to acknowledge them.

Though Pat may have been a hands-on manager and a highly motivated and capable lieutenant at some point in her career, Pat had clearly grown complacent. Her unwillingness to perform even the most routine managerial tasks (regular team meetings, setting up training and education for her people, annual performance reviews, mitigating personal conflicts among group members) was the clearest indication of this. Was she incompetent, lazy or simply bored? All three? In either case this was a liability, especially for a manager of a young group, positioned as future leaders of the corporation.

4) Favoritism. Perhaps most divisive was Pat's open willingness to select favorites and allow -even perpetuate--unequal treatment. This led to the complete politicization of the group and had a profoundly negative effect on morale and motivation. Decisions seemed to be made on whim rather than empirical evidence and sound business judgment. Holding closed-door meetings with Kerri and Tara without inviting or sharing the agenda with other team members, allowed for feelings of exclusion and powerlessness.

The absence of regular or honest feedback also allowed insecurity and miscommunication to flourish. Katherine had no way of knowing how the quality of her work and on-the-job behavior was being perceived.

Of course, due to the esteem in which she was held, Pat was able to influence Mike's thinking and thus directly shape the future direction of the team. When it finally came time to select associates for promotions, as Telesales became "Inside Sales," he simply took her recommendations at face value. No other counsel was solicited--or desired.

5) Poor Performance Indicators. There were also several elements of the job that might have made "management-by-fact" somewhat difficult even in the hands of the most proactive and engaged supervisor. First and foremost, sales dollars were recorded on leads that were sent to a partner and successfully "closed." Unfortunately, a lucky sales rep might pick up the phone and get a prospect who knew what he wanted, had a budget and was ready to purchase. In this case all that might need to be done was a simple referral by giving a prospect a partner's telephone number and prepare to take credit for the deal.

Furthermore, a demanding Fortune 500 prospect that required exhaustive presales technical information would put TechMark up against several competitors who competed as low cost providers. A talented sales rep would marshal TechMark's resources, put the company in a favorable position and still lose the deal due to budget cuts, a change in corporate structure, or an especially price aggressive competitor. She may have worked extremely hard on the deal and, as no revenue was immediately accrued, had nothing to show for it. In short, as partners made the actual sales--and the quality of the prospects was often quite random--revenue figures bore little relation to a Telesales rep's skill or effort.

Moreover, revenue was counted by region. It was not uncommon for a rep to fully qualify and support a prospect in a territory outside her own, only to see the deal closed in another team leader's region. As we have seen, this happened to Katherine on multiple occasions.

A Summary of the Factors and Events Underlying the Formal Complaint

Before students analyze the case, the better students will review the critical facts and events that lead to the law suit. The following constitutes a synopsis of those events.

It is apparent that it was the sting of being passed over for a promotion that immediately prompted Katherine to file a formal complaint. In fact, it was both the way it happened--and the rapid unfolding of events in the weeks that followed--that finally drove her to action. Consider the following:

A) She received no advanced notice whatsoever. Katherine returned from a trip to Brazil to find herself frozen in her current position. Planning for this eventuality had clearly been ongoing for several months and instead of learning of it from Mike, a man whom she still respected and trusted, she came into the office to find a new organizational chart pinned to the wall.

B) Three of her associates received significant promotions. Not only did they have new titles, they were moved up two zones in pay, were now directly reporting to Arend and had teams working under them. To make matters worse, none of the new "Inside Sales Team Leaders" was any more qualified or skilled than she was. In fact, Katherine consistently worked longer hours, shouldered more responsibilities and had empirically better performance statistics than the others.

C) She was slotted under Pat Hagen, a woman with whom she clearly did not get along. Still, Pat continually came to Katherine with routine and basic questions about partners, TechMark's products and the lead tracking and assignment system.

D) No explanation was forthcoming and no avenue of recourse was presented. A reply of "life is not fair" was the only answer she received.

E) New hires were brought in at Katherine's pay grade. Katherine, who had devoted three years to the company, was expected to assist in training of the recruits.

F) As a senior member of the group, Katherine might have expected the exclusionary practices to diminish. In actuality, they intensified. Team leaders now spent lengthy periods behind closed doors with Arend, where decisions were made on how the Inside Sales team should function. New protocols were then handed down without further consideration. Moreover, an email thread was formed, to which only Team Leaders could subscribe. Katherine felt more excluded than ever before.

Preliminary Assessment and Comments

Most students will then continue their written analysis of the case by presenting an initial appraisal of the situation. The following comprises that assessment.

In assessing this case we must examine Katherine's racial background. It is indeed a fact that each person who received a promotion was fair skinned and blonde haired. Moreover, not a single new hire was African-American. Given a record of excellent performance, we cannot simply dismiss racial discrimination as not playing a role in this case.

Assuming for the sake of argument that color was not a principal factor in this case, what other elements of Katherine's behavior account for her treatment in Telesales?

Clearly, Katherine had stepped into an organization that had always been run informally, under the aegis of a single personality--Pat's. Young, ambitious and intelligent, Katherine strived for an element of professionalism and effectiveness that had never been part of the group's charter. From the start, her questioning of how things were done, her immediate suggestions for improvement and change were viewed as an upset to the status quo.

Though Mike Arend indicated that these were qualities he looked for and sought to cultivate, in actuality the group was run by Pat. While veterans of the group, and Pat's "favorites," patronized and placated their supervisor, Katherine continued to advocate change. This was immediately perceived as a threat to a heretofore comfortable status quo. Even a simple act as working late could be judged as an attempt to outshine other group members and their supervisor, who were packed up and ready to leave at 4:45pm every evening.

Exacerbating the problem was Katherine's repeated attempts to directly reach Arend or his superiors. Clearly, in an organization that seemed to value consensus and looked to maintain a low profile, this was a major liability.

Given the repeated slights, both real and perceived, that she experienced, it is no wonder that Katherine had increasing difficulty in concealing her disdain for her job, the group and her supervisor. Did word get back to Mike and Pat that Katherine was actively trying to find a position in a different part of the company? Perhaps. Was it clear that Katherine seemed to be growing unhappier as the months wore on? Absolutely.

When choosing leaders for the new group, might not cheerfulness, deference to authority and ability to follow instruction as given be placed at a premium? It certainly seemed so.

Alternative Scenarios and Possible Solutions

Going back to 2000, the students should have identified multiple problems that lead up to Katherine's lodging of a formal complaint. Once the students have analyzed the case, the better students will provide several options as solutions to the case problem. The following material is presented as possible students' solution strategies.

It is apparent from prior analysis of the case that Mike Arend was given too great a charter and should have had Telesales as his sole focus. Pat should have been forced by Mike into retirement, demotion, or fired for her failure to adhere to the management practices of the firm. Those practices included failure to: perform performance reviews, exhibit management by example, develop knowledge of the business, and adhere to actual performance metrics. Objective standards might have been put into place to force an accurate assessment of each associate's contribution.

Unfortunately, it is far too late in the case to make these adjustments; hindsight is 20:20. There is a discrimination complaint at hand that could severely impact Mike Arend's career and potentially expose TechMark to significant liability. Moreover, as Katherine is the only associate at present with the experience and language skills to develop the Mexican and Latin American territories, her leaving the Inside Sales group could have a significant impact on the business. So, what to do?

First, Katherine needs to immediately feel that she is a recognized and valued member of both TechMark and the Inside Sales organization. Mike Arend needs to schedule a private session, with Jim Taylor in attendance, to listen to Katherine's concerns and give her solid and honest feedback on her performance. Rationale for the decision on promotions needs to be made. A balanced assessment of her contributions to the company should be undertaken with her active involvement.

Pat needs to answer for her actions, first to Mike and then to Katherine.

Given her record of outstanding performance and the fact that she single-handedly ran the Latin American territory from an Inside Sales perspective, Katherine should have two options presented to her. She could be made a "Team of One" and directly report to Arend on the Latin American business. Unfortunately, if her feelings regarding the group have deteriorated to the point where she does not feel that she could stay, a similar position should be opened under Tony Sassone. TechMark accrues the same benefits while Katherine may feel happier coming to work each day. It goes without saying that an increased salary or variable compensation tied to performance be granted her immediately. Though considerably less expensive than a legal settlement might be, this is not a bribe but a justly deserved reward for three years of committed and effective service to TechMark and needs to be presented as such.

SUGGESTED CASE QUESTIONS

Objective #3, discerning the real problem in the case, could serve as an introductory question (i.e. discuss the problem posed in the case), however, this question should be separated from the other case-specific questions dealing with race discrimination since it is evident that the latter questions would bias the answer to the first question. We suggest that, at most, students be given only the question dealing with discussing the case problem as a take home assignment and that the remainder of the questions be employed as in-class discussion questions. Possible mitigating factors, analysis, and answers to discerning the real problem have been presented in the prior section entitled "Preliminary Case Analysis."

1. What are the antidiscrimination laws concerning the workplace that apply to this case?

This question requires that students recognize that the focus of the case is on the race discrimination claim against Pat and Mike by do some reading and research on race discrimination.

The below average student will answer this question by referring to discrimination in general rather than to race discrimination as discussed in the case. This student might cite Title VII of the Civil Rights Act of 1964 which "prohibits discrimination based on the protected classifications of race, color, religion, national origin, and sex." (Kleiman, 2004, p. 29)

The average student will probably cite the more recent Civil Rights Act of 1991 noting that this act was passed in order to make it easier for employees to substantiate their claims and by addressing mixed-motive cases (those cases where other performance-related factors also motivated the employment practice). (Kleiman, 2004)

The above average student will also note that "in Wards Cove Packing Co. v. Atonio (1989), a five-member Court majority implicitly overturned its earlier interpretation of Title VII of the 1964 Civil Rights Act in Griggs v. Duke Power Co. (1971) and held that the burden of proving that a defendant company's employment practice discriminates against a protected group always remains with the plaintiff and does not shift to the defendant. In this act [P.L. 102-166], Congress rejects the Court's holding in Wards Cove and places the burden of proving that its employment practices do not discriminate squarely on the defendant." http://www.unl.edu/ashavers/cra1991.htm, April 21, 2005.

The exceptional student will further denote that "in the most important affirmative action decision since the 1978 Bakke case, the Supreme Court (5-4) upheld the University of Michigan Law School's policy, ruling that race can be one of many factors considered by colleges when selecting their students because it furthers 'a compelling interest in obtaining the educational benefits that flow from a diverse student body.'"

http://www.infoplease.com/spot/civilrightstimeline1.html, April 21, 2005. This student might also indicate that states also have their own civil rights laws. For example, New York's Executive Law Article 15 Section 296 (Unlawful discriminatory practices) states that "It shall be an unlawful discriminatory practice: (a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." http://www.nysdhr.com/hrlaw.html#296, April 21, 2005.

2. In your opinion, does Katherine have a prima facie case for race discrimination?

This question has two purposes; one, to determine if students understand the concept of making a prima facie case; two, to see if students can apply the requirements for a prima facie case to this case.

The below average student will answer this question without referring to the law regarding prima facie cases and discrimination. This student will then offer a personal opinion based upon the facts of the case (without reference to said laws).

The average student will most probably answer this question by first defining what a prima facie case is. "A prima-facie case is a lawsuit that alleges facts adequate to prove the underlying conduct supporting the cause of action and thereby prevail....

A plaintiff can establish a prima facie case of race discrimination under Title VII by establishing that (1) he or she belongs to a racial minority; (2) he or she applied and was qualified for a job for which the employer was seeking applicants; (3) he or she was rejected for the position despite his or her qualifications; and (4) the position remained open after his or her rejection and the employer continued to seek applications from other people with similar qualifications to the plaintiff. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). In Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), the Supreme Court stated that '[t]he burden of establishing a prima facie case of disparate treatment is not onerous.'" http://www.lectlaw.com/def2/p078.htm, April 21, 2005.

This student would then indicate that the plaintiff (Katherine) was in fact a member of a minority group, was eligible for promotion, did not receive a promotion although her colleagues did, and her performance seemed to equal in fact if not surpass her colleagues who in fact received promotions (employing the McDonnell-Douglas Test). (Kleiman, 2004)

The above average student would continue by noting that there are two types of discrimination, intentional and unintentional. Intentional discrimination is when employees are treated unfairly or receive disparate treatment while unintentional discrimination is when employment practices that is not job related results in a disparate impact. (Kleiman, 2004) A prima facie case can be made for intentional discrimination if there are restrictive company policies, discriminatory remarks, or by applying the McDonnell-Douglas test. An unintentional discrimination case can be made by applying the four-fifths rule (the hiring rate of new employees for a minority group may not be lower than 80% of the majority group).

This student would note that by employing the four-fifths rule for promotional purposes, it is clear that the other three employees promoted were members of an advantaged group.

The exceptional student would probably continue to cite some of the legal issues surrounding prima facie cases as it affects the defendants. "After the plaintiff has established a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the plaintiff's rejection. Id. If the employer sustains the burden, the plaintiff then has the opportunity to present evidence showing that the employer's stated reason for the rejection was merely pretextual. Id.; see also McDonnell Douglas, 411 U.S. at 807; Lindahl, 930 F.2d at 1437 ('The defendant's articulation of a legitimate nondiscriminatory reason serves ... to shift the burden back to the plaintiff to raise a genuine factual question as to whether the proffered reason is pretextual.') (quoting Lowe, 775 F.2d at 1008).

... Under McDonnell Douglas, to establish his prima facie case, the plaintiff need not prove that discrimination was the motivating factor in his dismissal. All he must do is raise an inference that such misconduct occurred.

A plaintiff can also establish a prima facie case by "offering evidence adequate to create an inference that an employment decision was based on a discriminatory criteria illegal under [Title VII].' Mitchell v. Office of the Los Angeles County Superintendent of Schools, 805 F.2d 844, 846 (9th Cir. 1986) (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)); see Lowe v. City of Monrovia, 775 F.2d 998, 1006 (9th Cir. 1985) (plaintiff can establish prima facie case of disparate treatment without satisfying McDonnell Douglas test if he or she provides evidence suggesting rejection was based on discriminatory criteria), amended, 784 F.2d 1407 (1986)....

Although 'the mere existence of a prima facie case, based on the minimum evidence necessary to raise a McDonnell Douglas presumption, ... the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact' as to pretext. Lindahl, 930 F.2d at 1437. In fact, any indication of discriminatory motive ... may suffice to raise a question that can only be resolved by a factfinder." http://www.lectlaw.com/def2/p078.htm, April 21, 2005.

This student might then note that in order for the defendant to rebut a prima facie case, intentional or unintentional, he or she may employ the bon fide occupational qualification defense (BFOQ defense) (1. that all or nearly all members of this group are incapable of performing the job in question; 2. to be "authentic", the employer must limit its employees to a specific group; 3. that it would be socially and morally improper to hire a specific gender for the job; and 4. employment of an older worker would place people in jeopardy), indicate that any perceived discriminatory remarks made were not really of a derogatory nature, that hiring and/or promotional standards employed were legitimate, and that the decision made was of a business necessity (the criteria must directly relate to the employee's ability to perform the job effectively). (Kleiman, 2004)

This student would denote that Katherine's log of preferential treatment and perceived discriminatory behavior would be difficult to disprove since the BFOQ defense does not seem to apply. There is also no information in the case that would indicate that Katherine's performance was lower than her colleagues, what exactly the promotional standards were, and what selection criteria were employed for promotion. This student would probably conclude that a prima facie case could be made by Katherine.

3. Assuming you were the judge in the case and you had already allowed this case to go forward based upon the prima facie evidence, what would be your verdict and what would be an acceptable remedy to the complaint?

The purpose of this question is to allow students to express their opinion about this case and to propose a solution strategy for rectifying the problem based upon the main provisions of the Civil Rights Act of 1991.

The below average student, regardless of their ruling for or against the defendants, would not reference the Civil Rights Act of 1991 in terms of either burden of proof or awarding of damages. This student's final judgment and award will therefore be unbound by legal limitations and be totally based upon personal interpretation of the facts of the case.

The average student would note that damages in cases of intentional discrimination include compensatory damages and punitive damages. "Compensatory damages are awarded for [current and] future financial losses, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life" (Kleiman, 2004, p. 32) while punitive damages could be awarded if the jury perceived there was malice or reckless indifference exhibited by the defendants. The limitations on the totals damages would be $300,000 (500+ employees). (Kleiman, 2004) If this student indicates that there was in fact discrimination in the practices of the firm might suggest that Katherine be reimbursed punitive damages and Katherine be placed in a position of equivalent authority, responsibility, and compensation as her former co-workers who did receive promotions.

The above average student, when describing his or her final judgment, would indicate if they found for the plaintiff whether or not their finding was of intentional or unintentional discrimination. In either case, they would also explain how the jury came to that conclusion given the facts of the case (i.e. since burden of proof is more difficult in disparate impact cases, this student would indicate how the company might fail to prove that their employment practices "is job related and consistent with business necessity"). (Kleiman, 2004, p. 33)

The exceptional student might deem this case far more complex in that perhaps mixed-motives were in play. For example, it is quite possible that Pat and Mike would argue that they in no way intentionally discriminated against Katherine re: working behavior and promotion in that they would have treated Katherine the exact same way, regardless of her race, given Katherine's performance and the needs of the firm. They could certainly point to the need to have Katherine continue to service the South and Latin American clients although they realize now that Katherine should also be promoted and report directly to Mike. If this defense held up, the award could be merely a promotion for Katherine (and any related back pay) and the reimbursement of attorney fees and court costs. (Kleiman, 2004)

EPILOGUE

As of 2005, the case is pending, and Katherine is temporarily working in a different office while the facts are under review. She has not yet left TechMark and indicates that she is hopeful that a resolution may be found. Nearing 70, Pat is still coming to work everyday, though there are rumors that she is looking to retire this year. Mike has been in several closed-door meetings with the Director of Human Resources and as of now, his position seems secure. In fact, he just received authorization to add two new department heads this week; one speaks Spanish.......

APPENDIX A: Case Character Descriptions

Note: All descriptions below are of 2000. As the case takes place over three years, ages, roles and job functions will all change.

Katherine Anderson

The key person in this case. Twenty Three years old. Immaculately groomed, soft-spoken, amiable and ambitious African-American female. Graduated with Honors in Economics and Spanish and is fully bilingual. In her job interview she stated: "I am looking for a career, not just a job." She was brought on as Team Leader for Canada and the Western sales territories.

After a year Katherine had been given Mexico and Latin America to manage and turned over her other territories to be redistributed among the rest of the group. To make sure her language skills were up to task, she attended a Berlitz program at night, in addition to the in-house MBA classes she was enrolled in.

Mike Arend

Senior Director, in charge of the Telesales group as well as Distribution Business Development. In his mid-forties, this former music major had experienced success in his tenure at TechMark; his career path seemed to follow the trajectory of the channel--namely upward with largely unimpeded growth. The events of late 2000 and on would mark his first real challenges at the company.

Tall, broad-shouldered and possessing a deep, resonant voice, Mike certainly had excellent room presence. Despite imposing physical stature, Mike was every bit the "company man," often rushing to do the bidding of his superiors and never crossing into open disagreement, even when he believed them wrong.

An optimist by nature, Mike generally had a smile for all of his reports and had an open door policy. If there were ever problems in the group, Mike either did not know about them--or refused to acknowledge their existence. By 2000, due to the increasingly large scope of his job responsibilities, Mike left the day-to-day affairs of Telesales in the hands of Pat.

Pat Hagen

Pat never revealed her age but anyone guessing mid-60s could not be too far off the mark. A teacher by profession, Pat joined TechMark in 1991 and worked for Mike Arend for most of her tenure. Like Mike, her career grew with the expansion of the Channels group, particularly the growth of the Telesales group she managed. By the time the "College New-Hire" program was initiated, Pat was a fixture at TechMark.

While jocular outside the office, in meetings she never uttered a word other than to reiterate the remarks of Mike or another Director. Her management style seemed to be as casual as her mode of dress; her reports quickly learned to handle questions and disputes among themselves. Pat never openly involved herself in conflict. The sign in her cubicle read: "It's all about me."

Kerri Masters

The first of the "new blood" to join the group, Kerri actually came over from Human Resources where she worked in recruitment. With blonde hair and blue-eyed, this vivacious 25 year old was well-known around the company. Though by no means slender, she was quite buxom and always presented herself well. With a ready laugh and sunny disposition, she was quite popular with other groups at TechMark.

Though she presented well at meetings and events, Kerri's approach to her job on a daily basis could be described as "breezy" at best. Nevertheless, as Team Leader for the Central region, she never missed her quota and tended to have good relationships with her business partners. During the duration of the case, she completed an in-house MBA program, the first of the Telesales reps to have done so.

Tara Cohen

Tara was 23 when she joined Telesales in mid-2000. A decent student, Tara had worked as an intern over summers at TechMark, so she had an inside track on the job. Like Kerri, Tara was an attractive blonde. Unlike Kerri, Tara was more reserved and business-like in nature. As "Team Leader" for the Mid-Atlantic and New England region, she regularly met her quotas and was considered by her peers to be willing to share the burden when the workload got heavy.

Cathy Lawrence

Cathy was the one Team-Leader (Southeast) who was a member of the original Telesales group. In her early 30s, Cathy had worked as an administrator before Mike and Pat hired her to work for them in 1997. Though she only had a high-school diploma, Cathy was an extremely hard worker, her face rarely seen during the workday, as she was constantly on the telephone with prospects and partners. Pat would often assign extra calls and projects to Cathy, who completed them without comment. A highly effective organizer, Cathy knew her territory quite well and took pride in meeting her quotas every quarter. In meetings Cathy was usually silent--perhaps self-conscious about her education--but generally feeling that Pat was more apt to listen to Kerri and Tara while dismissing her own input.

Rhonda Howard

Though hired as part of the "New College Hire Program" Rhonda was 32 when she joined TechMark. A late starter, she had worked her way through Carnegie Mellon University and thus had the most prestigious educational background on the team. Her ethnic background (African American) was her only similarity to Katherine. Those who did not know her--and even those who did--might be apt to find her somewhat rude and abrupt. Rhonda never paid it any mind.

Given the technical aspects of her educational background, Rhonda was often working both in and outside the group on IT related issues and was thus never a core part of the group's sales function.

Robert Simon

A graduate of a local college, Robert, 22, joined TechMark when he was not accepted to the Suffolk County Police Academy. Initially quiet and soft-spoken, Robert soon grew more comfortable in his position and was looked upon as a solid member of the group. He took an active interest in learning more about TechMark's products and technologies than was typical for the group. Pat would often go to Rob when questions arose for which she had no answer.

Gloria Vernon

Standing about 4'11 and weighing in at about 200 pounds, Gloria was the anchor of the Telesales group. At 63, this grandmother of four was part of Telesales since its inception, having been hired off the manufacturing floor. The first to pick up an incoming phone call, Gloria's affinity for the job was matched only by her penchant for complaining about it. Most of the new hires learned quickly to go to Gloria rather than Pat for questions about product or about the job, for which Pat was exceedingly grateful.

Gloria was a volunteer for TechMark's mentoring program, in which new hires were assigned an experienced TechMark Associate to help them acclimate to the company. For 6 months, Katherine was her "mentee." As the business climate soured, Gloria was to be the only original member of the Telesales group to keep her job. All others were laid off.

Jim Taylor

Human Resources, charged with ensuring that TechMark's hiring and promotional policies were in accordance with Federal Equal Opportunity Employment guidelines. Jeff was an African- American male in his late 30s. Although soft spoken and reserved, Jeff could be quite deliberate in thought and action.

Tony Sassone

Pensive and soft-spoken, Tony was in charge of Channel Business Development for Mexico and Latin America. He and Mike were peers, reporting to the same Vice President. Tony interfaced with Katherine on a regular basis, as they established plans for growing the Latin American sales channel.

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http://www.infoplease.com/spot/civilrightstimeline1.html

http://www.lectlaw.com/def2/p078.htm

http://www.nysdhr.com/hrlaw.html#296

http://www.unl.edu/ashavers/cra1991.htm

Robert Swinkin, Long Island University Barry Armandi, SUNY-Old Westbury Herbert Sherman, LIU-Southampton College