Answer True or False: Based on Employment Law

1. In ongoing litigation, the record indicates that for the pre-lawsuit period (2005-2010) very few male food servers applied to Super Fancy Restaurant --- perhaps 3% of all applicants, out of an actual applicant pool of between 80 and 120 people a year. In this five-year time period, 108 female food servers were hired and no men were hired. For the post-lawsuit period (2011 to 2016), on average, 25% of Super Fancy Restaurant's food server applicants were men and that Super Fancy Restaurant hired roughly 24.1% men for these positions. Based on this evidence alone, it is fair to say that a male Plaintiff could establish a prime facie case of disparate impact gender discrimination.

2. Plaintiff was hired by the Best Construction Company (BCC) as a carpenter apprentice. She began working in 2000 at an electrical generating plant where BCC was making major modifications. Most of this work was carried on in an open area adjacent to the main building of the plant. The construction site covered three acres and contained two portable toilets for women, one at each end of the work area. There were also 21 other portable toilets on the site, not designated by sex, but primarily used by men.

Plaintiff can show that all females at BCC were placed at a higher risk of urinary tract infections by using unsanitary portable toilets or by avoiding the use of such toilets and holding their urine. Plaintiff can also show that men were not exposed to the same risks from using the toilets because of anatomical differences. For purposes of her prime facie case, Plaintiff can likely show that BCC has an employment practice with regard to toilet facilities has a significantly discriminatory impact on women.

3. In disparate impact cases, the federal Equal Employment Opportunity Commission and other federal agencies will regard a selection rate for a minority group that is less than 75% of the selection rate for the group with the highest pass rate as evidence of adverse impact, at least for purposes of deciding whether to pursue an enforcement action.

4. The disparate impact theory of liability has historically sought to prevent employers from freezing the statute quo of prior discriminatory practices (among other things).

5. In the disparate-impact context, a plaintiff who successfully establishes a prima facie case shifts only the burden of production to the defendant to establish that the employment practice in question is a business necessity.

6. Objective or standardized tests, as well as, subjective employment practices (e.g. delegating promotion decisions to the discretion of supervisors) may be challenged under the disparate impact approach.

7. For about a decade, the Board of Education (the "BOE") required applicants for public school teaching positions to pass a qualifying examination called the Liberal Arts/Sciences Test (LAS). LAS was designed solely to test an applicant's understanding of the liberal arts and sciences. LAS was not intended to evaluate an applicant's mastery of particular subject areas that the applicant might teach, or an applicant's capacity to respond to pedagogical challenges that might arise in the classroomthe BOE evaluated those abilities with separate qualifying examinations.

The BOE has assumed that, as a matter of practicality, specific facets of liberal arts and science knowledge are critically important to the role of teaching and then attempted to determine how to test for that specific knowledge (the result of which was the LAS test). The BOE did not investigate the job tasks that a teacher must perform to do their job satisfactorily, but instead used liberal arts curricular documents to construct the entirety of LAS. Assuming LAS has a disparate impact on certain groups of protected applicants and that LAS has been shown to measure liberal arts and science knowledge accurately. LAS cannot qualify as job related, because it has not been properly content validated in the context of a disparate impact claim.