Question

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Posted on Jul 04, 2024

You are an attorney with the law firm of Franklin & Lopez. Your supervisor, Sofia Lopez, asks for your opinion regarding the following fact pattern.

Mia Johnson is employed as a sales person at Able Systems Continental (ASC), a firm specializing in the sale and service of point of sale systems aimed at the retail market. Mia has received satisfactory performance evaluations for the two years she has been at ASC, but her sales figures are barely within the top 50% of ASC sales personnel.

ASC has a well developed harassment policy that includes includes an easily accessible complaint system. All employees are required to attend sexual harassment training. Employees are provided with detailed information about multiple points of contact to report sexual harassment.

Mia applies for a leadership training program with ASC, even though her sales numbers are mediocre. Nevertheless, to her surprise, Mia is appointed to the leadership program. Two male employees, Daniel and Carlos, were also selected. The three employees were called to a room to await a conference call with the President of ASC.

Mia walked into the meeting shortly before the conference call. Carlos and Daniel were already there and in conversation. As Mia walks in, Carlos smiled at her and says, "Oh, you must have gotten chosen for your looks too." Seeing her startle, Carlos quickly apologized and says that his sales numbers are also mediocre. He explains that he was joking earlier with Daniel about the selection process. Daniel was one of the top salespeople in the company. But in trying to justify his own selection, Carlos suggested that "he must have been chosen because of his looks."

Mia accepted his explanation, but later that night, she became concerned that Carlos may have said similar things to other women. Sally, one of Mia's coworkers had complained to Mia that Carlos had asked Sally out twice and "couldn't take a hint" when she made excuses for why she couldn't go on a date. Mia knows that the top management team at ASC is 80% male, and she wonders if those kinds of jokes and behavior are why. She debated whether to file a complaint against Carlos, but decided against it.

As part of the leadership program, Mia, Carlos, and Daniel are assigned to work for Andrew Miller, a senior vice president at ASC. At their first meeting, Andrew suggested to Mia that she get coffee for everyone. When she objected, Andrew explained that she had the least seniority of anyone there, and it is traditional that the least senior employee bring coffee to the first leadership meeting. When Mia then offered to get the coffee, Andrew said, "Ohhh no, let me do it instead." Later, after the meeting concludes, Mia overheard Andrew whisper privately to Daniel, "That's why I hate to work with women. A man never would have complained about that!"

As part of the leadership program, Mia, Carlos, and Daniel were required to meet regularly with Andrew. Mia noticed that when Carlos or Daniel asked a question, Andrew simply answered it. But when she asked questions, Andrew would roll his eyes, shake his head slightly, and sigh before answering. Nevertheless, Andrew always answered her questions.

Mia became increasingly unhappy at work. She experienced symptoms of stress and anxiety, such as insomnia and panic attacks. She discussed Andrew's comments and behavior with some of her friends and co-workers, but did not complain directly to Andrew because she was afraid that he would have her fired. She did not file a complaint pursuant to the sexual harassment policy with the company. She said, "If I complained, that would be just the excuse they would need to get rid of me. Besides, I know that ASC has a zero-tolerance policy. I don't want Andrew to get fired, I just want the behavior to stop."

At the end of the leadership program, ASC traditionally selects one of the employees to be promoted to vice-president of sales. The vice president of sales is one of the most important people within a company because this person is in charge of an organization's most critical assets: customers and the revenue they generate. This year, ASC promoted Daniel to the position.

Mia believed that ASC discriminated against her because of her sex. She felt as if she was never given a chance to compete for the vice-president position. She believes that ASC had already chosen Daniel before ever asking her to join the leadership program. Deciding that enough was enough, Mia then approached HR and made a formal complaint. She alleged three counts: (1) sex discrimination in the selection process of vice president of sales; (2) sexual harassment by Carlos; and (3) sexual harassment by Andrew.

ASC referred the complaint to their lawyer, Ms. Lopez. Because she is aware of your stellar grades in Employment Law, she asks that you give her a legal memo on the following issues.