2. Each group should develop answers to the following questions:

a. Based on what you read in this chapter, on what legal basis could the 61-year-old California attorney claim he was a victim of discrimination?

b. On what laws and legal concepts did the employer apparently base its termination of this 61-year-old attorney?

c. Based on what laws or legal concepts could you take the position that it is legal to fire someone for poor performance even though there may be a discriminatory aspect to the termination?

(This is not to say that there necessarily was such a discriminatory aspect with this case.)

d. If you were the judge called on to make a decision on this case, what would your decision be, and why?

e. The court s decision follows, so please do not read this until you ve completed the exercise. Discrimination lawsuits are rarely simple, because the employer will often argue that the person was fired due to poor performance, rather than discrimination. So, there s often a mixed motive element to such situations. The facts of a case illustrate this (Burk v. California Association of Realtors, California Court of Appeals, number 161513, unpublished, 12/12/03). The facts were as follows. The California Association of Realtors maintained a hotline service to provide legal advice to real estate agents. One of the 12 lawyers who answered this hotline on behalf of the Association was a 61-year-old California attorney who worked at the Association from 1989 to 2000. Until 1996 he received mostly good reviews and salary increases. At that time, Association members began filing complaints about his advice.His supervisor told him to be more courteous and more thorough in providing advice.

Two years later,Association members were still complaining about this individual. Among other things, Association members who called in to deal with him filed complaints referring to him as a space cadet, incompetent, and a total jerk. Subsequently, his supervisor contacted six Association members whom the 61-year-old lawyer had recently counseled; five of the six said they had had bad experiences. The Association fired him for mistreating Association members and providing inadequate legal advice.