Scenario
Janet Johnson, an African American woman, has been working at the Tennessee Hydroelectric plant for 15 years. During that time, his performance reviews have been exemplary. She decided to apply for the new plant foreman position. Although she felt that she was eminently qualified for the position, she also was growing tired of a certain good old boy culture at the plant. For years, the plant has had a culture of highly lewd "jokes," and many of the employees had also engaged in inappropriate touching of female employees. The plant had an anti-harassment policy on record, but Janet's boss shrugged and said "boys will be boys" when she reported the harassment to him.
Competition for the position was fierce. But ultimately, Jose Martinez, a Chilean man, received the position. Jose had 7 years of experience. Unbeknownst to the applicants the promotion board secretly ran a credit check on the applicants. Janet credit score came in as lower as average, and this factored into the board's decision. Although he met the qualifications of the position, one of the hiring managers told Janet in confidence that Janet was the most qualified person for the job. And, the other managers had applied a racial preference on Jose's behalf due to there never having been a Latino manager at the plant even though Latino's represented 35% of employees at the plant. Janet sues the plant for disparate treatment, disparate impact, and sexual harassment under Title VII.
Questions
1. List the elements of disparate treatment and apply them to this case. Can Janet prove a prima facie case? How would the plant rebuff these charges? Who would ultimately prevail?
2. List the elements of a disparate impact case and apply them to this case? Will Janet prevail on this charge?
3. List the elements of the sexual harassment case and apply them to this case? Can the plant establish an affirmative defense?
4. If the plant argues that it applied a racial preference to Jose to correct a manifest imbalance at the plant of underutilization of certain minorities, will the plant prevail? Why or why not?
5. Was it legal to use the credit check as a factor in the promotion decision the way that it was done here? Why or why not?