Midterm Examination
Content warning: fictional representation of racist and sexist attitudes.
Answer the question with an essay (approximately 8-16 pp.). Essays must be typed or printed (Times New Roman, 12 point), double spaced, one-inch margins, single-sided pages, stapled. No long quotes. Include a cover page with your name and major. Essays due in class— no late papers.
In the Freedonia Federation, for many years there has been tension between people of Laurasian descent, readily recognizable for their copper-colored skin, and people of Gondwanan descent, readily recognizable for their goldenrod-colored skin, for reasons outside the scope of this discussion. One of the most common ways this tension has manifested itself is Laurasians refusing to hire Gondwanans despite comparable qualifications. Similarly, Gondwanans often find that they do not rise within companies as readily as Laurasians, are not paid as much for the same work, and are often the first laid off in an economic downturn. Gradually, Gondwanans reach a point of sufficient frustration that they begin to politically organize to make it illegal for employers to do this.
This political activism begins to have an impact, and in the National Assembly of Freedonia, a bill is drafted whose key language reads:
“It shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.”
From the floor of the National Assembly, one Assemblyman in particular exclaims, “the time has come for the people of Freedonia to reject the evil practice of employment discrimination on the basis of race! It is obscene that in this day and age, men who are working hard to put food on their tables, to feed their wives and their children, should not be treated equally in the workplace. It violates one of our most cherished principles: that one man should not be discriminated against in favor of another on the basis of a characteristic he has no power to change, like the color of his skin. My friends, the workplace must be a place where we judge men not by the color of their skin but by the quality of their contribution to society!” Many in the Assembly cheer these remarks; others boo them.
The opponents of the bill have a brilliant idea. Knowing that the majority of the Assemblymen, including those who favor the bill, regard women as little more than housekeepers and sexual servants (in fact, almost every Assemblyman is currently having an affair with a female member of their staff, and the staffers go along with it, largely to avoid being fired), they introduce an amendment to the bill that alters the last clause to read “because of such individual’s race or sex.”
The strategy is that most of the supporters of the bill will balk at extending the protections of the proposed statute to include women, or at least that enough of them will, and that when they are combined with the opponents of the original bill, the new bill will be defeated.
To the opponents’ surprise, the proponents of the bill regard the whole sex discrimination concept as a big joke—in fact, they have never heard of a woman being discriminated against on the basis of sex. Those women who want to perform traditional “women’s work” (waitressing, nursing, etc.) are never fired because they are women, and anyway, most women are unemployed housekeepers anyway. The proponents vote for the bill and it becomes law.
All this was many years ago. In the meantime, great numbers of women have entered the workforce, fundamentally changing its character. Women have entered jobs traditionally reserved for men, though in some cases, these jobs have been closed to them. However, litigation under the Freedonia Antidiscrimination in Employment Act has become more common in these sorts of cases, and now most employers are afraid to not hire a woman for a traditionally male job out of fear of being sued. As the numbers of men and women working side by side has increased, so has the number of office romances, and the phenomenon of male supervisors “hitting on” female subordinates has become more common. So common, in fact, that various feminist authors and groups have begun to speak out against it. Oftentimes, a woman is faced with the choice of giving in to a male coworker or quitting, and these activists say that when you end up quitting under these circumstances, it is no different from being fired. It is profoundly unfair, they claim, that women as a group are vulnerable to this sort of treatment, something that almost never happens to men. Some also argue that the Freedonia economy loses millions of dollars every year in productive work because of this activity they call “sexual harassment” though there is no solid evidence offered to support this claim; a nonpartisan think tank, the Pluto Institute, has put out a study concluding that some women who leave the workforce because of harassment would have left it anyway, to have children, and that attempts to police sexual conduct in the workplace will be ineffective and economically wasteful, as well as being a caseload burden on the judiciary.
Recently, Sally Smith was sexually harassed by her boss, Sam Snout, at his puzzle-manufacturing company where they work, Clueless Co. It gets so bad that eventually Sally can’t stand it anymore, and quits. She sues Clueless for violation of the Freedonia Antidiscrimination in Employment Act. The district court finds that the harassment occurred, but rules that sexual harassment is not sexual discrimination under the statute, and that therefore Sally has no right to any remedy. The appellate court affirms, stating in its opinion, “the Act contemplates prohibiting firing people because of their sex. It does not contemplate protecting people who quit their jobs voluntarily because they cannot get along with their boss. As the amicus brief from the Pluto Institute explains, to hold otherwise would have serious consequences for our economy.” The case finds its way to the Supreme Court of Freedonia, which has the task of interpreting the statute and deciding the case. No such case has ever come before it previously and its decision will determine the rule for deciding all such future cases in Freedonia, with obviously huge consequences for the relations between men and women in the workforce. The Pluto Institute files an amicus brief with the court citing its study.
The Court consists of a panel of five judges, Judge Vigorous, Judge Freedom, Judge Just, Judge Pragmatic and Judge Crit (see Delaney for more information about these characters). Judge Existential recused himself because he was one of the appellate judges who heard the case previously and his nomination to the Court was only recently confirmed. Who wins the case? How did each judge vote and, most importantly, why?
