Question Details

Legal discussion 1:

“Vickers v. Fairfield Medical Center” respond to the following(see article below):

o Discuss how the majority distinguished Vicker- claim from the plaintiff in the
Price-Waterhouse case.

o Explain whether or not there is an ethical difference between harassment based on
stereotypes perceived as manifesting at work and those perceived as manifesting
elsewhere.

o A 16-year old boy was harassed because his voice was soft, his physique slight,
his hair long, and he wore an earring to work. Explain whether or not he has a
valid claim for sexual harassment.



Legal discussion 2: review and respond

 By 2007, 145 cities and counties across the nation had enacted “living-wage bills,” generally requiring those businesses that receive government contracts to pay wages higher than the legal
minimum wage. Maryland- living wage law requires employers with state contracts to
pay workers at least $8.50/hour---higher in some parts of the state, and higher than the
state minimum wage ($6.15 an hour, one dollar higher than the federal floor). Nonprofit
groups and small businesses (i.e., those with 10 or fewer workers) with state contracts
worth less than $50,000 are exempt.

o Identify and explain who will benefit the most from such laws.
o Identify and explain who might be harmed by them.
o Create and discuss arguments for and against living wage laws.

Cite  references 






VICKERS v. FAIRFIELD MEDICAL CENTER
u.s. Court of Appeals, Sixth Circuit, 2005
453 F.3d 757
JULIA SMITH GIBBONS, Circuit Judge. *
... According to the complaint, Vickers befriended a male homosexual doctor at FMC and
assisted him in an investigation regarding sexual misconduct .... Once his co-workers
found out about the friendship, Vickers contends that [fellow officers Kory Dixon and Jon
Mueller] "began making sexually based slurs and discriminating remarks and comments
about Vickers, alleging that Vickers was 'gay' or homosexual, and questioning his masculinity."
Vickers asserts that following a vacation in April 2002 to Florida with a male friend, Dixon's
and Mueller's harassing comments and behavior increased. Vickers asserts that
[Police Chief] Anderson witnessed the harassing behavior but took no action to stop it
and frequently joined in the harassment ....
... The allegations of harassment include impressing the word "FAG" on the second
page of Vickers' report forms, frequent derogatory comments regarding Vickers' sexual preferences
and activities, frequently calling Vickers a "fag:' "gay:' and other derogatory names,
playing tape-recorded conversations in the office during which Vickers was ridiculed for
being homosexual, subjecting Vickers to vulgar gestures, placing irritants and chemicals in
Vickers' food and other personal property, using the nickname "Kiss" for Vickers, and making
lewd remarks suggesting that Vickers provide them with sexual favors.

...[On several occasions, he was physically harassed by his co-workers .... On October
20, 2002, Vickers and Mueller were conducting handcuff training. Dixon handcuffed
Vickers and then simulated sex with Vickers while Anderson photographed this incident ....
... Sexual orientation is not a prohibited basis for discriminatory acts under Title VII.However,
the Supreme Court has held that same-sex harassment is actionable under Title VII
under certain circumstances .... Likewise, individuals who are perceived as or who identify as
homosexuals are not barred from bringing a claim for sex discrimination under Title VII.
... Vickers relies on the theory of sex stereotyping adopted by the Supreme Court in
Price Waterhouse to support both his sex discrimination and sexual harassment claims .... [In
Price Waterhouse, the Supreme Court held that making employment decisions based on
sex stereotyping, i.e., the degree to which an individual conforms to traditional notions of
what is appropriate for one's gender, is actionable discrimination under Title Vii .
Vickers contends that this theory of sex stereotyping supports his claim [because
in the eyes of his co-workers, his sexual practices, whether real or perceived, did
not conform to the traditionally masculine role. Rather, in his supposed sexual practices,
he behaved more like a woman.
We conclude that the theory of sex stereotyping under Price Waterhouse is not
broad enough to encompass such a theory. The Supreme Court in Price Waterhouse focused
principally on characteristics that were readily demonstrable in the workplace,
such as the plaintiff's manner of walking and talking at work, as well as her work attire
and her hairstyle.... By contrast, the gender non-conforming behavior which Vickers
claims supports his theory of sex stereotyping is not behavior observed at work or affecting
his job performance .... Rather, the harassment of which Vickers complains is more
properly viewed as harassment based on Vickers' perceived homosexuality, rather than
based on gender non-conformity.

[Recognition of Vickers' claim would have the effect of de facto amending Title VII to encompass
sexual orientation as a prohibited basis for discrimination. In all likelihood, any discrimination
based on sexual orientation would be actionable under a sex stereotyping theory
if this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional
gender norms in their sexual practices .... While the harassment alleged by Vickers reflects conduct
that is socially unacceptable and repugnant to workplace standards of proper treatment
and civility, Vickers claim does not fit within the prohibitions of the law.
 An individual does not make out a claim of sexual harassment "merely because the
words used have sexual content or connotations." Rather, "the critical issue, Title VII's
text indicates, is whether members of one sex are exposed to advantageous terms or conditions
of employment to which members of the other sex are not exposed.  In, Oncale,
a case involving a male plaintiff suing for sexual harassment by other males, The Supreme
Court identified three ways a male plaintiff could establish a hostile work environment
claim based on same-sex harassment: (1) where the harasser making sexual advances is
acting out of sexual desire; (2) where the harasser is motivated by general hostility to the
presence of men in the workplace; and (3) where the plaintiff offers "direct comparative
evidence about how the alleged harasser treated members of both sexes in a mixedsex
workplace." [Here, Vickers fails to allege any of these circumstances. ...
[The trial court's dismissal of the complaint is affirmed]

DAVID M. LA WSON, District Judge, dissenting. *
... The thrust of the opinion is that Vickers failed to plead that the harassment was based
on sex because it had its roots in the harassers' perception that Vickers's private sexual
practices were woman-like. The majority apparently believes that Price Waterhouse extends
only to behavior and appearances that manifest themselves in the workplace, and
not to private sexual conduct, beliefs, or practices that an employee might adopt or display elsewhere. It concludes, therefore, that Vickers's tormentors were motivated by
Vickers's perceived homosexuality rather than an outward workplace manifestation of
less-than-masculine gender characteristics.
I have no quarrel with the proposition that a careful distinction must be drawn between
cases of gender stereotyping, which are actionable, and cases... that in reality
seek protection for sexual-orientation discrimination, which are not. Nor do I believe
that gender stereotyping is actionable per se under Title VII, although certainly it may
constitute evidence of discrimination on the basis of sex. As Judge Posner of the Seventh
Circuit pointed out:
There is a difference ... between, on the one hand, using evidence of the plaintiffs
failure to wear nail polish (or, if the plaintiff is a man, his using nail polish) to show
that her sex played a role in the adverse employment action of which she complains,
and, on the other hand, creating a subtype of sexual discrimination called "sex stereotyping,"
as if there were a federally protected right for male workers to wear nail
polish and dresses and speak in falsetto and mince about in high heels, or for female
ditch diggers to strip to the waist in hot weather ....
However, these distinctions can be complicated the line should not be drawn before
there has been a trial.
The following are a few examples of allegations made by Vickers in his complaint
that his was discriminated against because of the perception on nonconformity to gender
norms. ... On January 22, 2003, Dixon warned Mueller that Vickers was in a bad
mood. Mueller said, "Maybe he is having a heavy (menstrual) flow day, huh?" Mueller
then said to Vickers, "Why don't you pluck that tampon out and put a new pad in and
lose some of that pressure?" ... Mueller walked out of the office momentarily, returning
with a sanitary napkin which he tried to rub in Vickers' face .... When Vickers returned to
work on January 25, 2003, Mueller asked Vickers if his mood had improved ....
. .. On another occasion Mueller extended a tape measure to touch Vickers's crotch
several times until Vickers got angry and told Mueller to stop. Anderson remarked that Vickers
"must be tired, he's not in the mood to play." A few moments later, Dixon grabbed
Vickers's breast and remarked "Kiss has tittles.' ... In yet another instance, Anderson phoned
the station, but when Vickers answered Anderson demanded to speak to "a real officer." ...
These allegations, in my view, provide a basis for the inference that the plaintiff was
perceived as effeminate and therefore unworthy to be considered "a real officer." The permissible
conclusion that emerges is that the plaintiff was not tolerated-and the defendants
made the workplace environment hostile-because the job required only
"manly men," not woman-like ones or women themselves ....
Because I believe the plaintiff should be allowed to go to trial, I respectfully
dissent.





Family Related Issues
There is also a link that will allow you to print the script of
the video. Write a four to five (4-5) page report that answers the following:

1. Explain if it matters that a parent literally had nothing to do with a biological
child in order for the child to take advantage of the Family and Medical Leave
Act (FMLA) to care for that parent.

2. Explain whether the size of the business can have any effect on whether Tony is
eligible for family leave under the FMLA.

3.Explain whether Herman can or cannot imply that if Tony takes a leave of
absence under the FMLA, he may not have a job when he returns.

4. Describe who is covered by the Family and Medical Leave Act (FMLA) of 1993.

5. Explain the extent to which an employer can make his or her own determination
as to the eligibility of an employee under the Family and Medical Leave Act.

The format of the report is to be as follows:
o Typed, double spaced, Times New Roman font (size 12), one inch margins on all
sides, APA format.
o Type the question followed by your answer to the question.
o In addition to the four to five (4-5) pages required, a title page is to be included.
The title page is to contain the title of the assignment, your name, the instructor-
name, the course title, and the date.

Script for above assignment:
Tony Sulka, our salesperson, is sitting at his desk, looking at a picture of a kind, elderly man, the sort of person whose wise kind face might adorn a cereal box oatmeal. Tony is lost in reverie, a whole story seems to be flowing through his mind. We SEE the picture clearly. 
In the BG, the owner of the dealership, Herman Hays-who is in his shirt sleeves, carrying a clipboard, and smoking a cigar-appears over Tony's shoulder. Herman glances down at his clipboard. 
TWO SHOT-Herman and Tony from the front so that we SEE Tony looking at the picture and Herman looking at the clipboard. 
Herman Congratulations. You sold six cars on Saturday and five on Sunday. A total of eleven. Tony, your parents would be proud of you. 
Tony (still lost in his thoughts.) Yeah . . . I guess . . . 
Herman Hey, that was a compliment. I don't hand them out very often. Enjoy . . . 
Tony Oh, yeah. Thanks. 
Herman puts his hands on Tony's shoulders. 
Herman Tony, Tony. Life is short. Victory is infrequent. You've had a great weekend. Pat yourself on the back. 
Herman looks over Tony's shoulder at the picture. 
Herman (continued) Your father? 
Tony Yeah. He wants to leave the nursing home. 
Herman More power to him. Way to go . . . 
Tony And come live with me. 
Herman Accept your responsibilities, Tony. He took care of you when you were little-now you take care of him when he's old. 
Tony Actually, he left my Mom when I was two. He never took care of me at all.
FAVORING TONY-He's lost in thought. 
Herman In that case, forget him. 
Tony This might be my last chance to get to know him. He's my father . . . 
Herman, do you mind if I take a three weeks off to set Dad up in my apartment? 
Herman You're kidding me. You're on a roll, you just sold eleven cars! 
Tony This is important. 
Herman Tony, we're about to start selling the new model year. Things are going to be hot around here. I'm going to need you. Maybe in a couple of months. 
Tony How do I know he's going to be around in a couple of months? He's eighty, he's sick. 
Herman He should be in a nursing home! Luckily, that's where he is. Essentially, what you are doing is inviting a complete stranger to come and live with you. This guy must be convincing. He should be selling cars. 
ANOTHER ANGLE-as Tony stand up and turns to face Herman. 
Tony What would you do if it was your father? 
Herman My father gave me this dealership. 
Herman looks up at the sky as if in communication with God. 
Herman Dad? No, I didn't forget your birthday. And don't worry, no nursing home for you, ever. I'll be home early, Dad. 
Tony Herman, this is important to me. Come on, now. You've got some part-time salespersons. Why don't you have one of them work full time for a while? 
Herman That's out of the question. This is a small business. Everyone is crucial.
Tony Small? You've got more than fifty employees, if you count everyone. 
Herman Not full-time employees. If I let you take time off, everyone will ask for it.
Tony I'm not asking to take a vacation. I'm talking the father I never knew. 
Herman You're making this hard for me . . . 
Tony Not as hard as if is for him. He's sick, old, and lonely, and I'm his only son. 
Herman If he really is sick, why is he being released from the nursing home?
A BEAT-a change of mood. Tony suddenly looks determined. 
Tony They are not really releasing him. He is going to have an operation, and I just want him to come home and live with me so I can take care of him. He's family. 
ANOTHER ANGLE-FAVORING HERMAN. 
Herman (seriously) We're your family, too, Tony, Rally Motors. The only real family you've ever had. But don't let that stop you. Go ahead, run out on us.
A BEAT-CLOSE ON Tony. He is perplexed, and then suddenly he comes to his senses. 
Tony Great sales pitch! 
Herman Thanks! 
Tony You're a genius! No wonder you're the head of the dealership. 
Herman Thanks! 
Tony But I'm still taking three weeks off. 
CLOSE ON HERMAN- 
Herman (quietly) Go ahead, but you may not have a job when you get back. This is business.
REACTION SHOTS-The two stare at each other as we FADE OUT- 

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