Petunia Rotunda versus CARDWARE, Inc.

The Equal Opportunity Employer of CARDWARE, Inc. recently extended its activities into the 'The Sporty One' sportwear collection. In the course of their recruiting process, CARDWARE hired Noah Dahl. The training experience from Noah is adequate to fulfill the expected roles in the marketing aspects of the job. However, one of the respondents - Petunia Rotonde, who did not get her job, argues that her lack of information about her position is discriminatory by age. Under Title VII of the Civil Right Act of 1964, it is illegal for an employer with more than twenty employees to discriminate against employees by age, gender, religion and national origin when making employment decisions. However, when companies engage in discriminatory activity when making employment decisions, they do it under the statutory defense of the bona fide occupational qualification(BFOQ)(Ryan Jr, 1981). This exception allows employers to intentionally partake in discriminatory decision making if they can demonstrate that the characteristic discriminated against is reasonably necessary for the proper operation of their enterprise.

Given the less than clear nature of the language of the BFOQ, case law comes in particularly handy in determining the validity of a BFOQ. Standard procedure dictates that for the aggrieved party to claim employment discrimination, they must prove that they are a member of the class protected by law and show that they were treated differently because of their age, sex, national origin or religion. The employer, if they choose to interpose a BFOQ as a defense, is then required to prove that their BFOQ was closely related to the ‘central mission or ‘essence’ of their company(Ryan Jr, 1981). In petunia’s view, being a middle-aged person- conventionally interpreted to be between 45 and 65 years- she can claim that she is a member of the protected class under the Age Discrimination in Employment Act of 1967(Ryan Jr, 1981). Given her extensive experience in the field of retail, she could also adduce the spirit of the company's slogan in her favor. The company's slogan states that "You don't have to be an athlete to look and feel like one," could be construed to exclude actual athleticism as a requirement despite its listing in the job advertisement.

On the other hand, CARDCARE is highly likely to interpose BFOQs as a defense and argue that image creation was a major component of their retail business. Their requirements in their job advertisement that candidates for employment be youthful and energetic therefore qualify as BFOQs in that they are closely related to the essence of their business. The essence of their company in this particular case would be determined based on the strength of market-derived customer preferences. The company could alternatively argue it did not adjudge youthfulness and athleticism based on chronological age but based on demeanor. Therefore, any decision on Petunia's employment was based on a non-protected characteristic. It could argue that Noah looked more like an athlete than Petunia, so any decision made to hire him over Petunia was based on merit in accordance to the listed qualities.

Part II

Noah is an employee of the store. However, the idea of ‘respondeat superior' states that the employer can only be held liable for the actions of the employee only if his actions are well within the course and scope of his job description or the compaRead essay sample for free.ny's mandate. In this particular instance, however, Noah was not acting following any orders from the company. On the contrary, Noah, in his actions, appears to have been venting his frustrations. The theory of respondeat superior therefore does not apply in this case since Noah's victim cannot prove that CARDWARE was aware of the possibility of Noah causing harm or even that the company did anything demonstrably wrong.

Hetty Whitestone's estate might claim negligence on the part of CARDWARE given Hetty Whitestone's unfortunate accident caused by Noah's pursuit of Petunia while at a store belonging to them. This claim is unlikely to hold, however, since under the particular circumstances it 's hard to prove negligence. Negligence relies on the existence of a legal duty to exercise reasonable care, failure to exercise it and resultant harm from this failure. Contingent to proving negligence also there needs to be proof of actual harm and a proximate cause demonstrating that the injury was suffered within the scope of responsibility. CARDWARE, as part of its defense, is likely to prove that its store exercised reasonable care in the store's design and general state, in this case, i.e. no slippery areas or inappropriately positioned items that one cloud trip on. Additionally, the cause of the death as not in any way due to any failure of the store to exercise reasonable caution- unless it could be proven that the positioning or general state of the clothing racks was precarious- rather the death is directly attributable to Noah's actions. Hetty’s Estate is unlikely to have a case against the company unless it can prove that Noah was a liability as an employee.

References

Ryan Jr, C. J. (1981). The Scope of the Bona Fide Occupational Qualification Exemption under the Age Discrimination in Employment Act. Chicago-Kent Law Review, 1145-1178.