Millennials are so named because they were the first generation to come of age in the new millennium. According to a 2010 Pew Center survey, technology use is the number one factor that makes Millennials unique. In Teaching and Reaching Millennials: Fresh Perspectives from an Insider, I explored specific ways to adapt law school pedagogy to the characteristics most commonly attributed to Millennials so as to better prepare these “digital natives” to exceed the expectations of their (mostly) non-Millennial supervisors. Similarly, in Gen Z Goes to Law School: Teaching and Reaching Students in the Post-Millennial Generation, my esteemed colleague, Professor Laura Graham, notes that Gen Zers, who were born between 1995 and 2010, are likewise “saturated with technology.” Yet unlike Millennials, Gen Zers generally dislike collaborative work. This interesting research on generational theory spurred me to develop an exercise that would teach my technophile students how to use technology to meaningfully collaborate.
To do this, I assign Jespersen v. Harrah’s Operating Company to the entire class and provide them with a list of questions to consider as they read the case. Jespersen involves a female bartender who sued Harrah’s for sex discrimination because Harrah’s began enforcing an appearance policy, which, among other things, required women to wear makeup. Jespersen did not wear makeup in her personal or professional life and consequently, left her position rather than comply.
Jespersen then sued Harrah’s, alleging that the policy imposed an unequal burden on women and perpetuated sex stereotypes. Upon rehearing en banc, a majority of the en banc panel of the U.S. Court of Appeals for the Ninth Circuit sided with Harrah’s, concluding that the policy did not perpetuate sex stereotypes and that appearance policies are not inherently unlawful simply because they impose slightly different grooming requirements on men and women.
In reaching this decision, the panel majority examined the appearance policy as a whole, noting that some grooming requirements applied only to men. The majority refused to take judicial notice of the fact that purchasing and applying makeup were necessarily more burdensome to women than, for instance, asking male bartenders to be clean shaven. Several judges dissented, contending, inter alia, that requiring women to wear makeup promoted the stereotypical notion that unaltered female faces are unprofessional and unattractive.
Before class, I ask students to bring their laptops and a hard copy of Jespersen with them to class. Then I create a separate Google doc that includes the same list of questions to consider that I had previously given them. However, it also divides students into five groups. I deliberately create diverse groups of men and women who have not previously collaborated. The Google doc assigns each group three to four questions. That number hinges on each question’s depth and complexity. I share the Google doc with students a few minutes before class.
When students arrive to class, I provide a brief contextual lecture regarding sex discrimination claims involving appearance policies. Then I allow students to open their laptops, move into their assigned groups, open the shared Google doc, and spend twenty minutes discussing the answers to their group’s assigned questions with fellow group members. Each group selects one reporter to add the group’s responses to the collaborative Google doc. During this time, I walk around the room answering student questions and ensuring that groups stay on task.
After the twenty minutes of group work elapse, we regroup. Then I ask each group substantive questions from the case, such as: (1) How does the appearance policy in Jespersen differ from the policy in our case? Are those distinctions relevant? Why or why not?; (2) Can sex stereotyping ever give rise to a claim of sex discrimination? Relatedly, what was the court’s reasoning with regard to sex stereotypes?; and (3) What did the majority conclude regarding whether the provision at issue imposes an undue burden on women? These questions generate fruitful and robust class discussion, during which students can ask new questions as well as revise or supplement information in the collaborative Google doc as necessary.
As class ends, I encourage students to consult the collaborative document as they draft their own memo sections on sex discrimination and appearance policies. The questions to consider also provide a framework for how to actively read a case. In addition, the exercise demonstrates how to use technology to promote, not hinder, learning, and produces a helpful resource for subsequent memo drafting. Finally, the exercise allows students to use Google docs while still discussing the case face to face in small groups and then reporting their findings to the group as a whole. This underscores the value of meeting in person when collaborating, rather than exclusively working via remote technology.
On the whole, the collaborative exercise facilitates one of the most productive class sessions we have all semester and enables us to really dig into a long and complicated judicial opinion. My “digital natives” remain engaged and on task, even though LAWR is their last class at the end of a long day.
How do you encourage your technophile students to collaborate? Share your good ideas at teachlawbetter.com.
 Brittany Stringfellow Otey, Millennials, Technology, and Professional Responsibility: Training a New Generation in Technological Professionalism, 37 J. Legal Prof. 199, 204-06 (2013) (describing Millennials as “digital natives” who “do not remember a time before interactive digital media”).