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How The Law Fails Tenants (And Not Just During A Pandemic), Sarah Schindler, Kellen Zale
How The Law Fails Tenants (And Not Just During A Pandemic), Sarah Schindler, Kellen Zale
Sturm College of Law: Faculty Scholarship
In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two groups is not unique to this pandemic. Rather, the crisis has merely uncovered longstanding, deep-rooted patterns within legal doctrines, governmental programs, and public policies that bestow favorable treatment upon homeowners at the expense of renters. …
Unifying Disparate Treatment (Really), Martin J. Katz
Unifying Disparate Treatment (Really), Martin J. Katz
Sturm College of Law: Faculty Scholarship
The Article will proceed in three parts. Part I will show the fragmented state of current disparate treatment law. Part II will demonstrate why this fragmentation is problematic as a normative matter, and why the I99I Civil Rights Act framework is superior to the Price Waterhouse and McDonnell Douglas frameworks. Part III will point the way toward a unified disparate treatment doctrine, in which all litigants will use the 1991 Act framework.
No Intent, No Foul? Unconscious Bias In Employment Decisions, Martin J. Katz
No Intent, No Foul? Unconscious Bias In Employment Decisions, Martin J. Katz
Sturm College of Law: Faculty Scholarship
Many commentators have criticized current anti-discrimination law on the grounds that it does not adequately prohibit unconscious bias in employment decisions. That claim is wrong: Unconscious bias is fully actionable, and it can generally be proved by knowledgeable employment lawyers. The idea behind unconscious bias is that well-meaning employers and supervisors, who would likely consider themselves supporters or even champions of equality, might subconsciously harbor attitudes that result in negative employment decisions for women and minorities.
The Fundamental Incoherence Of Title Vii: Making Sense Of Causation In Disparate Treatment Law, Martin J. Katz
The Fundamental Incoherence Of Title Vii: Making Sense Of Causation In Disparate Treatment Law, Martin J. Katz
Sturm College of Law: Faculty Scholarship
This Article proposes a new approach to both prohibition and compensation. On the prohibition side, it proposes penalties and incentives that are unrelated to compensation. This approach will make clear that discriminatory conduct is prohibited irrespective of its effect on plaintiffs and ensure that such conduct is adequately deterred. On the compensation side, this Article proposes a new causal standard: a “necessity-or-sufficiency” test, along with a comparative fault approach to determine what level of compensation is due. While these proposals may seem radical in the context of disparate treatment law, they are widely accepted in modern tort law—the field from …