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Civil Rights--Federal Jurisdiction--Exhaustion Of Adequate And Appropriate State Administrative Remedies Is A Prerequisite For Judicial Review Under Section 1983, Camilla E. Watson

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Georgia Patsy, a white female secretary, brought a civil rights action under section 1983 of title 42 of the United States Code against Florida International University in the United States District Court for the Southern District of Florida, alleging employment discrimination in violation of the Constitution and laws of the United States. The district court dismissed the action for failure to exhaust state administrative remedies. The Court of Appeals for the Fifth Circuit reversed on the ground that failure to allege exhaustion of state remedies did not preclude a section 1983 cause of action. On rehearing en banc, the court …

In Defense Of Disparate Impact Analysis Under Title Vii: A Reply To Dr. Cohn, Elaine W. Shoben

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The preceding article by Dr. Richard M. Cohn' concerning the use of statistics in Title VII employment discrimination cases makes three basic points. First, Cohn rejects the methods used to assess disproportionate differences between groups on tests, such as ability tests. He finds fault both with the approach of the Uniform Guidelines on Employee Selection Procedures and with the method based on finding statistical significance that I have advocated. Second, he also rejects the approach courts have adopted for evaluating the relative exclusion of groups defined by race, sex, or national origin in the employer's work force. He argues that …

Defense Under The Age Of Discrimination In Employment Act: Misinterpretation, Misdirection, And The 1978 Amendments, Mack A. Player

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The Age Discrimination in Employment Act of 1967 prohibits employers, labor organizations, and employment agencies from discriminating because of age, but it does not protect all age groups against employment discrimination. As enacted, the 1967 Act protected persons between the ages of forty and sixty-five; the amendments in April 1978 extended that protection five years to age seventy. Thus it is not illegal to discriminate against people before their fortieth or after their seventieth birthday. The Act, in its original and amended versions, contains five exceptions or "defenses" to age discrimination in employment. Only the "bona fide occupational qualification" (BFOQ), …

Differential Pass-Fail Rates In Employment Testing: Statistical Proof Under Title Vii, Elaine W. Shoben

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In this Comment, Professor Shoben advocates the use of a statistical technique—a test of the difference between independent proportions—to assess the substantiality of differences in pass rates among various groups on employment tests, in order to facilitate determination of disproportionate impact under title VII of the Civil Rights Act of 1964. She then compares this method with the procedure adopted in the Federal Executive Agency Guidelines on Employee Selection Procedures and suggests several flaws in the latter approach.

Probing The Discriminatory Effects Of Employee Selection Procedures With Disparate Impact Analysis Under Title Vii, Elaine W. Shoben

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Last term the Supreme Court handed down three decisions in which it defined with some precision the proper use of statistics in Title VII cases. Those decisions filled a void that had existed since Griggs v. Duke Power Co., but they left some questions unanswered. In this article Professor Shoben discusses those decisions and addresses the issues still unresolved. She proposes a structured framework for the systematic analysis of disparate impact cases that is consistent with, yet builds upon, the three recent decisions. In addition, Professor Shoben considers whether allowing a plaintiff to establish a prima facie case with …

Foreword: Recent Developments In Labor Law: The Ninth Annual Labor Relations Institute, J. Ralph Beaird

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The papers presented in this symposium issue were initially presented at a labor institute jointly sponsored by the Atlanta Lawyers Foundation, the Federal Bar Association, the Labor Law Section of the State Bar of Georgia and the Institute of Continuing Legal Education in Georgia. This is the ninth such institute with the first having been held in 1964 for the purpose of acquainting the practicing bar with developments and trends in the field of labor law.

Union Discipline Of Its Membership Under Section 101(A)(5) Of Landrum-Griffin: What Is "Discipline" And How Much Process Is Due?, J. Ralph Beaird, Mack A. Player

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Analogies between criminal trials and union disciplinary hearings are easily drawn. Both involve charges of prohibited conduct, the presentation of evidence, and decisions by competent and impartial tribunals. Whereas one’s physical freedom is at stake in a criminal proceeding, his economic freedom is often imperiled in a union disciplinary hearing. It is not surprising therefore that the requirements of due process have been extended to the labor setting. Embodied in section 101(a)(5) of the Landrum-Griffin Act, due process in the union sphere has been as elusive of definition as in judicial proceedings. Examining section 101(a)(5), Professors Beaird and Player attempt …

Whither The Nixon Board?, J. Ralph Beaird, Mack A. Player

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The Nixon administration has now appointed a majority of members to the National Labor Relations Board. With this change in Board composition have come significant shifts in labor policy. The authors of this Article examine these shifts in policy in light of the approaches of past Boards.

Racial Discrimination In Employment: Rights And Remedies, J. Ralph Beaird

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Professor Beaird believes that the current multiplicity of forums available to an employee who alleges discrimination against him should be merged into one. Ideally he would like to see an administrative agency given primary jurisdiction with authority similar to that possessed by the NLRB. Until an agency is given such power, Professor Beaird suggests that the forums themselves apply collateral estoppel principles to alleviate the inequities inherent in repetitious litigation.

Some Aspects Of The Lmrda "Bill Of Rights", J. Ralph Beaird

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Generally speaking, Title I, section 101(a), of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) guarantees to every union member: (1) equal rights and equal privileges within his union to nominate candidates for union office, to vote in elections or referendums, and to attend union meetings; (2) the right to exercise freedom of speech and assembly; (3) the right to be free from arbitrary increases in dues, initiation fees, and assessments; (4) the right to sue and to participate in administrative and legislative proceedings; and (5) the right to procedural due process in disciplinary proceedings within the union.

As …

Some Aspects Of The Lmrda Reporting Requirements, J. Ralph Beaird

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Collective bargaining became the keystone of our national labor policy with the passage of the Wagner Act in 1935. The central role of this procedure was preserved in the Taft-Hartley and Landrum-Griffin Acts. By choosing collective bargaining as the principal instrument of labor market control, Congress sought to remove sources of industrial strife by a method which preserved private determination free from either unchecked employer power or smothering governmental control. Landrum-Griffin was supplementary legislation designed to eliminate or prevent practices which distorted and defeated the collective bargaining policy of the Labor-Management Relations Act. This statutory scheme has now been in …

Labor Relations Policy For Public Employees: A Legal Perspective, J. Ralph Beaird

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Because approximately one-sixty of the nation's nonagricultural work force are public employees and because labor strife in public employment is increasing each year, the need for thoughtful examiniation of public policy in this vital area is manifest. The purpose of this article is to provide a basic legal framework to which the labor relations posture of the public employee can be related. Hopefully this can be accomplished by focusing on two separate but related areas. One concerns the oft told story of the evolution of labor-management relations policy for the private sector, while the other deals withe the law's changing …

Foreword: Recent Developments In Labor Law, J. Ralph Beaird

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This symposium issue brings together a collection of papers notable for diversity of subject matter as well as for point of view. Yet all relate to what is generally referred to as our National Labor Policy.

Union Trusteeship Provisions Of The Labor-Management Reporting And Disclosure Act Of 1959, J. Ralph Beaird

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With the passage of the Labor-Management Reporting and Disclosure Act of 1959, Congress embarked upon a policy of substantial federal regulation of internal union affairs. Prior to this enactment, the impact of law on this area had been determined largely by state courts with only a modicum of legislative guidance. In formulating the LMRDA Congress was greatly concerned with determining where to draw the line between necessary democratic safeguards and the preservation of union self-determination. This concern was particularly evident in drafting Title III which deals with union trusteeships. While Congress framed Title III from a somewhat limited informational base, …

The New Labor Law: A Very Limited Management Victory, Howard Glickstein, Bernard D. Gold

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No abstract provided.