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Full-Text Articles in Law
Culture Matters: Cultural Differences In The Reporting Of Employment Discrimination Claims, Andrew Tae-Hyun Kim
Culture Matters: Cultural Differences In The Reporting Of Employment Discrimination Claims, Andrew Tae-Hyun Kim
William & Mary Bill of Rights Journal
Why don’t reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title VII’s administrative scheme—which was created precisely to remedy and deter such conduct—but also incurs a heavy litigative cost in employer liability suits. This Article claims that for certain minority groups, namely Asian Americans, certain cultural differences significantly heighten those structural barriers and consequently leave them underprotected in the legal system. The Article locates …
There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White
There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White
William & Mary Bill of Rights Journal
In this Essay, Professor White argues that the Supreme Court finally has merged analysis of sexual harassment law with other claims of intentional discrimination. Professor White contends that the Court's decision in Meritor Savings Bank, FSB v. Vinson created confusion over the proper analysis of sexual harassment claims by seemingly embracing quid pro quo and hostile work environment theories as distinct forms of discrimination and by suggesting that at least some sexual harassment claims may warrant a revised approach to employer liability. In the wake of Meritor, sexual harassment claims increasingly were evaluated differently from other claims of disparate treatment, …
Taking Discrimination Seriously: Oncale And The Fate Of Exceptionalism In Sexual Harassment Law, Steven L. Willborn
Taking Discrimination Seriously: Oncale And The Fate Of Exceptionalism In Sexual Harassment Law, Steven L. Willborn
William & Mary Bill of Rights Journal
In both the case law and the literature, sexual harassment is treated as an exceptional and unique form of discrimination. In this Article, Professor Willborn expands on the Supreme Court's recent decision in Oncale v. Sundowner Offshore Services, Inc. to argue that this exceptionalism should be rejected and that harassment law should return to its roots in the broader body of antidiscrimination law. Professor Willborn begins by articulating the contours of a discrimination-centered model of sexual harassment and explaining how it differs from currently accepted views. He then reviews the Supreme Court's recent cases on sexual harassment, concluding that they …
Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett
Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett
William & Mary Bill of Rights Journal
In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort …
The Plain Meaning Of Oncale, Catherine J. Lanctot
The Plain Meaning Of Oncale, Catherine J. Lanctot
William & Mary Bill of Rights Journal
The unanimous Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc. caught many observers by surprise. Even more surprising than the Court's unanimity on the divisive issue of same-sex harassment, however, was the author of the opinion-the deeply conservative Justice Antonin Scalia. Many commentators suggest that the opinion's requirement that plaintiffs prove that the harassment was "because of sex" will hamper lawsuits arising from single-sex work environments. Attempts to fit the decision within traditional Title VII jurisprudence inevitably will be clouded by conjecture about Scalia's true intent. Indeed, after one year of experience with Oncale, the judicial record is …
"Because The Constitution Requires It And Because Justice Demands It": Specific Speech Injunctive Relief For Title Vii Hostile Work Environment Claims, Cecilee Price-Huish
"Because The Constitution Requires It And Because Justice Demands It": Specific Speech Injunctive Relief For Title Vii Hostile Work Environment Claims, Cecilee Price-Huish
William & Mary Bill of Rights Journal
Abusive speech often is used effectively by harassers in the workplace to intimidate, terrorize, objectify, and humiliate their intended victims, thus helping to secure and maintain social inequality in the workforce, especially among racial and gender minority employees. Pursuant to the adoption of Title VII of the Civil Rights Act of 1964, the United States Supreme Court, in Meritor Savings Bank v. Vinson, interpreted the statute's anti-employment discrimination mandate as imposing liability for conduct or words in the workplace that have the purpose or effect of interfering with an employee's work performance or of creating an intimidating or hostile work …