Law Commons^™

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to …

Dignity Transacted, Lu-In Wang, Zachary W. Brewster

Articles

In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers, by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on …

Gay Judge Nixes Anonymity For Genderqueer Plaintiff, Arthur S. Leonard

Other Publications

No abstract provided.

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Publications

No abstract provided.

Same-Sex Sex And Immutable Traits: Why Obergefell V. Hodges Clears A Path To Protecting Gay And Lesbian Employees From Workplace Discrimination Under Title Vii, Matthew W. Green Jr.

Law Faculty Articles and Essays

This article is set forth in five parts. Part II is largely descriptive and focuses on two aspects of Obergefell: (1) the Court's clarification that adult, private, consensual, same-sex sexual intimacy is a fundamental right, protected by the U.S. Constitution's Fourteenth Amendment Due Process Clause and (2) the Court's recognition that leading mental health and medical groups consider sexual orientation to be immutable. Part III examines how courts and the EEOC have treated sexual orientation discrimination under Title VII and contains a normative discussion which argues—consistent with the position of other commentators, some courts, and the EEOC—that sexual orientation …

Transsexual, Transgender, Trans: Reading Judicial Nomenclature In Title Vii Cases, Kris Franklin, Sarah Chinn

Articles & Chapters

No abstract provided.

When The Customer Is King: Employment Discrimination As Customer Service, Lu-In Wang

Articles

Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers.

Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship. The doctrine focuses on the formal lines of …

Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley

Scholarly Works

No abstract provided.

On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake

Articles

This article, published in the B.U. Law Review Symposium issue, “The Civil Rights Act of 1964 at 50: Past, Present and Future,” reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it …

The Use And Misuse Of Econometric Evidence In Employment Discrimination Cases, Joni Hersch, Blair Druhan Bullock

Vanderbilt Law School Faculty Publications

Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by …

At The Tipping Point: Race And Gender Discrimination In A Common Economic Transaction, Lu-In Wang

Articles

This Article examines the ubiquitous, multibillion dollar practice of tipping as a vehicle for race and gender discrimination by both customers and servers and as a case study of the role that organizations play in producing and promoting unequal treatment. The unique structure of tipped service encounters provides plenty of opportunities and incentives for the two parties to discriminate against one another. Neither customers nor servers are likely to find legal redress for the kinds of discrimination that are most likely to occur in tipped service transactions, however, because many of the same features of the transaction that promote discrimination …

Work Wives, Laura A. Rosenbury

UF Law Faculty Publications

Traditional notions of male and female roles remain tenacious at home and work even in the face of gender-neutral family laws and robust employment discrimination laws. This Article analyzes the challenge of gender tenacity through the lens of the “work wife.” The continued use of the marriage metaphor at work reveals that the dynamics of marriage flow between home and work, creating a feedback loop that inserts gender into both domains in multiple ways. This phenomenon may reinforce gender stereotypes, hindering the potential of law to achieve gender equality. But such gender tenacity need not always lead to subordination. The …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

All Faculty Scholarship

In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

No abstract provided.

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Publications

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Subordinate Bias Liability, Theresa M. Beiner

Faculty Scholarship

No abstract provided.

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …

Judges' Gender And Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions, Pat K. Chew

Articles

This article surveys the emerging empirical research on the relationship between the judges' gender and the results in employment discrimination cases.

Reproducing Gender On Law School Faculties, Ann C. Mcginley

Scholarly Works

This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses. More than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

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.

The Failure Of Title Vii As A Rights-Claiming System, Deborah Brake, Joanna L. Grossman

Articles

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …

Disparate Impact Discrimination: The Limits Of Litigation, The Possibilities For Internal Compliance, Melissa Hart

Publications

No abstract provided.

Latino Inter-Ethnic Employment Discrimination And The Diversity Defense, Tanya K. Hernandez

Faculty Scholarship

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists …

Overruling The Jury: Duncan V. Gmc And Appellate Treatment Of Hostile Work Environment Judgments, Dara Purvis

Journal Articles

In 2002, the Eighth Circuit reversed a one million dollar jury award to the plaintiff in a sexual harassment suit against General Motors Corporation. This reversal demonstrates the danger of appellate review of such verdicts, limiting sexual harassment verdicts to the lowest common denominator in that circuit.

Gender Stereotyping: Expanding The Boundaries Of Title Vii: Proceedings Of The 2006 Annual Meeting, Association Of American Law Schools, Section On Employment Discrimination Law, Michelle A. Travis, Arthur S. Leonard, Joann Williams, Mirriam Cherry

Articles & Chapters

No abstract provided.