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Full-Text Articles in Law
Given Equal Weight Under The Law: Expanding Title Vii Protections To Prohibit Weight Discrimination, Chelsea L. Yedinak
Given Equal Weight Under The Law: Expanding Title Vii Protections To Prohibit Weight Discrimination, Chelsea L. Yedinak
William & Mary Journal of Race, Gender, and Social Justice
Approximately half of Americans have an overweight or obese body mass index (BMI), yet weight discrimination is legal in nearly every jurisdiction. This means employers can set BMI limits, maximum weights, waist sizes, and more with no legal consequences. This Note examines the history of anti-fat bias and weight discrimination and how that motivates weight discrimination in employment and in the law generally. It then discusses possible solutions. Currently, most scholars propose prohibiting weight discrimination on a state level through legislation similar to Michigan’s Elliott-Larsen Civil Rights Act or on a federal level by recognizing obesity as a disability protected …
To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort
To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort
William & Mary Business Law Review
Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the …
Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper
Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper
William & Mary Bill of Rights Journal
No abstract provided.
Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen
Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Data-Driven Discrimination At Work, Pauline T. Kim
Data-Driven Discrimination At Work, Pauline T. Kim
William & Mary Law Review
A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …
Employment Discrimination Against Bisexuals: An Empirical Study, Ann E. Tweedy, Karen Yescavage
Employment Discrimination Against Bisexuals: An Empirical Study, Ann E. Tweedy, Karen Yescavage
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Mitigating The Impact Of Title Vii's New Retaliation Standard: The Americans With Disabilities Act After University Of Texas Southwestern Medical Center V. Nassar, August T. Johannsen
Mitigating The Impact Of Title Vii's New Retaliation Standard: The Americans With Disabilities Act After University Of Texas Southwestern Medical Center V. Nassar, August T. Johannsen
William & Mary Law Review
No abstract provided.
Subverting Rule 56? Mcdonnell Douglas, White V. Baxter Healthcare Corp., And The Mess Of Summary Judgement In Mixed-Motive Cases, Christopher J. Emden
Subverting Rule 56? Mcdonnell Douglas, White V. Baxter Healthcare Corp., And The Mess Of Summary Judgement In Mixed-Motive Cases, Christopher J. Emden
William & Mary Business Law Review
No abstract provided.
Lilly Ledbetter, Take Two: The Lilly Ledbetter Fair Pay Act Of 2009 And The Discovery Rule's Place In The Pay Discrimination Puzzle, Nancy Zisk
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Height Discrimination In Employment, Isaac B. Rosenberg
Height Discrimination In Employment, Isaac B. Rosenberg
W&M Law Student Publications
This Article looks critically at heightism, i.e., prejudice or discrimination against a person on the basis of his or her height. Although much scholarship has focused on other forms of trait-based discrimination—most notably weight and appearance discrimination, both of which indirectly involve height as a component—little has focused on “pure” height discrimination. Nevertheless, within the past five years courts, scholars, and legislatures have increasingly tackled these non-traditional forms of discrimination. As such, this Article endeavors to fill the gap in the existing scholarship.
This Article specifically focuses on heightism in the workplace, with an emphasis on prejudice against short people …
On Lilly Ledbetter's Liberty: Why Equal Pay For Equal Work Remains An Elusive Reality, Katie Putnam
On Lilly Ledbetter's Liberty: Why Equal Pay For Equal Work Remains An Elusive Reality, Katie Putnam
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Transforming Transsexual And Transgender Rights, L. Camille Hebert
Transforming Transsexual And Transgender Rights, L. Camille Hebert
William & Mary Journal of Race, Gender, and Social Justice
State and federal employment anti-discrimination statutes have failed to adequately protect transsexual and transgendered individuals in the workplace. Although advancements have been made in recent years regarding the protection of sexual minorities, transsexual and transgendered employees continue to receive sporadic and noncomprehensive protection. Various approaches have been taken to extend protection against discrimination to these individuals, including the utilization of disability protection statutes, the expansion of anti-discrimination statutes, and the protection of transsexual and transgendered individuals as a class; however, these approaches have proven flawed in providing adequate protection.
An examination of anti-discrimination law shows that these measures, while perhaps …
Petruska V. Gannon University: A Crack In The Stained Glass Ceiling, Sarah Fulton
Petruska V. Gannon University: A Crack In The Stained Glass Ceiling, Sarah Fulton
William & Mary Journal of Race, Gender, and Social Justice
An examination of the protections afforded to religious institutions in their hiring decisions. Both § 702 of the Civil Rights Act and the judicially created ministerial exception allow churches to use criteria that other employers are not permitted to use under the law when making hiring decisions. Beginning with McClure v. Salvation Army, courts have slowly expanded the scope of these protections, leading up to the recent case of Petruska v. Gannon University. Petruska provides an example of the extent to which a broad reading of § 702 and the ministerial exception can harm religious workers. The opinion of Judge …
Discrimination And Outrage: The Migration From Civil Rights To Tort Law, Martha Chamallas
Discrimination And Outrage: The Migration From Civil Rights To Tort Law, Martha Chamallas
William & Mary Law Review
It is not always appreciated that proven discrimination on the basis of race or sex may not amount to a tort and that even persistent racial or sexual harassment may not be enough to qualify for tort recovery. This Article explores the question of whether discriminatory and harassing conduct in the workplace is or should be considered outrageous conduct, actionable under the tort of intentional infliction of emotional distress. In recent years, courts have taken radically different approaches to the issue, from holding that such claims are preempted to treating the infliction tort as a reinforcement of civil rights principles. …
Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein
Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein
Faculty Publications
No abstract provided.
Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone
Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone
Faculty Publications
Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …
Disparate Impact: Looking Past The Desert Palace Mirage, Charles A. Sullivan
Disparate Impact: Looking Past The Desert Palace Mirage, Charles A. Sullivan
William & Mary Law Review
No abstract provided.
Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
En/Gendering Equality: Seeking Relief Under Title Vii Against Employment Discrimination Based On Sexual Orientation, Anthony E. Varona, Jeffrey Monks
En/Gendering Equality: Seeking Relief Under Title Vii Against Employment Discrimination Based On Sexual Orientation, Anthony E. Varona, Jeffrey Monks
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
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 …
The Virginia Human Rights Act: Court's Decision Could Hurt Victims Of Job Discrimination, Susan Grover
The Virginia Human Rights Act: Court's Decision Could Hurt Victims Of Job Discrimination, Susan Grover
Popular Media
No abstract provided.
Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks
Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks
Faculty Publications
No abstract provided.
The Business Necessity Defense In Disparate Impact Discrimination Cases, Susan Grover
The Business Necessity Defense In Disparate Impact Discrimination Cases, Susan Grover
Faculty Publications
No abstract provided.
Reagan Redux: Civil Rights Under Bush, Neal Devins
Reagan Redux: Civil Rights Under Bush, Neal Devins
Faculty Publications
No abstract provided.
Group Versus Individuals, Neal Devins
The Silenced Majority: Martin V. Wilks And The Legislative Response, Susan Grover
The Silenced Majority: Martin V. Wilks And The Legislative Response, Susan Grover
Faculty Publications
An American worker finds himself disadvantaged by an employer's affirmative action program. The worker heads for the courthouse, reverse discrimination complaint in hand. Will he be allowed to sue? Prior to the Supreme Court's 1989 Martin v. Wilks decision, the answer to that question tended to be "no." Wilks changed the answer to an emphatic ·yes." With the 1991 Civil Rights Act, the answer has become "probably not." This article discusses the bar against such challenges as developed through case law and recent congressional action. It addresses the implications that the new statutory bar will have for the structure of …
The Possible Final Word On Employment Discrimination Relief, Neal Devins
The Possible Final Word On Employment Discrimination Relief, Neal Devins
Faculty Publications
No abstract provided.