Law Commons^™

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

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 …

Working On The Other Side Of The Fence: Relief For Incarcerated Individuals After Employment Discrimination, Hannah C. Merrill

William & Mary Journal of Race, Gender, and Social Justice

One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” …

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

The Deliberative-Privacy Principle: Abortion, Free Speech, And Religious Freedom, B. Jessie Hill

William & Mary Bill of Rights Journal

No abstract provided.

Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

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

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

William & Mary Law Review

No abstract provided.

Disability Cause Lawyers, Michael E. Waterstone, Michael Ashley Stein, David B. Wilkins

William & Mary Law Review

There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases. This Article responds to these scholarly voids. …

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 …

Disparate Impact Realism, Amy L. Wax

William & Mary Law Review

No abstract provided.

Extending The Vision: An Empowerment Identity Approach To Work-Family Regulation As Applied To School Involvement Leave Statuses, Kirsten K. Davis

William & Mary Journal of Race, Gender, and Social Justice

Using school involvement leave legislation as the focus for analysis, this article proposes the “empowerment identity” approach to work-family legislation as an alternative or complement to the commonly used accommodation and antidiscrimination approaches. In many households, working parents struggle to meet routine demands of parenting, such as caring for a sick child or attending a child’s school activity. Interestingly, one of the most common forms of state-level legislation designed to address the routine demands of parenting is school involvement leave legislation. Although state school involvement leave statutes vary widely in how and for what reasons they permit time away from …

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.

How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive The Demise Of The "Rational Actor", Scott A. Moss, Peter H. Huang

William & Mary Law Review

Much employment discrimination law is premised on a purely money-focused "reasonable" employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of "rational" actor populated older economic models but has been since modified by behavioral economics and research on happiness. Behavioral and traditional economists alike have analyzed broad employment policies, such as the wisdom of discrimination statutes, but the devil is in the details of employment law. On the critical damages-and liability issues the Supreme Court and litigators face regularly, the law essentially ignores the …

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

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

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 …

Diversity And Discrimination: A Look At Complex Bias, Minna J. Kotkin

William & Mary Law Review

Multiple claims have become a fixture of employment discrimination litigation. It is common, if not ubiquitous, for court opinions to begin with a version of the following litany: 'Plaintiff brings this action under Title VII and the ADEA for race, age, and gender discrimination. "Equal Employment Opportunity Commission (EEOC) statistics show exponential growth in multiple claims in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment may in fact …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner

William & Mary Law Review

Punitive damages were described by one early court as "an unsightly and an unhealthy excrescence." Although views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in …

Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur

William & Mary Bill of Rights Journal

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman

William & Mary Law Review

An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …

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 …

The Mythic 43 Million Americans With Disabilities, Ruth Colker

William & Mary Law Review

Although Congress stated in its first statutory finding that it intended the Americans with DisabilitiesA ct (ADA) to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, this Article demonstrates through the use of Census Bureau data that the ADA's employment discrimination provisions have been eviscerated to the point that the ADA protects virtually no Americans who are both disabled and able to work. This Article places that problem in the larger context of the Court undermining Congress's efforts to protect …

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

Faculty Publications

No abstract provided.

Eliminating The Intent Requirement In Constructive Discharge Cases: Pennsylvania State Police V. Suders, Crystal L. Norrick

William & Mary Law Review

No abstract provided.