Law Commons^™

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Michigan Law Review

In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the …

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …

The Michael Jackson Pill: Equality, Race, And Culture, Jerome Mccristal Culp Jr.

Michigan Law Review

This chronicle is in tribute to the work of Derrick Bell, past, present, and future. I have borrowed his character Geneva Crenshaw as part of that tribute, and I hope she helps me raise some of the issues that he has taught us are important.

All characters in this chronicle are fictional, including Professor Culp and Professor Bell. Any relationship they may have to the real Professor Bell and Professor Culp is dictated by the requirements of creativity and the extent to which reality and fiction necessarily merge. I know that the real Derrick Bell is wiser than the one …

The Public Policy Exclusion And Insurance For Intentional Employment Discrimination, Sean W. Gallagher

Michigan Law Review

This Note argues that courts choosing to apply the public policy exclusion to insurance for intentional employment discrimination liability should nevertheless permit employers to enforce insurance covering negligent supervision liability and liability imputed to an employer as a result of the intentional discrimination committed by its employees. Part I establishes a framework for understanding the cases in which courts have invoked public policy to refuse enforcement of insurance contracts, arguing that the rationale behind the public policy exclusion is utilitarian and that courts refuse to enforce insurance for liability arising out of intentional wrongdoing on the grounds that such insurance …

Epstein's Premises, Evan Tsen Lee

San Diego Law Review

This Article criticizes Richard Epstein's argument that Congress should repeal Title VII expressed in his book Forbidden Grounds: The Case Against Employment Discrimination. The author's criticisms of Epstein's argument are the product of disagreement with some of Epstein's premises, and disagreement with some of Epstein's choices about where to stop his analyses. The author disputes Epstein's premise that governmental intervention into otherwise accessible markets is justifiable only in cases of force or fraud. The author also notes some of Epstein's empirical suppositions that are inconsistent with one another.

Epstein's Challenge To The Civil Rights Regime, W. B. Allen

San Diego Law Review

This Article takes a close look at the government's determination of the substantive meaning of nondiscrimination in order to better evaluate the relation between the current practice of the civil rights regime and the alternative suggested by Richard Epstein in his book Forbidden Grounds: The Case Against Employment Discrimination Laws. It also analyzes the "limit condition view" of government, namely that the government may in no way discriminate, and everyone cannot be prevented from discriminating. The author concludes that defenders of the civil rights regime must engage Epstein's argument, because failing to do so will be to fail either to …

Alternative Grounds: Epstein's Discrimination Analysis In Other Market Settings, Ian Ayres

San Diego Law Review

This Article focuses on how Richard Epstein's discrimination analysis in his book Forbidden Grounds: The Case Against Employment Discrimination Laws plays out in four other market contexts. The author analyzes historical labor markets (circa 1964), public accommodations, housing, and new car markets. He concludes that applying Epstein's theory to these different market settings exposes limitations of Epstein's analysis.

Lonely Libertarian: One Man's View Of Antidiscrimination Law, Lea Brilmayer

San Diego Law Review

In his book Forbidden Grounds: The Case Against Employment Discrimination Laws, Richard Epstein attacks antidiscrimination law from three different philosophical points of view: utilitarian, libertarian, and freedom of contract. The author of this Article addresses each of these philosophies, and argues that none of these arguments is compelling as applied to a legal regime as popular as Epstein admits core antidiscrimination law to be. This Article points out inconsistencies in Epstein's view of the public's acceptance of antidiscrimination laws as being silly.

The Discrimination Shibboleth, Andrew Kull

San Diego Law Review

This Article explores a more conservative viewpoint than Richard Epstein's view that all employment antidiscrimination laws should be repealed in his book Forbidden Grounds: The Case Against Employment Discrimination. This Article focuses on the distinctions between current antidiscrimination laws and those of the Civil Rights Act of 1964. While the Civil Rights Act of 1964 prohibited discrimination on the basis of race and sex, current laws prohibit discrimination on many other grounds. The author argues that these new laws constitute new policy choices, and they impose more costs than the traditional laws.

Reality, Drew S. Days, Iii

San Diego Law Review

This Article applies the economic theory of regulation to laws forbidding discrimination or requiring affirmative action. It argues for using transferable rights in order to achieve diversity rather than quotas. Based on economic theories, the Article finds that the most efficient remedies for discrimination are the ones already developed by economists for other problems. The author suggests that discriminatory cartels can be prohibited or undermined, discriminatory signals can be overcome by supplementing market information, and external effects of prejudice can be internalized by tax subsidies. He concludes that perfect competition causes discriminators to pay for segregation, and some current antidiscrimination …

Epstein On His Own Grounds, Richard H. Mcadams

San Diego Law Review

This Article criticizes Richard Epstein's thesis in his book Forbidden Grounds: The Case against Employment Discrimination. The Article argues that Epstein fails to follow through on his own terms. The author expresses disagreement with Epstein's invocation of Thomas Hobbes without considering the Hobbesian argument for Title VII. Mr. McAdams also notes that Epstein relies on economic analysis without disclosing its dependence on controversial empirical assumptions. The author uncovers Epstein's other inconsistencies: his empirical claims, particularly about social norms, where Epstein does not apply the standards of criticism to supporting evidence that he applies to contrary evidence.

Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman

Scholarly Works

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Scholarly Works

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman

Touro Law Review

No abstract provided.

Extraterritorial Application Of Title Vii: The Foreign Compulsion Defense And Principles Of International Comity, Mary C. St. John

Vanderbilt Journal of Transnational Law

With an increasing number of United States corporations locating and affiliating overseas and United States citizens seeking employment with multinational corporations, the debate over the extraterritorial application of United States discrimination laws has attracted greater international attention. The 1991 amendment to Title VI1 of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, religion, sex, or national origin, specifically provides for extraterritorial application of Title Vii. The foreign compulsion defense, however, limits the scope of Title VII's application abroad and raises the issue of whether U.S. corporations can claim this defense when foreign …

Garcia V. Spun Steak Co.: The Ninth Circuit Requires That Title Vii Plaintiffs Prove The Adverse Effect Of A Challenged English-Only Workplace Rule, Dan Clawson

Seattle University Law Review

Although the Spun Steak decision recognizes that English-only rules may impact Title VII in some circumstances, the court held that an employer's good-faith imposition of these rules on fully bilingual employees does not violate Title VII. Section II of this Comment presents an overview of the substantive law and the enforcement mechanisms of Title VII. Section III outlines the development of federal discrimination law regarding English-only rules. Section IV examines the Spun Steak decision, and Section V analyzes the implications of this decision and its effect on discrimination law in the Ninth Circuit.

A Standard For Punitive Damages Under Title Vii, Judith J. Johnson

Journal Articles

Under the Civil Rights Act of 1991, the plaintiff in an employment discrimination case who alleges intentional discrimination may recover punitive damages if she demonstrates that her employer engaged in the discriminatory practice with "malice" or "reckless indifference" to federally protected rights. To prove a case of disparate treatment under Title VII, the plaintiff bears the burden of persuading the trier of fact that her employer intended to discriminate against her. In other words, to be liable in a disparate treatment case, the employer has to specifically intend to treat the plaintiff differently based, for example, on her sex. If …

Denial Of Attorney's Fees For Claims Of Sexual Harassment Resolved Through Informal Dispute Resolution: A Shield For Employers, A Sword Against Women, Amy Holzman

Fordham Law Review

No abstract provided.