Law Commons^™

Collective Bargaining Agreements In Discrimination Cases: Forum Shopping Their Way Into A New York District Court Near You!, George Klidonas

George Klidonas

There has recently been a divergence of opinion between the state courts and the district courts in New York on the issue of whether a unionized employee must arbitrate discrimination claims in light of a collective bargaining agreement mandating alternative dispute resolution. The problem that New York is faced with is that the New York courts recently failed to properly delineate a standard of what a clear and unmistakable waiver. Furthermore this "split" between the federal and state courts with regards to these arbitration provisions will cause forum shopping by claimants, heavily favoring federal courts. A trilogy of Supreme Court …

Individualized Assessment Of Applicants With Convictions, Stacy A. Hickox

Stacy A. Hickox

Employers often rely on criminal background checks as part of the hiring process. Yet consideration of applicants’ criminal records clearly has an adverse impact on applicants of color, since a higher percentage of them have a record. This article reviews how an employer has been able to justify its consideration of criminal convictions under Title VII. In addition, state statutes that limit employers’ consideration of a criminal record provide guidance for employers who are trying to establish a business necessity for their reliance on criminal records. Typically, courts look at the nature of the crime and its relationship to the …

Laboratories Of Constitutionality: How State High Courts Paved The Way For Federal Courts To Invalidate Prohibitions On Same-Sex Marriage, Tyler T. Rosenbaum

Tyler T Rosenbaum

This article looks at the opinions of the state high courts that have adjudicated the constitutionality under their state constitutions of prohibitions on same-sex marriage and, given the extent to which the state high courts deferred to Supreme Court case law in interpreting their own constitutions, concludes that a federal court would be more likely than not to find that such prohibitions violate the United States Constitution.

With respect to a claimed substantive due process right to same-sex marriage, the Supreme Court’s ruling in Lawrence v. Texas undermined much of the precedent that would have required a careful, tradition-bound analysis. …

The Market Defense, Sharon Rabin-Margalioth

Sharon Rabin-Margalioth

This Article sheds a new light on the controversial issue whether employers should enjoy a market defense when confronted with claims of pay inequality. The conventional view that causation between group membership and adverse treatment is the essence of any discrimination claim enables employers to argue successfully that pay disparities are caused by market forces such as individual negotiation skills and not sex discrimination. The legitimization of the market defense contributes to the gender wage gap among employees performing equal work. In this Article, I argue that in most cases market justifications for pay disparity in equal pay for equal …

Intragroup Discrimination: The Case For "Race Plus", Enrique R. Schaerer

Enrique R. Schaerer

The application of Title VII is uneven. The judiciary applies it to employment discrimination across groups, intergroup discrimination, but is reluctant to do so for discrimination within groups, intragroup discrimination. Even where Title VII recognizes intragroup discrimination, it does so unevenly. A “sex plus” doctrine is used to address intragroup sex discrimination, but no corresponding “race plus” doctrine has emerged for intragroup race discrimination. This Article calls attention to issues of intragroup discrimination, and proposes “race plus” as a natural extension of “sex plus” based on the text, legislative history, and statutory purpose of Title VII. This doctrinal tool would …

Race In The War On Drugs: The Social Consequences Of Presidential Rhetoric, Jeff L. Yates, Andrew Whitford

Jeff L Yates

One of the president’s main leadership tools for influencing the direction of American legal policy is public rhetoric. Numerous studies have examined the president’s use of the “bully pulpit” to lead policy by influencing Congress or public opinion, or by changing the behavior of public agencies. We argue that the president can use rhetoric to change the behavior of public agencies and that this can have important social consequences. We focus on the disproportionate impact of presidential rhetoric on different “target populations” in the context of the War on Drugs. Specifically, we observe that presidential rhetoric had a greater impact …

Gay Equality, Religious Liberty, And The First Amendment, Matthew J. Murray

Matthew Murray

Are gay rights laws and religious liberty fundamentally in conflict? Would legal recognition of same-sex marriage lead to a wave of litigation threatening the religious liberty of those who object to such unions on religious grounds? Opponents of same-sex marriage have vocally asserted as much. This Article argues, however, that modifications in civil marriage laws in fact pose little to no threat to the liberty of religious objectors. Rather, the real arena of potential conflict between religious liberty and gay equality arises in the context of sexual orientation nondiscrimination laws. But these tensions are not new. The courts should be …

Cumulative Jurisprudence And Hate Speech: Sexual Orientation And Analogies To Disability, Age And Obesity, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Non-discrimination norms in human rights instruments generally enumerate specified categories for protection, such as race, ethnicity, sex or religion, etc. They often omit express reference to sexual minorities.

Through open-ended interpretation, however, sexual minorities subsequently become incorporated. That ‘cumulative jurisprudence’ yields protections for sexual minorities through norms governing privacy, employment, age of consent, or freedoms of speech and association.

Hate speech bans, too, are often formulated with reference to traditionally recognised categories, particularly race and religion. It might be expected that the same cumulative jurisprudence should therefore be applied to include sexual minorities. In this article, that approach is challenged. …