Law Commons^™

Boardroom Diversity: Why It Matters, Lawrence J. Trautman

Lawrence J. Trautman Sr.

What exactly is board diversity and why does it matter? How does diversity fit in an attempt to build the best board for an organization? What attributes and skills are required by law and what mix of experiences and talents provide the best corporate governance? Even though most companies say they are looking for diversity, why has there been such little progress? Are required director attributes, which are a must for all boards, consistent with future diversity gains and aligned with achieving high performance and optimal board composition? How might women and people of color best cultivate the skills necessary …

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

Rethinking Civil Rights And Gender Violence, Julie Goldscheid

Julie Goldscheid

Advocacy seeking justice for survivors of domestic and sexual violence historically has invoked civil rights laws and rhetoric to advance legal remedies and public policy reform. Even though two widely critiqued United States Supreme Court decisions have limited the reach of those civil rights approaches, neither decision precludes new civil-rights-based remedies for gender violence. Indeed, a civil rights frame has enduring potential to support needed reform by challenging structural inequalities that continue to inform and drive gender violence. Nevertheless, no public outcry has coalesced in the United States demanding a civil rights-based enforcement scheme, either to seek a refashioned remedy …

Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada, Cheryl L. Anderson

Cheryl L Anderson

Causation continues to be one of the most confounding issues in antidiscrimination law. Despite having rejected the position over two decades ago in Price Waterhouse v. Hopkins, the Court in Gross v. FBL Financial Services, Inc., recently asserted that the “ordinary default rule” in disparate treatment claims requires a plaintiff to prove but-for causation when a statute prohibits discrimination “because of” a protected characteristic. Gross threw disparate treatment law into disarray. Title VII has been statutorily modified to require only proof of motivating factor causation before the burden of proof shifts to the employer to show it would have made …

Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada, Cheryl L. Anderson

Cheryl L Anderson

Causation continues to be one of the most confounding issues in antidiscrimination law. Despite having rejected the position over two decades ago in Price Waterhouse v. Hopkins, the Court in Gross v. FBL Financial Services, Inc., recently asserted that the “ordinary default rule” in disparate treatment claims requires a plaintiff to prove but-for causation when a statute prohibits discrimination “because of” a protected characteristic. Gross threw disparate treatment law into disarray. Title VII has been statutorily modified to require only proof of motivating factor causation before the burden of proof shifts to the employer to show it would have made …

Incessant Discrimination Of Same-Sex Couples: A Case Study Of Varying Interpretations Of “Family,” Second-Parent Adoptions, And The Legal Rights Of Non-Biological Parents, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Tortifying Employment Discrimination, Charles A. Sullivan

Charles A. Sullivan

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.

First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening …

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Multi-National Corporations Closing The Borders For Female Professionals: Should Gender Discrimination Be Allowed For Expatriation Assignments Under Title Vii Law?, Allie C. Tucker

Allie C Tucker

While women currently make up significant proportions of the work force in many occupations, their presence remains lacking in upper management. In today’s globalizing economy international experience has become increasingly important for promotions in multi-national corporations but is simultaneously being denied to women due to speculations about gender discrimination in other nations. Evidence suggests that women are being sent on expatriation assignments far less than men, but Title VII case law has yet to directly address the issue. In the absence of such direction, MNCs should proceed with a fact-dependent analysis that balances the interests of the corporation with gender …

Over My Dead Body: A New Approach To Testamentary Restraints On Marriage, Ruth S. Lee

Ruth S Lee

Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a grant, devise, or bequest, on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage—prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as it is “reasonable.” A restraint is “unreasonable” if a marriage permitted by the restraint …

Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser

Mark Strasser

In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the …

Propelling Aviation To New Heights: Accessibility To In-Flight Entertainment For Deaf And Hard Of Hearing Passengers, Michael A. Schwartz

Michael A Schwartz

In-flight entertainment has been available for over forty-five years, but to this day remains without captions or subtitles, thus depriving deaf and hard of hearing passengers of access to this service. The Air Carrier Access Act of 1986 (“ACAA”) and implementing regulations do not require captioning of in-flight entertainment, and Congress, the airline industry and the U.S. Department of Transportation (“DOT”) have yet to remedy the problem. The courts do not allow deaf and hard of hearing passengers a private right of action and punitive damages under the ACAA. The DOT recently indicated it will issue a Notice of Proposed …

Disabled Students' Rights Of Access To Charter Schools Under The Idea, Section 504 And The Ada, Robert A. Garda Jr.

Robert A. Garda

Charter schools are under increasing attack for denying admission to disabled students. But traditional schools also turn away disabled students, often preventing them from attending schools in their neighborhood or within their district. This Article discusses when a school is permitted under federal disability law to deny admission to a disabled student. After nearly four decades of special education jurisprudence and regulatory guidance, the circumstances under which a student with a disability may be denied admission to a particular school are still remarkably unclear. This Article first discusses the "zero-reject" principle underlying the Individuals with Disabilities Education Act and concludes …

Reciprocal Antidiscrimination Arguments, Yofi Tirosh

Yofi Tirosh

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant …