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Full-Text Articles in Law
Trying To Fit In To Get In: Women Working In A Masculinities World, Kimberly D. Bailey
Trying To Fit In To Get In: Women Working In A Masculinities World, Kimberly D. Bailey
Faculty Articles and Other Publications
In predominately male workplaces, sexualized “horseplay” is common. While this type of conduct can be a tool of gender subordination, it also is a tool for fostering camaraderie and collegiality among co-workers. In other words, some workers, including women, find that engaging in sexual horseplay is necessary in order to “fit in.” This Article critiques the failure of courts to appreciate the peer pressure to “fit in” when they analyze Title VII sexual harassment cases. This oversight is especially evident when courts try to determine whether a plaintiff found particular sexual conduct to be “unwelcome.” If a plaintiff voluntarily engages …
Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino
Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino
Faculty Articles and Other Publications
This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …
Discrimination Law: The New Franken-Tort, Sandra F. Sperino
Discrimination Law: The New Franken-Tort, Sandra F. Sperino
Faculty Articles and Other Publications
This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.
Fakers And Floodgates, Sandra F. Sperino
Fakers And Floodgates, Sandra F. Sperino
Faculty Articles and Other Publications
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information …
The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino
The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino
Faculty Articles and Other Publications
In Burlington Northern Santa Fe Railroad v. White, the Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors.
While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, …