Law Commons^™

Evidentiary Inequality, Sandra F. Sperino

Faculty Publications

Federal employment discrimination law is rife with evidentiary inequality. Courts allow employers to draw from a broad palette of evidence to defend against discrimination claims, while highly restricting the facts from which plaintiffs can prove their claims. This Article draws from hundreds of cases to show how judges favor the employer's evidence and disfavor the plaintiff's evidence across multiple dimensions, such as time, witnesses, documents, relevance, and reliability. Judges have created a host of named doctrines that severely restrict the evidence plaintiffs are allowed to use to prove their discrimination claims. At the same time, a host of unnamed, and …

Co-Worker Evidence In Court, Sandra F. Sperino

Faculty Publications

This symposium explores ways to empower workers. Many employment laws rely on workers filing private rights of action to enforce the underlying substantive law. Unfortunately, when workers file these claims in court, courts often do not allow them to rely on evidence from their co-workers. While courts regularly allow employers to submit co-worker evidence of a plaintiff's poor performance or lack of qualifications, they often diminish or exclude a plaintiff's co-worker evidence that the plaintiff performed well or possessed desired qualifications. This Article identifies and explores this evidentiary inequality. It argues that efforts to empower workers must include the power …

The Emerging Statutory Proximate Cause Doctrine, Sandra F. Sperino

Faculty Publications

The year 2011 marked the birth of a new idea. The United States decided Staub v. Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. It is rare in jurisprudence to be present at the birth of an idea and then see that idea develop over its first decade. This Article charts the emerging proximate cause doctrine from its early days as a baby doctrine. Now, the doctrine is pre-adolescent, with all of the changes and turmoil that phrase entails.

Killing The Cat's Paw, Sandra F. Sperino

Faculty Publications

In federal employment discrimination law, courts apply the label "cat's paw" to describe certain cases. Judge Richard Posner first used the term cat's paw in the context of federal discrimination jurisprudence, invoking a fable about an enterprising monkey who tricks a cat into getting hot chestnuts from a fire.' As the cat removes the hot chestnuts from the fire, the monkey eats them, leaving the cat with nothing except burnt paws.

In its traditional form, a cat's paw case is one in which a biased individual passes along negative information about a worker to an "unbiased" decisionmaker. The "unbiased" decisionmaker …

Caught By The Cat's Paw, Sandra F. Sperino

Faculty Publications

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the "cat's paw," formally recognized by the U.S. Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat's paw has taken ground quickly, discussed in hundreds of cases. The Supreme Court recognized the cat's paw theory in a case where a hospital fired a worker. The person who made the ultimate decision did not have impermissible bias. However, her decision was influenced by …

Harassment: A Separate Claim?, Sandra F. Sperino

Faculty Publications

In 2017, media attention focused on sexual harassment as victims reported harassment and assault as part of the #MeToo movement. Although many of the accounts focused on sexualized treatment, this treatment often occurred within a broader context of unequal treatment, such as pay inequality and the disproportionately low promotion rate of women into leadership positions. For decades, legal scholars have noted the interplay between broader work constructs and harassment.

This Article argues that viewing harassment as a separate, standalone claim likely misinterprets Title VII and the Supreme Court's jurisprudence surrounding harassment. Unfortunately, this error represents the dominant view among federal …

Employees Beware: How Sb 43 Takes Missouri Anti-Discrimination Law Too Far, Emily Crane

The Business, Entrepreneurship & Tax Law Review

SB 43 passed through the Missouri Legislature and was signed into law by Governor Eric Greitens on June 30, 2017. Ostensibly intended to bring Missouri’s anti-discrimination law in line with analogous federal law, SB 43 amended the Missouri Human Rights Act and thereby improperly increased the legal burden on employment discrimination plaintiffs. This article examines the causation standards under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act and contrasts those with the newly-amended Missouri Human Rights Act to demonstrate just how far Missouri law has gone. In so doing, this article ultimately concludes …

Banning The Box In Missouri: A Statewide Step In The Right Direction, Jessica Chinnadurai

Missouri Law Review

Missouri, like many other states, has evaluated and decided to address employment discrimination that occurs as a result of requiring people with a criminal history to disclose that information during the initial phases of the hiring process. Efforts to eliminate bias have been seen through the “Ban the Box” movement. The movement generally advocates removing the box applicants check if they have a criminal history, opting instead to delay this question for later in the employment process. This Note analyzes the advantages and disadvantages of adopting this legislation and evaluates whether doing so leads to a lower risk of employment …

In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson

Faculty Publications

The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court's disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court's Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress's intent.

A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck

Faculty Publications

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone

Missouri Law Review

This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - …

Anti-Discrimination Law In Peril, Trina Jones

Missouri Law Review

In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite …

Discrimination After Daugherty: Are Missouri Courts Contributing To Or Motivated By The Number Of Cases On The Discrimination Docket, Amanda Stogsdill

Missouri Law Review

For more than twenty years, Missouri courts have applied the federal McDonnell Douglas burden-shifting analysis to determine the outcome of a defendant's motion for summary judgment in claims of employment discrimination. However, the Missouri Supreme Court recently abandoned the McDonnell Douglas framework in favor of a new method of analysis derived from a Missouri Approved Jury Instruction. This new analysis has become known as the "contributing factor" test. In the months since Daugherty, controversy has surrounded this standard. Many defense attorneys claim that the "contributing factor" test significantly lowers the bar that a discrimination plaintiff must meet in order to …

Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves

Missouri Law Review

This Article has five parts. After considering empirical evidence, Part I concludes that judges' political ideology plays only a limited role in their decisionmaking. Part II identifies the increase in case filings over the last two decades as a likely non-ideological cause of the increased judicial skepticism towards claims of employment discrimination. This Part begins by examining aggregate trends in the district and appellate caseload and then translates caseload into the more meaningful metric of workload. Part II next evaluates various steps courts have taken to handle these workload increases. Finally, Part II concludes with a discussion of why employment …

Influence Of Procedural And Distributive Variables On Settlement Rates In Employment Discrimination Mediation, The, E. Patrick Mcdermott, Danny Ervin

Journal of Dispute Resolution

Mediators and scholars are interested in factors that contribute to a successful mediation. The settlement of the dispute is one measure of success. If one could identify certain key process or outcome variables that caused more disputes to be settled in mediation, a mediator could use this information to maximize settlement potential. We seek to add to this search for the "holy grail" of mediation settlement.' Using an extensive database from the evaluation of the Equal Employment Opportunity Commission (EEOC) we attempt to determine whether certain procedural and distributive factors are significant predictors of case resolution. We also examine whether …

Has Wright Line Gone Wrong--Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act, Michael J. Hayes

Missouri Law Review

Every year in the United States, thousands of employees are illegally fired for joining or supporting unions. These employees must bring their claims to the National Labor Relations Board (the “Board”), which applies its famous Wright Line standard to decide thousands of discrimination cases each year. Probably the most common issue in labor discrimination cases is “pretext.” In virtually every case, an employer claims that it fired an employee not for an illegal antiunion motive, but for a legitimate business reason. The pretext issue arises when the evidence shows that the legitimate reason asserted by the employer was most likely …

Use Of Mediation In Employment Discrimination Cases, The, Matt A. Mayer

Journal of Dispute Resolution

This Article will address the issues noted above. Part II discusses the realities for employers and employees created by the increased filing of employment discrimination claims. Part III encapsulates the procedural movement of a claim through the EEOC. Part IV summarizes the mediation process and notes why mediation is one of the methods used to deal with these claims. Part V highlights the pros and cons associated with the mediation of employment discrimination claims. Part VI discusses the inherent tensions between the goals of mediation and the goals of the anti-discrimination laws, as well as the inherent tensions that naturally …

Collective Bargaining Agreements, Arbitration Provisions And Employment Discrimination Claims: Compulsory Arbitration Or Judicial Remedy - Johnson V. Bodine Electric Co., Ann E. Ahrens

Journal of Dispute Resolution

This casenote addresses the effect of mandatory arbitration provisions in collective bargaining agreements (CBA) upon statutory anti-discrimination claims. Disputes in this area arise when an employee joins a union, thus becoming subject to a CBA negotiated between the union and the employees. What often happens is that the CBA will generally contain a clause calling for arbitration of all claims arising under the agreement. Later, if the employee believes he has been subjected to discriminatory practices on the part of the employer and seeks remedies under anti-discrimination laws, such as Title VII, the employer will move to compel arbitration. The …

Protecting Against Employment Discrimination: The Ninth Circuit's Interpretation Of Mandatory Arbitration Of Title Vii Claims - Renteria V. Prudential Ins. Co. Of America, Todd C. Stanton

Journal of Dispute Resolution

The growing trend toward reliance upon arbitration, rather than judicial adjudication, has resulted in a reformation regarding the resolution of disputes within the employment industry. It has become a standard practice of many employers to require that employees sign employment agreements before they are allowed to work. Recently, these types of agreements have begun to require that employees resolve any disputes or claims against their employers through arbitration rather than judicial adjudication. Unfortunately, the average employee is often unaware of the binding nature of these agreements until a dispute actually arises with his or her employer. The Ninth Circuit has …