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Full-Text Articles in Law
Sexual Harassment: A Doctrinal Examination Of The Law, An Empirical Examination Of Employer Liability, And A Question About Ndas— Because Complex Problems Do Not Have Simple Solutions, Michael Heise, David S. Sherwyn
Sexual Harassment: A Doctrinal Examination Of The Law, An Empirical Examination Of Employer Liability, And A Question About Ndas— Because Complex Problems Do Not Have Simple Solutions, Michael Heise, David S. Sherwyn
Indiana Law Journal
The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees …
Negligent Hiring And The Information Age: How State Legislatures Can Save Employers From Inevitable Liability, Katherine A. Peebles
Negligent Hiring And The Information Age: How State Legislatures Can Save Employers From Inevitable Liability, Katherine A. Peebles
William & Mary Law Review
No abstract provided.
Culture Matters: Cultural Differences In The Reporting Of Employment Discrimination Claims, Andrew Tae-Hyun Kim
Culture Matters: Cultural Differences In The Reporting Of Employment Discrimination Claims, Andrew Tae-Hyun Kim
William & Mary Bill of Rights Journal
Why don’t reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title VII’s administrative scheme—which was created precisely to remedy and deter such conduct—but also incurs a heavy litigative cost in employer liability suits. This Article claims that for certain minority groups, namely Asian Americans, certain cultural differences significantly heighten those structural barriers and consequently leave them underprotected in the legal system. The Article locates …
The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner
The Failure Of Punitive Damages In Employment Discrimination Cases: A Call For Change, Joseph A. Seiner
William & Mary Law Review
Punitive damages were described by one early court as "an unsightly and an unhealthy excrescence." Although views toward punitive relief have changed over the years, the debate over the availability of exemplary damages in the judicial system has remained controversial. No place is that controversy more aptly demonstrated than in employment discrimination law, where punitive damages first became available in an amendment to Title VII of the Civil Rights Act of 1964 after a bitter congressional debate. Almost a decade ago, in Kolstad v. American Dental Association, the Supreme Court provided guidance on how punitive damages should be applied in …
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
William & Mary Law Review
An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …
Theory And Practice: Employer Liability For Sexual Harassment, B. Glenn George
Theory And Practice: Employer Liability For Sexual Harassment, B. Glenn George
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Sex, Science And Social Knowledge: The Implications Of Social Science Research On Imputing Liability To Employers For Sexual Harassment, Theresa M. Beiner
Sex, Science And Social Knowledge: The Implications Of Social Science Research On Imputing Liability To Employers For Sexual Harassment, Theresa M. Beiner
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White
There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White
William & Mary Bill of Rights Journal
In this Essay, Professor White argues that the Supreme Court finally has merged analysis of sexual harassment law with other claims of intentional discrimination. Professor White contends that the Court's decision in Meritor Savings Bank, FSB v. Vinson created confusion over the proper analysis of sexual harassment claims by seemingly embracing quid pro quo and hostile work environment theories as distinct forms of discrimination and by suggesting that at least some sexual harassment claims may warrant a revised approach to employer liability. In the wake of Meritor, sexual harassment claims increasingly were evaluated differently from other claims of disparate treatment, …
Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky
Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky
William & Mary Bill of Rights Journal
The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …
Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett
Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett
William & Mary Bill of Rights Journal
In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort …
Employer Liability For Employee Online Criminal Acts, Jeffrey S. Nowak
Employer Liability For Employee Online Criminal Acts, Jeffrey S. Nowak
Federal Communications Law Journal
While the computer and Internet have served as the foundation for a more efficient and effective workplace, they have also wreaked havoc on employers. Employees are increasingly using work-related time to enter the Information Superhighway to commit criminal acts upon third parties outside the employer’s business. Can an employer be held liable for such acts when they are committed using the employer’s computer and Internet system? While the doctrine of respondeat superior may shield employers from liability, the theory of negligent retention or supervision may allow injured parties a second bite at the employer liability apple. Because legislatures and courts …
Chadris, Inc. V. Latsis And The Test For Seaman Status: The Supreme Court Muddies The Waters Again, Anne Norris Graham
Chadris, Inc. V. Latsis And The Test For Seaman Status: The Supreme Court Muddies The Waters Again, Anne Norris Graham
William & Mary Law Review
No abstract provided.
Employer Defamation: The Role Of Qualified Privilege, Pamela G. Posey
Employer Defamation: The Role Of Qualified Privilege, Pamela G. Posey
William & Mary Law Review
No abstract provided.
Scope Of Employment Extended To Sponsored Recreation
Scope Of Employment Extended To Sponsored Recreation
Indiana Law Journal
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