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Full-Text Articles in Law
The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise
The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise
Cornell Law Faculty Publications
Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and retaliation cases. The decision prompted an outcry from the plaintiffs' bar and Congress has proposed legislation to overturn Gross. Despite the outcry, a simple question persists: Does the motivating factor jury instruction influence case outcomes? Results from our experimental mock jury study suggest that such jury instructions …
Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley
Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley
Scholarly Works
This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …
Sidelined: Title Ix Retaliation Cases And Women's Leadership In College Athletics, Erin E. Buzuvis
Sidelined: Title Ix Retaliation Cases And Women's Leadership In College Athletics, Erin E. Buzuvis
Faculty Scholarship
Discrimination against women seeking or serving in leadership positions in sport is worthy of analysis, not only for the sake of individual women who desire to self-actualize as a head coach or athletic administrator, but because the unique role of sport in society gives underrepresentation of women in leadership positions additional significance. Due to its high visibility and widespread appeal—its veritable iconic status—sport is a salient site of cultural production. That is, sport operates on a symbolic level, reflecting and transmitting shared cultural values. Among these values, sport helps define the attributes associated with leadership, and thus, derivatively, power. By …
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Fallout From 14 Penn Plaza V. Pyett: Fractured Arbitration Systems In The Unionized Workplace, Ann C. Hodges
Law Faculty Publications
First, the article will review the history of arbitration of statutory employment claims, including the Pyett decision. Second, the article will look at the history and causes of legalism in arbitration. Then the article will consider the probable responses of employers and unions to Pyett. While predictions are necessarily speculative, it is likely that some unionized employers will seek to require employees to arbitrate statutory claims, perhaps in higher percentages than in the nonunion workplace. While unions may, and perhaps should, resist, many future collective bargaining agreements (CBAs) may contain such provisions. The article then discusses the alternative dispute resolution …
Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.
Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.
Law Faculty Articles and Essays
In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn.
The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton
The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton
Publications
The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to …
Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan
Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan
Publications
No abstract provided.
The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.
The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers, Jr.
Law Faculty Publications
This Essay considers three cases decided in the Supreme Court's 2008-2009 term and notes some of the major issues that are left open for discussion after these cases; its purpose is not to catalog every issue that these cases raise. Taken together, these cases challenge employment discrimination doctrine in a fundamental way. This provides the Fourth Circuit in particular the opportunity to continue doing what it has often done-think creatively about employment discrimination doctrine. This is an observation, not a criticism of the Fourth Circuit. It suggests that the Fourth Circuit can make a difference. Of course, the Fourth Circuit's …
Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine
Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine
Articles
President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …
Employment Discrimination In The Ethnically Diverse Workplace, Tanya K. Hernandez
Employment Discrimination In The Ethnically Diverse Workplace, Tanya K. Hernandez
Faculty Scholarship
Racial integration has long been the touchstone of racial progress in the workplace. But integration is only the beginning of the struggle to end racial discrimination. As workplaces become more diverse, they do not necessarily become less racially discriminatory. Diverse workplaces may be characterized by antagonism between people of different races. Interethnic discrimination may exist alongside the discrimination that has traditionally occurred between blacks and whites, i.e., non-white racial and ethnic groups may engage in disparate-treatment employment discrimination actionable under Title VII of the 1964 Civil Rights Act. Examples of interethnic discrimination occur among members of different ethnic subgroups, as …