Law Commons^™

Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller

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The #MeToo Movement has ushered sexual harassment out of the shadows and thrown a spotlight on the gender pay gap in the workplace. Harassment and unfair treatment have, however, been difficult to extinguish. This has been true for all workers, including partners – those women who are owners in their firms and claim that they have suffered harassment or unfair treatment based on gender. That is because a partner’s lawsuit for discrimination often will suffer an insurmountable hurdle: plaintiff’s status as a partner in the firm means that they may not be considered an “employee” under the relevant employment discrimination …

Masculine Law Firms, Ann C. Mcginley

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This article describes the masculine culture in law firms and analyzes how this culture harms both men and women because of their gender. Part II explains MMT, and analyzes the masculine practices that exist in modern law firms. Part III studies a lawsuit brought by a law firm associate, a white male father of two who allegedly was fired in retaliation for taking leave under the Family Medical Leave Act and because of his failure to adhere to the macho stereotypes prevalent in the law firm. Part IV analyzes how the law should respond to masculine norms, and suggests that …

Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik

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No abstract provided.

In Search Of The Reasonable Woman: Anti-Discrimination Rhetoric In The United States, Francis J. Mootz Iii

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This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.

Discrimination Redefined, Ann C. Mcginley

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In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

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This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley

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Studies and articles examining tenured, tenure-track and contract faculty in law schools have exposed the inequalities that women face when compared with their male counterparts. This article asks the legal academic community to consider these conditions in light of established Title VII doctrine which forbids discrimination because of sex. This article offers a hypothetical about the fictitious National Law School, whose labor relationships mimic those of many real law schools in a number of ways. Based on the facts in this hypothetical, the article explores different possible causes of action, either systemic or individual, that employees could reasonably win against …

In Search Of The Best Procedure For Enforcing Employment Discrimination Laws: A Comparative Analysis, Jean R. Sternlight

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As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead, while countries have struggled, individually, to devise processes that meet a variety of needs, none seems to be satisfied with its efforts. Litigation is slow, costly, and impersonal. Informal processes such as conciliation, mediation, arbitration, or administrative processes aim to be faster and cheaper, but may not result in adequate enforcement of discrimination …

Functionality Or Formalism? Partners And Shareholders As "Employees" Under The Anti-Discrimination Laws, Ann C. Mcginley

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In Clackamas Gastroenterology Associates P.C. v. Wells, the United States Supreme Court established the standards for determining whether a shareholder in a professional corporation ("PC") is an "employee" as defined by Title I of the Americans with Disabilities Act of 1990 ("ADA"). Characteristics the court saw as distinguishing partnerships are the profit sharing, contributions to capital, part ownership of partnership assets, and the right to share in management subject to agreement. Even if the partner's power is insufficient to avoid discrimination, courts should also consider whether the partner is more like an independent contractor in that he or she is …

Masculinities At Work, Ann C. Mcginley

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This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …

Disparate Impact Theory In Employment Discrimination: What’S Griggs Still Good For? What Not?, Elaine W. Shoben

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Is disparate impact a dead theory of employment discrimination? Definitely not. The theory itself has a more stable legal status than it did when the Supreme Court embraced it in its 1971 opinion Griggs v. Duke Power Co. But is it thriving in litigation? It appears to be neither thriving nor dead. It has become a relatively less vital tool, compared with theories of intentional discrimination. Despite the heroic effort of Congress to keep the theory from destruction by the Supreme Court through its express codification in 1991, disparate impact litigation is not making a major impact in this …

The Irrational Turn In Employment Discrimination Law: Slouching Toward A Unified Approach To Civil Rights Law, John Valery White

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This Article argues that the Supreme Court's recent disparate treatment decisions under Title VII of the Civil Rights Act of 1964 represent a trend toward unifying all civil rights law under an approach most closely akin to traditional equity. This trend explains the curious tension between substance and process in the Court's most recent decisions, St. Mary's Honor Center v. Hicks and Reeves v. Sanderson Plumbing. It also explains the Court's uncommon confidence in its yet undefined notions of what constitutes discrimination on the basis of the several protected categories recognized in Title VII and related statutes. The trend toward …

Introduction: Employment Discrimination And The Problems Of Proof, John Valery White, Gregory Vincent

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This is an introduction to articles presented at a symposium on the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Prods. Co. sponsored by the Louisiana Law Review. Presenting papers were five of the leading scholars on employment discrimination law: Professor Catherine J. Lanctot of the Villanova University Law School, Professor Michael Selmi of the George Washington Law School, Professor Linda Hamilton Krieger, University of California at Berkely School of Law, Professor Rebecca Hanner White of the University of Georgia Law School, and Professor Michael Zimmer of the Seton Hall University School of Law. Respondents were the authors and …

Discrimination Cases In The 2000 Term, Eileen Kaufman

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No abstract provided.

¡Viva La Evolución!: Recognizing Unconscious Motive In Title Vii, Ann C. Mcginley

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This article analyzes the different proof mechanisms developed under Title VII discriminatory treatment doctrine, demonstrating their ability to identify unconscious, as well as conscious, discriminatory behavior. It demonstrates that soon after its enactment Title VII began to evolve, expanding its reach to unconscious discrimination. Although in many instances courts were unaware of this expansion, courts appear to have followed their intuition to further the broad remedial and preventive purposes of the statute. In response to the evolution and to the courts' failure to articulate a justification for their decisions, a counter-evolution is currently occurring, with many courts attempting rigidly to …

Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman

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In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There was an …

Disparate Impact Discrimination: American Oddity Or Internationally Accepted Concept?, Elaine W. Shoben, Rosemary C. Hunter

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Griggs v. Duke Power Co. was a landmark United States decision because it recognized that barriers to equal employment opportunity need not be overt and that practices that appear neutral on their face may nonetheless have an unjustifiably exclusionary effect on protected groups. This American insight has not been lost on other Western legal systems in the context of their antidiscrimination statutes and opinions. This article explores the favorable reception that disparate impact analysis has had bother in other countries with similar legal heritages and in international law.

Despite the wide acceptance of disparate impact analysis in the international marketplace …

Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley

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The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, …

Modern Discrimination Theory And The National Labor Relations Act, Rebecca H. White

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This Article explores the concept of discrimination under the NLRA [National Labor Relations Act]. Specifically, it examines discrimination under the statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled. The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA. This analysis focuses on three specific areas. First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination …

The Emerging Cronyism Defense And Affirmative Action: A Critical Perspective On The Distinction Between Colorblind And Race-Conscious Decision Making Under Title Vii, Ann C. Mcginley

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In Foster v. Dalton, the United States Supreme Court approved of the promotion of a less-qualified white male over a better-qualified black female under very suspicious circumstances; in Taxman v. Board of Education, the court invalidated the retention of an equally qualified black female over her white counterpart. The law justifies the disparate results in Foster and Taxman by invoking the principle of race and gender “neutrality” in the decision making process. Under this principle, the law generally prohibits employment determinations based consciously on a person's race or gender. An exception to the “neutrality principle” of Title VII is the …

Condescending Contradictions: Richard Posner's Pragmatism And Pregnancy Discrimination, Ann C. Mcginley, Jeffrey W. Stempel

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Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left …

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

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Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Reinventing Reality: The Impermissible Intrusion Of After-Acquired Evidence In Title Vii Litigation, Ann C. Mcginley

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This Article analyzes the use of after-acquired evidence to defeat a discrimination victim's claim against her employer. The use of the Mount Healthy and Price Waterhouse mixed motives analysis in after-acquired evidence cases is misplaced because it is impossible for the permissible motive—resume fraud—to have been a factor in the adverse employment decision. Furthermore, after the enactment of the Civil Rights Act of 1991, it would be an improper judicial intrusion upon the power of the legislature for courts to apply mixed motives analysis to these cases. Besides the constitutional limitation on the judiciary's power created by the Civil Rights …

Watson V. Ft. Worth Bank And Trust: The Changing Face Of Disparate Impact, Linda H. Edwards

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Title VII of the Civil Rights Act of 1964 constitutes this country’s first serious commitment to eradicating the enormous economic disadvantages caused by hundreds of years of racial and gender-related prejudice. But there is also cause for concern. While members of once excluded groups have entered the mid-level workforce, most have not progressed to top-level positions. Perhaps not surprisingly, the elimination of barriers to mid-level employment has spotlighted the unique barriers to equal employment in top-level jobs. Title VII’s capacity to deal effectively with these barriers will be its major challenge for the next quarter-century. Its success will depend, in …

Mutable Characteristics And The Definition Of Discrimination Under Title Vii, Peter Brandon Bayer

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Title VII of the Civil Rights Act of 1964 prohibits racial, religious, gender, ethnic, and color discrimination in employment. In most instances the courts interpret the statute very broadly. However, a line of cases holds that discrimination predicated on a forbidden criterion coupled with a ‘mutable’—easily altered—characteristic does not constitute a violation of Title VII. This Article attempts to debunk the ‘mutable’ characteristic doctrine by discerning a general definition of discrimination under Title VII and applying that definition to demonstrate that mutability analysis contradicts the letter and spirit of the law.

The Use Of Statistics To Prove Intentional Employment Discrimination, Elaine W. Shoben

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Two decades after the once fiery debate about the meaning of "discrimination" in employment under Title VII of the Civil Rights Act of 1964, the issue has recently been rekindled. In simplest form, the question is whether the type of discrimination statutorily prohibited is only purposeful exclusions, or whether it includes unintended exclusions caused by tests or requirements that disproportionately affect a group defined by race, sex, or ethnicity. The Supreme Court's decision in Griggs v. Duke Power Co. resolved the question in one major area, thus causing the issue to lie dormant since 1971. Griggs held that liability under …

Compound Discrimination: The Interaction Of Race And Sex In Employment Discrimination, Elaine W. Shoben

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The courts have not yet clearly resolved whether Title VII of the Civil Rights Act of 1964 prohibits compound discrimination, that is, discrimination based on a combination of protected characteristics—such as race and sex-rather than single protected characteristics—such as race alone or sex alone. Professor Shoben argues that both the logic and the legislative history of Title VII support the view that compound discrimination is separately protected. She then offers a systematic method for statistically determining whether an employer is discriminating on the basis of a combination of characteristics. Finally, Professor Shoben considers whether single plaintiffs can, consistently with rule …

In Defense Of Disparate Impact Analysis Under Title Vii: A Reply To Dr. Cohn, Elaine W. Shoben

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The preceding article by Dr. Richard M. Cohn' concerning the use of statistics in Title VII employment discrimination cases makes three basic points. First, Cohn rejects the methods used to assess disproportionate differences between groups on tests, such as ability tests. He finds fault both with the approach of the Uniform Guidelines on Employee Selection Procedures and with the method based on finding statistical significance that I have advocated. Second, he also rejects the approach courts have adopted for evaluating the relative exclusion of groups defined by race, sex, or national origin in the employer's work force. He argues that …