Law Commons^™

Addressing Segregation In The Brown Collar Workplace: Toward A Solution For The Inexorable 100%, Leticia M. Saucedo

University of Michigan Journal of Law Reform

Despite public perception to the contrary, segregated workplaces exist in greater number today than ever before, largely because of the influx of newly arrived immigrant workers to low-wage industries throughout the country. Yet existing antidiscrimination frameworks no longer operate adequately to rid workplaces of the segregation that results from targeting immigrant workers. This Article suggests a new anti-discrimination framework to address workplace segregation. The Article reviews how litigants have attempted to rid the workplace of conditions resulting from segregated departments through existing anti-discrimination frameworks. It then suggests a simple, yet powerful, shift in the inferences that can be drawn from …

Grove City College V. Bell: Touchdown Or Touchback?, Karen Czapanskiy

Karen Czapanskiy

No abstract provided.

Critical Error, Bryan L. Adamson

Bryan L Adamson

Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …

Disparate Impact Under The Age Discrimination In Employment Act Of 1967, Michael Evan Gold

Michael Evan Gold

No abstract provided.

A Tale Of Two Amendments: The Reasons Congress Added Sex To Title Vii And Their Implication For The Issue Of Comparable Worth, Michael Evan Gold

Michael Evan Gold

No abstract provided.

Michelle Obama: The "Darker Side" Of Presidential Spousal Involvement And Activism, Gregory S. Parks, Quinetta M. Roberson, Phd

Cornell Law Faculty Working Papers

Pundits and commentators have attempted to make sense of the role that race and gender have played in the 2008 presidential campaign. Whereas researchers are drawing on varying bodies of scholarship (legal, cognitive and social psychology, and political science) to illuminate the role that Senator Obama’s race and Senator Clinton’s gender has/had on their campaign, Michelle Obama has been left out of the discussion. As Senator Clinton once noted, elections are like hiring decisions. As such, new frontiers in employment discrimination law place Michelle Obama in context within the current presidential campaign. First, racism and sexism are both alive and …

What Counts As Discrimination In Ledbetter And The Implications For Sex Equality Law, Deborah L. Brake

South Carolina Law Review

No abstract provided.

The Application Of Rfra To Override Employment Nondiscrimination Clauses Embedded In Federal Social Services Programs, Carl H. Esbeck

Faculty Publications

General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced …

April 29, 2008: Anti-Religion, Progressive Religion And Religion, Bruce Ledewitz

Hallowed Secularism

Anti-Religion, Progressive Religion and Religion

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 …

Dealing With The Realities Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research, Michael J. Malinowski

Michael J. Malinowski

No abstract provided.

The Phoenix From The Ash: Proving Discrimination By Comparators, Charles A. Sullivan

Charles A. Sullivan

Hidden beneath judicial and scholarly obsession with formal proof structures for individual disparate treatment cases is a simpler, more direct method of establishing discrimination. Taking the “disparate treatment” label seriously, I argue that “comparator” proof requires merely that the plaintiff identify a similarly situated person of another race or the opposite sex who was treated more favorably than plaintiff. Such proof is increasingly driving litigation in the lower courts, which suggests that comparators should be moved to center stage in the antidiscrimination project However, like other efforts, the comparator approach risks falling victim to the general hostility of the courts …

Ensuring Enforceability & Fairness In The Arbitration Of Employment Disputes, Stacy A. Hickox

Stacy A. Hickox

Private arbitration of employment law claims has become common in recent years. The Supreme Court has shown a strong preference for requiring that an employee pursue an employment claim through an arbitration program rather than seeking to enforce his or her rights in court. At the same time, legislation has been introduced to try to protect the rights of employees who, without an arbitration program in place, would have the opportunity to assert their statutory rights in court. This article explores what safeguards should be in place to assure that employers can rely on the enforceability of an arbitration program …

Restricting Access To Infertility Services: What Is A Justified Limitation On Reproductive Freedom, Crystal K. Liu

Crystal K Liu

The realm of reproductive freedoms has been one that has been heavily restricted in the history of our country. For purposes of this particular article, reproductive freedom refers not only to the ability to procreate but to the ability to be a parent as well. Throughout the history of the United States, these limitations have been epitomized in a variety of forms. These include state sponsored sterilization during the eugenics movement, child protection laws, as well as adoption laws. By exploring limitations that have been enacted, some of which have been repealed and others that continue to be in place, …

Reasonable Accommodation Under The Ada, Barbara A. Lee, Sheila D. Duston, Susanne M. Bruyere, Elizabeth Reiter

Susanne Bruyère

This brochure is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University. Cornell University was funded in the early 1990’s by the U.S. Department of Education National Institute on Disability and Rehabilitation Research as a National Materials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These updates, and the development of new brochures, have been funded by Cornell’s Program on Employment and Disability, the …

Survey Of The Federal Government On Supervisor Practices In Employment Of People With Disabilities, Susanne M. Bruyere, William Erickson, Richard L. Horne

Susanne Bruyère

In 1999, the Presidential Task Force on the Employment of Adults with Disabilities (PTFEAD) funded Cornell University to conduct a survey of federal sector HR and EEO representatives regarding their experience implementing the employment disability nondiscrimination requirements of the Americans with Disabilities Act of 1990(ADA) and the Rehabilitation Act of 1973, as amended. One of the recommendations from this research was to conduct a follow-up study of federal agency supervisors and managers about their experience in accommodation and employment of persons with disabilities in the federal sector, and in addition to inquire about their awareness of the series of Executive …

Working Effectively With People With Attention Deficit/ Hyperactivity Disorder, Eve W. Tominey, Matthew Tominey, Susanne M. Bruyere

Susanne Bruyère

This brochure on People with Attention Deficit/Hyperactivity Disorder and the Americans with Disabilities Act (ADA) is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University. Cornell University was funded in the early 1990’s by the U.S. Department of Education National Institute on Disability and Rehabilitation Research as a National Materials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These updates, and the development of …

Reasonable Accommodation Under The Ada, Barbara A. Lee, Sheila D. Duston, Susanne M. Bruyere, Elizabeth Reiter

Susanne Bruyère

This brochure is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University. Cornell University was funded in the early 1990’s by the U.S. Department of Education National Institute on Disability and Rehabilitation Research as a National Materials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These updates, and the development of new brochures, have been funded by Cornell’s Program on Employment and Disability, the …

Open Attendance—The First Amendment Implications Of Fighting Discrimination Against Homosexuals In Law School Student Organizations, Daniel R. Garner

Saint Louis University Law Journal

No abstract provided.

Complying With Export Laws Without Importing Discrimination Liability: At Attempt To Integrate Employment Discrimination Laws And The Deemed Export Rules, Sandra F. Sperino

Faculty Articles and Other Publications

The federal deemed export rules prohibit certain individuals from receiving any information about certain technologies without the required license, even if those individuals are otherwise authorized to work within the United States. In other words, employers who deal with technology or software subject to export control may be considered to be illegally exporting such technology or software, simply by allowing certain foreign nationals to work with or gain information about the restricted items.

This article will attempt two moderately simple tasks and one more difficult. The first task is to identify the tensions that exist between the deemed export rules …

An Assessment Of The Law School Climate For Glbt Students, Kelly Strader, Brietta R. Clark, Robin Ingli, M. Elizabeth Kransberger, Lawrence C. Levine, William Perez

McGeorge School of Law Scholarly Articles

Nationwide empirical research has assessed the law school climate for gay, lesbian, bisexual, and transgender (GLBT) students. The research shows that the climate for GBLT students at most law schools in the United States, particularly those in urban areas, has improved. The research also shows, however, that this group still encounters substantial discrimination on law school campuses and in law school class¬rooms. This discrimination may result from overt acts, thoughtlessness, and/or neglect on the part of various actors in law school communities. Whatever the cause, the result is that many GLBT students feel disenfranchised from their broader law school communities. …

Let's Not Jump To Conclusions: Approaching Felon Disenfranchisement Challenges Under The Voting Rights Act, Thomas G. Varnum

Michigan Journal of Race and Law

Section 2 of the Voting Rights Act of 1965 invalidates voting qualifications that deny the right to vote on account of race or color. This Article confronts a split among the federal appellate courts concerning whether felons may rely on Section 2 when challenging felon disenfranchisement laws. The Ninth Circuit Court of Appeals allows felon disenfranchisement challenges under Section 2; however, the Second and Eleventh Circuits foresee unconstitutional consequences and thus do not. After discussing the background of voting rights jurisprudence, history of felon disenfranchisement laws, and evolution of Section 2, this Article identifies the points of contention among the …

Affirmative Action & Negative Action: How Jian Li's Case Can Benefit Asian Americans, Adrian Liu

Michigan Journal of Race and Law

In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. …

From Proposition 209 To Proposal 2: Examining The Effects Of Anti-Affirmative Action Voter Initiatives, Michigan Journal Of Race & Law

Michigan Journal of Race and Law

Transcript of the symposium held at the University of Michigan Law School on Saturday, February 9, 2008 in Hutchins Hall Room 100

Reconstituting Japanese Law: International Norms And Domestic Litigation, Timothy Webster

Michigan Journal of International Law

This Essay proceeds in four parts. Part I situates these lawsuits in the context of Japan's growing ethnic diversity. Part II analyzes a decade of racial discrimination lawsuits in Japan, ultimately synthesizing the elements of a compensable act of racial discrimination under current Japanese law. Part III begins with a brief examination of the role of international law in Japan before turning to discussions between the Japanese government and U.N. bodies regarding the proper treatment of foreigners in Japan and the desirability of anti-discrimination laws. Part IV then discusses several failed attempts by national and local lawmakers to pass anti-discrimination …

Restoring The Ada And Beyond: Disability In The 21st Century, Robert L. Burgdorf

Journal Articles

Perhaps it was imprudent for me to agree, in response to the request of the symposium organizers, to address the future of disability law. Nobel Prize-winning physicist Neils Bohr supposedly once said that "[p]rediction is very difficult, especially about the future."' Columnist and author Jim Bishop wrote, "The future is an opaque mirror. Anyone who tries to look into it sees nothing but the dim outlines of an old and worried face." 2 Prognosticating is a very tricky and uncertain undertaking. I cannot pretend to have any particular gift for crystal ball gazing in disability matters. When I joined the …

(E)Racing Jennifer Harris: Sexuality And Race, Law And Discourse In Harris V. Portland, Kristine E. Newhall, Erin E. Buzuvis

Faculty Scholarship

In 2007 Penn State basketball coach Rene Portland retired shortly after a confidential settlement ended a discrimination lawsuit brought by former player Jennifer Harris against Portland and Penn State. Because of Portland's infamous policy of not allowing lesbians on her team, her departure was celebrated as a victory against homophobia in sports. Yet although Harris's claims of sexual orientation discrimination were validated in the media, her allegations of racial discrimination were ignored or dismissed as implausible. In this Article, the authors examine the omission of race from the discourse surrounding this case and suggest that both legal and cultural factors …

Complying With Export Laws Without Importing Discrimination Liability: An Attempt To Integrate Employment Discrimination Laws And The Deemed Export Rules, Sandra F. Sperino

Saint Louis University Law Journal

No abstract provided.

Chaos, Law, And God: The Religious Meanings Of Homosexuality, Jay Michaelson

Michigan Journal of Gender & Law

This Article argues that the religious meaning of homosexuality cannot be explained merely in terms of homophobia, "church and state," or traditional values versus progressive ones. Rather, the regulation of sexuality has a particular religious meaning: sexuality is a primary site in which religious law is engendered, where the lawfulness of religion meets the chaos beyond it. Whether in Biblical times or today, changing the way sexuality is regulated is a threat to the notion of order itself, as construed by Jewish and Christian religion. Arguments about gay rights, same-sex marriage, and related issues are not merely arguments informed by …