Law Commons^™

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

Scholarly Works

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

Scholarly Works

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 …

Liberty Vs. Equality: In Defense Of Privileged White Males, Nancy E. Dowd

UF Law Faculty Publications

In this book review, Professor Dowd reviews Forbidden Grounds: The Case Against Employment Discrimination Laws, by Richard A. Epstein (1992). First, Professor Dowd sets forth the thesis and arguments of Epstein’s book and explores her general criticisms in more detail. Next, she explores Epstein’s core argument pitting liberty against equality from two perspectives: that of the privileged white male and that of minorities and women. Finally, Professor Dowd argues that Epstein’s position cannot be viewed as an argument that most minorities or women would make, as it fails to take account of their stories.

Employer Sanctions And Discrimination: The Case For Repeal Of The Employer Sanctions Provisions Of The Immigration Reform And Control Act Of 1986, Aaron Schwabach

Faculty Scholarship

No abstract provided.

The Government And Union Democracy, Theodore J. St. Antoine

Articles

The desirability of union democracy is generally regarded today as a self-evident proposition. In this Symposium Clyde Summers treats it as a "fundamental premise." But there have always been reputable scholars who would support the thesis, in greater or lesser degree, that "democracy is as inappropriate within the international headquarters of the UAW as it is in the front office of General Motors."

Inherently Discriminatory Conduct Revisited: Do We Know It When We See It?, Barbara J. Fick

Journal Articles

"This article traces the development of the inherently discriminatory doctrine, proposes some guidelines for determining when employer conduct falls under the rubric of the inherently discriminatory doctrine, and analyzes two cases dealing with employer use of temporary replacements during offensive lockouts in light of the proposed guidelines."

Challenging Discriminatory Guesswork: Does Impact Analysis Apply, Michael A. Middleton

Faculty Publications

This article initially examines the traditional theories of proof in Title VII cases. It then discusses approaches by lower courts in resolving the competing concerns raised in applying those traditional theories in challenges to subjective selection devices. This article next discusses the Supreme Court's resolution of the problem in Watson and suggests a workable alternative resolution that will not undermine the broad prophylactic purposes of Title VII.

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

Scholarly Works

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 …

Prevention Of Antiunion Discrimination In The United States, Theodore J. St. Antoine

Articles

Nearly all rank-and-file employees in private businesses of any substantial size in the United States are protected by federal law against antiunion discrimination. The Railway Labor Act applies to the railroad and airline industries. The National Labor Relations Act (NLRA) applies to all other businesses whose operations "affect [interstate] commerce" in almost any way. Supervisory and managerial personnel, domestic servants, and agricultural workers are excluded from this federal scheme. Separate federal law covers the employees of the federal government. About thirty of the fifty states have statutes ensuring the right to organize on the part of some or most of …

Preliminary Report On A Comparative Analysis Of The Underlying Dimensions Of Unemployment Among Blacks, Hispanics, And Whites In Boston, Jeremiah Cotton

William Monroe Trotter Institute Publications

There are four major objectives of this research. The first objective is to determine whether and to what extent differences in unemployment rates in Boston among black, Hispanic, and white workers are due to the following: (1) the differences in the percentage of individuals in each group who experience a spell of unemployment at one time or another during the year, that is the incidence of unemployment; or (2) the differences in the average number of spells of unemployment during the year, that is the frequency of unemployment; or (3) the differences in the average length of time a spell …

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

Scholarly Works

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 Metamorphosis Of Comparable Worth, Nancy E. Dowd

UF Law Faculty Publications

The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment.

The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of …

Privacy And The Sex Bfoq: An Immodest Proposal, Carolyn S. Bratt

Law Faculty Scholarly Articles

Since the adoption of Title VII of the Civil Rights Act of 1964, courts have been called upon to determine whether an employer can avoid liability for refusing to hire employees of one sex by invoking the privacy rights of its customers. Two recent court decisions are illustrative of the question and its resolution. In Backus v. Baptist Medical Center, the defendant employer's policy of excluding male nurses from the labor and delivery section of its obstetrics and gynecology department was challenged. The defendant established that most of the duties of a labor and delivery nurse involve exposure to …

Discrimination Bans Demonstrate Approaching Maturity Of Employment Law, Theodore J. St. Antoine

Articles

The pervasive message of this symposium sponsored by the Labor Relations Law Section, whether or not intended by the individual authors, is that American employment law is moving beyond adolescence and may be approaching maturity.

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

Scholarly Works

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 …

Individual Rights In The Work Place: The Burger Court And Labor Law, Theodore J. St. Antoine

Book Chapters

The Supreme Court, like other institutions, must play the part that the times demand, often with small regard for the personal predilections of its membership. The Warren Court and the Burger Court, in their respective contributions to the law of union-employer-employee relations, almost reversed the roles they might have been expected to assume. The major accomplishment of the Court in the labor area during the Warren era was a fundamental restructuring of intergovernmental relationships, while the Court's overriding concern throughout the Burger decade of the 1970s and beyond has been the defining of individual rights in the work place.

You're Fired!, Theodore J. St. Antoine

Articles

In 1967 Professor Lawrence Blades of Kansas criticized the iron grip of the contract doctrine of employment at will, and argued that all employees should be legally protected against abusive discharge. The next dozen years saw a remarkable reaction. With rare unanimity, a veritable Who's Who of labor academics and labor arbitrators, Aaron, Blumrosen, Howlett, Peck, Stieber, and Summers, to name only some, stepped forth to embrace Blades' notion, and to refine and elaborate it. But the persons who counted the most, the judges and the legislators, hung back. In the 1960s, vast strides were taken at both the federal …

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

Scholarly Works

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

Scholarly Works

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 …

United Rubber, Cork, Linoleum & Plastic Workers Of America V Michelin Tires (Canada) Limited, Innis Christie

Innis Christie Collection

A COMPLAINT of Unfair Labour Practice having been made to the Labour Relations Board (Nova Scotia) on February 29, 1978, alleging that Michelin Tires (Canada) Limited violated Section 51 (1) (a) and 5 (3) (a) of the Trade Union Act;

Discrimination As A Field Of Law, Arthur Larson

Faculty Scholarship

No abstract provided.

Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine

Articles

Title VII of the Civil Rights Act of 1964 was adopted in an atmosphere of monumental naivete. Congress apparently believed that equal employment opportunity could be achieved simply by forbidding employers or unions to "discriminate" on the basis of "race, color, religion, sex, or national origin," and expressly disavowed any intention to require "preferential treatment." Perhaps animated by the Supreme Court's stirring desegregation decisions of the 1950's, the proponents of civil rights legislation made "color-blindness" the rallying cry of the hour. Today we know better. The dreary statistics, so familiar to anyone who works in this field, tell the story. …

Right To Work, A Decade Of Development, William F. Swindler

Faculty Publications

No abstract provided.