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Full-Text Articles in Law
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Peter Siegelman
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, …
Disabling The Gender Pay Gap: Lessons From The Social Model Of Disability, Michelle Travis
Disabling The Gender Pay Gap: Lessons From The Social Model Of Disability, Michelle Travis
Michelle A. Travis
As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the “women don’t ask” and “lean in” storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps …
Babbling About Employment Discrimination Law: Does The Builder Understand The Blueprint For The Great Tower?, William Corbett
Babbling About Employment Discrimination Law: Does The Builder Understand The Blueprint For The Great Tower?, William Corbett
William R. Corbett
The article focuses on the U.S. Supreme Court’s recent decision in which the Court held that a plaintiff asserting an intentional age discrimination claim cannot avail himself of the mixed-motives proof structure and instead must prove but-for causation. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009). The decision was controversial, and it has provoked calls for a legislative response. My article considers Gross from two perspectives. First, Gross is the second Supreme Court decision, following Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), to interpret the effects of the Civil Rights Act of 1991 on the …
The Part And Parcel Of Impairment Discrimination, Michelle Travis
The Part And Parcel Of Impairment Discrimination, Michelle Travis
Michelle A. Travis
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the …
Toward Positive Equality: Taking The Disparate Impact Out Of Disparate Impact Theory, Michelle Travis
Toward Positive Equality: Taking The Disparate Impact Out Of Disparate Impact Theory, Michelle Travis
Michelle A. Travis
Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as an essential and defining feature of antidiscrimination law. Just over a decade ago, however, Professor Mark Kelman launched an investigation into whether and why antidiscrimination law must or should make reference to group status. This Article extends that investigation into the disparate impact arena by exploring the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. This analysis reveals the value in considering a practice-conscious rather …
Impairment As Protected Status: A New Universality For Disability Rights, Michelle Travis
Impairment As Protected Status: A New Universality For Disability Rights, Michelle Travis
Michelle A. Travis
This Article analyzes the fundamental change to federal civil rights law that Congress accomplished through the ADA Amendments Act of 2008 (the "ADAAA"). Congress enacted the ADAAA in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990. Although many commentators have recognized the ADAAA's intent to restore the class of individuals with disabilities to the breadth that Congress originally intended, this Article argues that the ADAAA accomplished something more significant: it extricated disability from the broader concept of impairment. As a result, the …
Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman
Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman
Eileen Kaufman
No abstract provided.
The Future Of Work-Family Policy: Is "Choice" The Right Choice?, Michelle Travis
The Future Of Work-Family Policy: Is "Choice" The Right Choice?, Michelle Travis
Michelle A. Travis
This article reviews the new, interdisciplinary book, Women and Employment: Changing Lives and New Challenges, which contains a set of empirical studies and policy proposals on work-family balance. This review uses the book’s research and analysis as a springboard for considering the role that gender equality should play in advancing a coherent work-family policy agenda, and more specifically, what “gender equality” means in the context of care work and labor force participation. Until recently, work-family discourse has been influenced by two dominant perspectives: one that seeks to achieve equal employment outcomes for women and men, and one that focuses on …
Lashing Back At The Ada Backlash: How The Americans With Disabilities Act Benefits Americans Without Disabilities, Michelle A. Travis
Lashing Back At The Ada Backlash: How The Americans With Disabilities Act Benefits Americans Without Disabilities, Michelle A. Travis
Michelle A. Travis
This Article applies Professor Derrick Bell's interest convergence hypothesis to the disability context. By identifying how the ADA benefits nondisabled workers, this Article challenges the notion that advancing equality for individuals with disabilities necessarily comes at the expense of the nondisabled workforce. Many scholars have documented the socio-legal backlash against the ADA, particularly the ADA's reasonable accommodation mandate. This backlash is fueled in part by a belief that the ADA is a form of social welfare, rather than an antidiscrimination law, and that the accommodation mandate requires affirmative action or preferential treatment, rather than merely ensuring equal employment opportunities. More …
The Pda's Causation Effect: Observations Of An Unreasonable Woman, Michelle A. Travis
The Pda's Causation Effect: Observations Of An Unreasonable Woman, Michelle A. Travis
Michelle A. Travis
While many scholars rightfully have critiqued the Pregnancy Discrimination Act (“PDA”) as falling short of achieving the ultimate goal of equal employment opportunities for women, this Article reveals one of the PDA’s most important successes. By recognizing pregnant women as a “given” in the workplace, the PDA launched a quiet revolution in the way that judges make causal attributions for adverse employment outcomes. Specifically, the PDA provided judges with the conceptual tools that were needed to help shift causal attributions to an employer, rather than attributing a pregnant woman’s struggles in the workplace to her own decision to become a …
Recapturing The Transformative Potential Of Employment Discrimination Law, Michelle A. Travis
Recapturing The Transformative Potential Of Employment Discrimination Law, Michelle A. Travis
Michelle A. Travis
Although antidiscrimination law has helped address explicit prejudice in the workplace, significant disparities remain, particularly for workers with disabilities and women with caregiving responsibilities. Much of this inequality results from subtler causes, including the ways that employers organize the when, where, and how of work performance. This Article analyzes the role that employment discrimination law could play in transforming the traditional organization of work. In particular, this Article challenges the full-time face-time norm, around which most top-level jobs are designed. This norm refers to the bundle of default preferences that employers have for full-time positions, unlimited hours or rigid work …
Equality In The Virtual Workplace, Michelle A. Travis
Equality In The Virtual Workplace, Michelle A. Travis
Michelle A. Travis
This article places the sociological data on telecommuting into a theoretical context in an attempt to resolve a current split in feminist work/family conflict jurisprudence. Some legal feminists argue that women's workplace inequality is largely the result of forces external to the workplace - i.e., learned or inherent differences in women's propensity to perform carework. Other legal feminists argue that women's workplace inequality is largely the result of forces internal to the workplace - i.e., workplace structures and practices that exclude most women from the most desirable jobs. This article argues that the telecommuting data supports the latter theory, rather …
Perceived Disabilities, Social Cognition, And "Innocent Mistakes", Michelle A. Travis
Perceived Disabilities, Social Cognition, And "Innocent Mistakes", Michelle A. Travis
Michelle A. Travis
This Article uses social cognition literature to analyze one form of non-prototypic employment discrimination under the Americans with Disabilities Act of 1990 (ADA). When enacting the ADA, Congress recognized that discrimination against individuals with disabilities is so pervasive that it reaches beyond those who possess substantially limiting impairments. Therefore, the ADA protects not only individuals who have an actual disability, but also non-disabled individuals who are mistakenly regarded as disabled by their employer. The field of social cognition, particularly causal attribution theory, studies why, how, and when we misperceive other individuals' capabilities. By taking an interdisciplinary approach, this Article concludes …
Telecommuting: The Escher Stairway Of Work/Family Conflict, Michelle A. Travis
Telecommuting: The Escher Stairway Of Work/Family Conflict, Michelle A. Travis
Michelle A. Travis
This Article was part of a symposium issue on Law, Labor, and Gender. This interdisciplinary project responds to legal scholars in the work/family conflict field who advocate telecommuting as a way for women to achieve workplace equality. First, the Article uses sociology research to demonstrate that telecommuting sometimes works to exacerbate gender inequality in the workplace, rather than leveling the workplace playing field. Second, the Article explores what role, if any, the law may play in requiring employers to design gender-equalizing telecommuting relationships. By analogizing telecommuting to the historic use of women industrial homeworkers, the Article concludes that targeted homeworking …
Leveling The Playing Field Or Stacking The Deck? The "Unfair Advantage" Critique Of Perceived Disability Claims, Michelle A. Travis
Leveling The Playing Field Or Stacking The Deck? The "Unfair Advantage" Critique Of Perceived Disability Claims, Michelle A. Travis
Michelle A. Travis
In Title I of the Americans with Disabilities Act of 1990 (ADA), Congress recognized that the fears, misperceptions, and stereotypes about disabled individuals are so pervasive that employment discrimination reaches beyond those who actually possess substantially limiting impairments. Accordingly, the ADA protects not only employees with actual disabilities, but also those nondisabled employees who mistakenly are regarded as disabled by their employers. This Article analyzes to what extent those with perceived disabilities should receive the same substantive safeguards as those who are actually disabled. Specifically, the Article argues that applying the traditional forms of the ADA's reasonable accommodations and essential …