Law Commons^™

Savagery In The Subways: The First Amendment, Anti-Muslim Ads And The Efficacy Of Counterspeech, Engy Abdelkader

Engy Abdelkader

From San Francisco to Washington, D.C. to Detroit to Chicago to New York, anti-Muslim hate placards have recently appeared on government-owned transit systems in cities around the country. Anti-Muslim hate groups designed, funded and placed the inflammatory advertisements, representing a well-orchestrated campaign to demean and attack the minority Muslim community. The ads have culminated in hate crime charges in the subway pushing death of an immigrant of South Asian descent, diverse manifestations of counter official and private speech and First Amendment litigation in at least three jurisdictions where well-meaning transit officials attempted to prevent the ads’ placement. Interdisciplinary in its …

Applicants To Prize Winner Organizations As Winners-James T. Struck Ba, Bs, Aa, Mlis Case Study, James T. Struck

James T Struck

Applicants to Peace Prize Winner Organizations as Winners of those Prizes-James T. Struck BA, BS, AA, MLIS Case Study Applicants to Peace Prize Winner Organizations can arguably be seen as co-winners of those prizes related to employment discrimination concepts. As employment discrimination is illegal, people like me here in this application letter who applied to work with the Organization for Prohibition of Chemical Weapons (OPCW) 8/2013 can be seen as winners of those prizes. The legal implications of applicants being co-winners are clearly controversial. Should co-winners have some share of the prizes? As prize competition is an industry, prize applicants …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline Kim

Margo Schlanger

In 2011, the United States Supreme Court struck down a class action suit alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions, making it more difficult to obtain certification of private employment discrimination class actions. As a result, the role of the Equal Employment Opportunity Commission in seeking structural reform of the workplace, always of substantial influence, has gained in comparative importance. Yet there is remarkably little written about the EEOC’s large-scale injunctive cases. This Article addresses this major gap in scholarship. Using both qualitative case studies and a new quantitative dataset, we test existing theories …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Cindy A. Schipani, Terry Morehead Dworkin, Aarti Ramaswami

Cindy A Schipani

Subtle yet entrenched forms of gender-based discrimination continue to disadvantage women’s career progress. Research on sex differences and the consequences of family status for career development and progress suggests that discrimination is alive and well. Gender differences in the work environment need to be considered in order to understand the causes and consequences of inequality and discrimination in the workplace. There is a rich literature on the benefits of mentoring and networking for career advancement. Yet, few studies have examined the role of mentoring in network related outcomes and consequently our current knowledge and insights about the interaction of demographics …

No Glue Stocked On Aisle 23: Wal-Mart Stores, Inc. V. Dukes Deals A Death Blow To Title Vii Class Actions, Matthew Costello

Matthew Costello

After almost ten years, Wal-Mart Stores, Inc. v. Dukes ended before it began. In a 5-4 decision (split among ideological lines), the U.S. Supreme Court decertified the Dukes class from the starting gate, ending the country’s largest employment discrimination class-action lawsuit against the country’s largest corporation. In the months following the Court's controversial decision, lawyers and academics have been scrambling to assess the impact of the case on procedural class action and substantive discrimination law. This Note posits that Dukes misapplied procedural class action law and seemingly overturned well-settled employment discrimination precedent. As a result, the Court’s imprudent decision will …

Implicit Bias In Employment Litigation, Melissa R. Hart

Melissa R Hart

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. …

The Right To Be Fat, Yofi Tirosh

Yofi Tirosh

Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be …

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Victor D. Quintanilla

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart

Melissa R Hart

No abstract provided.

The Impossibility Of Agnostic Discrimination Law, Deborah M. Weiss

Deborah M. Weiss

In recent years, evidence of the societal rate of discrimination has been introduced in a small set of employment discrimination cases. Most cases using this so-called social framework analysis are class actions that challenge the use of subjective employment practices, including the ongoing Dukes v. Wal-Mart, the largest class action in U.S. history. Social framework evidence has been challenged as irrelevant, since unconnected to the facts of a particular dispute, and as more prejudicial than probative for holding individual defendants responsible for the wrongs of society as a whole. In this Article I argue that the societal rate of discrimination …

Grossly Restricted Pleading: Twombly/Iqbal, Gross And Cannibalistic Facts In Compound Employment Discrimination Claims, Brian S. Clarke

Brian S. Clarke

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required …

The Annoyingly Indeterminate Effects Of Sex Differences, Deborah M. Weiss

Deborah M. Weiss

(Previously circulated as "The Paradox of Statistical Discrimination.")At present, men and women have different distributions of certain aptitudes and personality traits. A growing body of research suggests that some of these differences have some biological basis, although these distribution differences do not always conform neatly to traditional stereotypes, and cultural factors also contribute. A heritable basis for difference, however, has frustratingly indeterminate implications. It suggests that some occupational segregation is not caused by discrimination. At the same time, a statistical aptitude or temperament difference will almost inevitably cause discrimination in professions that make use of that aptitude or temperament. This …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann Mcginley

Ann McGinley

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 …

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole' Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole' Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Good Ole’ Boys Apply Only: How The Ncaa Discriminates Against Minorities & Women In Collegiate Coaching, Nathan Berkeley

Nathan Berkeley

This note discusses the early-2008 NCAA Rule mandating that every NCAA Division I football team interview at least one minority head coach candidate when a vacancy evolves. I explore the possible reasons for the racial inequities and the unique circumstances in trying to implement an affirmative action program for unique high level positions. I argue that the NCAA Rule, as it stands now, is ineffective because there is currently no enforcement mechanism and that the Rule should be expanded to include other sports and women.

Disentangling Disparate Impact And Disparate Treatment: Adapting The Canadian Approach, Joseph A. Seiner

Joseph A. Seiner

The legal framework for alleging disparate impact and disparate treatment claims in cases involving discriminatory employment standards has long been confused. The uncertainty of how to proceed in these cases has created analytical problems for both the federal courts and the litigants. There is a fine line between intentional and unintentional discrimination claims when it comes to employment standards, and that line is often blurred. A uniform approach for analyzing these cases is therefore needed. This article looks to the Canadian approach of analyzing discrimination claims in the employment standards context, and, borrowing from that model, proposes a three-part analytical …