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Articles 1 - 30 of 71
Full-Text Articles in Law
The Possible Final Word On Employment Discrimination Relief, Neal Devins
The Possible Final Word On Employment Discrimination Relief, Neal Devins
Neal E. Devins
No abstract provided.
Reagan Redux: Civil Rights Under Bush, Neal Devins
Reagan Redux: Civil Rights Under Bush, Neal Devins
Neal E. Devins
No abstract provided.
Group Versus Individuals, Neal Devins
Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison
Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison
Angela D. Morrison
This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.
This article shifts the focus. Instead, it argues that …
Humiliation At Work, Catherine L. Fisk
Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein
Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein
Stephanie Bornstein
This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, …
Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams
Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams
Stephanie Bornstein
This article analyzes how the growing trend of litigation alleging employment discrimination based on workers' family caregiving responsibilities applies to law firms and other legal employers. Our research has found at least thirty-three cases since 1990 in which employees of law firms or other legal employers--both attorneys and support staff--have sued their employers for family responsibilities discrimination (“FRD”). FRD is discrimination against employees based on their family caregiving responsibilities for newborns, young children, elderly parents, or ill spouses or partners. Here we analyze these cases, including the employee experiences that have prompted litigation and the legal theories on which the …
Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green
Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green
Michael Z. Green
With the current political climate regarding racial issues, any positive gains in resolving race discrimination claims in the workplace cannot come from new legislation through the Obama administration. Instead, those gains will have to come from within the workplace. Unions and their employee members must work together and with employers to resolve those disputes. Specifically, in this Article, two high-profile employment discrimination cases decided by the Supreme Court during President Obama's first year in office--Ricci v. DeStefano and Penn Plaza LLC v. Pyett--help identify a framework whereby employees with racial discrimination claims against their employers may work with …
Retaliatory Employment Arbitration, Michael Z. Green
Retaliatory Employment Arbitration, Michael Z. Green
Michael Z. Green
In 2014, we reach a key milestone with the fiftieth anniversary of the passage of Title VII of the Civil Rights Act of 1964 ("Title VII"). This landmark federal legislation, which prohibits discrimination in the workplace, also created the Equal Employment Opportunity Commission ("EEOC"). This Article focuses on the use of arbitration, a form of alternative dispute resolution ("ADR"), to decide federal employment discrimination claims brought under that and related statutes. Specifically, this Article addresses the use of so-called "mandatory," "forced," "employer-mandated," or "pre-dispute" or "compelled" agreements to arbitrate that have garnered much attention and criticism over the past twenty …
The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein
The Law Of Gender Stereotyping And The Work-Family Conflicts Of Men, Stephanie Bornstein
Stephanie Bornstein
This Article looks back to the early equal protection jurisprudence of the 1970s and Ruth Bader Ginsburg's litigation strategy of using men as plaintiffs in sex discrimination cases to cast a renewed focus on antidiscrimination law as a means to redress the work-family conflicts of men. From the beginning of her litigation strategy as the head of the ACLU Women's Rights Project, Ginsburg defined sex discrimination as the detrimental effects of gender stereotypes that constrained both men and women from living their lives as they wished-not solely the minority status of women. The same sex-based stereotypes that kept women out …
Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein
Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein
Stephanie Bornstein
When people think of sex discrimination, they tend to think of glass-ceiling discrimination and sexual harassment. This article describes and documents a rapidly expanding area of employment discrimination law: family responsibilities discrimination, or "FRD." FRD is employment discrimination against people based on their caregiving responsibilities, whether for children, elderly parents, or ill partners. FRD includes both "maternal wall" discrimination -- the equivalent of the glass ceiling for mothers -- and discrimination against men who participate in childcare or provide care for other family members.
The Evolution Of “Fred”: Family Responsibilities Discrimination And Developments In The Law Of Stereotyping And Implicit Bias, Joan C. Williams, Stephanie Bornstein
The Evolution Of “Fred”: Family Responsibilities Discrimination And Developments In The Law Of Stereotyping And Implicit Bias, Joan C. Williams, Stephanie Bornstein
Stephanie Bornstein
This Article integrates a discussion of current family responsibilities discrimination ("FRD") case law with a discussion of the single most important recent development in the field: the U.S. Equal Employment Opportunity Commission’s ("EEOC") 2007 issuance of Enforcement Guidance on caregiver discrimination. The Guidance concretely informs the public about what constitutes unlawful discrimination against caregivers under Title VII and the Americans with Disabilities Act. Specifically, the Guidance crystallizes two key holdings from case law in regard to Title VII disparate treatment claims brought by caregivers: (1) where plaintiffs have evidence of gender stereotyping, they can make out a prima facie case …
Work, Family, And Discrimination At The Bottom Of The Ladder, Stephanie Bornstein
Work, Family, And Discrimination At The Bottom Of The Ladder, Stephanie Bornstein
Stephanie Bornstein
With limited financial resources, few social supports, and high family caregiving demands, low-wage workers go off to work each day to jobs that offer low pay, few days off, and little flexibility or schedule stability. It should come as no surprise, then, that workers' family lives conflict with their jobs. What is surprising is the response at work when they do. This Article provides a survey of lawsuits brought by low-wage workers against their employers when they were unfairly penalized at work because of their caregiving responsibilities at home. The Article reflects a review of cases brought by low-wage hourly …
Access To Justice: Ensuring Equal Pay With The Paycheck Fairness Act, Deborah Thompson Eisenberg
Access To Justice: Ensuring Equal Pay With The Paycheck Fairness Act, Deborah Thompson Eisenberg
Deborah Thompson Eisenberg
No abstract provided.
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 …
Savagery In The Subways: The First Amendment, Anti-Muslim Ads And The Efficacy Of Counterspeech, Engy Abdelkader
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
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
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 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 …
Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg
Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg
Deborah Thompson Eisenberg
Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …
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
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
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 …
Wal-Mart Stores V. Dukes: Lessons For The Legal Quest For Equal Pay, Deborah Thompson Eisenberg
Wal-Mart Stores V. Dukes: Lessons For The Legal Quest For Equal Pay, Deborah Thompson Eisenberg
Deborah Thompson Eisenberg
The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes provides a unique opportunity to reflect on whether and how the legal system should address unjustified pay disparities between men and women who perform similar jobs. This Article describes the Court’s decision and analyzes the insights it offers about the legal quest for equal pay. First, Wal-Mart demonstrates the tension between Title VII’s focus on the employer’s intent and the economic realities of how pay discrimination happens in the modern workplace. As the women at Wal-Mart experienced and research confirms, pay disparities tend to be the greatest when employers delegate …
Implicit Bias In Employment Litigation, Melissa R. Hart
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
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 …
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 …
Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur
Civil Procedure And The Establishment Clause: Exploring The Ministerial Exception, Subject-Matter Jurisdiction, And The Freedom Of The Church, Gregory A. Kalscheur
Gregory A. Kalscheur, S.J.
What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it be seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper …