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Articles 1 - 14 of 14
Full-Text Articles in Civil Rights and Discrimination
Protecting The Compromised Worker: A Challenge For Employment Discrimination Law, Peter Siegelman
Protecting The Compromised Worker: A Challenge For Employment Discrimination Law, Peter Siegelman
Faculty Articles and Papers
Only the very best workers are completely satisfactory, and they are not likely to be discriminated against-the cost of discrimination is too great. The law tries to protect average and even below average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has difficulty achieving this goal because it is so easy to concoct a plausible reason for not hiring, or firing, or failing to promote, or denying a pay raise to, a worker who is not superlative.
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang
Legislating Incentives For Attorney Representation In Civil Rights Litigation, Douglas M. Spencer, Sean Farhang
Faculty Articles and Papers
Congress routinely relies on private lawsuits to enforce its mandates. In this article, we investigate whether, when it does so, the details of the legislation can importantly influence the extent to which the private bar is mobilized to carry out the prosecutorial function. Using an original and novel data set based on review of archived litigation documents for cases filed in the Northern and Eastern Districts of California over the two decades spanning 1981-2000, we examine the effects of the Civil Rights Act of 1991, which increased economic damages available to Title VII job discrimination plaintiffs, on their ability to …
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Detecting The Stealth Erosion Of Precedent: Affirmative Action After Ricci, Sachin S. Pandya
Faculty Articles and Papers
This paper presents a method for detecting stealth precedent erosion, i.e., when an appellate court majority deliberately writes the opinion in case y to reduce the scope of its precedent x, but does not expressly refer to precedent x in the opinion. Applying this method, the paper provides a strong basis for concluding that in Ricci v. DeStefano (2009), a United States Supreme Court case decided under Title VII of the Civil Rights Act of 1964, the Court majority eroded by stealth United Steelworkers of America v. Weber (1979), and Johnson v. Transportation Agency (1987), both cases that read Title …
Rethinking The Tripartite Division Of American Work Law, Michael Fischl
Rethinking The Tripartite Division Of American Work Law, Michael Fischl
Faculty Articles and Papers
The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field, as the settings in which nominally out of area law plays a significant governance role are rapidly proliferating. At …
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman
Faculty Articles and Papers
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, …
Q-Word As Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas, Peter Siegelman, Ian Ayres
Q-Word As Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas, Peter Siegelman, Ian Ayres
Faculty Articles and Papers
The debates over the passage of Title VII of the 1964 Civil Rights Act' were marked by passionate disagreement: conservatives objected to the legislation as an unwarranted interference with employers' freedom of contract, while liberal supporters considered it a first step toward racial justice. While disagreement about what employment discrimination law should do has continued-in much the same form-to this day, there has been surprising consensus about the mechanism by which Title VII actually works: whether it is thought of as inadequate or excessive, Title VII is usually presumed to promote the hiring of those it is designed to protect.'The …
Dealing With Diversity: Changing Theories Of Discrimination, Deborah Calloway
Dealing With Diversity: Changing Theories Of Discrimination, Deborah Calloway
Faculty Articles and Papers
No abstract provided.
Accommodating Pregnancy In The Workplace, Deborah Calloway
Accommodating Pregnancy In The Workplace, Deborah Calloway
Faculty Articles and Papers
No abstract provided.
The Selection Of Employment Discrimination Disputes For Litigation: Using Business Cycle Effects To Test The Priest-Klein Hypothesis, Peter Siegelman, John J. Donohue Iii
The Selection Of Employment Discrimination Disputes For Litigation: Using Business Cycle Effects To Test The Priest-Klein Hypothesis, Peter Siegelman, John J. Donohue Iii
Faculty Articles and Papers
Employment discrimination cases filed during recessions are more likely to settle after filing and less likely to be won by plaintiffs than those filed when the economy is strong. This model of litigation confirms two predictions of the Priest-Klein model of litigation. First, relatively weak cases (for either party) should be more likely to settle. Second, the party with the greater stake in litigation will have the higher win rate in adjudicated disputes; the special case of even stakes produces a 50 percent plaintiff win rate. The settlement process does not produce complete selection, however: the strong version of the …
St. Mary's Honor Center V. Hicks: Questioning The Basic Assumption, Deborah Calloway
St. Mary's Honor Center V. Hicks: Questioning The Basic Assumption, Deborah Calloway
Faculty Articles and Papers
No abstract provided.
The Changing Nature Of Employment Discrimination Litigation, Peter Siegelman, John J. Donohue Iii
The Changing Nature Of Employment Discrimination Litigation, Peter Siegelman, John J. Donohue Iii
Faculty Articles and Papers
Two major pieces of employment discrimination legislation were passed in the early 1990s: the 1991 Civil Rights Act and Americans with Disabilities Act. Using some simple regression models, we examine the effects of this legislation on the volume, content and outcomes of employment discrimination cases filed in federal courts. We find, first, that the volume of discrimination cases nearly doubled between 1992 and 1997, in contrast to a 10 percent decline during the previous 8 years, and despite a sharply falling unemployment rate that–in the past–would have substantially reduced the amount of litigation. We also observe a significant shift in …
Studying The Iceberg From Its Tip: A Comparison Of Published And Unpublished Employment Discrimination Cases, Peter Siegelman, John J. Donohue Iii
Studying The Iceberg From Its Tip: A Comparison Of Published And Unpublished Employment Discrimination Cases, Peter Siegelman, John J. Donohue Iii
Faculty Articles and Papers
Researchers often rely on published opinions to draw conclusions about cases decided by the courts, determinants of court decisions, and broader social phenomena. We demonstrate that 80 to 90 percent of employment discrimination cases filed in federal court do not produce a published opinion. There are good theoretical reasons to believe that the process generating a published opinion is not random and thus that samples of published cases will not be representative of all cases. Through a direct comparison of published and unpublished cases, we show that the two actually do differ in significant and predictable ways. Examining several studies …
Equal Employment And Third Party Privacy Interests: An Analytical Framework For Reconciling Competing Rights, Deborah Calloway
Equal Employment And Third Party Privacy Interests: An Analytical Framework For Reconciling Competing Rights, Deborah Calloway
Faculty Articles and Papers
No abstract provided.
New Definition Of Seniority System Violations Under Title Vii: He Who Seeks Equity..., Stephen Utz
New Definition Of Seniority System Violations Under Title Vii: He Who Seeks Equity..., Stephen Utz
Faculty Articles and Papers
No abstract provided.