Civil Rights and Discrimination Commons^™

Employment Discrimination In A High Velocity Labor Market, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Silicon Valley employers employ few African-Americans, Latino/as, or older workers, yet do not fit the usual paradigms of employment discrimination: they exhibit no taste for uniformity and do not employ job tournaments or internal labor markets. A new model of employment discrimination attributes disparate hiring in Silicon Valley to a combination of: demands for specific skill sets at hiring (the opposite of the subjective criteria that have long beguiled scholars of discrimination) and concomitant refusal to train; hiring through networks of personal contacts; and rewards to career paths that alternate employment with self-employment. Overcoming the disparate impact of these employment …

Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday

Jill Elaine Hasday

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …

Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday

Michigan Law Review

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …

Bilingualism And Equality: Title Vii Claims For Language Discrimination In The Workplace, James Leonard

University of Michigan Journal of Law Reform

Linguistic diversity is a fact of contemporary American life. Nearly one in five Americans speak a language other than English in the home, and influxes of immigrants have been a constant feature of American history. The multiplicity of languages in American society has touched nearly all aspects of American culture, and specifically has added new and important challenges to the American workplace. Chief among these new concerns are the growing number of legal claims centered around language discrimination in the workplace. The common vehicle for these claims has been Title VII, and there is considerable support in the academic literature …

Performing Racial And Ethnic Identity: Discrimination By Proxy And The Future Of Title Vii, Camille Gear Rich

Camille Gear Rich

No abstract provided.

Making Up Women: Casinos, Cosmetics, And Title Vii, David B. Cruz

Nevada Law Journal

No abstract provided.

Pensions, Risk, And Race, Dorothy A. Brown

Washington and Lee Law Review

No abstract provided.

How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin M. Clermont, Stewart J. Schwab

Cornell Law Faculty Publications

This article presents the full range of information that the Administrative Office’s data convey on federal employment discrimination litigation. From that information, the authors tell three stories about (1) bringing these claims, (2) their outcome in the district court, and (3) the effect of appeal. Each of these stories is a sad one for employment discrimination plaintiffs: relatively often, the numerous plaintiffs must pursue their claims all the way through trial, which is usually a jury trial; at both pretrial and trial these plaintiffs lose disproportionately often, in all the various types of employment discrimination cases; and employment discrimination litigants …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Oh discusses how the U.S. Supreme Court, in General Dynamics Land Systems, Inc. v. Cline, 124 S. Ct. 1236 (2004), settled a circuit court conflict over the viability of "reverse age discriminations" claim under the Age Discrimination in Employment Act (ADEA). The Court, in a 6-3 decision, held that statutorily protected workers over the age of forty may not bring an ADEA claim alleging that their employer discriminated against them in favor of older employees.

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

For the first time in the life of this Article, the 2003 survey period appears to have experienced a marked decrease in the number of decisions handed down by the United States Supreme Court and the Eleventh Circuit in the area of employment discrimination. As Title VII approaches its fortieth anniversary, perhaps this is an indication that there are fewer and fewer unsettled questions of law in this area. However, this decline in the number of decisions does not mean that the 2003 survey period was insignificant. The Supreme Court, in Raytheon Co. v. Hernandez, continued its string of …

Reasonable Accommodation Under The Ada: Are Employers Required To Participate In The Interactive Process? The Courts Say "Yes" But The Law Says "No", John R. Autry

Chicago-Kent Law Review

The Americans with Disabilities Act ("ADA") generally requires employers to "reasonably accommodate" a "qualified" employee's disability. Unfortunately, the ADA is silent as to the appropriate method for fashioning reasonable accommodations. The Equal Employment Opportunity Commission ("EEOC") issued regulations endorsing an "interactive process" by which an employer and its "qualified" disabled employee work together to devise the proper accommodation. However, the Supreme Court has yet to determine whether courts must defer to these regulations, leaving the circuit courts of appeals to issue differing opinions on whether the EEOC's interactive process is best characterized as a requirement or merely a suggestion.

Thus, …

The Race To The Bottom: The United States' Influence On Mexican Labor Law Enforcement, Jenna L. Acuff

San Diego International Law Journal

There are several theories why the Mexican government has refused to enforce the stringent laws enumerated in the Mexican Constitution. For example, the North American Social Dumping Theory and Mexico's desire to retain foreign direct investment from foreign countries as a source of revenue and employment. This Comment seeks to analyze and expound on these theories and to develop two additional theories that have only been discussed in passing. Part II begins with a brief look at the history of Mexican labor, including pre- and post-Revolution working conditions. Part III discusses Mexico's encouragement and protection of foreign direct investment and …

Intentional Job Discrimination-New Tools For Our Oldest Problem, Alfred W. Blumrosen, Ruth G. Blumrosen

University of Michigan Journal of Law Reform

The roots of employment discrimination lie deep in our history. By the 18th century, race slavery was the underpinning of wealth in the southern colonies. Black slaves were considered property - subhumans who had no rights in themselves or their offspring. In 1765, the British imposed "stamp taxes" on the colonies; the colonies resisted. In 1766, Parliament claimed the power to govern the colonies in all matters, but by 1770 it had repealed almost all the taxes that offended the colonists. "Business as usual" returned to the relations between the colonies and Britain.

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

Brief For The Lawyers' Committee For Civil Rights Under Law; Aarp; The American Civil Liberties Union Foundation; The Legal Aid Society – Employment Law Center; The National Asian Pacific American Legal Consortium; The National Association For The Advancement Of Colored People; The National Employment Lawyers Association; The National Partnership For Women And Families; The National Women's Law Center; And Now Legal Defense And Education Fund; As Amici Curiae In Support Of Respondent, Susan Grover, Patricia E. Roberts, Barbara R. Arnwine, Thomas J. Henderson, Michael L. Foreman, Sarah R. Crawford, Audrey Wiggins

Briefs

No abstract provided.

Reconsidering Attraction In Sexual Harassment, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article will proceed in four parts. Part I explains the significance of the attraction-based view to the law of sexual harassment. This Part demonstrates not only how the attraction-based view provides a theoretical basis for treating workplace sexual conduct as a form of sex discrimination, but also how this view works in practice to provide relief for victims of workplace sexual conduct in a streamlined and effective manner. This Part articulates in a comprehensive manner how an attraction-based paradigm can be used to construct a theory by which plaintiffs can show that workplace sexual conduct has occurred "because of' …

Games Ceos Play And Interest Convergence Theory: Why Diversity Lags In America’S Boardrooms And What To Do About It, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.

Retaliation Against Third Parties: A Potential Loophole In Title Vii's Discrimination Protection, 37 J. Marshall L. Rev. 1313 (2004), Anita G. Schausten

UIC Law Review

No abstract provided.

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Publications

Recent years have witnessed increasing attacks on the appropriateness of certification of employment discrimination class action claims. The shift is often attributed to amendments to federal antidiscrimination laws in the Civil Rights Act of 1991. This paper argues, however, that the changes wrought by the 1991 amendments need not pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class …

Employment Law: Desert Palace, Inc. V. Costa: Returning To Title Vii's Core Principles By Eliminating The Direct Evidence Requirement In Mixed-Motive Cases, Daniel P. Johnson

Oklahoma Law Review

No abstract provided.

Employment Law: Congress Giveth And The Supreme Court Taketh Away: Title Vii's Prohibition Of Religious Discrimination In The Workplace, Huma T. Yunus

Oklahoma Law Review

No abstract provided.

Affirmative Action In The Workplace: The Signficance Of Grutter?, Rebecca H. White

Scholarly Works

The Supreme Court's decision last term in Grutter v. Bollinger answered important questions about the affirmative use of race in the educational context. I have been asked by the editors of the Kentucky Law Journal to explore the impact the decision is like to have on affirmative action in a different context--employment. Simply put, to what extent does Grutter affect a public or private employer's ability to voluntarily adopt an affirmative action plan in order to diversify its workplace? The short answer, of course, is that the Grutter decision does not directly apply to the affirmative use of race or …

The Plight Of Same-Sex Harassment Victims Under Title Vii: Why Sexual Orientation Discrimination Should Be Recognized As A Form Of Sex Stereotyping, Sonya K. Parrish

Nevada Law Journal

No abstract provided.

Exceeding Our Boundaries: Transnational Employment Law Practice And The Export Of American Lawyering Styles To The Global Worksite, Susan Bisom-Rapp

Faculty Scholarship

Until very recently, one almost never heard mention of international issues among labor and employment law practitioners in the United States. Conventional wisdom considers this practice area quintessentially local. Identifying a trend that unseats this taken-for-granted notion, the article details the birth of a new employment law sub-specialty: international labor and employment law. Some U.S. management attorneys, working with transnational legal teams comprised of lawyers from foreign firms, are beginning to coordinate multinational clients' employment law projects across multiple national jurisdictions. While the world's legal regimes that regulate labor markets are remarkably culturally specific, the formation of transnational networks of …

Masculinities At Work, Ann C. Mcginley

Scholarly Works

This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …

Is There A Place For Race As A Legal Concept, Sharona Hoffman

Faculty Publications

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as …

Constitutional Choices: Legal Feminism And The Historical Dynamics Of Change, Serena Mayeri

All Faculty Scholarship

No abstract provided.

What Is An Employer's Liability For Constructive Discharge Under Title Vii? An Analysis Of Pennsylvania State Police V. Suders, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Pennsylvania State Police v. Suders, 542 U.S. 129 (2004). In this case involving Title VII, the author expected the Court to analyze whether whether a constructive discharge caused by supervisory harassment is a tangible employment action for purposes of imposing striet liability.

Workplace Mediation: The First-Phase, Private Caucus In Individual Discrimination Disputes, Emily M. Calhoun

Publications

No abstract provided.

Women Choosing Diverse Workplaces: A Rational Preference With Disturbing Implications For Both Occupational Segregation And Economic Analysis Of Law, Scott A. Moss

Publications

Despite women's dramatic labor market gains, there remains a striking degree of occupational segregation by gender. Analysts typically blame discrimination or women's work/family priorities. This Article offers a different explanation.

It is hard for women choosing jobs or occupations to know where they will face discrimination, particularly since recent judicial decisions eliminated certain employer signals that once differentiated fair and discriminatory firms. One way women can effectuate a preference for nondiscriminatory workplaces is by choosing gender-diverse workplaces. Nondiverse workplaces often are not female-friendly, and discrimination may be the reason they are nondiverse. In economic terms, women rationally use level of …