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Civil Rights and Discrimination Commons™
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Articles 1 - 30 of 71
Full-Text Articles in Civil Rights and Discrimination
Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry
Sex Trait Discrimination: Intersex People And Title Vii After Bostock V. Clayton County, Sam Parry
Washington Law Review
Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination and harassment on account of sex. Courts have historically failed to extend Title VII protections to LGBTQ+ people. However, in 2020, the U.S. Supreme Court decision in Bostock v. Clayton County changed this. Bostock explicitly extended Title VII’s protections against workplace discrimination to “homosexual” and “transgender” people, reasoning that it is impossible to discriminate against an employee for being gay or transgender without taking the employee’s sex into account. While Bostock is a win for LGBTQ+ rights, the opinion leaves several questions unanswered. The reasoning in …
Severe Or Pervasive Should Not Mean Impossible And Unattainable: Why The "Severe Or Pervasive" Standard For A Claim Of Sexual Harassment And Discrimination Should Be Replaced With A Less Stringent And More Current Standard, Kristy D'Angelo-Corker
Faculty Scholarship
No abstract provided.
Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin
Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin
Elisabeth Haub School of Law Faculty Publications
Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …
Seniority Rights Vs. Racial Quotas, Neal Devins
Reagan Redux: Civil Rights Under Bush, Neal Devins
Reagan Redux: Civil Rights Under Bush, Neal Devins
Neal E. Devins
No abstract provided.
To Protect Or Not To Protect, An Empirical Approach To Predicting Where The Fourth Circuit Would Stand On Coverage For Sexual Orientation Discrimination Under Title Vii, Mary Stuart King
South Carolina Law Review
No abstract provided.
Disrupting The Discrimination Narrative: An Argument For Wage And Hour Laws' Inclusion In Antisubordination Advocacy, Llezlie Green
Disrupting The Discrimination Narrative: An Argument For Wage And Hour Laws' Inclusion In Antisubordination Advocacy, Llezlie Green
Articles in Law Reviews & Other Academic Journals
The traditional discrimination narrative dominates both legal and popular understanding of workplace exploitation of African American workers. This narrative, however, is incomplete as it fails to consider other chronic workplace challenges such as wage theft. The dominant narrative draws upon an anticlassification framework rather than an antisubordination framework. In addition, post-racial legal analyses complicate the dominant narrative’s utility, particularly in a system plagued by structural inequality. Furthermore, both its legal underpinnings and the normative realities of pursuing discrimination claims challenge its efficacy in addressing workplace subordination. Wage theft has largely characterized only the immigrant worker exploitation narrative, despite wage theft’s …
Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky
Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky
Erwin Chemerinsky
The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …
Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky
Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky
Catherine Fisk
The Supreme Court has taken an inconsistent approach to allowing vicarious liability under major civil rights statutes. In recent cases, the Court has permitted qualified vicarious liability for supervisors' sexual harassment under Title VII, but rejected vicarious liability under Title IX. Earlier, the Court rejected vicarious liability for local governments sued under Section 1983. In this Article, Professors Fisk and Chemerinsky describe the Court's inconsistent approaches and argue that they cannot bejustfied by the text or legislative history of these statutes. Professors Fisk and Chemerinsky argue that each of these statutes is meant to achieve the same purpose, deterring civil …
A Battle Over Statutory Interpretation: Title Vii And Claims Of Sexual Orientation And Gender Identity Discrimination, Arthur S. Leonard
A Battle Over Statutory Interpretation: Title Vii And Claims Of Sexual Orientation And Gender Identity Discrimination, Arthur S. Leonard
Other Publications
No abstract provided.
A Positive Right To Free Labor, Rebecca E. Zietlow
A Positive Right To Free Labor, Rebecca E. Zietlow
Seattle University Law Review
This Article seeks to resurrect a lost thread in our civil rights tradition: the idea that workers have a positive right to free labor. A positive right to free labor includes the right to work for a living wage free of undue coercion and free from discrimination based on immutable characteristics. Not merely the negative guarantee against the state’s infringement on individual equality and liberty, a positive right to free labor is immediately enforceable against state and private parties. A positive right to free labor is rooted in the Thirteenth Amendment of the Constitution, which prohibits slavery and involuntary servitude …
Justice Kennedy's Big New Idea, Sandra F. Sperino
Justice Kennedy's Big New Idea, Sandra F. Sperino
Faculty Articles and Other Publications
In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …
"Other Than Honorable" Discrimination, Marcy L. Karin
"Other Than Honorable" Discrimination, Marcy L. Karin
Journal Articles
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, …
How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin M. Clermont, Stewart J. Schwab
How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin M. Clermont, Stewart J. Schwab
Stewart J Schwab
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 …
Ncaa Athletes, Unpaid Interns And The S-Word: Exploring The Rhetorical Impact Of The Language Of Slavery, Maria Ontiveros
Ncaa Athletes, Unpaid Interns And The S-Word: Exploring The Rhetorical Impact Of The Language Of Slavery, Maria Ontiveros
Maria L. Ontiveros
How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin Clermont, Stewart Schwab
How Employment Discrimination Plaintiffs Fare In Federal Court, Kevin Clermont, Stewart Schwab
Kevin M. Clermont
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 …
Qualified Immunity For “Private” § 1983 Defendants After Filarsky V. Delia, Andrew W. Weis
Qualified Immunity For “Private” § 1983 Defendants After Filarsky V. Delia, Andrew W. Weis
Georgia State University Law Review
In 2012, the Supreme Court addressed private party qualified immunity in the case of Filarsky v. Delia. There, the Court found that both the historical and policy bases for immunity under § 1983 supported extending qualified immunity to outside counsel retained by a municipality. The Court noted that full-time government employees can always seek qualified immunity, so not extending it to individuals employed on some other basis would create “significant line-drawing problems . . . [which could] deprive state actors of the ability to ‘reasonably anticipate when their conduct may give rise to liability . . . .’”
This …
What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr.
What's So Reasonable About Reasonableness? Rejecting A Case Law-Centered Approach To Title Vii's Reasonable Belief Doctrine, Matthew W. Green Jr.
Law Faculty Articles and Essays
The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964. Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have …
The Fundamental Nature Of Title Vii, Maria Ontiveros
The Fundamental Nature Of Title Vii, Maria Ontiveros
Maria L. Ontiveros
This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title …
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer
Indiana Journal of Law and Social Equality
No abstract provided.
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 …
Saving Disparate Impact, Lawrence Rosenthal
Saving Disparate Impact, Lawrence Rosenthal
Lawrence Rosenthal
More than four decades ago, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964’s prohibition on racial discrimination in employment is properly construed to forbid “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” that nevertheless “operate as ‘built-in headwinds’ for minority groups . . . that are unrelated to testing job capability.” In the Civil Rights Act of 1991, Congress codified liability for cases in which an employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national …
Harmless Amusement Or Sexual Harassment: The Reasonableness Of The Reasonable Woman Standard, Penny L. Cigoy
Harmless Amusement Or Sexual Harassment: The Reasonableness Of The Reasonable Woman Standard, Penny L. Cigoy
Pepperdine Law Review
No abstract provided.
Sexual Harassment Of Employees By Non-Employees: When Does The Employer Become Liable?, Robert J. Aalberts, Lorne H. Seidman
Sexual Harassment Of Employees By Non-Employees: When Does The Employer Become Liable?, Robert J. Aalberts, Lorne H. Seidman
Pepperdine Law Review
No abstract provided.
The Dismantling Of Mcdonnell Douglas V. Green: The High Court Muddies The Evidentiary Waters In Circumstantial Discrimination Cases, Melissa A. Essary
The Dismantling Of Mcdonnell Douglas V. Green: The High Court Muddies The Evidentiary Waters In Circumstantial Discrimination Cases, Melissa A. Essary
Pepperdine Law Review
No abstract provided.
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Faculty Publications
In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …
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 …
Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller
Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller
Elisabeth Keller
Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …
Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy
Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy
Elisabeth Keller
Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers …