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Full-Text Articles in Labor and Employment Law
Aging On Air: Sex, Age, And Television News, Rebecca H. White
Aging On Air: Sex, Age, And Television News, Rebecca H. White
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The best piece of advice I received when I began teaching law was to adopt Charlie Sullivan's and Mike Zimmer's casebook for my Employment Discrimination class. Before I became a law professor, I had no clue how important choosing the right textbook is, not only for the students but for the teacher. I also was unaware of how much I had to learn about a subject I thought I knew well. I had been litigating employment discrimination cases for several years, but when I began teaching, I quickly learned how much I did not know. Charlie's and Mike's casebook, through …
Title Vii And The #Metoo Movement, Rebecca White
Title Vii And The #Metoo Movement, Rebecca White
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The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. These include the requirements of severity or pervasiveness, the issue of unwelcomeness, the availability of an affirmative defense for hostile work environment claims, and the time limits within which claims must be brought. Additionally, those making claims of sexual harassment fare poorly when they suffer retaliation for stepping forward. Internal complaints …
Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton
Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton
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This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …
Affirmative Action In The Workplace: The Signficance Of Grutter?, Rebecca H. White
Affirmative Action In The Workplace: The Signficance Of Grutter?, Rebecca H. White
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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 …
Deference And Disability Discrimination, Rebecca H. White
Deference And Disability Discrimination, Rebecca H. White
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In 1999, the question of deference to the EEOC grabbed the spotlight. It surfaced in a case that arose under the Americans with Disabilities Act of 1990 (the "ADA"), a relatively new, and sweeping, anti-discrimination law that prohibits workplace discrimination against qualified individuals with a disability. A difficult substantive question was presented: Is the determination of whether one has a disability within the meaning of the ADA to be made with or without regard to mitigating measures? Instinctively, either a "yes" or a "no" answer seems problematic. On the one hand, defining disability without regard to the corrective effects of …
Modern Discrimination Theory And The National Labor Relations Act, Rebecca H. White
Modern Discrimination Theory And The National Labor Relations Act, Rebecca H. White
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This Article explores the concept of discrimination under the NLRA [National Labor Relations Act]. Specifically, it examines discrimination under the statute through the lens of Title VII, an approach that brings a fresh perspective to doctrine long considered settled. The purpose of this comparison is to explore the extent to which Title VII's discrimination concepts make sense under the NLRA. This analysis focuses on three specific areas. First, it examines discrimination cases under section 8(a)(1), concluding that the lower courts are wrong to apply Title VII concepts and to insist that without disparate treatment of union activities, no unlawful discrimination …
Vicarious And Personal Liability For Employment Discrimination, Rebecca H. White
Vicarious And Personal Liability For Employment Discrimination, Rebecca H. White
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This Article addresses the issues of vicarious and personal liability for employment discrimination as a coherent whole. Part II examines the prevailing view on an employer's vicarious liability for employment discrimination under Title VII, the ADEA, and the ADA. Part II further discusses the exception to vicarious liability that has developed in hostile work environment cases and examines the justifications advanced for that exception. My point here is not so much to debate whether such an exception should exist but to determine whether the arguments against vicarious liability in hostile work environment cases justifiably can be limited to that context. …
Proof Of Disparate Treatment Under The Age Discrimination In Employment Act: Variations On A Title Vii Theme, Mack A. Player
Proof Of Disparate Treatment Under The Age Discrimination In Employment Act: Variations On A Title Vii Theme, Mack A. Player
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The Age Discrimination in Employment Act (ADEA) was enacted in 1967 and substantially amended in 1974 and 1978. Generally stated, the ADEA prohibits employer discrimination by public and private "employers" (persons having twenty or more employees), labor unions, and employment agencies. Protection against age discrimination is granted, however, only to employees and applicants between the ages of forty and seventy. It is illegal to discriminate on the basis of age against persons within the forty-to-seventy age group regardless of whether the person favored by the discrimination is within or without the protected age group or is younger or older than …
Civil Rights--Federal Jurisdiction--Exhaustion Of Adequate And Appropriate State Administrative Remedies Is A Prerequisite For Judicial Review Under Section 1983, Camilla E. Watson
Civil Rights--Federal Jurisdiction--Exhaustion Of Adequate And Appropriate State Administrative Remedies Is A Prerequisite For Judicial Review Under Section 1983, Camilla E. Watson
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Georgia Patsy, a white female secretary, brought a civil rights action under section 1983 of title 42 of the United States Code against Florida International University in the United States District Court for the Southern District of Florida, alleging employment discrimination in violation of the Constitution and laws of the United States. The district court dismissed the action for failure to exhaust state administrative remedies. The Court of Appeals for the Fifth Circuit reversed on the ground that failure to allege exhaustion of state remedies did not preclude a section 1983 cause of action. On rehearing en banc, the court …
Defense Under The Age Of Discrimination In Employment Act: Misinterpretation, Misdirection, And The 1978 Amendments, Mack A. Player
Defense Under The Age Of Discrimination In Employment Act: Misinterpretation, Misdirection, And The 1978 Amendments, Mack A. Player
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The Age Discrimination in Employment Act of 1967 prohibits employers, labor organizations, and employment agencies from discriminating because of age, but it does not protect all age groups against employment discrimination. As enacted, the 1967 Act protected persons between the ages of forty and sixty-five; the amendments in April 1978 extended that protection five years to age seventy. Thus it is not illegal to discriminate against people before their fortieth or after their seventieth birthday. The Act, in its original and amended versions, contains five exceptions or "defenses" to age discrimination in employment. Only the "bona fide occupational qualification" (BFOQ), …
Racial Discrimination In Employment: Rights And Remedies, J. Ralph Beaird
Racial Discrimination In Employment: Rights And Remedies, J. Ralph Beaird
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Professor Beaird believes that the current multiplicity of forums available to an employee who alleges discrimination against him should be merged into one. Ideally he would like to see an administrative agency given primary jurisdiction with authority similar to that possessed by the NLRB. Until an agency is given such power, Professor Beaird suggests that the forums themselves apply collateral estoppel principles to alleviate the inequities inherent in repetitious litigation.