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Articles 1 - 10 of 10
Full-Text Articles in Labor and Employment Law
Reasonable Factors Other Than Age: The Emerging Specter Of Ageist Stereotypes, Judith J. Johnson
Reasonable Factors Other Than Age: The Emerging Specter Of Ageist Stereotypes, Judith J. Johnson
Journal Articles
In spite of two recent Supreme Court cases that ostensibly reinstated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. The courts, including the Supreme Court, have been allowing employers to interpose defenses that correlate so strongly with age that they can be used as thinly veiled covers for discrimination. If the Court is serious about enforcing the purpose of the ADEA, it must interpret the “reasonable factor other than age” (RFOA) defense to protect older employees from …
Rescue The Americans With Disabilities Act From Restrictive Interpretations: Alcoholism As An Illustration, Judith J. Johnson
Rescue The Americans With Disabilities Act From Restrictive Interpretations: Alcoholism As An Illustration, Judith J. Johnson
Journal Articles
The Supreme Court has narrowed the doorway into the protected class for the Americans with Disabilities Act of 1990 (ADA) in virtually every employment case. Taking their cue from the Supreme Court, the lower courts have been concerned principally with who is "disabled" and thus protected by the ADA. The answer today is not many people. The courts generally have been so hostile to ADA plaintiffs that it is difficult now to find a case in which the plaintiff was able to prove that he was disabled. Congress contemplated that some impairments would always be disabling. The Supreme Court, however, …
Rehabilitate The Age Discrimination In Employment Act: Resuscitate The “Reasonable Factors Other Than Age” Defense And The Disparate Impact Theory, Judith J. Johnson
Rehabilitate The Age Discrimination In Employment Act: Resuscitate The “Reasonable Factors Other Than Age” Defense And The Disparate Impact Theory, Judith J. Johnson
Journal Articles
The Age Discrimination in Employment Act (ADEA) promised to protect older workers from discriminatory exclusion from the workforce, but recent studies show that older workers are being cut from the workforce and are unable to find employment. In a 1995 article, I warned of the potential dangers of construing the ADEA to allow employment decisions based on age-correlated criteria. Most courts have failed to heed these warnings and now approve employer practices, such as terminating employees based on higher salaries and refusing to hire workers with too much experience. These practices may explain the difficulty older workers are having retaining …
License To Harass Women: Requiring Hostile Environment Sexual Harassment To Be “Severe Or Pervasive” Discriminates Among “Terms And Conditions Of Employment, Judith J. Johnson
License To Harass Women: Requiring Hostile Environment Sexual Harassment To Be “Severe Or Pervasive” Discriminates Among “Terms And Conditions Of Employment, Judith J. Johnson
Journal Articles
Title VII was intended to remedy discrimination; thus, it is ironic that the courts themselves discriminate among "terms and conditions of employment" by treating hostile environment discrimination less favorably, most commonly in sexual harassment cases. As the Supreme Court said in its first sexual harassment case, hostile environment harassment must be "severe or pervasive" to be actionable. However, many lower courts have used this language to excuse harassment against women. This Article suggests that the problem originates in the Court's continued use of the phrase "severe or pervasive" to describe actionable conduct. This rather dramatic terminology in fact overstates the …
A Uniform Standard For Exemplary Damages In Employment Discrimination Cases, Judith J. Johnson
A Uniform Standard For Exemplary Damages In Employment Discrimination Cases, Judith J. Johnson
Journal Articles
The standards for exemplary damages in employment discrimination cases are in disarray. The major federal provisions that prohibit private employment discrimination, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981 ("§ 1981"), the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"), all have an indistinguishably worded standard for assessing exemplary damages: "reckless indifference to federally protected rights."
Semantic Cover For Age Discrimination: Twilight Of The Adea, Judith J. Johnson
Semantic Cover For Age Discrimination: Twilight Of The Adea, Judith J. Johnson
Journal Articles
In 1967, Congress recognized that the number of displaced older people in the workforce was growing, due in large part to the problems older people were encountering in finding new jobs once displaced from a job of many years. In these times of corporate downsizing, older workers are particularly vulnerable to bearing the brunt of workforce reductions due to the fact that they are often "paid a little more because they have been with the company a little longer." As a result, since 1967 older workers have been protected from discrimination based on their age by the Age Discrimination in …
A Standard For Punitive Damages Under Title Vii, Judith J. Johnson
A Standard For Punitive Damages Under Title Vii, Judith J. Johnson
Journal Articles
Under the Civil Rights Act of 1991, the plaintiff in an employment discrimination case who alleges intentional discrimination may recover punitive damages if she demonstrates that her employer engaged in the discriminatory practice with "malice" or "reckless indifference" to federally protected rights. To prove a case of disparate treatment under Title VII, the plaintiff bears the burden of persuading the trier of fact that her employer intended to discriminate against her. In other words, to be liable in a disparate treatment case, the employer has to specifically intend to treat the plaintiff differently based, for example, on her sex. If …
Rebuilding The Barriers: The Trend In Employment Discrimination Class Actions, Judith J. Johnson
Rebuilding The Barriers: The Trend In Employment Discrimination Class Actions, Judith J. Johnson
Journal Articles
Congress intended that employees vindicate the rights given them under Title VII of the Civil Rights Act of 1964 by private action. For several years private actions proved to be very successful in eliminating employment discrimination. Recent decisions of the Supreme Court and lower courts have limited the effectiveness of the private employment discrimination suit as a major deterrent and remedy for such discrimination. This is especially true in the area of class action suits, which have been the single most effective tool in eliminating employment discrimination. Many courts today interpret Rule 23, the federal rule governing class action suits, …
Protected Concerted Activity In The Non-Union Context: Limitations On The Employer's Rights To Discipline Or Discharge Employees, Judith J. Johnson
Protected Concerted Activity In The Non-Union Context: Limitations On The Employer's Rights To Discipline Or Discharge Employees, Judith J. Johnson
Journal Articles
To the extent possible, this Article will be devoted to the situation in which there is no union or union organizational activity. It should be recognized that since the National Labor Relations Act does not distinguish between the statutory rights of union and non-union employees, many of the cases involving the protected concerted activities of union members are persuasive, if not binding, authority in the non-union context. The limitations placed by the Act on employers' rights will be delineated by an examination of the four factors upon which the courts have placed emphasis-definition of the term "concerted," proper purposes of …
Note, Equal Pay Act - Economic Benefit To Employer Is Justification For Wage Differential Between Male And Female Employees, Judith J. Johnson
Note, Equal Pay Act - Economic Benefit To Employer Is Justification For Wage Differential Between Male And Female Employees, Judith J. Johnson
Journal Articles
In Robert Hall the court refused to follow the lead of the cases immediately preceding it which delved into the justifications for wage differentials to discover evidence of discrimination. If the Equal Pay Act is to be effective, the courts must discover the motive for paying women less, not just accept the employer's excuse at face value. Robert Hall may represent a step backward for the Equal Pay Act and the ramifications of the decision should be carefully studied before it is allowed to stand. This decision could be broadly construed to enable an employer to undermine the Act by …