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Labor and Employment Law Commons

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1999

Civil Rights and Discrimination

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Articles 1 - 30 of 35

Full-Text Articles in Labor and Employment Law

Discrimination As Accident, Amy L. Wax Oct 1999

Discrimination As Accident, Amy L. Wax

Indiana Law Journal

No abstract provided.


Response To Professor Wax: Discrimination As Accident: Old Whine, New Bottle, Michael Selmi Oct 1999

Response To Professor Wax: Discrimination As Accident: Old Whine, New Bottle, Michael Selmi

Indiana Law Journal

No abstract provided.


Employment Discrimination, Peter Reed Corbin, Richard L. Ruth Jul 1999

Employment Discrimination, Peter Reed Corbin, Richard L. Ruth

Mercer Law Review

The 1998 survey period presented an extremely active year in the employment discrimination arena, not only for the Eleventh Circuit, but also for the United States Supreme Court.' Three key decisions were rendered by the Supreme Court on sexual harassment and same-sex discrimination, and another decision was rendered on the arbitrability of ADA claims. Yet, ironically, in this year of inordinate Supreme Court activity in the field of labor and employment law, the Court's arbitration decision did not "live up to the hype" of being a landmark decision on the legality of mandatory predispute arbitration of statutory discrimination claims. On …


Burlington Industries, Inc. V. Ellerth: An Affirmative Defense Against Employer Liability For Supervisory Harassment, Joyelle K. Werner Jul 1999

Burlington Industries, Inc. V. Ellerth: An Affirmative Defense Against Employer Liability For Supervisory Harassment, Joyelle K. Werner

Mercer Law Review

In Burlington Industries, Inc. v. Ellerth, the Supreme Court held that an employer is vicariously liable for its supervisor's harassment that creates a hostile work environment, subject only to the affirmative defense that the employer "exercised reasonable care to prevent and correct" the harassment and that the "employee unreasonably failed to take advantage" of the employer's remedial procedure or corrective opportunities offered after the fact.


There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White Apr 1999

There's Nothing Special About Sex: The Supreme Court Mainstreams Sexual Harassment, Rebecca Hanner White

William & Mary Bill of Rights Journal

In this Essay, Professor White argues that the Supreme Court finally has merged analysis of sexual harassment law with other claims of intentional discrimination. Professor White contends that the Court's decision in Meritor Savings Bank, FSB v. Vinson created confusion over the proper analysis of sexual harassment claims by seemingly embracing quid pro quo and hostile work environment theories as distinct forms of discrimination and by suggesting that at least some sexual harassment claims may warrant a revised approach to employer liability. In the wake of Meritor, sexual harassment claims increasingly were evaluated differently from other claims of disparate treatment, …


Taking Discrimination Seriously: Oncale And The Fate Of Exceptionalism In Sexual Harassment Law, Steven L. Willborn Apr 1999

Taking Discrimination Seriously: Oncale And The Fate Of Exceptionalism In Sexual Harassment Law, Steven L. Willborn

William & Mary Bill of Rights Journal

In both the case law and the literature, sexual harassment is treated as an exceptional and unique form of discrimination. In this Article, Professor Willborn expands on the Supreme Court's recent decision in Oncale v. Sundowner Offshore Services, Inc. to argue that this exceptionalism should be rejected and that harassment law should return to its roots in the broader body of antidiscrimination law. Professor Willborn begins by articulating the contours of a discrimination-centered model of sexual harassment and explaining how it differs from currently accepted views. He then reviews the Supreme Court's recent cases on sexual harassment, concluding that they …


Casey's Case: Taking A Slice Out Of The Pga Tour's No-Cart Policy, Tanya R. Sharpe Apr 1999

Casey's Case: Taking A Slice Out Of The Pga Tour's No-Cart Policy, Tanya R. Sharpe

Florida State University Law Review

No abstract provided.


Strengthening Title Vii: 1997-1998 Sexual Harassment Jurisprudence, Elizabeth D. Evans Apr 1999

Strengthening Title Vii: 1997-1998 Sexual Harassment Jurisprudence, Elizabeth D. Evans

William & Mary Bill of Rights Journal

No abstract provided.


Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky Apr 1999

Civil Rights Without Remedies: Vicarious Liability Under Title Vii, Section 1983, And Title Ix, Catherine Fisk, Erwin Chemerinsky

William & Mary Bill of Rights Journal

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 …


Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett Apr 1999

Faragher, Ellerth, And The Federal Law Of Vicarious Liability For Sexual Harassment By Supervisors: Something Lost, Something Gained, And Something To Guard Against, William R. Corbett

William & Mary Bill of Rights Journal

In this Essay, the author faces his nightmare exam question: he must define "sexual harassment" to the satisfaction of several potential graders with different perspectives on sexual harassment law. His valiant effort to justify his response leads him to a discussion of the federal law of vicarious liability for sexual harassment by supervisors after the Supreme Court's recent rejection of tort law respondeat superior analysis for such claims under Title VII. The author argues that, while the rejection of the tort standard for vicarious liability in Title VII claims removes the longstanding connection between Title VII law and state tort …


The Plain Meaning Of Oncale, Catherine J. Lanctot Apr 1999

The Plain Meaning Of Oncale, Catherine J. Lanctot

William & Mary Bill of Rights Journal

The unanimous Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc. caught many observers by surprise. Even more surprising than the Court's unanimity on the divisive issue of same-sex harassment, however, was the author of the opinion-the deeply conservative Justice Antonin Scalia. Many commentators suggest that the opinion's requirement that plaintiffs prove that the harassment was "because of sex" will hamper lawsuits arising from single-sex work environments. Attempts to fit the decision within traditional Title VII jurisprudence inevitably will be clouded by conjecture about Scalia's true intent. Indeed, after one year of experience with Oncale, the judicial record is …


Arbitration And The Goals Of Employment Discrimination Law, Geraldine Szott Moohr Mar 1999

Arbitration And The Goals Of Employment Discrimination Law, Geraldine Szott Moohr

Washington and Lee Law Review

No abstract provided.


Employer Liability For Harassment Under Title Vii: A Functional Rationale For Faragher And Ellerth, Michael C. Harper Feb 1999

Employer Liability For Harassment Under Title Vii: A Functional Rationale For Faragher And Ellerth, Michael C. Harper

Faculty Scholarship

In two decisions concerning sexual harassment, Faragher v. City of Boca Raton' and Burlington Industries, Inc. v. Ellerth,2 the Supreme Court, on the last day of its 1997-1998 term finally articulated coherent vicarious liability rules critical for bounding the scope of the discrimination prohibitions in Title VII of the Civil Rights Act of 1964.3 The Court did so by explaining the meaning of the inclusion of "any agent" in Title VII's definition of "employer.'" The meaning of "agent" in this definition is critical for establishing employer liability because almost all Title VII-protected employees work for corporations and other …


Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks Jan 1999

Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks

Faculty Publications

No abstract provided.


What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner Jan 1999

What Will Diversity On The Bench Mean For Justice?, Theresa M. Beiner

Michigan Journal of Gender & Law

This article is aimed at the general question: whether having a woman judge would make a difference in sexual harassment cases. This article is aimed at this general question, the response to which has been elusive: Does the race, gender, or other background characteristics of a judge make a difference in the outcome of cases? The effects of diversity on the bench are just becoming measurable. Many legal scholars have assumed diversity will make a difference. While this conclusion may seem commonsensical, it is important to be able to support such assertions with actual data. The supposition has been that …


The Triumph Of Hate Speech Regulation: Why Gender Wins But Race Loses In America, Jon Gould Jan 1999

The Triumph Of Hate Speech Regulation: Why Gender Wins But Race Loses In America, Jon Gould

Michigan Journal of Gender & Law

On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal …


Critical Of Race Theory: Race, Reason, Merit And Civility, Nancy Levit Jan 1999

Critical Of Race Theory: Race, Reason, Merit And Civility, Nancy Levit

Nancy Levit

A hazard lurks in any but the most careful representation of another's viewpoint. Call it "slippage" or the "essentialist error," the point is that communication rarely does complete justice to its object. The problem is compounded when the communication is mediated. We all know that between a story and its retelling, something will get lost in translation. Consider feminism, gay legal theory, and critical race theory, and their depictions in academic journals and the popular media. Newspapers and news magazines have recently published a spate of academic trash talk accusing critical race theorists of "playing the race card" and indulging …


Bcgseu: Turning A Page In Canadian Human Rights Law, Dianne Pothier Jan 1999

Bcgseu: Turning A Page In Canadian Human Rights Law, Dianne Pothier

Dianne Pothier Collection

The Supreme Court of Canada's decision in British Columbia Government and Service Employees' Union (BCGSEU) v. British Columbia (Public Service Employee Relations Commission)' starts like a classic Lord Denning judgment. Within the first few lines, without even knowing what the legal issue really is, you know who is going to win because of how that person is presented. Justice McLachlin's judgment, speaking for a unanimous nine-person Court, begins by noting that the grievor, Tawney Meiorin, "did her work well" but nonetheless "lost her job."' It was that dissonance that made the facts of the case compelling for reinstatement. But what …


Genetic Discrimination In The Workplace: An Overview Of Existing Protections, Melinda B. Kaufmann Jan 1999

Genetic Discrimination In The Workplace: An Overview Of Existing Protections, Melinda B. Kaufmann

Loyola University Chicago Law Journal

No abstract provided.


Balancing Efficiency And Justice: In Support Of The Equal Employment Opportunity Commission's Policy Statement Regarding Mandatory Arbitration And Employment Contracts , Gina K. Janeiro Jan 1999

Balancing Efficiency And Justice: In Support Of The Equal Employment Opportunity Commission's Policy Statement Regarding Mandatory Arbitration And Employment Contracts , Gina K. Janeiro

American University Journal of Gender, Social Policy & the Law

No abstract provided.


Litigation Against Employment Penalties For Pregnancy, Breastfeeding, And Childcare, Candace Kovacic-Fleischer Jan 1999

Litigation Against Employment Penalties For Pregnancy, Breastfeeding, And Childcare, Candace Kovacic-Fleischer

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Caring Enough: Sex Roles, Work And Taxing Women, Amy L. Wax Jan 1999

Caring Enough: Sex Roles, Work And Taxing Women, Amy L. Wax

Villanova Law Review

No abstract provided.


Litigating Against Employment Penalties For Pregnancy, Breastfeeding And Childcare, Candace Saari Kovacic-Fleischer Jan 1999

Litigating Against Employment Penalties For Pregnancy, Breastfeeding And Childcare, Candace Saari Kovacic-Fleischer

Villanova Law Review

No abstract provided.


The Burdens Of Benefits, Edward J. Mccaffery Jan 1999

The Burdens Of Benefits, Edward J. Mccaffery

Villanova Law Review

No abstract provided.


Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Douglas D. Scherer, James C. Sharf, Richard T. Seymour, Maria O'Brien Hylton, Paulette Caldwell Jan 1999

Proceedings Of The 1999 Annual Meeting, Association Of American Law Schools Section On Employment Discrimination Law: Is There A Disconnect Between Eeo Law And The Workplace?, Douglas D. Scherer, James C. Sharf, Richard T. Seymour, Maria O'Brien Hylton, Paulette Caldwell

Scholarly Works

No abstract provided.


A Uniform Standard For Exemplary Damages In Employment Discrimination Cases, Judith J. Johnson Jan 1999

A Uniform Standard For Exemplary Damages In Employment Discrimination Cases, Judith J. Johnson

University of Richmond Law Review

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"),2 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."


Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight Jan 1999

Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight

Scholarly Works

The Civil Rights Act of 1866 was a very special statute, designed at minimum to eliminate all "badges and incidents of slavery" and to ensure that the freed slaves would be provided with civil rights equal to those of white persons. Its enforcement depends on the availability of a neutral public system of justice. Private arbitration cannot assure these characteristics. Thus, courts should not enforce agreements to arbitrate future disputes that may arise under this statute. This Article, however, does not argue that arbitration of claims under the Civil Rights Act of 1866 should be prohibited altogether. Disputants who mutually …


The Limited Vision Of The Family And Medical Leave Act, Michael Selmi Jan 1999

The Limited Vision Of The Family And Medical Leave Act, Michael Selmi

Villanova Law Review

No abstract provided.


Caste, Class, And Equal Citizenship, William E. Forbath Jan 1999

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …


How The Supreme Court's Reiteration Of Sexual Harassment Standards Affirmed In Faragher And Ellerth Would Have Led To Jones' Survival In Jones V. Clinton, Moira Mcandrew Jan 1999

How The Supreme Court's Reiteration Of Sexual Harassment Standards Affirmed In Faragher And Ellerth Would Have Led To Jones' Survival In Jones V. Clinton, Moira Mcandrew

Cleveland State Law Review

This note demonstrates that a cognizable claim of sexual harassment may be predicated on a severe, yet isolated episode of sexual harassment. In this inquiry, we will look to other Supreme Court and Appellate Court decisions regarding sexual harassment law to support the conclusion that a single incident of sexual harassment can constitute an actionable hostile work environment claim. Part II traces the background of sexual harassment law, including what constitutes actionable discrimination and the applicable standards of a hostile work environment claim. Part III outlines the Supreme Court's analysis of actionable employment discrimination based on sexual harassment under Title …