Law Commons^™

Title Vii’S Failures: A History Of Overlooked Indifference, Elena S. Meth

Michigan Law Review

Nearly sixty years after the adoption of Title VII and over thirty since intersectionality theory was brought into legal discourse by Professor Kimberlé Crenshaw, the U.S. Supreme Court has consistently failed to meaningfully implement intersectionality into its decisionmaking. While there is certainly no shortage of scholarship on intersectionality and the Court’s failure to recognize it, this remains an overlooked failure by the Supreme Court. This Note proceeds in three parts. Part I provides an overview of Title VII and intersectional discrimination theory. I then explain how the EEOC and the Supreme Court have historically handled intersectional discrimination cases. Part II …

Because Of Bostock, Noelle N. Wyman

Michigan Law Review Online

On a below-freezing January morning, Jennifer Chavez, an automobile technician, sat in a car that she was repairing to keep warm while waiting for delayed auto parts to arrive. Without intending to, she nodded off. Her employer promptly fired her for sleeping on the job. At least, that is the justification her employer gave. But Chavez had reason to believe that her coming out as transgender motivated the termination. In the months leading up to the January incident, Chavez’s supervisor had told her to “tone things down” when she talked about her gender transition. The repair-shop owner said that the …

Whiteness At Work, Lihi Yona

Michigan Journal of Race and Law

How do courts understand Whiteness in Title VII litigation? This Article argues that one fruitful site for such examination is same-race discrimination cases between Whites. Such cases offer a peek into what enables regimes of Whiteness and White supremacy in the workplace, and the way in which Whiteness is theorized within Title VII adjudication. Intra-White discrimination cases may range from associational discrimination cases to cases involving discrimination against poor rural Whites, often referred to as “White trash.” While intragroup discrimination is acknowledged in sex-discrimination cases and race-discrimination cases within racial minority groups, same-race discrimination between Whites is currently an under-theorized …

Coercive Assimilationism: The Perils Of Muslim Women's Identity Performance In The Workplace, Sahar F. Aziz

Michigan Journal of Race and Law

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. But what if being oneself entails behaviors, mannerisms, and values integrally linked to the employee’s gender, race, or religion? And what if the basis for the employer’s workplace rules and professionalism standards rely on negative racial, ethnic or gender stereotypes that disparately impact some employees over others? Currently, Title VII fails to take into account such forms of second-generation discrimination, thereby limiting statutory protections to phenotypical or morphological bases. Drawing on social psychology and …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

Finding A Cure In The Courts: A Private Right Of Action For Disparate Impact In Health Care, Sarah G. Steege

Michigan Journal of Race and Law

There is no comprehensive civil rights statute in health care comparable to the Fair Housing Act, Title VII, and similar laws that have made other aspects of society more equal. After Congress passed the Civil Rights Act of 1964, Title VI served this purpose for suits based on race, color, and national origin for almost four decades. Since the Supreme Court's 2001 ruling in Alexander v. Sandoval, however, there has been no private right of action for disparate impact claims under Title VI, and civil rights enforcement in health care has suffered as a result. Congress has passed new legislation …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

Preserving A Racial Hierarchy: A Legal Analysis Of The Disparate Racial Impact Of Legacy Preferences In University Admissions, Kathryn Ladewski

Michigan Law Review

Many public and private universities around the country employ legacy admissions preferences in order to give children of alumni special consideration in the admissions process. Such preferences disproportionately benefit white applicants at the cost of their nonwhite counterparts, because past generations of college students were less diverse than today's applicant pool. However, universities argue that their legacy preferences are justified because they assist in alumni fundraising efforts. This Note presents a statistical analysis to argue that legacy preferences are prohibited by the Civil Rights Act of 1964 because they have a discriminatory effect on minority college applicants and have not …

How Many Plaintiffs Are Enough? Venue In Title Vii Class Actions, Piper Hoffman

University of Michigan Journal of Law Reform

This Article critiques the recent rash of federal district court opinions holding that all named plaintiffs in a class action lawsuit alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must satisfy the venue requirements in the court where they filed the action. Neither the text nor the history of Title VII requires this prevailing interpretation; to the contrary, requiring every named plaintiff to satisfy venue requirements in the same court undermines the legislative purpose behind both Title VII and Federal Rule of Civil Procedure 23 by creating a new obstacle to employees seeking to enforce …

Finding The Sex In Sexual Harassment: How Title Vii And Tort Schemes Miss The Point Of Same-Sex Hostile Environment Harassment, Yvonne Zylan

University of Michigan Journal of Law Reform

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same …

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 …

If Women Don't Ask: Implications For Bargaining Encounters, The Equal Pay Act, And Title Vii, Charles B. Craver

Michigan Law Review

Last spring, Jennifer and Richard graduated from the same law school with similar backgrounds. Both were offered associate positions with the same law firm and a $75,000 starting salary. Jennifer enthusiastically accepted the firm's offer, but Richard was hesitant. He informed the hiring partner that comparable firms in this area were paying new associates $80,000 per year. The partner offered Richard a starting salary of $80,000, which he accepted. Felicia and Harold manage similar departments for an e-commerce business. They have similar backgrounds, and have been with this firm for the same number of years. When Harold meets with the …

Reflections On Augusta: Judicial, Legislative And Economic Approaches To Private Race And Gender Consciousness, Scott R. Rosner

University of Michigan Journal of Law Reform

In light of the recent controversy surrounding Augusta National Golf Club's exclusionary membership policy, this Article highlights the myriad incentives and disincentives that Augusta and similar clubs have for reforming such policies. The author acknowledges the economic importance of club membership in many business communities and addresses the extent to which club members' claims of rights of privacy and free association are valid. The Article also considers the potential of judicial action in promoting the adoption of more inclusive membership policy; the state action doctrine and the First Amendment right to freedom of association are discussed as frameworks under which …

The Replacement Dilemma: An Argument For Eliminating A Non-Class Replacement Requirement In The Prima Facie Stage Of Title Vii Individual Disparate Treatment Discrimination Claims, Marla Swartz

Michigan Law Review

Although manifestations of discrimination in the workplace have changed greatly over time, employment discrimination continues to be a tremendous problem in society. By enacting Title VII of the Civil Rights Act of 1964 ("Title VII"), Congress shielded employees from arbitrary adverse employment actions arising from discrimination related to race, color, religion, sex, or national origin. Three years later, Congress passed the Age Discrimination in Employment Act ("ADEA"), guaranteeing the same protections against discrimination based on age.4 Finally, the Americans with Disabilities Act ("ADA"), passed in 1990, prohibited discrimination based on personal disability. Ten years after Congress enacted the Civil Rights …

Resolving The Title Vii Partner-Employee Debate, Kristin Nicole Johnson

Michigan Law Review

In January of 2001, a New York court issued an order affirming a plaintiff's ability to bring suit against a law firm partnership for discriminatory acts that occurred during her tenure as an associate at the firm. The plaintiff, Stacy Ballen-Stier, joined Hahn & Hessen, L.L.P. as an associate and, on January 1, 1997, the firm invited her to join the partnership. According to Ms. Ballen-Stier's complaint, the words and actions of a fellow partner, Mr. Blejwas, created a hostile and abusive work environment and continued to plague her "even when [she] was away from the office." Ms. Ballen-Stier alleged …

The Case Against Employment Tester Standing Under Title Vii And 42 U.S.C. § 1981, Michael Bowling

Michigan Law Review

In 1964, Congress passed comprehensive legislation aimed at eradicating discrimination in employment, public accommodations, public facilities, public schools, and federal benefit programs. Title VII of this Act directed its aim specifically at stamping out prejudice in employment. Four years later, the Supreme Court resurrected the provisions of § 1 of the Civil Rights Act of 1866, which, among other things, protects citizens, regardless of race or color, in their right to "make and enforce [employment] contracts." Together, Title VII and § 1981 serve as the primary legal bases for challenging racially discriminatory actioris by private employers. More than thirty years …

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Contract Rights And Civil Rights, Davison M. Douglas

Michigan Law Review

Have African Americans fared better under a scheme of freedom of contract or of government regulation of private employment relationships? Have court decisions striking down regulation of employment contracts on liberty of contract grounds aided black interests? Many contemporary observers, although with some notable dissenters, would respond that government regulation of freedom of contract, particularly the antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, has benefited African Americans because it has restrained discriminatory conduct by private employers. Professor David E. Bernstein challenges the view that abrogation of freedom of contract has consistently benefited African Americans by …

Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer

Michigan Law Review

Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VIP employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. For six years, Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment, that …

Critical Race Praxis: Race Theory And Political Lawyering Practice In Post-Civil Rights America, Eric K. Yamamoto

Michigan Law Review

At the end of the twentieth century, the legal status of Chinese Americans in San Francisco's public schools turns on a requested judicial finding that a desegregation order originally designed to dismantle a system subordinating nonwhites now invidiously discriminates against Chinese Americans. Brian Ho, Patrick Wong, and Hilary Chen, plaintiffs in Ho v. San Francisco Unified School District, represent "all [16,000] children of Chinese descent" eligible to attend San Francisco's public schools. Their high-profile suit, filed by small-firm attorneys, challenges the validity of a 1983 judicial consent decree desegregating San Francisco's schools. Approved in response to an NAACP class action …

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

The Michael Jackson Pill: Equality, Race, And Culture, Jerome Mccristal Culp Jr.

Michigan Law Review

This chronicle is in tribute to the work of Derrick Bell, past, present, and future. I have borrowed his character Geneva Crenshaw as part of that tribute, and I hope she helps me raise some of the issues that he has taught us are important.

All characters in this chronicle are fictional, including Professor Culp and Professor Bell. Any relationship they may have to the real Professor Bell and Professor Culp is dictated by the requirements of creativity and the extent to which reality and fiction necessarily merge. I know that the real Derrick Bell is wiser than the one …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

No Time For Trumpets: Title Vii, Equality, And The Fin De Sièchle, D. Marvin Jones

Michigan Law Review

My essay seeks to examine the internal architecture of the discursive barrier - the wall - that the Supreme Court has built within the doctrinal framework of Title VII and concomitantly within the discourse of equality. To understand how the Court has erected this discursive wall, we must begin with history. Equality, while historically a vehicle for national identity and contemporaneously for modernist conceptions of justice, is synchronically and diachronically indeterminate. Equality is a deeply sedimented concept with not one objective meaning but successive levels of meaning built up over time. Each of those historic understandings is itself a unity …

Caste And The Civil Rights Laws: From Jim Crow To Same-Sex Marriages, Richard A. Epstein

Michigan Law Review

In this essay I address the notion of caste in two separate contexts: in the traditional disputes over race and sex, and in the more modem disputes over sexual orientation. In both cases the idea of caste and its kindred notions of subordination and hierarchy are used to justify massive forms of government intervention. In all cases I think that these arguments are incorrect. In their place, I argue that the idea of caste should be confined to categories of formal, or legal, distinctions between persons before the law. This more limited notion of caste supplies no justification for the …

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

The Public Policy Exclusion And Insurance For Intentional Employment Discrimination, Sean W. Gallagher

Michigan Law Review

This Note argues that courts choosing to apply the public policy exclusion to insurance for intentional employment discrimination liability should nevertheless permit employers to enforce insurance covering negligent supervision liability and liability imputed to an employer as a result of the intentional discrimination committed by its employees. Part I establishes a framework for understanding the cases in which courts have invoked public policy to refuse enforcement of insurance contracts, arguing that the rationale behind the public policy exclusion is utilitarian and that courts refuse to enforce insurance for liability arising out of intentional wrongdoing on the grounds that such insurance …