Law Commons^™

Does Title Vii Prohibit Discrimination In Employment-Transfer Decisions Only If They Cause Materially Significant Disadvantages For Employees?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: Petitioner Jatonya Clayborn Muldrow, a sergeant for the St. Louis Police Department, was transferred to another unit within the department. Muldrow sued the City of St. Louis for making a discriminatory transfer decision in alleged violation of Title VII. This case presents the question of whether Title VII prohibits discriminatory transfer decisions absent a separate court determination that the decision caused Muldrow materially significant disadvantages.

Using A “Bystander Bounty” To Encourage The Reporting Of Workplace Sexual Harassment, Jessica K. Fink

Faculty Scholarship

Sexual harassment has become a fact of the modern workplace – something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect about workplace sexual harassment is the number of individuals who are aware of it occurring: For every Harvey Weinstein, Matt Lauer, and Louis CK, there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders – encouraging those …

The Future Of Intersectionality In Employment Law, Suzette Malveaux

Publications

No abstract provided.

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear. Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

All Faculty Scholarship

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while …

Beyond Sex-Plus: Acknowledging Black Women In Employment Law And Policy, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and …

Title Vii And The #Metoo Movement, Rebecca White

Scholarly Works

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 …

Derivative Racial Discrimination, Kevin Woodson

Law Faculty Publications

This Article introduces the concept of derivative racial discrimination, a process of institutional discrimination in which certain social and cultural dynamics impede the careers of minority workers in predominantly white firms even in the absence of racial biases and stereotypes. Derivative racial discrimination is a manifestation of cultural homophily, the universal tendency of people to gravitate toward others with similar cultural interests and backgrounds. Although not intrinsically racial, cultural homophily disadvantages minority workers in predominantly white work settings due to various race-related social and cultural differences. Seemingly inconsequential in isolation, these differences produce racial disparities in the accrual of valuable …

Expanding The Core: Pregnancy Discrimination Law As It Approaches Full Term, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was …

Human Capital Discrimination, Law Firm Inequality, And The Limits Of Title Vii, Kevin Woodson

Law Faculty Publications

This Article advances the legal scholarship on workplace inequality through use of evidence derived from interviews of a sample of black attorneys who have worked in large, predominantly white law firms. It does so by calling attention to the manner in which these firms operate as sites of human capital discrimination — patterns of mistreatment that deprive many black associates of access to the substantive work opportunities crucial to their professional development and career advancement. This Article identifies the specific arrangements and practices within these firms that facilitate human capital discrimination and describes the varied, often subtle harms and burdens …

Unifying Antidiscrimination Law Through Stereotype Theory, Stephanie Bornstein

UF Law Faculty Publications

Has litigation under Title VII of the Civil Rights Act of 1964 reached the limit of its utility in advancing workplace equality? After four decades of forward progress on antidiscrimination law in the courts, Supreme Court decisions in the last decade have signaled a retrenchment, disapproving of key theories scholars and advocates had pursued to address workplace discrimination in its modern, more subtle and structural forms. Yet sex and race inequality at work endure, particularly in pay and at the top of organizations.

Notably, while the Roberts Court majority appears skeptical that discrimination persists and resistant to recognizing the role …

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

A Signal Or A Silo? Title Vii's Unexpected Hegemony, Sophia Z. Lee

All Faculty Scholarship

Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively …

Cyberharassment And Workplace Law, Helen Norton

Publications

No abstract provided.

If She Don’T Win It’S A Shame: Female Executive Sues New York Mets For Pregnancy Discrimination, Joanna L. Grossman, Deborah L. Brake

Hofstra Law Faculty Scholarship

Leigh Castergine was the first woman to become a Senior Vice President in the Front Office of the Mets, a once-beloved, but now losing Major League Baseball team in New York. She was in charge of ticket sales and was rewarded over the years for innovations and successes to the tune of multiple $50,000 raises and a $125,000 bonus. But she met her glass ceiling when she, an unmarried woman, announced her pregnancy in 2013.

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

A Reasonable Belief: In Support Of Lgbt Plaintiffs' Title Vii Retaliation Claims, Erin E. Buzuvis

Faculty Scholarship

When an LGBT employee is punished for complaining about discrimination in the workplace, he or she has two potential causes of action under Title VII: first, a challenge to the underlying discrimination, and second, a challenge to the resulting retaliation. The first claim is vulnerable to dismissal under courts’ narrow interpretation of Title VII’s prohibition of discrimination “because of sex” as applied to LGBT plaintiffs. But such an outcome need not determine the fate of the second claim. Faithful application of retaliation law’s “reasonable belief” standard, which protects a plaintiff from reprisal so long as she reasonably believed that she …

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Decent Work, Older Workers, And Vulnerability In The Economic Recession: A Comparative Study Of Australia, The United Kingdom, And The United States, Susan Bisom-Rapp, Andrew Frazer, Malcolm Sargeant

Faculty Scholarship

In countries with aging populations, the global recession presents unique challenges for older workers, and compels an assessment of how they are faring. To this end, the International Labour Organization's concept of decent work provides a useful metric or yardstick. Decent work, a multifaceted conception, assists in revealing the interdependence of measures needed to secure human dignity across the course of working lives. With this in mind, in three English-speaking, common law countries (Australia, the United Kingdom, and the United States), this Article considers several decent work principles applicable to older workers and provides evaluations in light of them. Relevant …

Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch

Scholarly Works

This short introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail – how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.

Seeing Subtle Racism, Pat K. Chew

Articles

Traditional employment discrimination law does not offer remedies for subtle bias in the workplace. For instance, in empirical studies of racial harassment cases, plaintiffs are much more likely to be successful if they claim egregious and blatant racist incidents rather than more subtle examples of racial intimidation, humiliation, or exclusion. But some groundbreaking jurists are cognizant of the reality and harm of subtle bias - and are acknowledging them in their analysis in racial harassment cases. While not yet widely recognized, the jurists are nonetheless creating important precedents for a re-interpretation of racial harassment jurisprudence, and by extension, employment discrimination …

Foreword Symposium: Having It Our Way: Women In Maryland's Workplace Circa 2027, Margaret E. Johnson

All Faculty Scholarship

On November 14, 2007, the University of Baltimore School of Law, the University of Maryland School of Law and the Women's Law Center of Maryland co-sponsored a symposium entitled "Having it Our Way: Women in Maryland's Workplace Circa 2027." The insightful collection of papers in this volume of the University of Maryland Law Journal of Race, Religion, Gender and Class represents the work of employment law scholars, public policy specialists, and activists who presented on the current state of Maryland employment law and discussed Maryland's future. This distinguished group of experts and scholars present several themes: the hope of new …

Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart

Publications

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing Co., was widely viewed as a victory rather than a defeat for plaintiffs. This surprising perception flowed from the Court's holding that such "after-acquired evidence" of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial …

Reasonable Accommodation As Part And Parcel Of The Antidiscrimination Project, Mary Crossley

Articles

Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has …

Litigating Age And Disability Claims Against State And Local Government Employers In The New "Federalism" Era, Ivan E. Bodensteiner, Rosalie Levinson

Law Faculty Publications

No abstract provided.

Recent Supreme Court Employment Law Developments, Douglas D. Scherer, Olati Johnson

Scholarly Works

No abstract provided.