Law Commons^™

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

American University Journal of Gender, Social Policy & the Law

Despite the recent public awakening concerning both sexism and racism in our society, the federal courts have systematically chipped away at employees’ civil rights under Title VII of the 1964 Civil Rights Act to be free of both sexual and racial harassment at work.

Panel 5 - The Future Of Employment Law, Karla Gilbride, Geraldine Sumter, Stephen Rich, Marcia Mccormick, Michael Selmi

American University Journal of Gender, Social Policy & the Law

FACILITATOR: All right everyone, welcome to our last panel, “The Future of Employment Law.” I want to quickly introduce our moderator, Karla Gilbride, the co-director of the Access to Justice Project. Karla, you can take it away.

Reflection On Progress Without Equity: Title Ix K-12 Athletics At Fifty, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only …

Is Title Vii A “Civility Code” Only For Union Activities?, L. Camille Hebert

University of Arkansas at Little Rock Law Review

Changes to labor law by the National Labor Relations Board are nothing new; changes in Presidential administrations often result in changes to the law, based on differences in philosophy by new majorities of the Board toward the proper interpretation of the National Labor Relations Act. But in2020, the Board made a fundamental change to long-standing interpretations of the Act’s protections for union and other concerted activities, not based on the Act itself, but based on what it said were the mandates of the anti-discrimination laws for employers to prevent harassment and discrimination. The Board contended that the former context-driven standards …

The Social Psychology Of Inclusion: How Diversity Framing Shapes Outcomes For Racial-Ethnic Minorities, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Research on the efficacy of organizational diversity efforts has yielded mixed results. It remains unclear when positive or negative outcomes should be expected, and why. This article fills a gap in the sociological literature by examining critical social psychological mechanisms. In Experiment 1, I found that common diversity messaging led to increased bias towards racial minorities. In Experiment 2, I examined how alternative framing may influence these outcomes. Findings revealed that the common “business case” emphasizing profit and performance gains made decision-makers less likely to select a Black job candidate than emphasizing civil rights law. I then examined social psychological …

Challenges In Bringing Gender Equity Into The Workplace: Addressing Common Concerns Women Have When Deciding To Hold Employers Accountable For Gender Discrimination, Siobhan Klassen

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Evolution Of Gender Equity From A Marxist And Existentialist Perspective, Alexandria Lopez

Journal of Race, Gender, and Ethnicity

No abstract provided.

Gender Pay Discrimination & The Equal Pay Act: Legal Research & Methods, Emily Sullivan

Law Student Works

More than 50 years since the Equal Pay Act (1963) was passed, the subject of wage inequality between the sexes remains a critical topic for women, members of Congress, advocacy groups, business and legal communities. Within the last decade, the legal community has seen a wave of litigation alleging discrimination across a wide variety of industries, including within the legal field itself. Wage discrimination has negative consequences for women, communities, and employers—discrimination in the workplace is inefficient and resulting litigation is costly.

In this Pathfinder guide, you will find a brief background on the Equal Pay Act as it pertains …

Arbitration Of Health And Safety Issues In The Workplace: Employees Who Refuse Work Assignments Because Of Fear Of Aids Contagion, Madelyn C. Squire

Maine Law Review

Horror stories concerning the abuse suffered by the AIDS victim in the workplace are plentiful. There have been numerous reports about employees who have refused to work with or touch the AIDS worker, or use the same bathroom, telephone, water fountain, or pencil. It was reported that one AIDS victim was not even allowed to use his pregnant co-worker's word processor; she claimed she had once seen him sweat on the keyboard. Paul Cronan became painfully aware that his employer of twelve years, the New England Telephone Company, had breached his privacy by divulging in large group meetings of employees …

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky

Law School Blogs

No abstract provided.

"Because Of Sex", Jack B. Harrison

Loyola of Los Angeles Law Review

Many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace. While it is true that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating because of an employee’s race, color, religion, sex, or national origin, courts and legislators have historically been slow to extend these protections to LGBT workers. The result of this reluctance is that LGBT employees remain largely unprotected under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and …

Are My Cornrows Unprofessional?: Title Vii's Narrow Application Of Grooming Policies, And Its Effect On Black Women's Natural Hair In The Workplace, Renee Henson

The Business, Entrepreneurship & Tax Law Review

Employer grooming policies are ubiquitous and apply to all in the workplace, however, the hair standards within these policies do not permit women to wear a myriad of ethnic hairstyles at work. Banning ethnic hairstyles like braids, cornrows, and dreadlocks adversely and disproportionally affects black women. Banning ethnic styles because they are deemed unprofessional forces many black women to spend inordinate amounts of money and time to ensure their hair is “professional looking enough” to attain gainful employment and climb the corporate ladder. This article examines Title VII’s role in allowing this practice where black women are not permitted to …

Internal Dispute Resolution: The Transformation Of Civil Rights In The Workplace, John M. Lande, Lauren B. Edelman, Howard S. Erlanger

Lauren Edelman

Many employers create internal procedures for the resolution of discrimination complaints. We examine internal complaint handlers' conceptions of civil rights law and the implications of those conceptions for their approach to dispute resolution. Drawing on interview data, we find that complaint handlers tend to subsume legal rights under managerial interests. They construct civil rights law as a diffuse standard of fairness, consistent with general norms of good management. Although they seek to resolve complaints to restore smooth employment relations, they tend to recast discrimination claims as typical managerial problems. While the assimilation of law into the management realm may extend …

An Overture To Equality: Preventing Subconscious Sex And Gender Biases From Influencing Hiring Decisions, Christy Krawietz

Seattle University Law Review

In many industries, women are less likely than men to be hired, and research suggests that this is due to subconscious gender bias rather than meritorious difference. To combat this bias, some orchestras use gender-blind auditions to hire their musicians. Orchestral hopefuls sit behind a screen to play their pieces, and directors listen to determine whom they want to hire. Some orchestras require applicants to remove their shoes before walking onstage, as even the perceived sound of high heels can affect a director’s decision. Before instituting gender-blind auditions, the top five American orchestras had fewer than five percent women players. …

Title Vii At 50: The Landmark Law Has Significantly Impacted Relationships In The Workplace And Society, But Title Vii Has Not Reached Its True Potential, Cynthia Elaine Tompkins

St. John's Law Review

(Excerpt)

This Article’s historical chronicle provides a valuable backdrop for an examination of Title VII. Part II analyzes Title VII’s impact on race relations in the workplace and society. While progress has been made in the effort to provide equal opportunities for all workplace employees, Title VII legislation has not eliminated employment discrimination. As Title VII marches toward its sixtieth anniversary, this Article’s final section, Part III, reviews unconscious bias and other current challenges preventing Title VII from reaching its true potential.

The Influence Of Justice Thurgood Marshall On The Development Of Title Vii Jurisprudence, Wendy B. Scott, Jada Akers, Amy White

St. John's Law Review

(Excerpt)

This Article highlights Justice Marshall’s influence on the development of Title VII jurisprudence. Part I presents a brief overview of Justice Marshall’s personal and professional life before becoming a Justice to show how his experience influenced the development of his judicial philosophy. Part II summarizes the Court’s approach to some of the issues left unresolved by Congress in the initial passage of Title VII. Specifically, it explores how the Court determined what would constitute a violation of Title VII and standards of pleading and proof. Part III examines the changes in the Court’s jurisprudence before Justice Marshall retired from …

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute?, Marcia L. Narine

St. John's Law Review

(Excerpt)

This Article provides a blueprint for how Congress can accept Justice Ginsburg’s challenge to protect workers, particularly in precarious economic times when employees cannot easily switch jobs and in an era in which the vast majority of workers do not have the protection of a collective bargaining agreement. Not only should Congress redefine “supervisor,” but Congress should also consider a related underlying factor that was not raised in the Vance case—the issue of workplace bullying. If workplace bullying were a viable cause of action, Maetta Vance likely would have prevailed in a state that entitled her to relief because …

The Future Of Workplace Affirmative Action After Fisher, Rebecca K. Lee

St. John's Law Review

(Excerpt)

The Supreme Court’s decision on race-conscious affirmative action in Fisher, along with the Fifth Circuit’s ruling in Fisher on remand, importantly preserves the validity of affirmative action programs in state decisionmaking if the programs meet certain criteria under strict scrutiny and satisfy full judicial review. Although Fisher arose in the higher education context, its application extends to the public setting more generally and thus would also apply to the public sector workplace under the Constitution, making it permissible for public sector employers to use race-conscious affirmative action in hiring and promoting employees. The approach taken in Fisher also …

Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, And Similar Judicial Myths: The Convergence Of Title Vii Literalism, Congressional Intent, And Kantian Dignity Theory, Peter Brandon Bayer

St. John's Law Review

(Excerpt)

The line of argument is not complex. Part I explicates the unequal burden doctrine and its link to the predecessor theory of “mutable characteristics.” Part II offers the aforementioned statutorily formal argument, disproving unequal burden theory through an examination of Title VII’s plain language and structure in light of modern Supreme Court precedents addressing Title VII’s ban against stereotyping. This analysis places special emphasis on 42 U.S.C. § 2000e-2(m), in which Congress clarified that plaintiffs prevail when discriminatory animus merely is a “motivating factor” rather than the “but-for cause” of the defendants’ conduct.

Although not the lengthiest discussion herein …

Reality's Bite, Kerri Lynn Stone

Journal of Civil Rights and Economic Development

No abstract provided.

"Other Than Honorable" Discrimination, Marcy L. Karin

Journal Articles

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the most comprehensive federal civil rights law that exists related to the workplace. Its goal is to help people who serve in the military reintegrate back into civilian work and remain attached to the workforce. It does so by offering a mix of anti-discrimination protection and labor standards. Despite the promise of robust reemployment rights and post-service assistance, Congress has excluded people with a certain “character of service,” including those with “other than honorable” separations, from these protections. This statutory exclusion has a disparate impact on people with service-connected disabilities, …

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Faculty Scholarship

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers.

Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …

Disparate Impact And Pregnancy: Title Vii's Other Accommodation Requirement, Camille Hébert

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Table Of Contents

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Moving Forward, Looking Back: A Retrospective On Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The fiftieth anniversary of Title VII provides an appropriate occasion to look back to an era when women suffered sexual abuse in the workplace (and many other places) with no possible recourse. Once feminist writers and litigators connected the dots, judges came to understand that a broad mandate to end sex discrimination had to include a mandate to eliminate sexual harassment at work. The decades that followed saw the step-by-step construction of a doctrine that ostensibly protects employees from unwanted sexual behavior at work.

In this symposium issue the author examines the impact of sexual harassment law citing several court …

Disqualifiying Universality Under The Americans With Disabilities Act Amendments Act, Michelle Travis

Michelle A. Travis

This Article reveals a new resistance strategy to disability rights in the workplace. The initial backlash against the Americans with Disabilities Act of 1990 (ADA) targeted protected class status by characterizing the ADA's accommodation mandate as special treatment that benefitted the disabled at the expense of the nondisabled workforce. As a result, federal courts treated the ADA as a welfare statute rather than a civil rights law, which resulted in the Supreme Court dramatically narrowing the definition of disability. Congress responded with sweeping amendments in 2008 to expand the class of individuals with disabilities who are entitled to accommodations and …

Race Indeed Above All: A Reply To Professors Andrea Curcio, Carol Chomsky, And Eileen Kaufman, Dan Subotnik

University of Massachusetts Law Review

Dan Subotnik responds to Andrea Curcio, Chomsky, and Eileen Kaufman, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others, 9 U. Mass. L. Rev. 206 (2014).

Breastfeeding And A New Type Of Employment Law, Marcy Karin, Robin Runge

Catholic University Law Review

No abstract provided.

Organizational Responsibility For Workplace Racial And Sexual Harassment: The Stories Of One Company's Workers, Cheryl L. Wade

Faculty Publications

(Excerpt)

I begin this Article with the testimony of an African-American man who, along with hundreds of African-American coworkers, brought a race discrimination suit against an industrial construction and fabrication limited liability company ("LLC") doing business in Texas and Louisiana. The company, Turner Industries ("Turner"), rigorously defended itself against the allegations, and rather than settle the case, Turner and ten of the plaintiffs went to trial in October 2012. A jury awarded two of the ten plaintiffs in the 2012 Bellwether trial $2 million each in damages, but the plaintiff whose testimony I include above lost at trial and was …