Law Commons^™

A Subdued Year For California Lawmakers: The New California Employment Legislation Effective January 1, 2006, Michele Benedetto Neitz

Publications

This legislative update will address the most significant employment legislation signed and vetoed this year. It will also highlight a significant deadline for employers from last year’s enacted legislation. Finally, this update will describe two relevant propositions rejected by the people of the State of California.

Subjective Decisionmaking And Unconscious Discrimination, Melissa Hart

Publications

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying …

Where There's At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

Publications

Employment at will, the doctrine holding that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they increasingly have riddled the rule with exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of …

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Publications

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …