Law Commons^™

Cause For Concern Or Cause For Celebration?: Did Bostock V. Clayton County Establish A New Mixed Motive Theory For Title Vii Cases And Make It Easier For Plaintiffs To Prove Discrimination Claims?, Terrence Cain

Faculty Scholarship

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an employee “because of” race, color, religion, sex, or national origin. This seems simple enough, but if an employer makes an adverse employment decision partly for an impermissible reason and partly for a permissible reason, i.e., if the employer acts with a mixed motive, has the employer acted “because of” the impermissible reason? According to Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the answer is no. The Courts in Gross and Nassar held that …

Antidiscriminatory Algorithms, Stephanie Bornstein

UF Law Faculty Publications

Can algorithms be used to advance equality goals in the workplace? A handful of legal scholars have raised concerns that the use of big data at work may lead to protected class discrimination that could fall outside the reach of current antidiscrimination law. Existing scholarship suggests that, because algorithms are “facially neutral,” they pose no problem of unequal treatment. As a result, algorithmic discrimination cannot be challenged using a disparate treatment theory of liability under Title VII of the Civil Rights Act of 1964 (Title VII). Instead, it presents a problem of unequal outcomes, subject to challenge using Title VII’s …

Reckless Discrimination, Stephanie Bornstein

UF Law Faculty Publications

If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII …

Reply Brief. Lavigne V. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016 Wl 9443770, Eric Schnapper, J. Arthur Smith, Iii, Justin M. Delaune

Court Briefs

QUESTIONS PRESENTED (1) To establish a prima facie case of discriminatory termination, is a plaintiff required to show that he was replaced by someone outside his or her protected group?* (2) Under Title VII of the Civil Rights Act of 1964, a plaintiff prior to:bringing a civil action must first file a charge with the EEOC, usually within 300 days of the action complained of. The Question Presented is: Where a claimant files a timely Title VII charge asserting that employer conduct was the result of a particular unlawful motive, may the claimant after the end of the charge-filing period …

Petition For A Writ Of Certiorari. Lavigne V. Cajun Deep Foundations, L.L.C., 137 S.Ct. 1328 (2017) (No. 16-464), 2016 Wl 5929996, Eric Schnapper, J. Arthur Smith, Iii, Justin M. Delaune

Court Briefs

QUESTIONS PRESENTED (1) To establish a prima facie case of discriminatory termination, is a plaintiff required to show that he was replaced by someone outside his or her protected group? (2) Under Title VII of the Civil Rights Act of 1964, a plaintiff prior to:bringing a civil action must first file a charge with the EEOC, usually within 300 days of the action complained of. The Question Presented is: Where a claimant files a timely Title VII charge asserting that employer conduct was the result of a particular unlawful motive, may the claimant after the end of the charge-filing period …

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Publications

No abstract provided.

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 …

Intersectionality And Title Vii: A Brief (Pre-)History, Serena Mayeri

All Faculty Scholarship

Title VII was twenty-five years old when Kimberlé Crenshaw published her path-breaking article introducing “intersectionality” to critical legal scholarship. By the time the Civil Rights Act of 1964 reached its thirtieth birthday, the intersectionality critique had come of age, generating a sophisticated subfield and producing many articles that remain classics in the field of anti-discrimination law and beyond. Employment discrimination law was not the only target of intersectionality critics, but Title VII’s failure to capture and ameliorate the particular experiences of women of color loomed large in this early legal literature. Courts proved especially reluctant to recognize multi-dimensional discrimination against …

Lessons From The Dolphins/Richie Incognito Saga, Kerri Lynn Stone

Faculty Publications

No abstract provided.

Decoding Civility, Kerri Lynn Stone

Faculty Publications

If women outnumber men in graduate schools and are entering professional and other workplaces in unprecedented numbers, and if Title VII has aimed to eradicate workplace discrimination for almost fifty years, why are women still so woefully underrepresented at the highest levels of power, leadership, wealth, and prestige in the contemporary workplace? This Article is about abusive speech in the workplace. It explores how the expression of bias in the workplace has evolved and been shaped by anti-discrimination legislation and jurisprudence. It identifies a category of biased speech that eludes prosecution under Title VII. Moreover, this Article seeks to provide …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the …

Shortcuts In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …

Reply: Good Intentions Matter, Katharine T. Bartlett

Faculty Scholarship

While writing the article to which Professors Mitchell and Bielby have published responses, I was mindful of the many ways in which the article could be misinterpreted. In taking issue with the assumption that legal controls work in a direct, linear manner to deter crimination, I thought I might be misunderstood to say that people are not responsive to incentives. In worrying about how legal sanctions exert external pressure that may crowd out the inclination of well-intentioned people to self-monitor for bias, I feared that the article would be read mistakenly to oppose strong and appropriate legal rules against discrimination. …

Height Discrimination In Employment, Isaac B. Rosenberg

W&M Law Student Publications

This Article looks critically at heightism, i.e., prejudice or discrimination against a person on the basis of his or her height. Although much scholarship has focused on other forms of trait-based discrimination—most notably weight and appearance discrimination, both of which indirectly involve height as a component—little has focused on “pure” height discrimination. Nevertheless, within the past five years courts, scholars, and legislatures have increasingly tackled these non-traditional forms of discrimination. As such, this Article endeavors to fill the gap in the existing scholarship.

This Article specifically focuses on heightism in the workplace, with an emphasis on prejudice against short people …

Presenter, “The Bca And The Ncaa: How Title Vii May Level The Playing Field In The Collegiate Coaching Ranks”, N. Jeremi Duru

Presentations

In January 2007, only 5% of the 119 head coaches in Division I-A college football teams were minorities. This number is startling in light of the fact that in National Collegiate Athletic Association (NCAA) football teams 55% of the student-athletes are from minority groups. Even the president of the NCAA, Myles Brand, has stated that this organization has had a “dismal record of hiring people of color into head coaching positions, especially in the sport of football.” The disparity between the numbers of coaches and players has prompted an action brought by the Black Coaches & Administrators (BCA). The BCA …

Title Vii And Flexible Work Arrangements To Accommodate Religious Practice & Belief

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

This timeline tracks the development of the religious accommodation requirement of Title VII of the Civil Rights Act of 1964. The timeline covers the development of statutory text, relevant EEOC regulations, and Supreme Court precedent.

Same Struggle, Different Difference: Ada Accommodations As Antidiscrimination, Michael Ashley Stein

Faculty Publications

The Americans with Disabilities Act (ADA) was heralded as an "emancipation proclamation" for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this prevalent belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by …

Reasonable Accommodation Of Workplace Disabilities, Stewart J. Schwab, Steven L. Willborn

Cornell Law Faculty Publications

Parsing The Meaning Of "Adverse Employment Action" In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

Handling Difficult Issues Under The Family Medical Leave Act, Helen Norton

Publications

No abstract provided.

Title Vii Compensation Issues Affecting Bilingual Hispanic Employees, David Allen Larson

Faculty Scholarship

This article deals the workers who are bilingual and their accompanying compensation on the job. The article covers compensation, classification, Bilingual Hispanic employees required to speak both Spanish and English on the job may, in certain circumstances, be entitled to greater compensation under Title VII of the Civil Rights Act of 1964 than employees who do the same job exclusively in English. It is unlikely, however, that a court will conclude that bilingual Hispanic employees required to speak both Spanish and English are for that reason alone entitled to increased compensation. Yet bilingual Hispanic employees required to use both languages …

Privacy And The Sex Bfoq: An Immodest Proposal, Carolyn S. Bratt

Law Faculty Scholarly Articles

Since the adoption of Title VII of the Civil Rights Act of 1964, courts have been called upon to determine whether an employer can avoid liability for refusing to hire employees of one sex by invoking the privacy rights of its customers. Two recent court decisions are illustrative of the question and its resolution. In Backus v. Baptist Medical Center, the defendant employer's policy of excluding male nurses from the labor and delivery section of its obstetrics and gynecology department was challenged. The defendant established that most of the duties of a labor and delivery nurse involve exposure to …

United States Postal Service Board Of Governors V. Aikens, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine

Articles

Title VII of the Civil Rights Act of 1964 was adopted in an atmosphere of monumental naivete. Congress apparently believed that equal employment opportunity could be achieved simply by forbidding employers or unions to "discriminate" on the basis of "race, color, religion, sex, or national origin," and expressly disavowed any intention to require "preferential treatment." Perhaps animated by the Supreme Court's stirring desegregation decisions of the 1950's, the proponents of civil rights legislation made "color-blindness" the rallying cry of the hour. Today we know better. The dreary statistics, so familiar to anyone who works in this field, tell the story. …

Mcdonald V. Santa Fe Trail Transportation Co., Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.