Law Commons^™

The Role Of Law And Myth In Creating A Workplace That 'Looks Like America', Susan Bisom-Rapp

Faculty Scholarship

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection.

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law …

Maximizing #Metoo: Intersectionality & The Movement, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Although women of color experience high rates of harassment and assault, the #MeToo movement has largely left them on the margins in terms of (1) the online conversation, (2) the traditional social movement activity occurring offline, and (3) the consequential legal activity. This Article analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to fail women of color thirty years beyond Kimberlé Crenshaw’s initial framing of intersectionality theory. I discuss the weaknesses of the reform efforts and argue for more tailored strategies that take into account the ineffectiveness of our current Title VII framework and, …

Time To Panic! The Need For State Laws Mandating Panic Buttons And Anti-Sexual Harassment Policies To Protect Vulnerable Employees In The Hotel Industry, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Severe Or Pervasive Should Not Mean Impossible And Unattainable: Why The "Severe Or Pervasive" Standard For A Claim Of Sexual Harassment And Discrimination Should Be Replaced With A Less Stringent And More Current Standard, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to …

A New #Metoo Result: Rejecting Notions Of Romantic Consent With Executives, Michael Z. Green

Faculty Scholarship

With the growth of the #MeToo movement since October 2017, more than 200 prominent male executives have lost their jobs. Some pushback has occurred as many of these executives have asserted their behavior was not inappropriate because their acts were consensual. Essentially, this argument requires companies evaluating this behavior to find nothing wrong when executives use their vast power and influence to have romantic and sexual relationships with their subordinates who do not say “no.”

Those suggesting that the #MeToo movement has gone too far believe it will result in unintended consequences where totally benign and even positive engagement between …

Reality’S Bite, Kerri Lynn Stone

Faculty Publications

The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …

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

Faculty Publications

No abstract provided.

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

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 …

Jurisdictions And Causes Of Action In Bullying, Stress And Harassment Cases Part 1, Niall Neligan

Articles

This is the first of a two part article in which the author will critically evaluate the different causes of action and myriad of jurisdictions for bringing a claim in the inter-related fields of bullying, stress and harassment in the workplace from a commercial law perspective. The author will define and trace the separate headings under which the law governing bullying, stress and harassment has evolved. In the second part of the article (which will
appear in the next edition of the journal), the author will examine recent developments in tortious claims for psychiatric injuries arising from bullying, stress and …

Changing Federal Statutory Proposals To Address Domestic Violence At Work: Creating A Societal Response By Making Businesses A Part Of The Solution, Marcy L. Karin

Journal Articles

Over five million acts of domestic violence are committed every year.1 The prevalence of these acts makes domestic violence “the leading cause of injury to women.”2 Detrimental wherever they occur, these acts are not limited to the privacy of one’s home. Instead, domestic violence regularly and repeatedly spills over to the “public” workplace.For example, Francescia La Rose’s former boyfriend called her supervisor and threatened to come to the office to kill La Rose if she was not fired. Her employer responded by warning La Rose to keep her personal problems out of the workplace. The next day, the ex-boyfriend walked …

How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive The Demise Of The Rational Actor, Scott A. Moss, Peter H. Huang

Publications

Much employment discrimination law is premised on a purely money-focused "reasonable" employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of "rational" actor populated older economic models but has been since modified by behavioral economics and research on happiness. Behavioral and traditional economists alike have analyzed broad employment policies, such as the wisdom of discrimination statutes, but the devil is in the details of employment law. On the critical damages-and-liability issues the Supreme Court and litigators face regularly, the law essentially ignores the lessons …

Jurisdictions And Causes Of Action: Commercial Considerations In Dealing With Bullying, Stress And Harassment Cases-Part Ii, Niall Neligan

Articles

In the concluding part of this two part article, the author will
examine how the courts have developed rules for dealing with
tortious claims for psychiatric injuries arising out of bullying, stress
and harassment cases. The article will examine whether it is
desirable to consolidate and codify employment rights law in order
to provide clarity to prospective litigants. Finally, the author will
argue that if codification is required, then this will necessitate a
change in the nature of present jurisdictions for bringing claims
involving bullying, stress and harassment in the workplace.

Acknowledging Informal Power Dynamics In The Workplace: A Proposal For Further Development Of The Vicarious Liability Doctrine In Hostile Environment Sexual Harassment Cases, Susan Carle

Articles in Law Reviews & Other Academic Journals

No abstract provided.

From North To South Country: Race, Gender And Immigration And The Role Of Unions In The Sanitized Workplace, Ruben J. Garcia

Scholarly Works

Professor Vicki Schultz's ground-breaking article, The Sanitized Workplace, questions whether all sexual conduct is inappropriate in the workplace, whether sexually-charged work environments necessarily disadvantage women, and whether sanitizing the workplace of sexuality impedes gender equality. Her article proposes that a less sanitized workplace with less over-reaction to sexuality would allow for more freedom of sexual expression and be more advantageous to women. According to Professor Schultz, the misuse of sexual harassment law may lead to increased segregation and employers' unwillingness to hire women. In many workplaces today, where office romances are seen as a litigation threat instead of a …

Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley

Scholarly Works

Like the women blackjack dealers at the Hard Rock, cocktail servers, exotic dancers, and prostitutes in legal brothels are vulnerable to sexual harassment by customers. The content of the four jobs reveals the fallacy of the "good girl"/"bad girl" dichotomy, because all four jobs require behavior that falls into both categories if we expand the definition of good and bad girls to include gendered behavior as well as sexual behavior. Once the defense applies to discrimination in sexualized environments, it could logically apply to sexual or racial harassment cases in companies that permit their employees to harbor and act upon …

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

Scholarly Works

In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

Cpaa V Canada Post Corp, Innis Christie

Innis Christie Collection

The Grievor was Part-time Assistant in the Post Office at Berwick, Nova Scotia. The grievance alleges that he was suspended without cause. The Union claims that the discipline is unjustified, discriminatory, and not in accordance with notice requirements and time limits in the Collective Agreement. Complaints of harassment were made against the Grievor which were passed on to the Human Rights Officer. A memorandum of settlement was signed by the parties agreeing to waive time limits until completion of an investigation. The claims were substantiated and a letter of discipline sent to the Grievor. The Union's position is that no …

4th Biennial Employment Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Carol Pate Palmore, Robert D. Hudson, J. Whitney Wallingford Iii, James D. Moyer, Walter F. Skiba Jr., Richard E. Blanchard, Richard G. Griffith, Linda Scholle Cowan, Matthew R. Westfall, Carolyn S. Bratt, Richard C. Stephenson, Paula J. Shives, Robert J. Reid, Marvin L. Coan, Jon L. Fleischaker, Joseph M. Hood, William H. Fortune, John Frith Stewart, Donna King Perry, Donald P. Wagner

Continuing Legal Education Materials

Materials from the 4th Biennial Employment Law Institute held by UK/CLE in June 1994.

Title Vii As Censorship: Hostile Environment Harassment And The First Amendment, Kingsley R. Browne

Law Faculty Research Publications

No abstract provided.