Law Commons^™

Uncertainty In Employee Status Across Federal Law, Ryan G. Vacca

Law Faculty Scholarship

Numerous federal statutes rely on a distinction between employees and independent contractors. Based on a series of Supreme Court decisions from 1968 through 2003, courts and administrative agencies have used a common law multifactor test to draw this distinction. In an effort to enhance predictability and certainty within and across legislation, these cases have rejected a purposive approach in applying the test. But the Supreme Court has never said which, if any, of the factors are the most important in the analysis, nor has anyone determined whether the underlying purpose—enhancing predictability and certainty—has been attained.

This empirical Study uses content …

Age Discrimination In The On-Demand Economy And Crowdwork, Miriam A. Cherry

Faculty Publications

(Excerpt)

The dominant narrative about the on-demand or gig economy focuses on the plight of Millennials, the generation born between 1982 and 2004. Reporters, bloggers, and commentators have largely confined their account of gig platforms to what the on-demand economy means for Millennials who are just beginning their careers. Media sources have spotlighted the hardships facing young, tech-savvy workers who are forced to cobble together a living through a combination of part-time work, entrepreneurial activities, and insecure gigs online. These sources note that these Millennials are barely scraping by and often lack job security or benefits. When discussing the problems …

Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …

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 …

Reading Amendments And Expansions Of Title Vii Narrowly, Henry L. Chambers, Jr.

Law Faculty Publications

Throughout Title VII’s history, Congress has amended and expanded Title VII. Often, the Supreme Court has read such amendments and expansions narrowly, even as it generally reads Title VII broadly or narrowly depending on the case before it. The Court’s approach to Title VII expansions may merely indicate that the Court believes that such statutory alterations should be read only as broadly as necessary to effectuate their purposes. However, regardless of why the Court has interpreted these expansions narrowly, that the Court has done so suggests that Congress ought to consider carefully how it amends or expands Title VII in …

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 …

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 …

Reforming The Age Discrimination In Employment Act: Proposals And Prospects, Michael C. Harper

Faculty Scholarship

This article argues that the Age Discrimination in Employment Act (ADEA) should be amended to provide it with the same procedural and substantive strengths Congress has provided Title VII. The article highlights four gaps between the ADEA and Title VII: damage remedies; class actions; defenses to disparate impact actions; and causation standards for disparate treatment actions. The article also advocates other modifications of the ADEA to encourage the employment of older Americans. The article recommends compelling employers to retain productive incumbent older workers, regardless of the compensation previously promised experienced workers. It also recommends considering allowing employers to hire older …

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 …

Rethinking Discrimination Law, Sandra F. Sperino

Faculty Articles and Other Publications

In the 1970s, federal courts began identifying categories of discrimination, such as disparate impact, disparate treatment and harassment. They then created elaborate, multi-part rubrics tied to each category. Modern employment discrimination law is defined by these frameworks. They serve as gatekeepers that control the substantive discrimination narratives juries hear and also structure the ways that judges and litigants think about discrimination.

Legal scholarship is replete with excellent articles challenging specific frameworks courts use to evaluate discrimination claims. This Article does not challenge any particular framework. Instead it challenges whether courts should even use frameworks to conceptualize discrimination in the first …

The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise

Cornell Law Faculty Publications

Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and retaliation cases. The decision prompted an outcry from the plaintiffs' bar and Congress has proposed legislation to overturn Gross. Despite the outcry, a simple question persists: Does the motivating factor jury instruction influence case outcomes? Results from our experimental mock jury study suggest that such jury instructions …

Gross Disunity, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article will proceed as follows: Part I will explain Gross in terms of causation and unification. Part II will argue that Gross rejected the doctrine of uniformity, a well-established and useful canon of statutory construction, without explanation. Part III will show how the courts‟ post-1991 rejection of uniformity, culminating in Gross, might be seen as a form of judicial recalcitrance. However, that Part will suggest that the Court's rejection of uniformity in Gross is better understood as a rejection of burden-shifting in disparate treatment doctrine. Finally, Part IV will argue that burden-shifting is normatively desirable in disparate treatment doctrine, …

Reasonable Factors Other Than Age: The Emerging Specter Of Ageist Stereotypes, Judith J. Johnson

Journal Articles

In spite of two recent Supreme Court cases that ostensibly reinstated a more expansive interpretation of discrimination under the Age Discrimination in Employment Act (ADEA), the protection that the ADEA affords still faces the same danger that threatened it before these decisions. The courts, including the Supreme Court, have been allowing employers to interpose defenses that correlate so strongly with age that they can be used as thinly veiled covers for discrimination. If the Court is serious about enforcing the purpose of the ADEA, it must interpret the “reasonable factor other than age” (RFOA) defense to protect older employees from …

Sky Remains Intact: Why Allowing Subgroup Evidence Is Consistent With The Age Discrimination In Employment Act, Sandra F. Sperino

Faculty Articles and Other Publications

Employers' stereotypes about the effect of age on employment are not consistent across the entire group of individuals age forty and older. It is intuitive to believe that employers may view employees in their forties as being in their employment prime, while believing that employees in their sixties are not.' Likewise, perceptions of age may vary dramatically depending on the age of the decision-maker. Common sense tells us that a supervisor in his or her forties may create policies that are neutral or positive toward individuals in that age range, while either intentionally or unintentionally engaging in employment practices that …

Disparate Impact Of Negative Impact: Future Of Non-Intentional Discrimination Claims Brought By The Elderly, Sandra F. Sperino

Faculty Articles and Other Publications

In 2005, the U.S. Supreme Court interpreted the Age Discrimination in Employment Act (ADEA) as permitting plaintiffs to proceed under a disparate impact theory of discrimination. This decision affirms that plaintiffs who are at least forty years old may challenge employment decisions resulting from policies that are neutral on their face but have a disproportionate impact on individuals in the protected class.

Although this decision was heralded as a new tool to fight age discrimination in employment, Professor Sperino argues that the decision will have serious and detrimental effects on the ability of elderly employees to seek redress for unfavorable …

Rehabilitate The Age Discrimination In Employment Act: Resuscitate The “Reasonable Factors Other Than Age” Defense And The Disparate Impact Theory, Judith J. Johnson

Journal Articles

The Age Discrimination in Employment Act (ADEA) promised to protect older workers from discriminatory exclusion from the workforce, but recent studies show that older workers are being cut from the workforce and are unable to find employment. In a 1995 article, I warned of the potential dangers of construing the ADEA to allow employment decisions based on age-correlated criteria. Most courts have failed to heed these warnings and now approve employer practices, such as terminating employees based on higher salaries and refusing to hire workers with too much experience. These practices may explain the difficulty older workers are having retaining …

Adea Claimant Can Retain Severance Payments And Sue Former Employer, Susan J. Becker

Law Faculty Articles and Essays

Former employees can maintain claims under the Age Discrimination in Employment Act (ADEA) without first repaying the consideration received for an invalid release of claims. The Supreme Court's pronouncement, Oubre v. Entergy Operations, Inc., 1988 U.S. Lexis 646 (Jan. 26, 1998), may change the way many employers negotiate and execute severance packages and settlements with terminated employees.

Adea Doctrinal Impediments To The Fulfillment Of The Wirtz Report Agenda, Michael C. Harper

Faculty Scholarship

Ideally, this symposium marking the three-decade anniversary of the Age Discrimination in Employment Act (ADEA) would present an opportunity to assess how well the ADEA has achieved its plausible goals. However, I recognize that any definitive assessment of the success of a statute like the ADEA, which requires the modification of the behavior of social actors, must depend on the kind of sophisticated empirical study for which I have neither the time, resources or capability. I also recognize that defending my identification of the goals of the ADEA might itself require an entire essay.

Therefore, I will present a more …

Rethinking Civil Rights And Employment At Will: Toward A Coherent National Discharge Policy, Ann C. Mcginley

Scholarly Works

America's employment discharge policy begs for reform. Although most states have created exceptions to the employment at will doctrine, the doctrine thrives. Title VII of the Civil Rights Act of 1964 (“Title VII”), which bans discrimination in employment based on race, gender, color, religion, and national origin, has proved ineffective in combating employment discrimination. Despite the statutory and common law exceptions to the employment at will doctrine, today's employees may have less job security than in the past. Although I applaud the Commissioners' efforts toward achieving justice in the workplace, I believe that abolishing the employment at will doctrine through …

Life-Cycle Justice: Accommodating Just Cause And Employment At Will, Stewart J. Schwab

Cornell Law Faculty Publications

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

Scholarly Works

Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …