Law Commons^™

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Elayne E Greenberg

This proposal is a heretofore untaken first step in the dispute system design for implicit bias. It offers a different type of thinking about workplace discrimination caused by implicit bias and a different way to resolve it.

Until now, workplace discrimination caused by implicit biases has gone unabated, because the courts and EEOC mediation programs are better designed to address workplace discrimination caused by explicit biases. As the social science research clarifies, there are salient differences between workplace discrimination animated by implicit biases and workplace discrimination shaped by explicit biases discrimination. We now understand that we all have implicit biases, …

Good Faith Discrimination, Girardeau A. Spann

Girardeau A Spann

Good Faith Discrimination Girardeau A. Spann Abstract The Supreme Court’s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court’s racial jurisprudence stem from the Court’s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to …

What Impact The Supreme Court’S Recent Hobby Lobby Decision Might Have For Lgbt Civil Rights?, Vincent Samar

Vincent J. Samar

Abstract

What Impact the Supreme Court’s Recent Hobby Lobby

Decision Might Have for LGBT Civil Rights?

Vincent J. Samar

The U.S. Supreme Court’s recent decision in the Hobby Lobby case has created shockwaves of concern among civil rights groups questioning whether for-profit corporations can assert a religious exemption from civil rights legislation under a 1993 federal law, the Religious Freedom Restoration Act. The matter is of particular concern in the LGBT community given the possible impact it could have on services traditionally offered to those getting married as more and more states legalize same-sex marriage. Though the Court’s conservative majority …

Cracks In The Shield: The Necessity Of The Employment Non-Discrimination Act, James N. Bolotin

James N Bolotin

This paper argues that legislation protecting homosexuals from employment discrimination is necessary, despite hopeful arguments that the text of Title VII should or can already protect against discrimination based on sexual orientation. The paper discusses how the precedent of the federal courts has gone too far in the wrong direction to believe that they will fix this interpretation problem on their own. Furthermore, it posits that the passage of ENDA or similar legislation will successfully lessen the prevalence of this type of discrimination.

Part I considers the history of Title VII’s “because of sex” protection. This includes a short discussion …

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

Solving Batson, Tania Tetlow

Tania Tetlow

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule, a …

Promoting Equitable Law School Admissions Through Legal Challenges To The Lsat, Al Alston

Al Alston

No abstract provided.

Social Framework Studies Such As “Women Don’T Ask” And “It Does Hurt To Ask” Show Us The Next Step Toward Achieving Gender Equality—Eliminating The Long Term Effects Of Implicit Bias—But Are Not Likely To Get Cases Past Summary Judgment, Andrea Doneff

Andrea Doneff

Social Framework evidence has been used for many years to explain how statements or actions indicate discriminatory motive. For example, social framework evidence helps us understand how statements that a woman should dress more femininely or attend charm school near the time of a decision not to offer her partnership demonstrate stereotyped behavior and therefore indicate discriminatory motives for the employment decision. Recent social framework studies show that women often do not negotiate on their own behalf and, when they do, they are perceived negatively by both men and women. Complementary studies show that negative perceptions play out over the …

Health Care, Title Vi, And Racism’S New Normal, Dayna B. Matthew

Dayna B Matthew

HEALTH CARE, TITLE VI, AND RACISM’S NEW NORMAL Dayna Bowen Matthew ABSTRACT An estimated 84,570 minority patients die annually due to health care disparities that result from the unconscious racism that pervades American health care. Over a decade ago, the Institute of Medicine (IOM) reviewed the egregious inequalities that black and brown patients suffer when they seek medical care for heart disease, diabetes, cancer, asthma, pain, strokes and virtually every disease, illness or malady. The IOM report identified physician stereotypes, bias, and prejudice as a possible reason for these disparities, but could not explain exactly why biases caused minority patients …

Savagery In The Subways: The First Amendment, Anti-Muslim Ads And The Efficacy Of Counterspeech, Engy Abdelkader

Engy Abdelkader

From San Francisco to Washington, D.C. to Detroit to Chicago to New York, anti-Muslim hate placards have recently appeared on government-owned transit systems in cities around the country. Anti-Muslim hate groups designed, funded and placed the inflammatory advertisements, representing a well-orchestrated campaign to demean and attack the minority Muslim community. The ads have culminated in hate crime charges in the subway pushing death of an immigrant of South Asian descent, diverse manifestations of counter official and private speech and First Amendment litigation in at least three jurisdictions where well-meaning transit officials attempted to prevent the ads’ placement. Interdisciplinary in its …

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

Rethinking Civil Rights And Gender Violence, Julie Goldscheid

Julie Goldscheid

Advocacy seeking justice for survivors of domestic and sexual violence historically has invoked civil rights laws and rhetoric to advance legal remedies and public policy reform. Even though two widely critiqued United States Supreme Court decisions have limited the reach of those civil rights approaches, neither decision precludes new civil-rights-based remedies for gender violence. Indeed, a civil rights frame has enduring potential to support needed reform by challenging structural inequalities that continue to inform and drive gender violence. Nevertheless, no public outcry has coalesced in the United States demanding a civil rights-based enforcement scheme, either to seek a refashioned remedy …

Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada, Cheryl L. Anderson

Cheryl L Anderson

Causation continues to be one of the most confounding issues in antidiscrimination law. Despite having rejected the position over two decades ago in Price Waterhouse v. Hopkins, the Court in Gross v. FBL Financial Services, Inc., recently asserted that the “ordinary default rule” in disparate treatment claims requires a plaintiff to prove but-for causation when a statute prohibits discrimination “because of” a protected characteristic. Gross threw disparate treatment law into disarray. Title VII has been statutorily modified to require only proof of motivating factor causation before the burden of proof shifts to the employer to show it would have made …

Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada Unification Of Standards In Discrimination Law: The Conundrum Of Causation And Reasonable Accommodation Under The Ada, Cheryl L. Anderson

Cheryl L Anderson

Causation continues to be one of the most confounding issues in antidiscrimination law. Despite having rejected the position over two decades ago in Price Waterhouse v. Hopkins, the Court in Gross v. FBL Financial Services, Inc., recently asserted that the “ordinary default rule” in disparate treatment claims requires a plaintiff to prove but-for causation when a statute prohibits discrimination “because of” a protected characteristic. Gross threw disparate treatment law into disarray. Title VII has been statutorily modified to require only proof of motivating factor causation before the burden of proof shifts to the employer to show it would have made …

Incessant Discrimination Of Same-Sex Couples: A Case Study Of Varying Interpretations Of “Family,” Second-Parent Adoptions, And The Legal Rights Of Non-Biological Parents, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Screaming To Be Heard: Black Feminism And The Fight For A Voice From The 1950s - 1970s, Preston D. Mitchum

Preston D. Mitchum

No abstract provided.

Multi-National Corporations Closing The Borders For Female Professionals: Should Gender Discrimination Be Allowed For Expatriation Assignments Under Title Vii Law?, Allie C. Tucker

Allie C Tucker

While women currently make up significant proportions of the work force in many occupations, their presence remains lacking in upper management. In today’s globalizing economy international experience has become increasingly important for promotions in multi-national corporations but is simultaneously being denied to women due to speculations about gender discrimination in other nations. Evidence suggests that women are being sent on expatriation assignments far less than men, but Title VII case law has yet to directly address the issue. In the absence of such direction, MNCs should proceed with a fact-dependent analysis that balances the interests of the corporation with gender …

Over My Dead Body: A New Approach To Testamentary Restraints On Marriage, Ruth S. Lee

Ruth S Lee

Money is a tool that can be wielded from the grave. It is not uncommon to find deeds or wills that shape the behavior of the living by conditioning a grant, devise, or bequest, on a potential beneficiary’s conduct. Sometimes these conditions involve a limitation on marriage—prohibiting, penalizing, or requiring marriage to one of a particular religious faith or ethnicity. Courts have held that complete restraints on marriage are unreasonable, contrary to public policy, and void. However, partial restraints of marriage are valid as long as it is “reasonable.” A restraint is “unreasonable” if a marriage permitted by the restraint …

Individualized Assessment Of Applicants With Convictions, Stacy A. Hickox

Stacy A. Hickox

Employers often rely on criminal background checks as part of the hiring process. Yet consideration of applicants’ criminal records clearly has an adverse impact on applicants of color, since a higher percentage of them have a record. This article reviews how an employer has been able to justify its consideration of criminal convictions under Title VII. In addition, state statutes that limit employers’ consideration of a criminal record provide guidance for employers who are trying to establish a business necessity for their reliance on criminal records. Typically, courts look at the nature of the crime and its relationship to the …