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Full-Text Articles in Law
Sidelined: Title Ix Retaliation Cases And Women’S Leadership In College Athletics, Erin E. Buzuvis
Sidelined: Title Ix Retaliation Cases And Women’S Leadership In College Athletics, Erin E. Buzuvis
Duke Journal of Gender Law & Policy
No abstract provided.
(Trans)Forming Traditional Interpretations Of Title Vii: “Because Of Sex” And The Transgender Dilemma, Mary Kristen Kelly
(Trans)Forming Traditional Interpretations Of Title Vii: “Because Of Sex” And The Transgender Dilemma, Mary Kristen Kelly
Duke Journal of Gender Law & Policy
No abstract provided.
Opposition At The Water Cooler: The Treatment Of Non-Purposive Conduct Under Title Vii’S Anti-Retaliation Clause, Gina Oderda
Opposition At The Water Cooler: The Treatment Of Non-Purposive Conduct Under Title Vii’S Anti-Retaliation Clause, Gina Oderda
Duke Journal of Gender Law & Policy
No abstract provided.
Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel
Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel
Duke Law Journal
It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.(1)
A Postscript To Struck By Stereotype, Ruth Bader Ginsburg
A Postscript To Struck By Stereotype, Ruth Bader Ginsburg
Duke Law Journal
No abstract provided.
Theorizing Class, Gender, And The Law: Three Approaches, Angela P. Harris
Theorizing Class, Gender, And The Law: Three Approaches, Angela P. Harris
Law and Contemporary Problems
No abstract provided.
Race, Economic Class, And Employment Opportunity, Trina Jones
Race, Economic Class, And Employment Opportunity, Trina Jones
Law and Contemporary Problems
No abstract provided.
Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard
Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard
Law and Contemporary Problems
No abstract provided.
In The Wake Of Ledbetter V. Goodyear Tire & Rubber Company: Applying The Discovery Rule To Determine The Start Of The Limitations Period For Pay Discrimination Claims, Nancy Zisk
Duke Journal of Gender Law & Policy
"14 These laws include Title VII of the Civil Rights Act of 1964,15 Section 1981 of the Civil War Reconstruction statutes,16 the Age Discrimination in Employment Act of 1967 (ADEA),17 the Equal Pay Act (EPA),18 and the Americans with Disabilities Act of 1990 (ADA).19 While the statutes define different types of discrimination, each addresses discrimination in employment and defines a limitations period in which an employee can bring a claim.20 With Title VII defining the "paradigm," the first step in determining whether a claim is timely under any statute is determining when the discriminatory act takes place.21 To do that, …
The Bfoq Defense: Title Vii’S Concession To Gender Discrimination, Katie Manley
The Bfoq Defense: Title Vii’S Concession To Gender Discrimination, Katie Manley
Duke Journal of Gender Law & Policy
Should the BFOQ exception still exist? Because permitting discrimination under Title VII seems fundamentally contrary to the anti-discrimination purpose of the statute, this article questions whether the BFOQ defense is consistent with the aims of Title VII or whether, in actuality, the defense undermines the Act's effectiveness by providing a loophole for employers to participate in the discriminatory practices Title VII seeks to forbid.
Mixed-Motives For Firing Employees: Alaska’S Inconsistent Standards And Its Failure To Follow The Changing Federal Tide, Brianne Schwanitz
Mixed-Motives For Firing Employees: Alaska’S Inconsistent Standards And Its Failure To Follow The Changing Federal Tide, Brianne Schwanitz
Alaska Law Review
No abstract provided.
Smith V. City Of Jackson: Setting An Unreasonable Standard, Jessica Sturgeon
Smith V. City Of Jackson: Setting An Unreasonable Standard, Jessica Sturgeon
Duke Law Journal
No abstract provided.
Some Modest Proposals For Challenging Established Dress Code Jurisprudence, Jennifer Levi
Some Modest Proposals For Challenging Established Dress Code Jurisprudence, Jennifer Levi
Duke Journal of Gender Law & Policy
Two well-established exceptions to the rule exist for dress codes that either (1) objectify or sexualize women1 or (2) allow for flexibility of standards for male employees' appearance but require stricter rules for women.2 A third, still-evolving exception has recently developed regarding challenges to dress codes by transgender litigants.3 Despite this recent progress, however, the classical gender-based dress code-requiring women to conform to feminine stereotypes and men to conform to masculine stereotypes-has, up to the present, been sustained by a majority of the courts time and again.4 It is, therefore, fortitious that two cases now offer insights as to why …
The Law And Economics Of Identity, Rafael Gely
The Law And Economics Of Identity, Rafael Gely
Duke Journal of Gender Law & Policy
"24 Social norms, for example, have long had an important impact on gender roles in employment specifically with respect to work/family concerns.25 Moreover, one of the central conclusions of the famous Hawthorne experiments of the 1930s26 was that employee work effort is significantly influenced by the norms of the employee's workgroup with respect to what constitutes an appropriate work level or output.27 Applying this analysis, employees are deemed not "irrational" when they don't increase output in response to increased employer incentive pay; they are simply responding to workplace social norms-i.e., they don't want to be ostracized by fellow employees as …
Gender Nonconformity And The Unfulfilled Promise Of Price Waterhouse V. Hopkins, Joel Wm. Friedman
Gender Nonconformity And The Unfulfilled Promise Of Price Waterhouse V. Hopkins, Joel Wm. Friedman
Duke Journal of Gender Law & Policy
The Supreme Court has articulated a doctrinal framework that, if construed and applied properly, provides the lower federal courts with the analytical tools necessary to identify and proscribe workplace rules that compel individuals to adhere to appearance, attire, and behavioral norms that operate to reinforce gendered expectations.1 Since the Supreme Court has ruled that penalizing an individual for failing to conform to gendered norms of behavior constitutes a form of sex-based discrimination,2 one would expect that employees would have achieved some measure of success in challenging such policies.
Babes And Beefcake: Exclusive Hiring Arrangements And Sexy Dress Codes, Ann C. Mcginley
Babes And Beefcake: Exclusive Hiring Arrangements And Sexy Dress Codes, Ann C. Mcginley
Duke Journal of Gender Law & Policy
Concluding that being a woman should not be a BFOQ for the job, this article addresses whether casino owners may require that women and men cocktail servers wear sexy provocative uniforms to serve cocktails in Las Vegas casinos.
Facial Discrimination: Darlene Jespersen’S Fight Against The Barbie-Fication Of Bartenders, Jennifer C. Pizer
Facial Discrimination: Darlene Jespersen’S Fight Against The Barbie-Fication Of Bartenders, Jennifer C. Pizer
Duke Journal of Gender Law & Policy
Lambda Legal took up Darlene Jespersen's case because restrictive, genderbased rules about personal appearance and deportment can pose particular burdens for anyone whose gender identity or expression varies from conventional stereotypes; lesbian, gay, bisexual, and transgender ("LGBT") people are disproportionately burdened by such rules.7 Many LGBT people cannot readily conform to conventional gender stereotypes. 8 For others, simply the process of "coming out" as LGBT or "queer" gives rise to a deep critique of the artificially restrictive gender stereotypes that pervade our modern lives and shape corporate marketing campaigns.
The Ugly Truth About Appearance Discrimination And The Beauty Of Our Employment Discrimination Law, William R. Corbett
The Ugly Truth About Appearance Discrimination And The Beauty Of Our Employment Discrimination Law, William R. Corbett
Duke Journal of Gender Law & Policy
The keynote speaker for the conference begins by reminding the audience that a mere quarter of a century earlier there was no federal law that expressly prohibited discrimination in employment based on physical appearance. Considering the difficulty of crafting and enacting an appearance-based employment discrimination law should lead to a fuller appreciation of not only our employment discrimination laws generally, but also the Americans with Disabilities Act specifically.
An Essay For Keisha (And A Response To Professor Ford), Barbara J. Flagg
An Essay For Keisha (And A Response To Professor Ford), Barbara J. Flagg
Duke Journal of Gender Law & Policy
In chapter 3 I build on this conclusion and argue that political solidarity based on a common relationship to oppression and domination is the appropriate focus of (racial) identity politics and legal rights assertion; by contrast cultural claims are more contestable on both descriptive and normative terms and should be left to more fluid domains of conflict resolution such as social dialogue, the democratic process and the market economy . . . . With respect to the "foreseeable effects" model, the 1995 test for the first prong, the existence of a foreseeable impact, clearly encompasses more than cultural difference.94 In …
Testing The Limits Of Antidiscrimination Law: The Business, Legal, And Ethical Ramifications Of Cultural Profiling At Work, Laura Morgan Roberts, Darryl D. Roberts
Testing The Limits Of Antidiscrimination Law: The Business, Legal, And Ethical Ramifications Of Cultural Profiling At Work, Laura Morgan Roberts, Darryl D. Roberts
Duke Journal of Gender Law & Policy
While courts have rarely ruled in favor of plaintiffs bringing discrimination claims based on identity performance, legal scholars have argued that discrimination on the basis of certain cultural displays should be prohibited because it creates a work environment that is "heavily charged" with ethnic and racial discrimination. Drawing upon empirical studies of diversity management, stereotyping, and group dynamics, we describe how workplace cultural profiling often creates an unproductive atmosphere of heightened scrutiny and identity performance constraints that lead workers (especially those from marginalized groups) to behave in less authentic, less innovative ways in diverse organizational settings.
Vive La Difference? A Critical Analysis Of The Justification Of Sex-Dependent Workplace Restrictions On Dress And Grooming, Patrick S. Shin
Vive La Difference? A Critical Analysis Of The Justification Of Sex-Dependent Workplace Restrictions On Dress And Grooming, Patrick S. Shin
Duke Journal of Gender Law & Policy
Any answer here is bound to be controversial, but it would have to be founded on a notion that we, as a society, have reason to value and therefore preserve a state of affairs in which certain types of behaviors relating to the manner of presenting oneself to others are engaged in predominantly by members of one sex but not the other.109 To put it another way, the rationalizability of sex-dependent workplacepresentation rules must depend on the idea that, even granting that sex and gender or gender-performance can be conceptually disaggregated,110 we nevertheless have reason to maintain a state of …
The Many Faces Of Darlene Jespersen, Michael Selmi
The Many Faces Of Darlene Jespersen, Michael Selmi
Duke Journal of Gender Law & Policy
Since this symposium and this case are about appearances, it is worth noting that Lambda Legal posted pictures of Darlene Jespersen in her uniform on its website, and those pictures could be seen as presenting a stereotypical image of a middle-aged gay woman.5 There are obviously many reasons the pictures may have been presented-to humanize her, to show the effect of the makeup policy since the pictures appeared to be taken in the context of the personal best policy-but they also convey an image, and were likely intended to do so. An objection to this line of reasoning is likely …
What Do Unions Do About Appearance Codes?, Michael J. Yelnosky
What Do Unions Do About Appearance Codes?, Michael J. Yelnosky
Duke Journal of Gender Law & Policy
In contrast, Renee Gaud and Trisha Hart worked as cocktail servers at the Borgata Hotel Casino and Spa in Atlantic City, New Jersey.8 Unlike Darlene Jespersen, they were union employees represented by the Hotel Employees and Restaurant Employees International Union, Local 54, and thus were not at-will workers.9 Gaud, Hart, and other employees objected to a new Borgata policy prohibiting cocktail servers and bartenders from gaining more than seven percent of their body weight as determined by a baseline set when the policy was instituted.10 Gaud and Hart challenged the policy in New Jersey state court on the grounds that …
Foreword: Making Makeup Matter, Devon Carbado, Catherine Fisk, Mitu Gulati
Foreword: Making Makeup Matter, Devon Carbado, Catherine Fisk, Mitu Gulati
Duke Journal of Gender Law & Policy
More than a decade ago, Katharine Bartlett, currently Dean of Duke Law School, authored a foundational article on discrimination based on appearance choices.1 The article made a big splash, provocatively raising the question of whether discrimination claims based on dress and appearance standards are cognizable under Title VII, the federal law that prohibits discrimination on the basis of, among other aspects of identity, race and sex. [...] to a large extent, their reasoning centered on two ideas: (1) that employers have broad latitude to define the professional boundaries of their workplaces and that grooming standards are a reasonable way for …
Branded: Corporate Image, Sexual Stereotyping, And The New Face Of Capitalism, Dianne Avery, Marion Crain
Branded: Corporate Image, Sexual Stereotyping, And The New Face Of Capitalism, Dianne Avery, Marion Crain
Duke Journal of Gender Law & Policy
In the context of unionized workforces covered by collective bargaining agreements, companies have-at most-been required to demonstrate a reasonable relationship between the grooming code and the business's effort to project a corporate image that it believes will result in a larger market share.5 In a small number of cases, sexualized branding that exposes workers to sexual harassment or is predicated upon sexual stereotypes not essential to performance of the job has been curtailed by the antidiscrimination mandate of Title VII.6 However, challenges under Title VII have been effective only where corporate branding is at odds with community norms; where the …
Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone
Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone
Duke Law Journal
Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …
Moving Past Hippies And Harassment: A Historical Approach To Sex, Appearance, And The Workplace, Erica Williamson
Moving Past Hippies And Harassment: A Historical Approach To Sex, Appearance, And The Workplace, Erica Williamson
Duke Law Journal
No abstract provided.
Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro
Deterrence And Implied Limits On Arbitral Power, Michael A. Scodro
Duke Law Journal
Employment, brokerage, and other contracts routinely include "predispute" arbitration clauses-provisions requiring the parties to submit any and all future disputes to arbitrators rather than courts. In recent years, courts have come to enforce these clauses in the vast run of cases, requiring parties to arbitrate even when the underlying dispute implicates employment discrimination, antitrust, or other "public law" rights. In response to this trend, interest has grown in the extent of courts' authority to overturn arbitral awards that do not give effect to such rights. At first blush, the Federal Arbitration Act (FAA) does not appear to authorize any such …
Title Vii Disparate Impact Suits Against State Governments After Hibbs And Lane, Claude Platton
Title Vii Disparate Impact Suits Against State Governments After Hibbs And Lane, Claude Platton
Duke Law Journal
No abstract provided.
A Choice Of Rules In Title Vii Retaliation Claims For Negative Employer References, Sarah Carrington Walker Baker
A Choice Of Rules In Title Vii Retaliation Claims For Negative Employer References, Sarah Carrington Walker Baker
Duke Law Journal
No abstract provided.