Law Commons^™

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Retaliatory Disclosure: When Identifying The Complainant Is An Adverse Action, Jamie Darin Prenkert, Julie Manning Magid, Allison Fetter-Harrott

Jamie D Prenkert

Sometimes the possibility of being publicly identified as a complainant will be enough to discourage a person from complaining. That is especially true when being identified as a complainant exposes her to a greater likelihood of reprisal. This paper addresses the circumstances when such publicity can be deemed materially adverse, such that it ought to be sufficient to support a claim of retaliation. We focus on the particular context of claims of employment discrimination, especially pursuant to Title VII of the 1964 Civil Rights Act. When an employee or applicant for employment files a charge of discrimination with the Equal …

Bullying Across The Lifecourse: Redefining Boundaries, Responsibility, And Harm, Nancy J. Knauer

Nancy J. Knauer

Over the last fifteen years, our understanding of bullying has experienced a radical redefinition. In our schools, universities, workplaces, and assisted living facilities, behavior that we once dismissed as “horseplay” or “teasing” has increasingly been labeled as unacceptable and, in some instances, criminal. We seem to have reached one of those societal tipping points where certain behaviors we once took for granted are no longer acceptable. Not that long ago, sexual harassment was simply the cost of being female in the workplace, but the 1980s saw a period of redefinition when sexual harassment was reinterpreted and understood to be a …

The Glass Mirror: Appearance-Based Discrimination In The Workplace, Enbar Toledano

Enbar Toledano

The benefits of physical attractiveness are considerable and widespread. As early as infancy and throughout their lifetimes, physically attractive individuals are afforded more favorable treatment, are assumed to possess more socially desirable traits, and enjoy better opportunities in virtually every aspect of life. Perhaps most troubling are the professional advantages enjoyed by attractive job candidates and employees. Statistically, these individuals will receive more job offers, better advancement opportunities, and higher salaries than their less attractive peers—despite numerous findings that they are no more intelligent or capable. Given the proven and arguably undeserved disparities in professional treatment between the unattractive and …

Implicit Bias In Employment Litigation, Melissa R. Hart

Melissa R Hart

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. …

Quality Of Healthcare And The Role Of Relationships: Bridging The Medico-Legal Divide, Sagit Mor, Orna Rabinovich-Einy

Sagit Mor

This article focuses on an often overlooked barrier to efforts to enhance the quality of health care: the relationship crisis that currently exists between physicians and patients. This state of affairs has resulted from the divide between the medical and legal worlds. The medical arena has understandably tended to view the doctor-patient relationship as a purely medical issue, ignoring the law’s impact in generating and sustaining problematic relationship patterns. The legal world has yet to fully recognize this state of affairs, and the law’s role in its evolution and persistence. We offer a relational approach to healthcare law as a …

Negative Credentials: Fair And Effective Consideration Of Criminal Records, Stacy A. Hickox, Mark Roehling

Stacy A. Hickox

The incarceration rate for groups including applicants who are protected against discrimination has had a significant effect on their potential for employment. The potential for adverse impact and disparate treatment claims by ex-offenders who are rejected under these policies will be discussed. We will also analyze the results of a survey of employers in Michigan regarding what information about ex-offender applicants are considered in making hiring decisions. These results have implications for other employers who should be establishing a business necessity or legitimate reason for the rejection of ex-offenders, and for courts who are reviewing those practices.

Clearing The Smoke On Medical Marijuana Users In The Workplace, Stacy A. Hickox

Stacy A. Hickox

Medical marijuana users are protected against criminal prosecution in 15 states, yet their protection as employees is much less certain. Courts in several states with medical marijuana statutes have refused to provide protection for medical marijuana-using employees, even where the use has had no effect on their performance. Yet these decisions may not control the rights of medical marijuana users in other states where the statutory wording differs. Employers looking for guidance should consider the protections of the Americans with Disabilities Act (ADA) and state disability nondiscrimination statutes. Many medical marijuana users may qualify for protection as persons with disabilities, …

Lawyers Suing Law Firms: The Limits On Attorney Employment Discrimination Claims And The Prospects For Creating Happy Lawyers, Nancy Levit

Nancy Levit

It is more than a mild irony that anti-discrimination law fails lawyers in particular. This article addresses doctrinal and pragmatic limits on employment discrimination lawsuits by lawyers against their law firms. It considers the failures of the Title VII template to remedy the sorts of discrimination and dissatisfactions lawyers face in the practice of law, and concludes that many of the things that make lawyers unhappy are simply not reachable through employment discrimination lawsuits. The latter portion of the article turns to the recently emerging science of happiness literature. It suggests that the interests of lawyers and their firms may …

From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart

Melissa R Hart

No abstract provided.

The Impossibility Of Agnostic Discrimination Law, Deborah M. Weiss

Deborah M. Weiss

In recent years, evidence of the societal rate of discrimination has been introduced in a small set of employment discrimination cases. Most cases using this so-called social framework analysis are class actions that challenge the use of subjective employment practices, including the ongoing Dukes v. Wal-Mart, the largest class action in U.S. history. Social framework evidence has been challenged as irrelevant, since unconnected to the facts of a particular dispute, and as more prejudicial than probative for holding individual defendants responsible for the wrongs of society as a whole. In this Article I argue that the societal rate of discrimination …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of “sexual orientation” is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

The Case For Candor - Application Of The Self-Critical Analysis Privilege To Corporate Diversity Documents, Pam Jenoff

Pam Jenoff

The Case For Candor: Application Of The Self-Critical Analysis Privilege To Corporate Diversity Initiatives Pam Jenoff Diversity has become an increasingly important part of American corporate culture in the past several decades, with companies devoting significant resources to the assessment of diversity and the implementation of plans to improve demographics, employee relations and morale. Attempts to undertake these diversity initiatives are greatly limited, however, by concerns over potential legal liability. Counsel, apprehensive that documents and other information regarding diversity issues and corrective measures may subsequently be used as evidence by plaintiffs in discrimination lawsuits, often discourage or veto outright the …

Should Employees Have To Choose Between Enduring Pain And Keeping Their Jobs?, Reka Bala

Reka Bala

For patients in constant pain, medical marijuana is often the only substance that offers complete relief. Yet these individuals and their employers are still at risk of job-related concerns as cannabis legislation consistently neglects employment issues. In a controversial 2008 decision, Ross v. RagingWire Telecommunications, Inc. forced California cannabis patients to cruelly decide between alleviating pain and staying employed. This Note argues that Ross contradicts legislative intent and violates state and federal law, all of which call for broader rights to medical marijuana users. It also recommends changing California law or designing a judicial remedy to better protect patients from …

Should Employees Have To Choose Between Enduring Pain And Keeping Their Jobs?, Reka Bala

Reka Bala

For patients in constant pain, medical marijuana is often the only substance that offers complete relief. Yet these individuals and their employers are still at risk of job-related concerns as cannabis legislation consistently neglects employment issues. In a controversial 2008 decision, Ross v. RagingWire Telecommunications, Inc. forced California cannabis patients to cruelly decide between alleviating pain and staying employed. This Note argues that Ross contradicts legislative intent and violates state and federal law, all of which call for broader rights to medical marijuana users. It also recommends changing California law or designing a judicial remedy to better protect patients from …

Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith

Heron Greenesmith

In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity

Of Dinosaurs And Birds: The Second Circuit’S “Forum Rule” As An Unwarranted Attack On Plaintiffs’ Employment Discrimination Class Action Attorneys’ Fee Petitions, Patrick F. Madden, Shanon J. Carson

Patrick F. Madden

No abstract provided.

The Annoyingly Indeterminate Effects Of Sex Differences, Deborah M. Weiss

Deborah M. Weiss

(Previously circulated as "The Paradox of Statistical Discrimination.")At present, men and women have different distributions of certain aptitudes and personality traits. A growing body of research suggests that some of these differences have some biological basis, although these distribution differences do not always conform neatly to traditional stereotypes, and cultural factors also contribute. A heritable basis for difference, however, has frustratingly indeterminate implications. It suggests that some occupational segregation is not caused by discrimination. At the same time, a statistical aptitude or temperament difference will almost inevitably cause discrimination in professions that make use of that aptitude or temperament. This …

Transfer As An Accommodation: Standards From Discrimination Cases And Theory, Stacy A. Hickox

Stacy A. Hickox

This article explores the conflict between the desire of an employee with a disability to transfer as an accommodation and an employer’s belief that another applicant for that position is better qualified. Federal circuit courts disagree as to whether the accommodation requirements of the Americans with Disabilities Act extend to the transfer of an employee as an accommodation if the employer believes that some other person is better qualified for that position. After exploring this conflict among the courts, a review of cases where an applicant for hire or promotion has alleged discrimination provides guidance for courts reviewing the denial …

Artfully Discriminating: How Hall V. Nalco Co. Applies Title Vii To Adverse Employment Actions Based On Assisted Reproduction Technologies, Patrick F. Madden

Patrick F. Madden

No abstract provided.

Do You Want To Be An Attorney Or A Mother? Arguing For A Feminist Solution To The Problem Of Double Binds In Employment And Family Responsibilities Discrimination, Heather Bennett Stanford

Heather P Bennett

This article is a research paper analyzing and proffering solutions to family responsibilities discrimination in the workplace. The article centers around a case filed in the United States District Court for the Western District of Pennsylvania. This case was filed by a female partner at the law firm Dickie, McCamey & Chilcote claiming discrimination based on family responsibilities. I chose this topic because I feel that it is an increasingly important and emerging area of employment discrimination law. This article introduces the background of the case and analyzes possible outcomes in light of caselaw involving employment discrimination in various contexts. …

Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves

Lee Reeves

Many scholars have argued that the judiciary’s decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the federal bench has become more ideologically conservative in recent years. This Article seeks to dispute that hypothesis as incomplete at best, and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit’s employment discrimination jurisprudence is correlated with two factors, total workload per capita judge and employment discrimination filings per capita judge. …

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Julie C Suk

Procedural path dependence occurs when the particular features of the procedural system which has been charged with enforcing a given legal norm determine the substantive path of that legal norm. This article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to proving the facts of discrimination, whereas the limited nature of French civil procedure makes it impossible for such information to be revealed. As …

Addressing Segregation In The Brown Collar Workplace: Toward A Solution For The Inexorable 100%, Leticia M. Saucedo

Leticia M. Saucedo

This article suggests a theoretical and analytical framework for rethinking the causes of and remedies for workplace segregation. Taking lessons from civil rights and women’s rights struggles to eradicate segregated workplaces through existing anti-discrimination frameworks, it reviews the historical paradigm approaches to segregation, and their limited ability to eradicate segregation completely, as is evident in the continued existence of workplace segregation. Despite public perceptions to the contrary, segregated workplaces exist in greater numbers today, mostly because of the influx of newly arrived immigrant workers in low-wage industries throughout the country. These “brown collar” workplaces provide a good testing ground for …

Book Review - Forbidden Grounds: The Case Against Employment Discrimination Law, John J. Donohue

John Donohue

Book Review - Forbidden Grounds: The case against employment discrimination law by Richard A. Epstein. Cambridge and London: Harvard University Press 1992

Comparing Similarly Situated People In Disparate Treatment Cases, David G. Karro

David G. Karro

I wrote this in 1993 for paralegals and new attorneys who were having trouble understanding the concept of comparing similarly situated people in order to prove motive. Many lawyers and paralegals approach the topic mechanically, without any real conception of what makes a comparison of the treatment of people probative, or not probative, of intentional discrimination. Although fifteen years old as of the time of this writing (2008), I believe the approach remains valid and still has significant pedagogical value for newcomer to the area. The citations are also useful for lawyers under who need a quick way of getting …

The Importance Of Being Earnest: Pleading And Maintaining A Class Action For The Purpose Of Binding Class Members, David G. Karro

David G. Karro

This 1981 article contends, as its title suggests, that federal class actions should be brought only if class counsel believe they can represent the individual interests of the members of the class described in the complaint. After all, the mere filing of a class action complaint has legal consequences, and it is generally acknowledged that the members of even an alleged class have some right to rely on the class attorney to protect their interests. A certification order therefore does not create a class, but instead puts the court's imprimatur on class counsels’ representation that they can carry out rhw …