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Articles 1 - 30 of 34
Full-Text Articles in Law
Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg
Stopped At The Starting Gate: The Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg
Deborah Thompson Eisenberg
Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …
Expanding The Hostile Environment Theory To Cover Age Discrimination: How Far Is Too Far?, Julie Vigil
Expanding The Hostile Environment Theory To Cover Age Discrimination: How Far Is Too Far?, Julie Vigil
Pepperdine Law Review
No abstract provided.
Employment Discrimination Claims Remain Valid Despite After-Acquired Evidence Of Employee Wrongdoing, Christine Neylon O'Brien
Employment Discrimination Claims Remain Valid Despite After-Acquired Evidence Of Employee Wrongdoing, Christine Neylon O'Brien
Pepperdine Law Review
This article explores the legal practice area of employment discrimination and adverse decisions based on after-acquired evidence. A division among the circuits courts arose concerning the impact of after-acquired evidence of employee wrongdoing upon an employer's liability for employment discrimination. When pre-trial discovery unveiled a separate nondiscriminatory reason for termination, numerous circuits allowed such previously unknown information to constitute a legitimate basis for the employment decision, following the model of a mixed-motive discharge. A trend developed however, among other circuits that after-acquired evidence of employee misconduct should not prevent the establishment of employer liability, but that it should be considered …
Admission Possible: Reconsidering The Impact Of Eeoc Reasonable Cause Determinations In The Ninth Circuit, Michael D. Moberly
Admission Possible: Reconsidering The Impact Of Eeoc Reasonable Cause Determinations In The Ninth Circuit, Michael D. Moberly
Pepperdine Law Review
No abstract provided.
Paramours, Promotions, And Sexual Favoritism: Unfair, But Is There Liability?, Mitchell Poole
Paramours, Promotions, And Sexual Favoritism: Unfair, But Is There Liability?, Mitchell Poole
Pepperdine Law Review
No abstract provided.
Burlington Industries, Inc. V. Ellerth: “Whole-Cloth Creation” Or Manifestation Of Congressional Intent?, John Corrington
Burlington Industries, Inc. V. Ellerth: “Whole-Cloth Creation” Or Manifestation Of Congressional Intent?, John Corrington
Pepperdine Law Review
No abstract provided.
Compulsory Employment Arbitration And The Eeoc, Richard A. Bales
Compulsory Employment Arbitration And The Eeoc, Richard A. Bales
Pepperdine Law Review
No abstract provided.
Subordinate Bias Liability, Theresa M. Beiner
Subordinate Bias Liability, Theresa M. Beiner
University of Arkansas at Little Rock Law Review
Often, decisions regarding employment are made with the input of or based on the observations of more than one person. This presents complications for employment discrimination plaintiffs seeking to prove discriminatory animus resulting in an adverse employment decision for the plaintiff. Specifically, many plaintiffs are left to deal with the unresolved issue of whether they have a claim for employment discrimination when a discriminating non-decision making coworker or direct supervisor supplies incorrect or distorted information to their superiors who have the authority to fire them. This is known as the "cat's paw" theory of liability or "subordinate bias liability."
The …
Employment Discrimination Decisions From The October 2008 Term, Drew S. Days Iii
Employment Discrimination Decisions From The October 2008 Term, Drew S. Days Iii
Touro Law Review
Several employment discrimination decisions were handed down this Term. They were Ricci v.DeStefano (Title VII); Gross v.FBL Financial Services, Inc. (Age Discrimination in Employment Act); AT & T Corp. v. Hulteen (Pregnancy Discrimination Act); and 14 Penn Plaza L.L. C. v. Pyett, which concerned the impact of arbitration agreements upon the reach of federal employment discrimination laws.
Intellectual Property And Employee Selection, Elizabeth A. Rowe
Intellectual Property And Employee Selection, Elizabeth A. Rowe
Elizabeth A Rowe
In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …
The Glass Mirror: Appearance-Based Discrimination In The Workplace, Enbar Toledano
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 …
Don't Ask, Don't Tell: Employment Discrimination As A Means For Social Cleansing, E. Gary Spitko
Don't Ask, Don't Tell: Employment Discrimination As A Means For Social Cleansing, E. Gary Spitko
Faculty Publications
In December 2010, President Barack Obama signed into law the “Don’t Ask, Don’t Tell Repeal Act of 2010,” which provided for repeal of the policy prohibiting gay people from serving openly in the military, after consideration of a Department of Defense review on the implementation of such a repeal. This article examines the history of the exclusion of openly gay people from military service in the United States from the early twentieth century up until the time of the repeal. The author concludes from this review that the dominant purpose of the military’s exclusion of openly gay people was to …
Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik
Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik
Dan Subotnik
No abstract provided.
Undocumented Workers: Crossing The Borders Of Immigration And Workplace Law, Kati L. Griffith
Undocumented Workers: Crossing The Borders Of Immigration And Workplace Law, Kati L. Griffith
Cornell Journal of Law and Public Policy
No abstract provided.
I'M So Lonesome I Could Cry ... But Could I Sue?: Whether 'Interacting With Others' Is A Major Life Activity Under The Ada, Bryan P. Stephenson
I'M So Lonesome I Could Cry ... But Could I Sue?: Whether 'Interacting With Others' Is A Major Life Activity Under The Ada, Bryan P. Stephenson
Pepperdine Law Review
No abstract provided.
Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams
Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams
Pepperdine Law Review
No abstract provided.
Keeping Discrimination Theory Front And Center In The Discourse Over Work And Family Conflict, Laura T. Kessler
Keeping Discrimination Theory Front And Center In The Discourse Over Work And Family Conflict, Laura T. Kessler
Pepperdine Law Review
This essay is a contribution to a symposium on balancing career and family. It frames the problem of work/family conflict as a form of sex discrimination. It demonstrates that many of the constructs commonly used to illustrate an absence of employment discrimination - such as the accident, opt-out, time-lag theories - actually fit quite comfortably within various discrimination frameworks. It also contextualizes the problem of work/family conflict within the larger issue of gender bias in the workplace, demonstrating how each contributes to and works together to produce workplace inequality for women. This approach contrasts with the traditional bifurcation of gender …
A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck
A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck
Faculty Publications
In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …
The Disability History Mystery: Assessing The Employer's Reasonable Accommodation Obligation In "Record Of Disability" Cases, Michael D. Moberly
The Disability History Mystery: Assessing The Employer's Reasonable Accommodation Obligation In "Record Of Disability" Cases, Michael D. Moberly
Pepperdine Law Review
No abstract provided.
Ledbetter V. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007): Faithful To Title Vii Or Blind To Sex Discrimination?, Garrett M. Fahy
Ledbetter V. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007): Faithful To Title Vii Or Blind To Sex Discrimination?, Garrett M. Fahy
The Journal of Business, Entrepreneurship & the Law
No abstract provided.
Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet
Execution In Virginia, 1859: The Trials Of Green And Copeland, Steven Lubet
Faculty Working Papers
This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown's raid on Harper's Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a …
Place Aux Dames: The Ideological Divide Between U.S. And European Gender Discrimination Laws, Jens Dammann
Place Aux Dames: The Ideological Divide Between U.S. And European Gender Discrimination Laws, Jens Dammann
Cornell International Law Journal
The United States and the European Union are both firmly committed to eliminating gender discrimination. However, as I show in this Article, they have adopted fundamentally different strategies in pursuing this objective: Whereas the United States offers plaintiffs much more generous procedural rules and far more powerful remedies, the European Union relies on more comprehensive substantive prohibitions against discrimination. What lies behind these different approaches? Contrary to existing scholarship, which emphasizes path dependence arguments, I argue that differences between gender discrimination laws in the United States and Europe can best be understood as the result of a fundamental ideological divide. …
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Title Vii Works - That's Why We Don't Like It, Chuck Henson
Faculty Publications
In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …
Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie
Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie
Michigan Journal of Gender & Law
From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world …
Implicit Bias In Employment Litigation, Melissa R. Hart
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
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 …
Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko
Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko
Faculty Working Papers
In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Faculty Publications
This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the …
Subordinate Bias Liability, Theresa M. Beiner
Subordinate Bias Liability, Theresa M. Beiner
Faculty Scholarship
No abstract provided.
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone
Missouri Law Review
This Article argues that the stray comments "doctrine" does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - …