Law Commons^™

Seeking Economic Justice In The Face Of Enduring Racism, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Organizational Justice And Antidiscrimination, Brad Areheart

Scholarly Works

Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most promising way to curb workplace discrimination is not through amending statutes or trying to change the behavior of individual bad actors; instead, we must modify the workplace itself. Specifically, this Article argues that Organizational Justice — a theory empirically grounded in behavioral science — provides novel guidance for how to proactively …

Retaliation: 462 Clark County School District V. Breeden, 532 U.S. 268 (2001), Rebecca White

Scholarly Works

Clark County School District v. Breeden, to my mind, has always been a sleeper case. A per curiam opinion, it takes up no more than five pages in the US reports, yet when I taught this case to my employment discrimination students, we often would spend a full class period – and sometimes more – on it. Why? Because it presents virtually every issue that can crop up under section 704 of Title VII of the Civil Rights Act of 1964, the statute’s antiretaliation provision.

Subsidized Egg Freezing In Employment: Autonomy, Coercion, Or Discrimination?, Ann C. Mcginley

Scholarly Works

In 2014, Apple and Facebook announced that they would provide up to $20,000 for female employees to freeze their eggs as an employment benefit. These announcements raised mixed reviews. Some applauded the decision because they believe that egg freezing may offer to women more control over their reproductive choices. Others argued that the new benefit sends the wrong message to women and that encouraging good parenting by giving better parental leave and child care policies would be more beneficial to families. Others were concerned that this “benefit” applies only to professional or managerial-class women, but may not be helpful to …

Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley

Scholarly Works

No abstract provided.

Cognitive Illiberalism, Summary Judgement, And Title Vii: An Examination Of Ricci V. Destefano, Ann C. Mcginley

Scholarly Works

No abstract provided.

Federal Courts At The Boyd School Of Law, Anne R. Traum

Scholarly Works

No abstract provided.

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

Scholarly Works

Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than …

Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine

Scholarly Works

The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay …

Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik

Scholarly Works

No abstract provided.

Introduction: Dukes V. Wal-Mart Stores, Inc., Elizabeth Chamblee Burch

Scholarly Works

This short introduction to Dukes v. Wal-Mart Stores, Inc. aims to explain the case and to set the table for what promises to be thought-provoking roundtable discussion hosted by Vanderbilt Law Review En Banc. Accordingly, what follows is a concise overview of the legal background and current debate over the two procedural issues that the Ninth Circuit explored in detail – how to evaluate Rule 23(a)(2)’s commonality when common questions heavily implicate the case’s merits, and when a Rule 23(b)(2) class can include relief apart from injunctive or declaratory relief without endangering due process.

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

Scholarly Works

This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Reproducing Gender On Law School Faculties, Ann C. Mcginley

Scholarly Works

This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses. More than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not …

Civil Rights And Related Decisions, Eileen Kaufman

Scholarly Works

This article analyzes two cases from the October 2006 Supreme Court Term, Ledbetter v. Goodyear Tire & Rubber Co. and Gonzales v. Carhart. The cases have much in common, even though Ledbetter concerns pay disparity claims based on gender and Gonzales concerns second trimester abortions. Both are five-four decisions which demonstrate how profoundly the appointment of Justice Samuel Alito to occupy Justice Sandra Day O'Connor's seat has affected the balance of power on the Court. The net result of this shift has been a devastating setback for women's rights. Both decisions prompted Justice Ruth Bader Ginsburg to uncharacteristically read aloud …

Law On The Street: Legal Narrative And The Street Law Classroom, Elizabeth L. Macdowell

Scholarly Works

This Article argues that the failure of anti-discrimination law to address the problems of subordination reflects the hegemonic perspective in legal narratives. For the lawyer concerned with social change, it is imperative to identify these narratives and the ways in which they not only inhibit deep social change, but may perpetuate the conditions of subordination. Yet, law school polices against the consciousness necessary for the lawyer to identify the hegemonic narrative in the law, and often instills attitudes, which are antithetical to the project of social change. In this context, Street Law - a practical law course taught by law …

Employment Discrimination Remedies And Tax Gross Ups, Gregg D. Polsky, Stephen F. Befort

Scholarly Works

This article considers whether a successful employment discrimination plaintiff may be entitled, under current law, to receive an augmented award (a gross up) to neutralize certain adverse federal income tax consequences. The question of whether such a gross up is allowed, the resolution of which can have drastic effects on litigants, has received almost no attention from practitioners, judges, and academics. Because of the potentially enormous impact of the alternative minimum tax (AMT) on discrimination lawsuit recoveries, however, the gross up issue is now beginning to appear in reported cases.

The three principal federal anti-discrimination statutes - Title VII, the …

Whose Motive Matters? Discrimination In Multi-Actor Employment Decision Making, Rebecca H. White, Linda Hamilton Krieger

Scholarly Works

The search for a discriminatory motive in disparate treatment cases often is envisioned as an attempt to determine whether a supervisor, despite his denials, consciously acted out of bias, animus or on the basis of “inaccurate and stigmatizing stereotypes” in making an employment decision. Framing the search for discriminatory motive is this way, however, cannot prove fully effective in eliminating discrimination, as individuals may be unaware of their own biases or the influences those biases have had on their own decision making.

The reality of decision making in the employment area, moreover, is that multiple individuals are often involved in …

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

Scholarly Works

In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

De Minimis Discrimination, Rebecca H. White

Scholarly Works

Is there any basis for a de minimis exception to our employment discrimination laws? This Article suggests a way of analyzing the issue of de minimis discrimination that comports with the language of and policies underlying Title VII and also with judicially developed disparate treatment theory. It approaches this project from a normative and doctrinal, not a deontological, perspective. Congress has enacted laws prohibiting discrimination in employment, and the appropriate question, in the first instance, is how those statutes should best be interpreted. Although the focus is on Title VII, the analysis undertaken here may be usefully applied to other …

Employment Discrimination And Presidential Immunity Cases, Eileen Kaufman

Scholarly Works

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman

Scholarly Works

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law, 1993-1994 Term), Eileen Kaufman

Scholarly Works

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Scholarly Works

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman

Scholarly Works

No abstract provided.

Fairness And Finality: Third-Party Challenges To Employment Discrimination Consent Decrees After The 1991 Civil Rights Act, Marjorie A. Silver

Scholarly Works

In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decreea The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to Martin as embodied in Section 108. Professor Silver also suggests ways in which Section 108 should be administered to comply with the Due Process Clause and argues for specific additional federal legislation to protect non-litigants or potential third-party challengers as well as to foster the utility and finality of legitimate …

After The Fall: The Employer's Duty To Accommodate Employee Religious Practices Under Title Vii After Ansonia Board Of Education V. Philbrook, Peter Zablotsky

Scholarly Works

No abstract provided.

Civil Rights--Federal Jurisdiction--Exhaustion Of Adequate And Appropriate State Administrative Remedies Is A Prerequisite For Judicial Review Under Section 1983, Camilla E. Watson

Scholarly Works

Georgia Patsy, a white female secretary, brought a civil rights action under section 1983 of title 42 of the United States Code against Florida International University in the United States District Court for the Southern District of Florida, alleging employment discrimination in violation of the Constitution and laws of the United States. The district court dismissed the action for failure to exhaust state administrative remedies. The Court of Appeals for the Fifth Circuit reversed on the ground that failure to allege exhaustion of state remedies did not preclude a section 1983 cause of action. On rehearing en banc, the court …

Cost Allocation In Title Vii Remedies: Who Pays For Past Employment Discrimination, Fran Ansley

Scholarly Works

No abstract provided.