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Full-Text Articles in Law
Reality’S Bite, Kerri Lynn Stone
Reality’S Bite, Kerri Lynn Stone
Faculty Publications
The realities of the workplace have been captured by years of socio-scientific, industrial organizational, and other psychological research. Human behavior and thought, interpersonal dynamics, and organizational behavior, with all of their nuances and fine points, are now better understood than they have ever been before, but unless they are used to inform and buttress the rules of law and interpretations promulgated by courts, Title VII’s ability to successfully regulate the workplace to rid it of discrimination will be threatened. This article expands upon that premise, lamenting judges, and specifically justices having eschewed available research and other insights into workplace realities, …
Lessons From The Dolphins/Richie Incognito Saga, Kerri Lynn Stone
Lessons From The Dolphins/Richie Incognito Saga, Kerri Lynn Stone
Faculty Publications
No abstract provided.
Decoding Civility, Kerri Lynn Stone
Decoding Civility, Kerri Lynn Stone
Faculty Publications
If women outnumber men in graduate schools and are entering professional and other workplaces in unprecedented numbers, and if Title VII has aimed to eradicate workplace discrimination for almost fifty years, why are women still so woefully underrepresented at the highest levels of power, leadership, wealth, and prestige in the contemporary workplace? This Article is about abusive speech in the workplace. It explores how the expression of bias in the workplace has evolved and been shaped by anti-discrimination legislation and jurisprudence. It identifies a category of biased speech that eludes prosecution under Title VII. Moreover, this Article seeks to provide …
Teaching The Post-Sex Generation, Kerri Lynn Stone
Teaching The Post-Sex Generation, Kerri Lynn Stone
Faculty Publications
There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …
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 …
Clarifying Stereotyping, Kerri Lynn Stone
Clarifying Stereotyping, Kerri Lynn Stone
Faculty Publications
This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It …
Shortcuts In Employment Discrimination Law, Kerri Lynn Stone
Shortcuts In Employment Discrimination Law, Kerri Lynn Stone
Faculty Publications
Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …
From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone
From Queen Bees And Wannabes To Worker Bees: Why Gender Considerations Should Inform The Emerging Law Of Workplace Bullying, Kerri Lynn Stone
Faculty Publications
This Article submits that the documented phenomenon of workplace bullying operates to stymie the retention and advancement of women in the workplace Research documented in books like Queen Bees and Wannabes shows that as early as the schoolyard, males and females tend to socialize differently, engage in and resolve conflict with peers differently, and absorb bullying behavior differently. Girls often believe or are taught to believe that direct conflict or confrontation is unpalatable and tend to employ more passive aggressive means of engagement with foes. They often internalize and repress feelings that boys are more likely to express. Viewing the …
Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone
Ricci Glitch? The Unexpected Appearance Of Transferred Intent In Title Vii, Kerri Lynn Stone
Faculty Publications
In the case of Ricci v. DeStefano, the Supreme Court officially opened the door to what this Article identifies as a theory of “transferred intent” jurisprudence under Title VII. The principle of transferred intent, borrowed from tort and criminal law, has never before been seen as factoring into Title VII antidiscrimination jurisprudence. In Ricci, the Supreme Court assumed that a city’s refusal to promote firefighters qualifying for promotion based on exams that appeared to disproportionately screen out members of minority groups amounted to deliberate discrimination, irrespective of their individual races or whether their individual races were actually taken into account. …