Law Commons^™

Erasing Race, Llezlie Green

Articles in Law Reviews & Other Academic Journals

Low-wage workers frequently experience exploitation, including wage theft, at the intersection of their racial identities and their economic vulnerabilities. Scholars, however, rarely consider the role of wage and hwur exploitation in broader racial subordination frameworks. This Essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader antisubordination …

Summary Judgment Rates Over Time, Across Case Categories, And Across Districts: An Empirical Study Of Three Large Federal Districts, Theodore Eisenberg, Charlotte Lanvers

Cornell Law Faculty Publications

Prior research on summary judgment hypothesizes a substantial increase in summary judgment rates after a trilogy of Supreme Court cases in 1986 and a disproportionate adverse effect of summary judgment on civil rights cases. This article analyzes summary judgment rates in the Eastern District of Pennsylvania (EDPA) and the Northern District of Georgia (NDGA), for two time periods, 1980-81 and 2001-02. It also analyzes summary judgment rates for the Central District of California (CDCA) for 1980-81 and for other civil rights cases in the CDCA in 1975-76. The combined sample consists of over 5,000 cases. The three-district sample for 1980-81 …

Cultural Communities In A Global Labor Market: Immigration Restrictions As Residential Segregation, Howard F. Chang

All Faculty Scholarship

Economists recognize that nations can gain from trade through not only the free movement of goods across national boundaries but also the free movement of services, capital, and labor across national boundaries. Despite the presumption that economic theory raises in favor of international labor mobility, the nations of the world maintain restrictions on immigration and show little inclination to liberalize these barriers significantly. Michael Walzer defends immigration restrictions as policies necessary to maintain distinct cultural communities and rejects the alternative of voluntary residential segregation at the local level. I argue that we should instead prefer voluntary segregation at the local …

New International Human Rights Standards On Unauthorized Immigrant Worker Rights: Seizing An Opportunity To Pull Governments Out Of The Shadows, Beth Lyon

Working Paper Series

Governments cannot ignore international human rights standards for unauthorized migrant workers forever. This chapter presents a call for comparative work on the issue of the legal regimes affecting unauthorized immigrant workers in order to bring governments into greater awareness and compliance with their obligations to unauthorized immigrant workers.

Global illegal migration by laborers seeking economic opportunities is expanding, resulting in an increasing number of migrants in every country who are working in violation of immigration laws. Unauthorized immigrant workers are numerous enough to form a recognizable group in every major world economy, because most receiving countries have immigration laws that …

Latino Inter-Ethnic Discrimination And The "Diversity Defense", Tanya K. Hernandez

Rutgers Law School (Newark) Faculty Papers

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups will continue to be necessary but will become even more complex. The growing scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the individuated context of racial and ethnic discrimination claims. In other words, what will anti-discrimination litigation look like when all the parties involved are non-White but a racial hierarchy is alleged to exist …

Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew

Articles

Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.

This Article, however, questions the assumption that there should be …

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Employment Discrimination In A High Velocity Labor Market, Alan Hyde

Rutgers Law School (Newark) Faculty Papers

Silicon Valley employers employ few African-Americans, Latino/as, or older workers, yet do not fit the usual paradigms of employment discrimination: they exhibit no taste for uniformity and do not employ job tournaments or internal labor markets. A new model of employment discrimination attributes disparate hiring in Silicon Valley to a combination of: demands for specific skill sets at hiring (the opposite of the subjective criteria that have long beguiled scholars of discrimination) and concomitant refusal to train; hiring through networks of personal contacts; and rewards to career paths that alternate employment with self-employment. Overcoming the disparate impact of these employment …

The Americans With Disabilities Act Of 1990 - Progeny Of The Civil Rights Act Of 1964, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Vicarious And Personal Liability For Employment Discrimination, Rebecca H. White

Scholarly Works

This Article addresses the issues of vicarious and personal liability for employment discrimination as a coherent whole. Part II examines the prevailing view on an employer's vicarious liability for employment discrimination under Title VII, the ADEA, and the ADA. Part II further discusses the exception to vicarious liability that has developed in hostile work environment cases and examines the justifications advanced for that exception. My point here is not so much to debate whether such an exception should exist but to determine whether the arguments against vicarious liability in hostile work environment cases justifiably can be limited to that context. …

Proof Of Disparate Treatment Under The Age Discrimination In Employment Act: Variations On A Title Vii Theme, Mack A. Player

Scholarly Works

The Age Discrimination in Employment Act (ADEA) was enacted in 1967 and substantially amended in 1974 and 1978. Generally stated, the ADEA prohibits employer discrimination by public and private "employers" (persons having twenty or more employees), labor unions, and employment agencies. Protection against age discrimination is granted, however, only to employees and applicants between the ages of forty and seventy. It is illegal to discriminate on the basis of age against persons within the forty-to-seventy age group regardless of whether the person favored by the discrimination is within or without the protected age group or is younger or older than …

Defense Under The Age Of Discrimination In Employment Act: Misinterpretation, Misdirection, And The 1978 Amendments, Mack A. Player

Scholarly Works

The Age Discrimination in Employment Act of 1967 prohibits employers, labor organizations, and employment agencies from discriminating because of age, but it does not protect all age groups against employment discrimination. As enacted, the 1967 Act protected persons between the ages of forty and sixty-five; the amendments in April 1978 extended that protection five years to age seventy. Thus it is not illegal to discriminate against people before their fortieth or after their seventieth birthday. The Act, in its original and amended versions, contains five exceptions or "defenses" to age discrimination in employment. Only the "bona fide occupational qualification" (BFOQ), …

Racial Discrimination In Employment: Rights And Remedies, J. Ralph Beaird

Scholarly Works

Professor Beaird believes that the current multiplicity of forums available to an employee who alleges discrimination against him should be merged into one. Ideally he would like to see an administrative agency given primary jurisdiction with authority similar to that possessed by the NLRB. Until an agency is given such power, Professor Beaird suggests that the forums themselves apply collateral estoppel principles to alleviate the inequities inherent in repetitious litigation.