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2009

Employment discrimination

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Articles 1 - 30 of 30

Full-Text Articles in Law

Protecting Workers From Genetic Discrimination, Karen H. Rothenberg Dec 2009

Protecting Workers From Genetic Discrimination, Karen H. Rothenberg

Karen H. Rothenberg

No abstract provided.


Employment Law - Antidiscrimination - Heading Toward Federal Protection For Sexual Orientation Discrimination?, Matthew Barker Oct 2009

Employment Law - Antidiscrimination - Heading Toward Federal Protection For Sexual Orientation Discrimination?, Matthew Barker

University of Arkansas at Little Rock Law Review

No abstract provided.


Theorizing Class, Gender, And The Law: Three Approaches, Angela P. Harris Oct 2009

Theorizing Class, Gender, And The Law: Three Approaches, Angela P. Harris

Law and Contemporary Problems

No abstract provided.


Race, Economic Class, And Employment Opportunity, Trina Jones Oct 2009

Race, Economic Class, And Employment Opportunity, Trina Jones

Law and Contemporary Problems

No abstract provided.


True To The Fable?: Examining The Appropriate Reach Of Cat's Paw Liability, Emily M. Kepner Sep 2009

True To The Fable?: Examining The Appropriate Reach Of Cat's Paw Liability, Emily M. Kepner

Seventh Circuit Review

In its recent decision in Staub v. Proctor Hospital, the Seventh Circuit clarified its approach to the colorfully named "cat's paw" theory of employment discrimination. The cat's paw doctrine holds employers vicariously liable when an employee involved in the decisionmaking process, other than the non-biased formal decisionmaker, possessed discriminatory intent. Currently, the circuits disagree about how much control the biased employee must possess over the decisionmaker to impose liability on the employer. In Staub, the Seventh Circuit held that liability should be imposed only when the biased employee possessed "singular influence" over the formal decisionmaker, aligning the court …


How Many Plaintiffs Are Enough? Venue In Title Vii Class Actions, Piper Hoffman Jul 2009

How Many Plaintiffs Are Enough? Venue In Title Vii Class Actions, Piper Hoffman

University of Michigan Journal of Law Reform

This Article critiques the recent rash of federal district court opinions holding that all named plaintiffs in a class action lawsuit alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must satisfy the venue requirements in the court where they filed the action. Neither the text nor the history of Title VII requires this prevailing interpretation; to the contrary, requiring every named plaintiff to satisfy venue requirements in the same court undermines the legislative purpose behind both Title VII and Federal Rule of Civil Procedure 23 by creating a new obstacle to employees seeking to enforce …


Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard Jul 2009

Excluding Unfit Workers: Social Control Versus Social Justice In The Age Of Economic Reform, David E. Bernstein, Thomas C. Leonard

Law and Contemporary Problems

No abstract provided.


Transfer As An Accommodation: Standards From Discrimination Cases And Theory, Stacy A. Hickox Feb 2009

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 …


The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko Jan 2009

The Antidiscrimination Paradox: Why Sex Before Race?, Kimberly A. Yuracko

Faculty Working Papers

This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory—the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. …


Artfully Discriminating: How Hall V. Nalco Co. Applies Title Vii To Adverse Employment Actions Based On Assisted Reproduction Technologies, Patrick F. Madden Jan 2009

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.


Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab Jan 2009

Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?, Kevin M. Clermont, Stewart J. Schwab

Cornell Law Faculty Publications

This Article utilizes the Administrative Office's data to convey the realities of federal employment discrimination litigation. Litigants in these "jobs" cases appeal more often than other litigants, with the defendants doing far better on those appeals than the plaintiffs. These troublesome facts help explain why today fewer plaintiffs are undertaking the frustrating route into federal district court, where plaintiffs must pursue their claims relatively often all the way through trial and where at both pretrial and trial these plaintiffs lose unusually often.


In The Wake Of Ledbetter V. Goodyear Tire & Rubber Company: Applying The Discovery Rule To Determine The Start Of The Limitations Period For Pay Discrimination Claims, Nancy Zisk Jan 2009

In The Wake Of Ledbetter V. Goodyear Tire & Rubber Company: Applying The Discovery Rule To Determine The Start Of The Limitations Period For Pay Discrimination Claims, Nancy Zisk

Duke Journal of Gender Law & Policy

"14 These laws include Title VII of the Civil Rights Act of 1964,15 Section 1981 of the Civil War Reconstruction statutes,16 the Age Discrimination in Employment Act of 1967 (ADEA),17 the Equal Pay Act (EPA),18 and the Americans with Disabilities Act of 1990 (ADA).19 While the statutes define different types of discrimination, each addresses discrimination in employment and defines a limitations period in which an employee can bring a claim.20 With Title VII defining the "paradigm," the first step in determining whether a claim is timely under any statute is determining when the discriminatory act takes place.21 To do that, …


The Bfoq Defense: Title Vii’S Concession To Gender Discrimination, Katie Manley Jan 2009

The Bfoq Defense: Title Vii’S Concession To Gender Discrimination, Katie Manley

Duke Journal of Gender Law & Policy

Should the BFOQ exception still exist? Because permitting discrimination under Title VII seems fundamentally contrary to the anti-discrimination purpose of the statute, this article questions whether the BFOQ defense is consistent with the aims of Title VII or whether, in actuality, the defense undermines the Act's effectiveness by providing a loophole for employers to participate in the discriminatory practices Title VII seeks to forbid.


A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda Jan 2009

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Fordham Law Review

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …


The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout Jan 2009

The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout

Faculty Working Papers

In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen's consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers' language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current …


The New Sex Discrimination: Family Responsibilities, Cynthia Thomas Calvert Jan 2009

The New Sex Discrimination: Family Responsibilities, Cynthia Thomas Calvert

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Lifting The Floor: Sex, Class, And Education, Naomi R. Cahn, June Carbone Jan 2009

Lifting The Floor: Sex, Class, And Education, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This paper was written for a conference on third wave feminism. Third wave feminism recognizes the importance of "raising the floor," and this paper - from two second wave feminists - helps in developing an agenda for achieving that goal. After a brief exploration of two different models that we label "red families" and "blue families," this paper makes two critical points: first, it correlates the different models to the varying approaches to parental leave laws; and second, it expands our discussion of women and care beyond the workplace and child care, exploring what contributes to women's ability to care …


A Disability By Any Other Name Is Still A Disability: Log Cabin, The Disability Spectrum, And The Ada (Aa), Gabrielle L. Goodwin Jan 2009

A Disability By Any Other Name Is Still A Disability: Log Cabin, The Disability Spectrum, And The Ada (Aa), Gabrielle L. Goodwin

Articles by Maurer Faculty

In EEOC v. Lee's Log Cabin, the Seventh Circuit followed the Supreme Court precedent of the last decade that has increasingly narrowed the determination of what constitutes a disabled individual under the Americans with Disabilities Act. In 2008, Congress passed the ADA Amendments Act in an attempt to restore the ADA to its original purpose and the original vision of the ADA's drafters and supporters. Whether these amendments will produce dramatic changes in the way the administrative agencies and courts apply the ADA remains to be seen. Nonetheless, the only way the ADA or its amendments will successfully protect against …


The Courts Under President Obama, Scott A. Moss Jan 2009

The Courts Under President Obama, Scott A. Moss

Publications

No abstract provided.


If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss Jan 2009

If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss

Publications

No abstract provided.


A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda Jan 2009

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

Publications

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …


Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart Jan 2009

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …


Class Dismissed: Equal Protection, The "Class-Of-One," And Employment Discrimination After Engquist V. Oregon Department Of Agriculture, Matthew M. Morrison Jan 2009

Class Dismissed: Equal Protection, The "Class-Of-One," And Employment Discrimination After Engquist V. Oregon Department Of Agriculture, Matthew M. Morrison

University of Colorado Law Review

This Note examines whether government employees should be able to assert so-called "class-of-one" claims against public employers under the Fourteenth Amendment's Equal Protection Clause. Traditional equal protection claims allege that the government has impermissibly singled out the plaintiff for disparate treatment on account of his or her race, gender, or some other trait shared with a larger class of individuals. Such claims reflect the traditional understanding of the Equal Protection Clause as a prohibition on discriminatory group classifications. Class-of-one claims, however, merely allege that the plaintiff was intentionally singled out from other similarly situated individuals and subjected to unequal treatment …


Evaluating Policy Solutions To Sex-Based Pay Discrimination: Women Workers, Lawmakers, And Cultural Change, Vicky Lovell Jan 2009

Evaluating Policy Solutions To Sex-Based Pay Discrimination: Women Workers, Lawmakers, And Cultural Change, Vicky Lovell

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Opening The Doors To The Local Courthouse: Maryland’S New Private Right Of Action For Employment Discrimination, Deborah Thompson Eisenberg Jan 2009

Opening The Doors To The Local Courthouse: Maryland’S New Private Right Of Action For Employment Discrimination, Deborah Thompson Eisenberg

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


Reproducing Gender On Law School Faculties, Ann C. Mcginley Jan 2009

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 …


Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux Jan 2009

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

Publications

Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …


Lashing Back At The Ada Backlash: How The Americans With Disabilities Act Benefits Americans Without Disabilities, Michelle A. Travis Dec 2008

Lashing Back At The Ada Backlash: How The Americans With Disabilities Act Benefits Americans Without Disabilities, Michelle A. Travis

Michelle A. Travis

This Article applies Professor Derrick Bell's interest convergence hypothesis to the disability context. By identifying how the ADA benefits nondisabled workers, this Article challenges the notion that advancing equality for individuals with disabilities necessarily comes at the expense of the nondisabled workforce. Many scholars have documented the socio-legal backlash against the ADA, particularly the ADA's reasonable accommodation mandate. This backlash is fueled in part by a belief that the ADA is a form of social welfare, rather than an antidiscrimination law, and that the accommodation mandate requires affirmative action or preferential treatment, rather than merely ensuring equal employment opportunities. More …


The Trouble With Twombly: A Proposed Pleading Standard For Employment Discrimination Cases, Joseph A. Seiner Dec 2008

The Trouble With Twombly: A Proposed Pleading Standard For Employment Discrimination Cases, Joseph A. Seiner

Joseph A. Seiner

Amorphous. This is how the Supreme Court’s recent pleading paradigm has been appropriately described. In Bell Atlantic Corp. v. Twombly, the Supreme Court abandoned the well-known pleading standard it had adopted fifty years earlier in Conley v. Gibson that a complaint should be dismissed only where there is no set of facts that could entitle the plaintiff to relief. In its place, the Court adopted a new rule that the pleadings must set forth sufficient facts to state a plausible claim. Though Twombly arose in the context of an antitrust case, its holding has already been extended by the lower …


The Pda's Causation Effect: Observations Of An Unreasonable Woman, Michelle A. Travis Dec 2008

The Pda's Causation Effect: Observations Of An Unreasonable Woman, Michelle A. Travis

Michelle A. Travis

While many scholars rightfully have critiqued the Pregnancy Discrimination Act (“PDA”) as falling short of achieving the ultimate goal of equal employment opportunities for women, this Article reveals one of the PDA’s most important successes. By recognizing pregnant women as a “given” in the workplace, the PDA launched a quiet revolution in the way that judges make causal attributions for adverse employment outcomes. Specifically, the PDA provided judges with the conceptual tools that were needed to help shift causal attributions to an employer, rather than attributing a pregnant woman’s struggles in the workplace to her own decision to become a …