Law Commons^™

Does Ricci Herald A New Disparate Impact?, Joseph Seiner, Benjamin N. Gutman

Faculty Publications

Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court's recent decision in Ricci v. DeStefano may signal a sea change for this disparate impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion also can be read to suggest a new affirmative defense for employers facing claims of disparate impact. Before Ricci, disparate impact was a purely no-fault doctrine. An employer was …

Turning Title Vii's Protection Against Retaliation Into A Never-Fulfilled Promise, Jessica L. Beeler

Golden Gate University Law Review

Part I also explains the varied standards that were previously used when deciding what constitutes an adverse employer action and how the Supreme Court's recent decision in Burlington Northern resolved a split among the circuits. In Burlington Northern, the Supreme Court adopted a deterrence test to define adverse employer actions, which means the employer action must be harmful to the point that it would deter a reasonable employee of complaining of discrimination. Part II analyzes the actual effects of this decision, focusing in particular on DeHart. It shows how DeHart misapplied the deterrence standard by focusing on whether the employer …

When Does Discrimination "Occur?": The Supreme Court's Limitation On An Employee's Ability To Challenge Discriminatory Pay Under Title Vii, Kara M. Farina

Golden Gate University Law Review

This Comment contends that the Court's holding in Ledbetter marks a substantial deviation from the purpose of Title VII - to rectify past and prevent future workplace discrimination and provide a remedy for economically injured employees-and thereby weakens the prohibition against discrimination in the workplace. The Court's failure to consider the hidden nature of discriminatory pay claims significantly limits employees' ability to challenge disparate pay under Title VII. This comment asserts that discrimination "occurs" with each paycheck that delivers discriminatorily low pay.

Making-Up Conditions Of Employment: The Unequal Burdens Test As A Flawed Mode Of Analysis In Jespersen V. Harrah's Operating Co., Megan Kelly

Golden Gate University Law Review

Part I of this Note reviews Title VII and foundational caselaw, including cases regarding sex discrimination and appearance standards. Part II examines the Ninth Circuit's Jespersen opinion. Part III compares the Supreme Court decision in Price Waterhouse v. Hopkins, which expanded Title VII protection to include gender stereotyping, with the Jespersen holding. Part III also explores a Seventh Circuit case, Carroll v. Talman Federal Savings and Loan Association of Chicago, and Judge Thomas's dissent in Jespersen, which both argue for inclusion of less tangible factors such as gender stereotyping in the unequal burdens test. Part III finally contends that the …

The Gross Beast Of Burden Of Proof: Experimental Evidence On How The Burden Of Proof Influences Employment Discrimination Case Outcomes, David Sherwyn, Michael Heise

Cornell Law Faculty Publications

Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and retaliation cases. The decision prompted an outcry from the plaintiffs' bar and Congress has proposed legislation to overturn Gross. Despite the outcry, a simple question persists: Does the motivating factor jury instruction influence case outcomes? Results from our experimental mock jury study suggest that such jury instructions …

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.

Customizing The Reasonable-Woman Standard To Fit Emotionally And Financially Disabled Plaintiffs Is Outside The Scope Of The Civil Rights Act's Prohibition On Sex-Based Discrimination: Holly D. V. California Institute Of Technology, Amanda M. Jarratt

Golden Gate University Law Review

Tailoring the reasonable-woman standard to include select disabilities is problematic because employer liability would improperly depend upon the effect that the victim's disability had on the victim's perception, instead of on the agency relationship between the supervisor and the employer. Furthermore, these subjective standards would prevent employers from successfully invoking the reasonable care defense. Using these tailored standards would also result in discriminatory treatment under the law for women who did not qualify for one of these customized standards. Finally, customized standards would sterilize American workplaces. In support of this Comment's assertions against factoring the emotional and financial difficulties of …

Expert Testimony And "Subtle Discrimination" In The Workplace: Do We Now Need A Weatherman To Know Which Way The Wind Blows?, Deborah Dyson

Golden Gate University Law Review

This Comment studies Elsayed in order to investigate these questions. The Background discussion traces the two great lines of cases whose trajectories cross in Elsayed, the Daubert v. Merrell Dow expert testimony jurisprudence under the Federal Rules of Evidence and the McDonnell Douglas v. Green line of cases establishing the "pretext" model of proof for individual employment discrimination claims under Title VII of the 1964 Civil Rights Act. Then, turning to the opinion proper, the Analysis considers Elsayed under the following headings: (A) The Crux: The Court's Harmless-Error Determination, (B) Decoding in the Pretext Context, (C) Substituting the Mixed-Motives Regime …

Employment Discrimination - Gotthardt V. National Railroad Passenger Corp, Jennifer T. Dewitt

Golden Gate University Law Review

In Gotthardt v. National Railroad Passenger Corp. the United States Court of Appeals for the Ninth Circuit held that front pay awards in Title VII cases are not subject to the compensatory damages caps stated in 42 U.S.C. § 1981a (b)(3). This was an issue of first impression in the Ninth Circuit. Other circuits had decided the issue and were split. The Ninth Circuit joined the majority of the federal circuits in holding that front pay awards are not subject to the section 1981a caps.

Eastern Men, Western Women: Coping With The Effects Of Japanese Culture In The United States Workplace, Becky Kukuk

Golden Gate University Law Review

This article examines the kaigaitenkinsha's effects on women employees in the U.S. workplace and recommends solutions to mitigate their potentially discriminatory impact. Part II, Section A, surveys the kinds of sex discrimination that women encountered at Japanese companies aside from those alleged at Mitsubishi. Section B reviews U.S. equal employment opportunity laws to provide a framework from which to understand U.S. women's employment rights and to compare the Japanese employment laws outlined in the next section. Section C seeks to explain why the kaigaitenkinsha discriminate against women by reviewing the history of women's employment in Japan and Japan's equal employment …

Considering Hybrid Sex And Age Discrimination Claims By Women: Examining Approaches To Pleading And Analysis - A Pragmatic Model, Sabina F. Crocette

Golden Gate University Law Review

This Comment examines two ways in which the legal system does not adequately consider older women's claims of discrimination. The issues are presented in two conceptual groupings. The first grouping discusses how barriers to the recognition of hybrid age and sex discrimination claims are created when courts do not analyze the evidence of discrimination together as evidence of discrimination against "older women." Often, courts analyze hybrid claims of age and sex discrimination separately under Title VII and the ADEA, even when the evidence of discrimination points to a hybrid claim involving discrimination directed at a subset of a protected group, …

Employer Discrimination On The Basis Of Pregnancy: Righting The Power Imbalance, Victoria R. Riede

Golden Gate University Law Review

First, this comment will examine the problems with the position-elimination defense as illustrated by Smith v. F. W. Morse & Co. Since some reorganization is necessary when an employee takes leave, allowing an employer to offer this reorganization effort as evidence of non-discriminatory intent creates a gap in Title VII protections. Next, the author will compare existing American federal family leave laws and European leave laws. The comment will then use California's landlord-tenant law as a prototype for proposing an amendment to existing maternity leave law that remedies the power distribution between dominant and subordinate individuals in a legal relationship.

Employment Law - The Limits Of Deference: The Ninth Circuit Rejects Eeoc Guidelines On English-Only Rules In The Workplace - Garcia V. Spun Steak, Dan Cooperider, Stephen Wiss

Golden Gate University Law Review

This comment will show that the court's holding in Spun Steak, while consistent with Congressional intent and prior judicial policy, failed to provide the most compelling reason for rejecting the EEOC guideline, namely that the guideline violates both judicial policy and the plain language of the Civil Rights Act of 1991, both of which require a plaintiff to establish a prima facie case. This comment will then show that the court's decision in Spun Steak failed to provide the necessary guidance to lower courts. Finally, this comment will show that by adopting an alternative approach that classifies English-only rules as …

Cassista V. Community Foods, Inc.: Drawing The Line At Obesity?, Kimberly B. Dunworth

Golden Gate University Law Review

This Note will discuss the background of the Fair Employment and Housing Act, and give a brief overview of the federal statutes upon which the FEHA is modeled, the policy of the FEHA, and obesity discrimination. The overview will be followed by an analysis of the California Supreme Court's application of the law to the facts in Cassista, and a critique of the court's reasoning.

Defining The Parameters Of Permissible State And Local Affirmative Action Programs, Janice R. Franke

Golden Gate University Law Review

In the 1989 case of Richmond v. Croson, the United States Supreme Court issued a decision which has had a tremendous impact on subsequent judicial evaluations of other public sector affirmative action efforts, and hence also on the adoption and structuring of state and local affirmative action programs. One significant factor about the Croson decision was that it was the first time a majority of the Court set strict scrutiny as the standard of review for assessing the constitutionality of state and local race-based affirmative action endeavors. Despite this agreement as to the proper standard of review, however, there was …

Legal Redress For Disability Discrimination: Bob, Carol, Ted And Alice Encounter Aids, Penn Lerblance

Golden Gate University Law Review

This article proposes to explore this compelling question. Disability discrimination, a relatively new area of civil rights protection, is a concern not only to people with disabilities, who are estimated at about 35 million in the United States, but to a majority of employers, businesses providing services and goods to the public, and governmental entities. This article will focus on Acquired Immune Deficiency Syndrome (AIDS) and Human Immunodeficiency Virus (HIV) disease as a concrete example of disability discrimination. This survey of legal remedies will proceed by considering hypothetical and actual cases to appreciate how the remedies operate in practical situations. …

Civil Rights - Evolution Of The Hostile Workplace Claim Under Title Vii: Only Sensitive Men Need Apply, Sheryl Hahn

Golden Gate University Law Review

No abstract provided.

Patterson V. Mclean Credit Union: Racial Discrimination By Private Actors And Racial Harassment Under Section 1981, Helen J. Moore

Golden Gate University Law Review

This Note argues that had the Patterson Court considered the evidence of congressional intent and concern in its interpretation of section 1981, and had it placed more weight on policy considerations, it would have held that section 1981 prohibits racial harassment. The Note shows that, as decided, the Patterson decision will leave many victims of contractual racial harassment with an inadequate remedy, or with no remedy at all, because the closest alternative to section 1981, Title VII of the Civil Rights Act of 1964, is much less effective than section 1981, and because Patterson's narrow construction of section 1981 deters …

Employment Discrimination Summary, Tatiana Roodkowsky

Golden Gate University Law Review

No abstract provided.

Employment Discrimination, Donald A. Tine

Golden Gate University Law Review

No abstract provided.

Survey: Women And California Law, Alan Black, Katherine Hardy

Golden Gate University Law Review

This survey of California law, a regular feature of the Women's Law Forum, summarizes recent California Supreme Court and Court of Appeal decisions of special importance to women. A brief analysis of the issues pertinent to women raised in each case is provided.

General Telephone Company Of The Southwest V. Falcon: Rule 23'S Application To Title Vii, Walter Cook

Golden Gate University Law Review

Currently, under the Federal Rules of Civil Procedure, courts are not required to include findings of fact and conclusions of law in orders granting or denying class certification. Because of the complex nature of the law and facts involved in class suits, this note will also suggest a requirement, possibly through amendment of the Federal Rules of Civil Procedure, that such orders make explicit, through written findings and conclusions, the factors taken into account in the court's decision. Such a requirement would aid the courts in properly applying Rule 23 to Title VII. Moreover, written findings of fact and conclusions …

Constitutional Law, Jeff Kirk, Robert E. Kroll, James D. Fisher, Jacqueline Martinez

Golden Gate University Law Review

No abstract provided.

Homophobia, "Manifest Homosexuals" And Political Activity: A New Approach To Gay Rights And The "Issue" Of Homosexuality, Douglas Warner

Golden Gate University Law Review

This Comment will survey the popular and largely unsupportable beliefs about homosexuality, which result in the societal oppression of gay people. The law's reflection of this cultural homophobia has been instrumental in that oppression. In light of the homophobia in society and its consequences in the law, the GLSA court's approach was necessary, its results consistent with contemporary knowledge and with fundamental principles of a just society. The purpose of this Comment is to demonstrate why that is so and to speculate on the decision's implications for the gay rights movement, for gay people, and not least of all, for …

Remedies For Sex-Discriminatory Health And Safety Conditions In Male-Dominated Industrial Jobs, Ellen Shapiro

Golden Gate University Law Review

No abstract provided.

The 'Offer Of Judgment' Rule In Employment Discrimination Actions: A Fundamental Incompatibility, Maureen Malvern

Golden Gate University Law Review

No abstract provided.

Davis V. Los Angeles: Plaintiff's Burden Of Proof Under Section 1981, Patrick J. Coughlin, Martin J. Elmer

Golden Gate University Law Review

No abstract provided.

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of “sexual orientation” is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

Closing The Gap Legislatively: Consequences Of The Lilly Ledbetter Fair Pay Act, Carolyn E. Sorock

Chicago-Kent Law Review

With the Lilly Ledbetter Fair Pay Act of 2009, Congress both reversed the result of the widely criticized Ledbetter Supreme Court case and expanded the statute of limitations for all employment discrimination claims relating to compensation. Under the Act, a compensation-based employment discrimination claim's statute of limitations period of three hundred days begins to run whenever an employee is "affected" by a discriminatory practice. The language of the Act is far-reaching, but just five months after the Act was signed into law, the Supreme Court stepped in again to narrow the Act's application to pension benefits in AT&T Corp. v. …