Law Commons^™

Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman

Eileen Kaufman

In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There was an …

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

Social Framework Studies Such As “Women Don’T Ask” And “It Does Hurt To Ask” Show Us The Next Step Toward Achieving Gender Equality—Eliminating The Long Term Effects Of Implicit Bias—But Are Not Likely To Get Cases Past Summary Judgment, Andrea Doneff

Andrea Doneff

Social Framework evidence has been used for many years to explain how statements or actions indicate discriminatory motive. For example, social framework evidence helps us understand how statements that a woman should dress more femininely or attend charm school near the time of a decision not to offer her partnership demonstrate stereotyped behavior and therefore indicate discriminatory motives for the employment decision. Recent social framework studies show that women often do not negotiate on their own behalf and, when they do, they are perceived negatively by both men and women. Complementary studies show that negative perceptions play out over the …

The Gay Accent, Gender, And Title Vii Employment Discrimination, Ryan Castle

Seattle University Law Review

While race, religion, ethnicity, and sex will always remain salient social issues in our nation, sexual orientation is currently at the forefront of our national debate and will likely not abate in the foreseeable future. Federal courts, for example, struggle in differentiating sex, gender, and sexuality when adjudicating Title VII employment discrimination claims. Because Title VII does not protect employees from sexual orientation-based discrimination, plaintiffs who are or are perceived to be of a sexual minority have difficulty proving a valid sex-based discrimination claim in federal court. This difficulty arises because one cannot perceive sex, gender, and sexuality without muddling …

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

More Hair-Raising Decisions, And How Professor Wendy Greene Combs Through Their Flaws, Angela Onwuachi-Willig

Faculty Scholarship

If you are looking for an interesting and timely employment discrimination article to read, please consider Black Women Can’t Have Blonde Hair . . . in the Workplace, by Professor Wendy Greene of Cumberland, Samford University, School of Law. In that article, Professor Greene builds upon the work that she began in her article Title VII: What’s Hair (and Other Race Based Characteristics) Got to Do With It¹ where she argued that characteristics that are commonly associated with a particular racial or ethnic group should fall under Title VII’s current protected categories of race, color, and national origin. …

An Unreasonable Application Of A Reasonable Standard: Title Vii And Sexual Orientation Retaliation, Jorden Colalella

Indiana Journal of Law and Social Equality

No abstract provided.

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Snopa And The Ppa: Do You Know What It Means For You? If Snopa (Social Networking Online Protection Act) Or Ppa (Password Protection Act) Do Not Pass, The Snooping Could Cause You Trouble, Angela Goodrum

Angela Goodrum

No abstract provided.

Bundy V. Jackson: Eliminating The Need To Prove Tangible Economic Job Loss In Sexual Harassment Claims Brought Under Title Vii, Terence J. Bouressa

Pepperdine Law Review

In the case of Bundy v. Jackson, the federal appellate court eliminated the need to prove tangible job loss in claims under Title VII relating to sexual harassment. The holding in Bundy thus promotes the viability of sexual harassment claims under Title VII and deters employers from engaging in subtle sexual harassment as "part of the job." The decision provides a model for the nation to follow in the pursuit of the worthy goal of eliminating sexual harassment in the workplace.

Beyond Mcdonnell Douglas, Sandra F. Sperino

Faculty Articles and Other Publications

Since 1973, the McDonnell Douglas framework has been a key analytical structure in employment discrimination law. Academic debate regarding the framework has alternately sounded its death knell, posited its irrelevance, or asserted its continued vitality. What has gone unnoticed in this discussion is the gradual weakening of the framework over the past two decades. Rather than casting this test into oblivion, courts are slowly chipping away at its preeminent place as a proof structure.

Little by little, courts are gradually eroding the McDonnell Douglas test's power through both procedural and substantive means. Procedurally, courts have questioned, rejected or diminished the …

Revitalizing State Employment Discrimination Law, Sandra F. Sperino

Faculty Articles and Other Publications

Over the past few decades, federal discrimination law has become captive to an increasingly complex web of analytical frameworks. The courts have been unable to articulate a consistent causation or intent standard for federal law or to provide a uniform account of the type of injury the plaintiff is required to suffer. Part of this failure is demonstrated in the ever-increasing rift between how courts construct the discrimination inquiry for federal age discrimination claims and claims based on other traits, such as sex and race.

Unfortunately, the courts are unnecessarily taking state employment discrimination claims into this federal morass. When …

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 …

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Brief For Prof. Leslie C. Griffin As Amica Curiae In Support Of Appellant, Kant V. Lexington Theological Seminary, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

“Only Procedural”: Oughts On The Substantive Law Dimensions Of Preliminary Procedural Decisions In Employment Discrimination Cases, Elizabeth M. Schneider, Hon. Nancy Gertner

NYLS Law Review

No abstract provided.

After Dothard: Female Correctional Workers And The Challenge To Employment Law, Brenda V. Smith, Melisa C. Loomis

Project on Addressing Prison Rape - Articles

This article examines a profession where women have made great strides—corrections. Using an equality framework, corrections and other non-traditional professions were the first targets of the feminist movement in the 1970s. By and large, feminists were successful in creating greater porosity for women in law enforcement, emergency services, corrections, and the military. While women have entered these traditionally masculine spaces, they still suffer from an achievement gap. They are still underrepresented in leadership positions and marginalized in these settings; are still the targets of discrimination based on race, gender, and perceived sexual orientation; and are less likely than men to …

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

All Faculty Scholarship

Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

NYLS Law Review

No abstract provided.

Essay:1 From The “No Spittin’, No Cussin’ And No Summary Judgment”2 Days Of Employment Discrimination Litigation To The “Defendant’S Summary Judgment A Rmed Without Comment” Days: One Judge’S Four-Decade Perspective, Hon. Mark W. Bennett

NYLS Law Review

No abstract provided.

Stopped At The Starting Gate: E Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

NYLS Law Review

No abstract provided.

Rescuing The Union Grievance From The Shoals Of Garcetti: A Call For The Return To Reason In Public Workplace Speech Jurisprudence, Eric Marshall

NYLS Law Review

No abstract provided.

Bringing Back Reasonable Inferences: A Short, Simple Suggestion For Addressing Some Problems At The Intersection Of Employment Discrimination And Summary Judgment, Hon. Bernice B. Donald, J. Eric Pardue

NYLS Law Review

No abstract provided.

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

NYLS Law Review

No abstract provided.

Who's The Boss? A Distinction Without A Difference, Lakisha A. Davis

Barry Law Review

This case note provides the factual background of Vance v. Ball State and briefly summarizes the legal precedent behind the decision. It analyzes the opinion of the Court, suggesting that the decision severely limited the essential protections against workplace harassment provided by Title VII, consequently making it more difficult for employees to prove employer vicarious liability for workplace harassment.

Masculine Law Firms, Ann C. Mcginley

Scholarly Works

This article describes the masculine culture in law firms and analyzes how this culture harms both men and women because of their gender. Part II explains MMT, and analyzes the masculine practices that exist in modern law firms. Part III studies a lawsuit brought by a law firm associate, a white male father of two who allegedly was fired in retaliation for taking leave under the Family Medical Leave Act and because of his failure to adhere to the macho stereotypes prevalent in the law firm. Part IV analyzes how the law should respond to masculine norms, and suggests that …

Discrimination Statutes, The Common Law, And Proximate Cause, Sandra F. Sperino

Faculty Articles and Other Publications

The Supreme Court has recently hinted that courts should use proximate cause in Title VII cases. This Article anticipates future judicial forays into this area and argues that proximate cause principles should not be imported into federal discrimination law. This inquiry dovetails into a broader conversation about the proper role of proximate cause in federal statutes, a subject which has produced a fractured jurisprudence.

Courts and commentators have often indicated that employment discrimination law is a tort. While this statement may be true, it is too general to provide guidance on whether to apply proximate cause. It ignores that both …