Law Commons^™

No Country For Old Men?: The Non-Preclusive Effect Of The Age Discrimination In Employment Act On § 1983 Age Discrimination Claims, Lauren Tauro

St. John's Law Review

(Excerpt)

This Note argues that the ADEA should not be interpreted to preclude § 1983 constitutional claims for age discrimination in employment. Part I of this Note discusses the history and development of the statutory schemes that provide protection for employees against age discrimination in the workplace: § 1983 of the Civil Rights Act and the ADEA. Part II reviews relevant case law explaining the arguments for and against § 1983 preclusion to illustrate the interaction between § 1983 and the ADEA. Finally, Part III provides an equitable approach for courts to use to analyze § 1983 claims for age …

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

Michael Heise

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 do …

Life-Cycle Justice: Accommodating Just Cause And Employment At Will, Stewart J. Schwab

Stewart J Schwab

No abstract provided.

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …