Law Commons^™

Beyond "Best Practices": Employment-Discrimination Law In The Neoliberal Era, Deborah Dinner

Indiana Law Journal

Why does U.S. legal culture tolerate unprecedented economic inequality even as it valorizes social equality along identity lines? This Article takes a significant step toward answering this question by examining the relationship between U.S. employment-discrimination law and neoliberalism. It shows that the rise of anti-discrimination ideals in the late twentieth century was intertwined with the de-regulation of labor and with cutbacks in the welfare state. The Article argues that even “best practices” to prevent employment discrimination are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and …

The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference.

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the …

Griggs At Midlife, Deborah A. Widiss

Articles by Maurer Faculty

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge …

Access To Counsel: Psychological Science Can Improve The Promise Of Civil Rights Enforcement, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

Employment discrimination claimants in general, and racial minority claimants in particular, disproportionately lack access to legal counsel. When employment discrimination claimants lack counsel, they typically abandon their claims, or if they pursue their claims, they do so pro se (without counsel), a strategy that is seldom successful in court. Access to counsel is, hence, a decisive component in whether employment discrimination victims realize the potential of civil rights enforcement. Psychological science analyzes access to counsel by identifying psychological barriers—such as threatened social identity, mistrust in legal authorities, and fear of repercussions—that prevent employment discrimination victims from pursuing counsel. The analysis …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Undermining Congressional Overrides: The Hydra Problem In Statutory Interpretation, Deborah Widiss

Articles by Maurer Faculty

Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations; they are essential to protect the separation of powers and the promise of legislative supremacy. But in Gross v. FBL Financial Services, the Supreme Court held that Congress’s override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the …

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 Excludability Of Employment Discrimination Awards Under Code Section 104(A)(2) After Burke V. United States And Commissioner V. Schleier, Leandra Lederman

Articles by Maurer Faculty

No abstract provided.

And Promises To Keep: The Future In Employment Discrimination, Julia C. Lamber

Articles by Maurer Faculty

No abstract provided.

Overqualified, Unqualified Or Just Right: Thinking About Age Discrimination And Taggart V. Time, Julia C. Lamber

Articles by Maurer Faculty

No abstract provided.

Labor And Employment Discrimination Cases In The Supreme Court 1989 Term, Julia C. Lamber, Terry A. Bethel

Articles by Maurer Faculty

No abstract provided.

Discretionary Decisionmaking: The Application Of Title Vii's Disparate Impact Theory, Julia C. Lamber

Articles by Maurer Faculty

No abstract provided.

Book Review. Equal Employment Policy For Women By Ronnie Steinberg Ratner, Julia C. Lamber

Articles by Maurer Faculty

No abstract provided.

Civil Liberties: Desegregation, Prisoners' Rights And Employment Discrimination In The Seventh Circuit, Patrick Baude, Julia C. Lamber

Articles by Maurer Faculty

No abstract provided.

Clarence Brown V. General Service Administration, Edward F. Sherman

Articles by Maurer Faculty

No abstract provided.

Affirmative Action: Quotas And Traditional University Standards With Particular Emphasis On The Role Of The Department Chairman, William D. Wheeler

IUSTITIA

The higher educational institution is often an exclusive citadel. Students are selected after close scrutiny of past achievements. Teachers as merchants of ideas, virtues, and cosmic thoughts are invited to membership only after certain academic passports have been acquired. These eligibility criteria are established by the faculty who, presumably, are the only ones capable of assessing reasonable standards for those seeking admission. Colleges and universities are closed sub-communities. They practice discrimination while giving lip service to liberal thought, knowledge, and enlightenment. It comes, therefore, as little surprise to clear thinkers that the house of intellect leads the parade of culprits …