Law Commons^™

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

Deborah Thompson Eisenberg

Prepared for a symposium about the overuse of summary judgment in employment discrimination cases, this Article provides a grassroots empirical analysis of what is happening in equal pay cases on the front lines of the district courts. Analyzing a database of 500 federal district court decisions—both published and unpublished—that considered whether to grant summary judgment on an equal pay claim from 2000 to 2011, the review shows that dismissing equal pay claims at the summary judgment stage has become the modus operandi for most federal courts. Courts granted 68% of summary judgment motions in equal pay cases—meaning that only about …

Intellectual Property And Employee Selection, Elizabeth A. Rowe

Elizabeth A Rowe

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …

The Glass Mirror: Appearance-Based Discrimination In The Workplace, Enbar Toledano

Enbar Toledano

The benefits of physical attractiveness are considerable and widespread. As early as infancy and throughout their lifetimes, physically attractive individuals are afforded more favorable treatment, are assumed to possess more socially desirable traits, and enjoy better opportunities in virtually every aspect of life. Perhaps most troubling are the professional advantages enjoyed by attractive job candidates and employees. Statistically, these individuals will receive more job offers, better advancement opportunities, and higher salaries than their less attractive peers—despite numerous findings that they are no more intelligent or capable. Given the proven and arguably undeserved disparities in professional treatment between the unattractive and …

Unmasking A Pretext For Res Ipsa Loquitur: A Proposal To Let Employment Discrimination Speak For Itself, Bill Corbett

William R. Corbett

Unmasking a Pretext for Res Ipsa Loquitur: A Proposal to Let Employment Discrimination Speak for Itself

William R. Corbett*

Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court’s decision in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). In Staub the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment discrimination statute, as a “federal tort.” The Court then adopted the tort doctrine of proximate cause as the standard for evaluating subordinate bias (or …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik

Dan Subotnik

No abstract provided.

The Pro-Employee Bent Of The Roberts Court, Lisa D. Taylor

Lisa D Taylor

A surprising yet readily discernible trend is emerging from recent United States Supreme Court decisions – a trend favoring the rights of individual employees in cases requiring interpretation of federal employment statutes. Though marquee employment-context cases like Wal-Mart Stores, Inc. v. Dukes may be touted as exemplifying the pro-business tendencies of the Roberts Court, a closer and more comprehensive look suggests that the Court does not favor business interests at all, at least in the workplace. Indeed, the relative dark-horses of the Court’s last Term suggest the opposite – all three of the Court’s most recent decisions interpreting federal employment …

The Gender Bind: Men As Inauthentic Caregivers, Kelli K. Garcia

Kelli K. Garcia

Almost 20 years after the enactment of the Family and Medical Leave Act, an ostensibly gender neutral statute, companies are still less likely to offer paternity leave than they are to offer maternity leave. Although women have traditionally faced discrimination in the workplace because they are viewed as inauthentic workers—not fully committed to paid employment—men face the corresponding problem and are viewed as inauthentic caregivers. Men who seek family leave transgress gender norms and risk workplace discrimination and stereotyping. This paper seeks to make explicit how the social and cultural contexts in which the FMLA is applied interact to maintain …

The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Kimberly Yuracko

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Implicit Bias In Employment Litigation, Melissa R. Hart

Melissa R Hart

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. …

Quality Of Healthcare And The Role Of Relationships: Bridging The Medico-Legal Divide, Sagit Mor, Orna Rabinovich-Einy

Sagit Mor

This article focuses on an often overlooked barrier to efforts to enhance the quality of health care: the relationship crisis that currently exists between physicians and patients. This state of affairs has resulted from the divide between the medical and legal worlds. The medical arena has understandably tended to view the doctor-patient relationship as a purely medical issue, ignoring the law’s impact in generating and sustaining problematic relationship patterns. The legal world has yet to fully recognize this state of affairs, and the law’s role in its evolution and persistence. We offer a relational approach to healthcare law as a …

Toward Positive Equality: Taking The Disparate Impact Out Of Disparate Impact Theory, Michelle Travis

Michelle A. Travis

Employment discrimination doctrine has become so dependent upon the concept of social group membership that group consciousness is generally viewed as an essential and defining feature of antidiscrimination law. Just over a decade ago, however, Professor Mark Kelman launched an investigation into whether and why antidiscrimination law must or should make reference to group status. This Article extends that investigation into the disparate impact arena by exploring the proper role, if any, that group consciousness should play in legal efforts to ensure that facially neutral employment practices are demonstrably merit-based. This analysis reveals the value in considering a practice-conscious rather …