Law Commons^™

“You Don’T Bring Me Flowers Anymore”: President Clinton, Paula Jones, And Why Courts Should Expand The Definition Of “Adverse Employment Action” Under Title Vii’S Anti-Retaliation Provision, Lawrence Rosenthal

St. John's Law Review

(Excerpt)

Anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) prohibit discrimination based on individuals’ protected characteristics. In addition to prohibiting this type of status-based discrimination, these statutes also prohibit employers from retaliating against employees who assert their rights under the statutes or who assist others in asserting their rights.

Over the past several years, retaliation charges filed with the Equal Employment Opportunity Commission (“EEOC”) have made up an increasingly high percentage of all charges filed with the agency. Specifically, …

The Watercooler Is Safer Than The Schoolyard: Lower Courts Dismissal Of Peer Sexual Harassment Under Title Ix Is Especially Failing Our Students In The “#Metoo” World, Christine Tamer

St. John's Law Review

(Excerpt)

While the term #MeToo was first coined in 2006, the movement came to the forefront of American life in October 2017 when actress Alyssa Milano tweeted, “if you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.” Since then, the #MeToo movement has exposed the fact that sexual harassment remains all too common and has pushed for change in the legal procedures that have failed victims. In the #MeToo world, sexual harassment is “finally getting the public attention it has long deserved” and the public has come together to deem it—in one word—unacceptable.

While …

Hidden Figures: Wage Inequity And Economic Insecurity For Black Women And Other Women Of Color, Cassandra Jones Havard

St. John's Law Review

(Excerpt)

One hundred years after women secured the right to vote, wage inequality remains prevalent in the United States. The gender wage gap, or pay inequity based solely on sex, arguably, is a measure of the current failure of full and equal participation by women in American society. The gender wage gap exists despite federal legislation designed to further wage equality. In fact, a difference as small as two cents over a lifetime costs a woman approximately $80,000. Currently, it is predicted that for a majority of white women, the pay parity will be attained between 2059–2069. However, Black women …

How To Look Like A Lawyer, Ann Juliano

Journal of Civil Rights and Economic Development

(Excerpt)

Law schools often claim that they are teaching students “how to think like a lawyer.” What is less touted, however, is that students are learning how to look like a lawyer. They receive this message from multiple sources (faculty, alumni, peers, the career office) concerning a variety of situations: class, interviews, moot court, trial team, symposia and conferences. For law students who are first generation, these sources may be the only avenue (apart from the entertainment industry) of determining how to look like a lawyer. For law students who are transgender or gender non-binary, dress code advice dispensed along …

Model Dress Code: Promoting Genderless Attire Rules To Foster An Inclusive Legal Profession, Rebekah Hanley, Malcolm Macwilliamson

Journal of Civil Rights and Economic Development

(Excerpt)

I knew that my likelihood of being able to wear a dress to court was pretty slim. I wasn’t that naïve. At the same time, I resented the notion that at no time in my future legal career would I be able to acknowledge, honor, or share the full complexity of my identity—that, by choosing law, I was relinquishing the right to ever be fully myself in my professional career.

I came out as transgender at age eighteen. Shortly thereafter, I began to transition socially and medically. I quickly realized how much of my “self” I had been unable …

Endangered Deference: Separation Of Powers And Judicial Review Of Agency Interpretation, Kathryn M. Baldwin

St. John's Law Review

(Excerpt)

This Note proceeds in four parts: Part I consists of a brief history of the development of agency deference doctrine. Part II examines the decline of deference from the perspective of all three branches of government: the overuse by the executive agency that catalyzed deference’s denouement, the underuse by the United States Supreme Court and renewed separation of powers challenges, and the parallel assault from Congress under the pending SOPRA. Part III addresses the proposed de novo review standard and highlights the deficiencies in that solution, emphasizing instead the tools that Congress already employs to meaningfully check agency interpretations. …

Does It Pay To Be A Manager? The Significance Of The Manager Rule In Analyzing Retaliation Claims Under Title Vii, Cristina Giappone

St. John's Law Review

(Excerpt)

This Note argues that the manager rule should be applied to Title VII cases but in a new and very specific and detailed context involving a case-by-case analysis, similar to that of the United States Court of Appeals for the Ninth Circuit’s reasoning in Rosenfield v. GlobalTranz Enterprises, Inc. This Note is comprised of three parts. Part I provides the history of Title VII generally, and discusses the emergence of the manager rule in the FLSA context. Part II addresses how different federal circuit courts have either recognized or rejected the manager rule as it applies to retaliation …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Faculty Publications

(Excerpt)

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural …

The Strange Career Of Title Vii's § 703(M): An Essay On The Unfulfilled Promise Of The Civil Rights Act Of 1991, Jeffrey A. Van Detta

St. John's Law Review

(Excerpt)

The 1991 CRA, then, held great promise when it responded to the provocation of Price Waterhouse v. Hopkins to address a larger problem—the problem that Francis Vaas identified in 1966. However, the often-invoked canon of statutory construction—start and stop with the text unless it is necessary to go to the legislative history to figure out what an ambiguous text means—has been tossed to the side, and the contextual history of overruling Price Waterhouse has been invoked by normally textualist judges who refuse to believe that Congress actually meant what it wrote. It is upon that sobering reality that we …

It Is Political: Using The Models Of Judicial Decision Making To Explain The Ideological History Of Title Vii, Kate Webber

St. John's Law Review

(Excerpt)

In Part I, this Article details the key features of Title VII’s history, explaining the statute, the significant role the Supreme Court has played in its interpretation, and the history of congressional intervention to override Supreme Court decisions on key issues. Part II reviews the existing evidence for and against an ideological interpretation of Title VII’s case law. Part III introduces the political science models of judicial decision making and applies the models to Title VII. Part III also details the models’ evidence of ideological voting by the Supreme Court and matches this evidence with voting patterns in Title …

When The Court Makes Title Vii Law And Policy: Disparate Impact And The Journey From Griggs To Ricci, Ronald Turner

St. John's Law Review

(Excerpt)

This Article focuses on judicial lawmaking and policymaking in an important area of antidiscrimination law—Title VII of the Civil Rights Act of 1964’s regulatory regime. As enacted in 1964, Title VII only prohibited intentional employment discrimination on the basis of race, color, religion, sex, or national origin. The statute requires a finding that an employer “has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint.” “[Such] ‘disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others . . . …

Title Vii At 50: The Landmark Law Has Significantly Impacted Relationships In The Workplace And Society, But Title Vii Has Not Reached Its True Potential, Cynthia Elaine Tompkins

St. John's Law Review

(Excerpt)

This Article’s historical chronicle provides a valuable backdrop for an examination of Title VII. Part II analyzes Title VII’s impact on race relations in the workplace and society. While progress has been made in the effort to provide equal opportunities for all workplace employees, Title VII legislation has not eliminated employment discrimination. As Title VII marches toward its sixtieth anniversary, this Article’s final section, Part III, reviews unconscious bias and other current challenges preventing Title VII from reaching its true potential.

The Influence Of Justice Thurgood Marshall On The Development Of Title Vii Jurisprudence, Wendy B. Scott, Jada Akers, Amy White

St. John's Law Review

(Excerpt)

This Article highlights Justice Marshall’s influence on the development of Title VII jurisprudence. Part I presents a brief overview of Justice Marshall’s personal and professional life before becoming a Justice to show how his experience influenced the development of his judicial philosophy. Part II summarizes the Court’s approach to some of the issues left unresolved by Congress in the initial passage of Title VII. Specifically, it explores how the Court determined what would constitute a violation of Title VII and standards of pleading and proof. Part III examines the changes in the Court’s jurisprudence before Justice Marshall retired from …

An Evolving Workforce, An Adapting Law: Title Vii's Coverage Of Gender Identity And Criminal History, Sandra Pullman

St. John's Law Review

(Excerpt)

In the half-century since the passage of the Civil Rights Act of 1964, workplace protections under the statute have expanded in a variety of ways. Legal theories that were once considered novel have increasingly been accepted in federal courts across the country, extending coverage to more employees than ever before. Yet, an analysis of these developing issues also exposes the limitations of federal antidiscrimination law. Below, this Article examines the ways that Title VII has been applied to two particularly vulnerable groups: transgender individuals and individuals with criminal records.

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute?, Marcia L. Narine

St. John's Law Review

(Excerpt)

This Article provides a blueprint for how Congress can accept Justice Ginsburg’s challenge to protect workers, particularly in precarious economic times when employees cannot easily switch jobs and in an era in which the vast majority of workers do not have the protection of a collective bargaining agreement. Not only should Congress redefine “supervisor,” but Congress should also consider a related underlying factor that was not raised in the Vance case—the issue of workplace bullying. If workplace bullying were a viable cause of action, Maetta Vance likely would have prevailed in a state that entitled her to relief because …

The Future Of Workplace Affirmative Action After Fisher, Rebecca K. Lee

St. John's Law Review

(Excerpt)

The Supreme Court’s decision on race-conscious affirmative action in Fisher, along with the Fifth Circuit’s ruling in Fisher on remand, importantly preserves the validity of affirmative action programs in state decisionmaking if the programs meet certain criteria under strict scrutiny and satisfy full judicial review. Although Fisher arose in the higher education context, its application extends to the public setting more generally and thus would also apply to the public sector workplace under the Constitution, making it permissible for public sector employers to use race-conscious affirmative action in hiring and promoting employees. The approach taken in Fisher also …

In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson

St. John's Law Review

(Excerpt)

The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court’s disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court’s Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress’s intent.

Past As Prologue In The Affirmative Action Jurisprudence Of The Supreme Court: Reflections On Fisher V. University Of Texas At Austin And Schuette V. Coalition To Defend Affirmative Action, David L. Gregory, Sarah Mannix

St. John's Law Review

(Excerpt)

This Article critically analyzes the dimensions and likely ramifications of Fisher and Schuette. The principle of pragmatic political proportionality eschews the wholly ideological extremist views that would either utterly vitiate affirmative action or deeply embed it as a substantially obsolete elitist residue of endless recalibrating. Instead, this Article subscribes to Lincolnian practical wisdom supplemented with a healthy dose of plain common sense. Enlightened political leadership should seek achievable pragmatic proportionality as the guiding principle controlling access to public institutions of higher education and, consequently, entry into the professions.

Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, And Similar Judicial Myths: The Convergence Of Title Vii Literalism, Congressional Intent, And Kantian Dignity Theory, Peter Brandon Bayer

St. John's Law Review

(Excerpt)

The line of argument is not complex. Part I explicates the unequal burden doctrine and its link to the predecessor theory of “mutable characteristics.” Part II offers the aforementioned statutorily formal argument, disproving unequal burden theory through an examination of Title VII’s plain language and structure in light of modern Supreme Court precedents addressing Title VII’s ban against stereotyping. This analysis places special emphasis on 42 U.S.C. § 2000e-2(m), in which Congress clarified that plaintiffs prevail when discriminatory animus merely is a “motivating factor” rather than the “but-for cause” of the defendants’ conduct.

Although not the lengthiest discussion herein …

Introduction, David L. Gregory, Elizabeth Anne Tippett

St. John's Law Review

(Excerpt)

Through this Title VII Symposium, St. John’s University School of Law proudly participates in a larger and continuing national discussion of the role and state of civil rights in the United States.

At Fifty, Title Vii Needs A Facelift: Two Reforms That Would Ensure Title Vii Works To Prohibit All Racial Discrimination In Employment, Joshua P. Thompson, Ralph W. Kasarda

Journal of Civil Rights and Economic Development

No abstract provided.

Reality's Bite, Kerri Lynn Stone

Journal of Civil Rights and Economic Development

No abstract provided.

The Role Of The Attorney During The Last 50 Years In The Enforcement Of Title Vii Of The 1964 Civil Rights Act, Raymond Gregory

Journal of Civil Rights and Economic Development

No abstract provided.