Law Commons^™

Justice Kennedy's Big New Idea, Sandra F. Sperino

Faculty Articles and Other Publications

In a 2015 case, the Supreme Court held that plaintiffs could bring disparate impact claims under the Fair Housing Act (the "FHA"). In the majority opinion, Justice Kennedy relied heavily on the text and supporting case law interpreting Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act (the "ADEA '). Without explicitly recognizing the powerful new idea he was advocating, Justice Kennedy's majority opinion radically reconceptualized federal employment discrimination jurisprudence. This new reading of Title VII and the ADEA changes both the theoretical framing of the discrimination statutes and greatly expands their scope. …

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 …

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

Litigating The Fmla In The Shadow Of Title Vii, Sandra F. Sperino

Faculty Articles and Other Publications

The history of Title VII of the Civil Rights Act of 1964 is a history of frameworks. In an almost predictable pattern, the Supreme Court has recognized a category of employment discrimination, and then, either in the same case, or sometime thereafter, created a multi-part test for evaluating it. Congress enacted the Family and Medical Leave Act (FMLA) in 1993, almost 30 years after it enacted Title VII of the Civil Rights Act. This Essay argues that the FMLA is litigated within the shadow of Title VII, as courts routinely apply complex frameworks developed in the Title VII context to …

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 …

Direct Employer Liability For Punitive Damages, Sandra F. Sperino

Faculty Articles and Other Publications

In Punitive Damages, Due Process, and Employment Discrimination, Joseph Seiner tackles the growing complexity of employment discrimination punitive damages claims and provides a workable solution to a difficult problem. Given the importance of punitive damages in shaping incentives to bring discrimination suits, his contribution is valuable, especially in trying to align recent constitutional punitive damages cases with the underlying discrimination law.

This Essay begins by emphasizing the fundamental idea on which Professor Seiner and I agree-that there should be little room for courts to reduce punitive damages in federal employment discrimination cases based on constitutional concerns about excessiveness. Title …

Rethinking Discrimination Law, Sandra F. Sperino

Faculty Articles and Other Publications

In the 1970s, federal courts began identifying categories of discrimination, such as disparate impact, disparate treatment and harassment. They then created elaborate, multi-part rubrics tied to each category. Modern employment discrimination law is defined by these frameworks. They serve as gatekeepers that control the substantive discrimination narratives juries hear and also structure the ways that judges and litigants think about discrimination.

Legal scholarship is replete with excellent articles challenging specific frameworks courts use to evaluate discrimination claims. This Article does not challenge any particular framework. Instead it challenges whether courts should even use frameworks to conceptualize discrimination in the first …

What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy

Faculty Articles and Other Publications

This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …

A Modern Theory Of Direct Corporate Liability For Title Vii, Sandra F. Sperino

Faculty Articles and Other Publications

Something is missing from Title VII-a modern and fully functional theory of direct employer liability for individual discrimination claims. Courts largely focus on finding employers indirectly liable for discrimination through the acts of their agents, rather than viewing the employer as the culpable actor in appropriate circumstances. This Article posits that five major problems with Title VII can be eliminated or reduced by once again recognizing the importance of direct employer liability and by re-theorizing direct liability using modern conceptions of corporate character.

Borrowing the emerging concept of corporate character from criminal law and corporate law scholarship, this Article attempts …

The New Calculus Of Punitive Damages For Employment Discrimination Cases, Sandra F. Sperino

Faculty Articles and Other Publications

To determine whether a punitive damages award is constitutionally excessive, courts are required, among other things, to consider the ratio of compensatory to punitive damages. No longer is the total sum of remedies the only relevant calculation in determining whether an award is excessive. The numbers the judge decides to use in the ratio comparison also become important, in many cases determining whether excessiveness review is even warranted.

Owing in part to the complexities of the employment discrimination remedies regime, courts make numerous errors when undertaking the required comparison in the employment discrimination context. When conducting the excessiveness calculus, some …

The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino

Faculty Articles and Other Publications

In Burlington Northern Santa Fe Railroad v. White, the Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors.

While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, …

Complying With Export Laws Without Importing Discrimination Liability: At Attempt To Integrate Employment Discrimination Laws And The Deemed Export Rules, Sandra F. Sperino

Faculty Articles and Other Publications

The federal deemed export rules prohibit certain individuals from receiving any information about certain technologies without the required license, even if those individuals are otherwise authorized to work within the United States. In other words, employers who deal with technology or software subject to export control may be considered to be illegally exporting such technology or software, simply by allowing certain foreign nationals to work with or gain information about the restricted items.

This article will attempt two moderately simple tasks and one more difficult. The first task is to identify the tensions that exist between the deemed export rules …

Recreating Diversity In Employment Law By Debunking The Myth Of The Mcdonnell Douglas Monolith, Sandra F. Sperino

Faculty Articles and Other Publications

The McDonnell-Douglas framework is one of the primary methods used by courts to evaluate discrimination claims based on circumstantial evidence. Although McDonnell-Douglas often is referred to as a singular test, it is actually a collection of different tests gathered rather deceptively under one name. Over the years, federal courts considering state law claims have increasingly applied the McDonnell-Douglas framework to these state claims, without considering whether the same result would occur under state law. The federal courts' rather monolithic view of McDonnell-Douglas is choking debate on important issues of employment law and denying states the ability to weigh in on …

Flying Without A Statutory Basis: Why Mcdonnell Douglas Is Not Justified By Any Statutory Construction Methodology, Sandra F. Sperino

Faculty Articles and Other Publications

The McDonnell-Douglas three-part burden-shifting framework has come under increasing attack in recent years. While policy arguments in favor of eliminating the standard are important, one of the strongest arguments in favor if its demise, is that the standard was adopted without proper regard to the operative text, the legislative history, and the broad policies of Title VII. This Article examines the McDonnell-Douglas framework through four leading models of statutory construction and concludes that a satisfactory statutory justification for the test is lacking. While it arguably may have been appropriate to justify this lapse in the past by claiming that the …

Proving An Environmental Justice Case: Determining An Appropriate Comparison Population, Bradford Mank

Faculty Articles and Other Publications

In proving a case of adverse disparate impact discrimination under Title VI of the 1964 Civil Rights Act, a plaintiff in its prima facie case must show a significant disparity between an affected population and an appropriate comparison population. Both government agencies and commentators have neglected to address the crucial issue of how to elect and define a comparison population. Title VI cases often look to Title VII cases for guidance. Title VII cases require that a comparison population should be similarly situated to the affected population. In 2000, the Environmental Protection Agency ("the EPA" or "the Agency") issued draft …