Law Commons^™

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment …

Reasonable Accommodation Of Workplace Disabilities, Stewart J. Schwab, Steven L. Willborn

Cornell Law Faculty Publications

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa A. Eichhorn

Faculty Publications

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article …

Watching You, Watching Me, Brenda V. Smith

Articles in Law Reviews & Other Academic Journals

This article examines one of the most often called for remedies for sexual abuse of female inmates - ending cross-gender supervision of female inmates by male correctional staff. Part I of the article describes the context of sexual misconduct against prisoners in the United States, highlighting important cases and discourse. Part II examines important differences in the legal decisions that address claims challenging cross-gender supervision raised by or concerning male and female inmates. Part III addresses the disconnect between the jurisprudence involving cross-gender supervision of men and women positing a "dignity and shame" approach by the court, and examines the …

Parsing The Meaning Of "Adverse Employment Action" In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

License To Harass Women: Requiring Hostile Environment Sexual Harassment To Be “Severe Or Pervasive” Discriminates Among “Terms And Conditions Of Employment, Judith J. Johnson

Journal Articles

Title VII was intended to remedy discrimination; thus, it is ironic that the courts themselves discriminate among "terms and conditions of employment" by treating hostile environment discrimination less favorably, most commonly in sexual harassment cases. As the Supreme Court said in its first sexual harassment case, hostile environment harassment must be "severe or pervasive" to be actionable. However, many lower courts have used this language to excuse harassment against women. This Article suggests that the problem originates in the Court's continued use of the phrase "severe or pervasive" to describe actionable conduct. This rather dramatic terminology in fact overstates the …