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Title VII

2011

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Full-Text Articles in Law

An Industry Missing Minorities: The Disparate Impact Of The Securities And Exchange Commission's Fingerprinting Rule, Kelly Noonan Dec 2011

An Industry Missing Minorities: The Disparate Impact Of The Securities And Exchange Commission's Fingerprinting Rule, Kelly Noonan

Chicago-Kent Law Review

The Equal Employment Opportunity Commission ("EEOC") recently asserted that the use of criminal background checks as an employment screening tool may have a disparate impact on African Americans and Hispanics, in violation of Title VII of the Civil Rights Act of 1964. The EEOC and some private claimants have even filed lawsuits against employers claiming disparate impact violations based on statistics that show African Americans and Hispanics are considerably more likely to have criminal records than other racial groups. Yet, certain federal regulatory agencies require participants in their industries to subject employees to criminal background checks as a condition of ...


Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy Nov 2011

Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy

Elisabeth Keller

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers ...


Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy Nov 2011

Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy

Elisabeth Keller

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers ...


Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy Oct 2011

Hidden In Plain Sight: Achieving More Just Results In Hostile Work Environment Sexual Harassment Cases By Re-Examining Supreme Court Precedent, Elisabeth A. Keller, Judith B. Tracy

Judith B. Tracy

Lower federal courts often fail to provide plaintiffs in sexual harassment cases the relief intended by Title VII of the Civil Rights of 1964 and mandated by the Supreme Court when it recognized the cause of action twenty years ago. There is little doubt that sexual harassment in the workplace persists. However, lower courts misapply or ignore Supreme Court reasoning that would result in fairer and more consistent dispositions in hostile work environment sexual harassment cases. This article draws directly on reasoning from the Supreme Court cases to explain the sources of the confusion in the lower courts and offers ...


Harvesting New Conceptions Of Equality: Opportunity, Results, And Neutrality, Cedric M. Powell Oct 2011

Harvesting New Conceptions Of Equality: Opportunity, Results, And Neutrality, Cedric M. Powell

Cedric M. Powell

This is a critical period in the Court’s history; there is a doctrinal shift from the Rehnquist Court’s colorblind constitutionalism to the Roberts Court’s post-racial universalism. The Fourteenth Amendment and Title VII have been inverted: under the Fourteenth Amendment, whites are the new discrete and insular minority to be protected from a result-oriented “racial” process; and, under Title VII, disparate impact is irrelevant in the absence of a “strong basis in evidence” to believe that there will be liability. In a very direct way, the Court’s race jurisprudence privileges reverse discrimination suits. To advance the critique ...


The Standard Of Causation In The Mixed-Motive Title Vii Action—A Social Policy Perspective, Mark S. Brodin Oct 2011

The Standard Of Causation In The Mixed-Motive Title Vii Action—A Social Policy Perspective, Mark S. Brodin

Mark S. Brodin

In this Article, Professor Brodin explores the causal-relation problem in individual employment discrimination suits alleging disparate treatment brought under title VII of the Civil Rights Act of 1964. The effort in this Article is to define a theory of causation for the individual disparate treatment case that is consistent with the goals of title VII as well as with the realities and limitations of our adversary system of adjudication. Professor Brodin surveys the problem, traces the development of relevant case law and concludes with a proposal of causal analysis that separates issues of liability from those of remedy.


The Demise Of Circumstantial Proof In Employment Discrimination Litigation: St. Mary's Honor Center V. Hicks, Pretext, And The 'Personality' Excuse, Mark S. Brodin Oct 2011

The Demise Of Circumstantial Proof In Employment Discrimination Litigation: St. Mary's Honor Center V. Hicks, Pretext, And The 'Personality' Excuse, Mark S. Brodin

Mark S. Brodin

Since the enactment of Title VII of the Civil Rights Act of 1964 the courts have struggled to define the burdens of proof surrounding the central issue of an employer's alleged discriminatory intent. What evolved was the McDonnell Douglas framework, premised upon established concepts of circumstantial proof and inference. The approach permits plaintiffs lacking direct proof to nonetheless establish a violation of the Act by proving that the employer's explanation of the challenged decision was pretextual. In St. Mary's Honor Center v. Hicks, a closely-divided Supreme Court substantially altered the McDonnell Douglas framework. Discrediting the reasons offered ...


The Standard Of Causation In The Mixed-Motive Title Vii Action -- A Social Policy Perspective, Mark S. Brodin Oct 2011

The Standard Of Causation In The Mixed-Motive Title Vii Action -- A Social Policy Perspective, Mark S. Brodin

Mark S. Brodin

No abstract provided.


The Role Of Fault And Motive In Defining Discrimination: The Seniority Question Under Title Vii, Mark S. Brodin Oct 2011

The Role Of Fault And Motive In Defining Discrimination: The Seniority Question Under Title Vii, Mark S. Brodin

Mark S. Brodin

Seniority systems play an important role in American industry, often governing rights to promotion, pay scales, layoff, and relative entitlement to ancillary benefits. Seniority based decision making protects employees from arbitrary employer action, yet seniority's same protective feature often may frustrate minorities' efforts to achieve actual equal employment opportunity Relying on Title Vii's section 703(h), the Supreme Court has held that seniority systems are immune from attack unless discriminatory intent is shown. In this Article, Professor Brodin reviews the evolution of the intent standard now governing seniority system challenges. He contrasts the Supreme Court's restrictive definition ...


Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law, 1993-1994 Term), Eileen Kaufman Jul 2011

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law, 1993-1994 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman Jul 2011

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases (The Supreme Court And Local Government Law: The 1995-1996 Term), Eileen Kaufman Jul 2011

Discrimination Cases (The Supreme Court And Local Government Law: The 1995-1996 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Fairness In Disparity: Challenging The Application Of Disparate Impact Theory In Fair Housing Claims Against Insurers, Matthew Jordan Cochran Apr 2011

Fairness In Disparity: Challenging The Application Of Disparate Impact Theory In Fair Housing Claims Against Insurers, Matthew Jordan Cochran

Matthew Jordan Cochran

This article responds to courts and commentators that have expressed willingness to apply the familiar "disparate impact" analysis--which is a creation of Title VII (employment discrimination) jurisprudence--in suits against homeowners' insurers. Specifically, these insurers' credit-based pricing mechanisms systems are attacked under the Fair Housing Act as having a discriminatory effect on members of protected classes with poor credit. Unfortunately, there are a number of legal, conceptual, and practical arguments against application of this Title VII standard in such cases. Yet courts endorsing this standard do not appear to have given due consideration to the possibility that some disparities simply might ...


After The Fall: The Employer's Duty To Accommodate Employee Religious Practices Under Title Vii After Ansonia Board Of Education V. Philbrook, Peter Zablotsky Apr 2011

After The Fall: The Employer's Duty To Accommodate Employee Religious Practices Under Title Vii After Ansonia Board Of Education V. Philbrook, Peter Zablotsky

Peter Zablotsky

No abstract provided.


Workplace Religious Accommodation For Muslims And The Promise Of State Constitutionalism, Peter Longo, Joan M. Blauwkamp Apr 2011

Workplace Religious Accommodation For Muslims And The Promise Of State Constitutionalism, Peter Longo, Joan M. Blauwkamp

Great Plains Research: A Journal of Natural and Social Sciences

This article considers whether state constitutionalism provides greater possibilities for workplace religious accommodation than is currently available to religious minorities within federal law under Title VII of the Civil Rights Act of 1964. We approach this question via a case study of the controversy over religious accommodation for practicing Muslims employed by the JBS Swift and Company meatpacking plant in Grand Island, N E. The case study consists of analyses of the requirements for religious accommodation under federal law, examination of the reasons why religious accommodation under federal law was not achieved in the Grand Island case, and analysis of ...


The Changing Face Of Liberalism In Workplace Democracy: The Shift From Collective To Individual Rights, Emily Eschenbach Barker Mar 2011

The Changing Face Of Liberalism In Workplace Democracy: The Shift From Collective To Individual Rights, Emily Eschenbach Barker

Emily Eschenbach Barker

The 1960s and 1970s saw a drastic change in the liberal conception of workplace equality. Post-war liberals defined equality in terms of collective rights, with labor law and unions epitomizing this conception. The civil rights generation, on the other hand, thought equality to be based in the rights of the individual. As new laws upholding individual civil rights proliferated, employers found themselves increasingly bound by incompatible legal duties under the two parallel systems governing labor rights.

Through their union agreements, employers were bound to treat all employees identically; administering vacations, bonuses, and promotions according to seniority as outlined in the ...


Hostile Educational Environments: On The Apparent First Amendment Barrier To Cyberbullying Punishments, Ari E. Waldman Mar 2011

Hostile Educational Environments: On The Apparent First Amendment Barrier To Cyberbullying Punishments, Ari E. Waldman

Ari E Waldman

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or offend a member of the school community depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. Except in extraordinary circumstances, the First Amendment should immunize these single-incident attackers from punishment. For students who engage in a pattern of repeated incidents of cyberattacking – what I will call ...


Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman Mar 2011

Other Civil Rights Decisions In The October 2005 Term: Title Vii, Idea, And Section 1981(Eighteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman Mar 2011

Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases In The October 2004 Term, Eileen Kaufman Mar 2011

Discrimination Cases In The October 2004 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases In The Supreme Court's 1997 Term (The Supreme Court And State And Local Government Law: The 1997-1998 Term), Eileen Kaufman Mar 2011

Discrimination Cases In The Supreme Court's 1997 Term (The Supreme Court And State And Local Government Law: The 1997-1998 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Employment Discrimination And Presidential Immunity Cases, Eileen Kaufman Mar 2011

Employment Discrimination And Presidential Immunity Cases, Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases In The 2000 Term, Eileen Kaufman Mar 2011

Discrimination Cases In The 2000 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.


Discrimination Cases Of The 2002 Term (Symposium: The Fifteenth Annual Supreme Court Review), Eileen Kaufman Mar 2011

Discrimination Cases Of The 2002 Term (Symposium: The Fifteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.


Evening The Odds: The Case For Attorneys' Fee Awards For Administrative Resolution Of Title Vi And Title Vii Disputes, Marjorie A. Silver Jan 2011

Evening The Odds: The Case For Attorneys' Fee Awards For Administrative Resolution Of Title Vi And Title Vii Disputes, Marjorie A. Silver

Marjorie A. Silver

In this Article Professor Silver addresses the shifting of attorneys' fees in administratively resolved claims under Titles VI and VII of the Civil Rights Act of 1964. Professor Silver begins by establishing Congress' commitment to provide informal methods for resolving disputes under these statutes and its intent to use fee-shifting provisions as a means of inducing effective access to counsel. She then discusses the United States Supreme Court's decision in North Carolina Department of Transportation v. Crest Street Community Council, Inc. and contrasts its reasoning with two earlier Court decisions dealing with administrative proceedings and attorneys' fees. Professor Silver ...


Grossly Restricted Pleading: Twombly/Iqbal, Gross And Cannibalistic Facts In Compound Employment Discrimination Claims, Brian S. Clarke Jan 2011

Grossly Restricted Pleading: Twombly/Iqbal, Gross And Cannibalistic Facts In Compound Employment Discrimination Claims, Brian S. Clarke

Brian S. Clarke

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the ...


Rethinking Discrimination Law, Sandra F. Sperino Jan 2011

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 ...


Sex Equality's Unnamed Nemesis, Veronica Percia Jan 2011

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours ...


Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley Jan 2011

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

Scholarly Works

Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important ...


Clarifying Stereotyping, Kerri Lynn Stone Jan 2011

Clarifying Stereotyping, Kerri Lynn Stone

Faculty Publications

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It then ...