Law Commons^™

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

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

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

Cedric M. Powell

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

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 by the employer …

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

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 of intent in the …

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

Eileen Kaufman

No abstract provided.

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

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

Peter Zablotsky

No abstract provided.

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

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 …

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

Eileen Kaufman

No abstract provided.

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

Eileen Kaufman

No abstract provided.

Employment Discrimination And Presidential Immunity Cases, Eileen Kaufman

Eileen Kaufman

No abstract provided.

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

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

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 argues …

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 Court held that an ADEA claim required …