Civil Rights and Discrimination Commons^™

Cat’S In The Cradle: Tenth Circuit Provides Silver Spoon Of Subordinate Bias Liability In Eeoc V. Bci Coca-Cola Bottling Co. Of Los Angeles, Curtis J. Thomas

Oklahoma Law Review

No abstract provided.

Civil Rights And Related Decisions, Eileen Kaufman

Scholarly Works

This article analyzes two cases from the October 2006 Supreme Court Term, Ledbetter v. Goodyear Tire & Rubber Co. and Gonzales v. Carhart. The cases have much in common, even though Ledbetter concerns pay disparity claims based on gender and Gonzales concerns second trimester abortions. Both are five-four decisions which demonstrate how profoundly the appointment of Justice Samuel Alito to occupy Justice Sandra Day O'Connor's seat has affected the balance of power on the Court. The net result of this shift has been a devastating setback for women's rights. Both decisions prompted Justice Ruth Bader Ginsburg to uncharacteristically read aloud …

The Truth Is Out There: Revamping Federal Antidiscrimination Enforcement For The Twenty-First Century, Marcia L. Mccormick

All Faculty Scholarship

Employment discrimination laws in the United States have not created full equality in the workplace, although that was their goal. Real change requires greater accountability for those who make employment decisions and greater transparency to bolster that accountability. To provide that transparency and accountability, we need greater federal involvement in enforcement and a mechanism to publicize the state of the nation's workplaces. To accomplish this, I propose taking private sector employment discrimination disputes away from the Equal Employment Opportunity Commission entirely, and starting with a new agency. The current model, with the EEOC writing compliance guidelines, encouraging mediation, and acting …

The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …

Immigration Raid Results In Charges Filed Against Iowa Slaughterhouse For Child Labor Violations, Ana Maria Echiburu

Public Interest Law Reporter

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

The Hidden Harms Of The Family And Medical Leave Act: Gender-Neutral Versus Gender-Equal, Deborah J. Anthony

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Espionage Act And National Security Whisteblowing After Garcetti, Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies, to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be?

As this essay suggests, because of the broad language of the …

Instead Of Enda, A Course Correction For Title Vii, Jennifer S. Hendricks

Publications

In September 2008, the D.C. federal court issued a landmark decision holding that discrimination against a transgender person was sex discrimination under Title VII. This decision throws into sharp relief the ongoing debates among supporters of the Employment Non-Discrimination Act about whether the compromise on including protection for gender identity claims. Consideration of ENDA in some form will likely be early on the agenda of the next Congress, especially under a Democratic administration likely to support the bill. This essay proposes an alternative to ENDA that would embrace the theoretical connections between sex, gender, and sexual orientation, with important practical …

Retaliatory Litigation Tactics: The Chilling Effects Of "After-Acquired Evidence", Melissa Hart

Publications

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing Co., was widely viewed as a victory rather than a defeat for plaintiffs. This surprising perception flowed from the Court's holding that such "after-acquired evidence" of misconduct merely limited remedies but did not completely eliminate plaintiffs' rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Integrating Accommodation, Elizabeth F. Emens

Faculty Scholarship

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of …

Misapplying Equity Theories: Dress Codes At Work, Jennifer L. Levi

Faculty Scholarship

This Article provides a new perspective on Title VII caselaw concerning employer-mandated, sex-specific dress codes. With few exceptions, courts have held that employer dress codes do not constitute sex discrimination even when they expressly differentiate based solely on an employee's sex. In other contexts, courts readily acknowledge that facially sex-based practices and policies are presumptively unlawful under Title VII. When it comes to dress codes, however, nearly the opposite is true. Courts generally presume a sex-based dress code to be permissible, and the burden falls heavily on the employee to show, beyond the mere fact of differential treatment, some additional …

A Case Of Statutory Interpretation: Does 42 U.S.C. 1981 Prohibit Retaliation, Barbara J. Fick

Journal Articles

This article discusses the case CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008). That case presented two questions: (1) Can an employee bring a claim under 42 U.8.C. § 1981 if he is terminated from employment because he has complained about racial discrimination at work?; and (2) Can the language of the statute be interpreted to include retaliation claims? Professor Fick argues that the this case is of great concern to employers whose liability for retaliation will be greatly expanded if the statute is interpreted to include retaliation claims and also that the case may be important from a …

Beyond The Cat’S Paw: An Argument For Adopting A “Substantially Influences” Standard For Title Vii And Adea Liability, Tim Davis

The University of New Hampshire Law Review

[Excerpt] “Susan, an African-American nurse, has worked for a large group of physicians for nearly twenty years and is nearing the end of her career. Susan’s boss has recently retired and has been replaced by a man with an animus toward African-Americans. This has put Susan in a precarious situation.

Instead of overtly discriminating against her, Susan’s supervisor complains to the large medical practice’s personnel committee that Susan’s work is substandard and she no longer is a productive worker. The committee, based on the supervisor’s report, fires Susan.

When Susan goes to court to assert her right not to be …

Presenter, “The Bca And The Ncaa: How Title Vii May Level The Playing Field In The Collegiate Coaching Ranks”, N. Jeremi Duru

Presentations

In January 2007, only 5% of the 119 head coaches in Division I-A college football teams were minorities. This number is startling in light of the fact that in National Collegiate Athletic Association (NCAA) football teams 55% of the student-athletes are from minority groups. Even the president of the NCAA, Myles Brand, has stated that this organization has had a “dismal record of hiring people of color into head coaching positions, especially in the sport of football.” The disparity between the numbers of coaches and players has prompted an action brought by the Black Coaches & Administrators (BCA). The BCA …

Paying For The Sins Of Their Clients The Eeocs Position That Staffing Firms Can Be Liable When Their Clients Terminate An Assigned Employee For A Discriminatory Reason, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Burlington Northern & Santa Fe Railway Co. V. White: Retaliation Clarified, Heidi Chewning

Brigham Young University Journal of Public Law

No abstract provided.

Immigration Reform In America: Past, Present, And Future, Thaddeus Coffman

Undergraduate Theses and Capstone Projects

This paper examines immigration legislation throughout the history of the United States. The author has divided the focus of legislative activity into four main eras: the Laissez- Fair Era (1789-1875), the Anti-Asian Era (1876-1920), the National Origin Quotas Era (1921-1953), and the Illegal Immigration Era (1954-present). While these eras are not all inclusive, they are indicative of the main focus of legislation passed during their time. The author then compares the impact of major legislation passed during these eras to three current proposals aimed at addressing the increasing issue of illegal immigration: two versions of a guest-worker program and amnesty/legalization …

Employment Law—Title Vii And The Anti-Retaliation Provision—Beyond Employment And The Workplace: The United States Supreme Court Resolves The Split And Shifts The Balance. Burlington Northern & Santa Fe Co. V. White, 126 S. Ct. 2405 (2006)., Kaylin Redman Hart

University of Arkansas at Little Rock Law Review

In its recent decision in Burlington Northern & Santa Fe Co. v. White, the Supreme Court resolved the split along the federal circuit courts by extending Title VII's anti-retaliation provision to retaliatory acts and harms that are unrelated to employment or that occur outside of the workplace. The Court limited its holding by concluding that Title VII prohibits only those employer actions that would "dissuade a reasonable worker from making or supporting a charge of discrimination." This note examines the significance of the Supreme Court's decision in Burlington Northern & Santa Fe Co. v. White to employers and employees in …

An Examination Of Guest Worker Immigration Reform Policies In The United States, Merav Lichtenstein

Cardozo Public Law, Policy & Ethics Journal

The note examines the history and challenges of guest worker programs in the United States, emphasizing the need for reforms that balance border security with humane and practical solutions. It critiques current visa systems for their inflexibility and exploitation risks, advocating for pathways to permanent residency and family reunification to address the growing undocumented population effectively.

Casa Of Maryland And The Battle Regarding Human Trafficking And Domestic Worker Rights, Elizabeth Keyes

All Faculty Scholarship

At the November 2006 symposium presented by the University of Maryland Law Journal of Race, Religion, Gender and Class, the panelists discussed various issues regarding human trafficking. One entity at the forefront of the fight against human trafficking is CASA of Maryland. This article contains remarks originally made by the author that focused the topic of human trafficking on one particular group of workers: domestic workers. That particular group provides an interesting study because of the many race and gender issues that are wrapped up in the treatment of domestic workers under the law.

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

ExpressO

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

The Solomon Amendment, Expressive Associations, And Public Employment, Paul Secunda

ExpressO

Rumsfeld v. FAIR apparently concedes that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have …

Reclaiming Mcdonnell Douglas, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article proceeds in three Parts. Part I argues that McDonnell Douglas should never be required (and, in the process, dispels the nearly universally held myth that this framework proves or requires "but for" causation). Part II shows how a nonmandatory McDonnell Douglas would interact with the two alternative frameworks (Price Waterhouse and the 1991 Act), and also shows how a nonmandatory McDonnell Douglas can be implemented under current law. This Part also resolves the three doctrinal debates that currently plague disparate treatment law. Part III refutes most of the normative criticisms that have been leveled at McDonnell Douglas and …

No Intent, No Foul? Unconscious Bias In Employment Decisions, Martin J. Katz

Sturm College of Law: Faculty Scholarship

Many commentators have criticized current anti-discrimination law on the grounds that it does not adequately prohibit unconscious bias in employment decisions. That claim is wrong: Unconscious bias is fully actionable, and it can generally be proved by knowledgeable employment lawyers. The idea behind unconscious bias is that well-meaning employers and supervisors, who would likely consider themselves supporters or even champions of equality, might subconsciously harbor attitudes that result in negative employment decisions for women and minorities.

Rethinking The Tripartite Division Of American Work Law, Michael Fischl

Faculty Articles and Papers

The holy trinity of American work law - employment discrimination, labor law, and employment law - has governed the American workplace for over four decades and is also firmly entrenched in the curricula of most law schools. But the discrete lenses provided by the conventional trinity make it difficult to bring into focus two distinct but related dimensions of the accelerating integration of American work law. Thus, we are on the one hand experiencing an accelerating doctrinal integration of our field, as the settings in which nominally out of area law plays a significant governance role are rapidly proliferating. At …

Contributory Disparate Impacts In Employment Discrimination Law, Peter Siegelman

Faculty Articles and Papers

An employer who adopts a facially neutral employment practice that disqualifies a larger proportion of protected-class applicants than others is liable under a disparate impact theory. Defendants can escape liability if they show that the practice is justified by business necessity. But demonstrating business necessity requires costly validation studies that themselves impose a significant burden on defendants-upwards of $100,000 according to some estimates. This Article argues that an employer should have a defense against disparate impact liability if it can show that protected-class applicants failed to make reasonable efforts to train or prepare for a job related test. That is, …

Harassing “Girls” At The Hard Rock: Masculinities In Sexualized Environments, Ann C. Mcginley

Scholarly Works

Masculinities theory explains that masculinity is constructed in relation to a dominant image of gender difference, ultimately defining itself simply as what “femininity” is not. In the workplace, masculinities comprise both a structure that reinforces the superiority of men over women, and a series of practices associated with masculine behavior (performed by men and women) that maintain men’s superior position over women at work, yet specific masculinities differ according to the type of workplace. This article applies masculinities theory to analyze whether Title VII should protect women employees in highly sexualized workplaces from sex- or gender-based hostile work environments, created …

Babes And Beefcake: Exclusive Hiring Arrangements And Sexy Dress Codes, Ann C. Mcginley

Scholarly Works

Las Vegas casinos exclusively hire women to serve cocktails on the casino floor, dressing them in tight-fitting, sexy, uncomfortable costumes and high heels. The exclusive hiring of women as cocktail servers violates Title VII's prohibition against sex discrimination unless the employer can demonstrate that being a woman is a bona fide occupational qualification ("BFOQ") for the job of cocktail server. Sitting en banc, the Ninth Circuit Court of Appeals recently decided Jespersen v. Harrah's Operating Co., which concluded that sex-differentiated appearance and grooming codes are legal in jobs held by both men and women unless they impose unequal burdens on …