Civil Rights and Discrimination Commons^™

The Prima Facie Case Of Age Discrimination In Reduction-In-Force Cases, Jessica Lind

Michigan Law Review

This Note proposes that courts require the plaintiff in a RIF case to show, as part of her prima facie burden, that the employer reassigned at least part of her job responsibilities to a younger individual of equal or lesser qualifications. Part I describes the analytical framework applied to most intentional discrimination cases the McDonnell Douglas framework. Part II explains that the RIF plaintiff cannot meet the specific requirements of the prima facie case as articulated in McDonnell Douglas because her firing occurs in conjunction with the elimination of her position. This Part then examines two approaches taken by the …

1995 Employment Law Update, Oregon Law Institute, Nancy J. Brown, Helle Rode, Corbett Gordon, Michael J. Tedesco, Richard F. Liebman, Eileen Drake, Richard C. Busse, Scott J. Fortmann

Oregon Law Institute, 1995

Course Materials from the October 20, 1995 Program in Portland

Accommodating Equality In The Unionized Workplace, Katherine Swinton

Osgoode Hall Law Journal

This article explores the appropriate relationship between human rights and collective bargaining laws through an examination of the Supreme Court of Canada's jurisprudence on the duty to accommodate. While collective bargaining can be an important force to promote equality for disadvantaged groups, resistance to changing the terms of collective agreements to accommodate those groups can arise, especially when other employees' seniority rights are affected. The emerging jurisprudence suggests that seniority rights will be respected in many situations, especially in layoffs, but the article outlines circumstances in which accommodation will be necessary to vindicate equality rights.

The Last Minuet: Disparate Treatment After Hicks, Deborah C. Malamud

Michigan Law Review

The purpose of this article is to explain why the Court's much-maligned decision in Hicks was correct, and to further argue that in the aftermath of Hicks, the McDonnell Douglas-Burdine proof structure ought to be abandoned.

Civil Rights—Employer's Beware: The Supreme Court's Rejection Of The Psychological Injury Requirement In Harris V. Forklift Systems, Inc., 114 S. Ct. 376 (1993), Makes It Easier For Employees To Establish A Claim For Sexual Harassment Based On A Hostile Working Environment, Deanna Weisse Turner

University of Arkansas at Little Rock Law Review

No abstract provided.

Are Non-English Speaking Claimants Served By Unemployment Compensation Programs? The Need For Bilingual Services, Mary K. Gillespie, Cynthia G. Schneider

University of Michigan Journal of Law Reform

Abstract for a piece in the 1995 Unemployment Compensation: Continuity and Change symposium presented by the Advisory Council on Unemployment Compensation and the University of Michigan Journal of Law Reform.

Teresa Harris V. Forklift Systems, Inc., 114 S. Ct. 367 (1993), Marianne Mariano

Circles: Buffalo Women's Journal of Law and Social Policy

No abstract provided.

Criminalization As A Policy Response To A Public Health Crisis, 27 J. Marshall L. Rev. 435 (1994), J. Kelly Strader

UIC Law Review

No abstract provided.

The Selection Of Employment Discrimination Disputes For Litigation: Using Business Cycle Effects To Test The Priest-Klein Hypothesis, Peter Siegelman, John J. Donohue Iii

Faculty Articles and Papers

Employment discrimination cases filed during recessions are more likely to settle after filing and less likely to be won by plaintiffs than those filed when the economy is strong. This model of litigation confirms two predictions of the Priest-Klein model of litigation. First, relatively weak cases (for either party) should be more likely to settle. Second, the party with the greater stake in litigation will have the higher win rate in adjudicated disputes; the special case of even stakes produces a 50 percent plaintiff win rate. The settlement process does not produce complete selection, however: the strong version of the …

Dealing With Diversity: Changing Theories Of Discrimination, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Discrimination, Deceit, And Legal Decoys: The Diversion Of After-Acquired Evidence And The Focus Restored By Mckennon V. Nashville Banner Publishing Company, Elissa J. Preheim

Indiana Law Journal

No abstract provided.

Handling Difficult Issues Under The Family Medical Leave Act, Helen Norton

Publications

No abstract provided.

Accommodating Pregnancy In The Workplace, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

Salvaging The Opportunity: A Response To Professor Clark, Michael J. Yelnosky

University of Michigan Journal of Law Reform

In this Article, Professor Yelnosky responds to Professor Clark's critique of his previous article, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, Entry-Level Jobs. Professor Yelnosky first clarifies that Professor Clark has adopted several of the points Professor Yelnosky originally made in his earlier article. He then responds to the portions of Professor Clark's article that challenge his prior conclusions. He builds on and defends his previous arguments that: (1) testing is best suited to uncover hiring discrimination for lower-skilled jobs; (2) disincentives to bringing tester lawsuits make it unwise to rely …

Employment Discrimination Testing: Theories Of Standing And A Reply To Professor Yelnosky, Leroy D. Clark

University of Michigan Journal of Law Reform

In this Article, Professor Clark addresses the legal issues surrounding the use of testers-individuals who deliberately apply for employment to detect sex and race discrimination. He surveys three theoretical justifications for granting standing to organizations that run testing programs. Professor Clark then responds to a previous article by Professor Yelnosky, disputing some of his conclusions. Professor Clark indicates that testing is just as necessary in higher-level employment as lower-level employment; shows that testers can obtain meaningful relief from the courts; analyzes the impact of the 1991 Civil Rights Act amendments; and encourages Congress to authorize the EEOC to run tester …

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

Checking The "Trigger-Happy" Congress: The Extraterritorial Extension Of Federal Employment Laws Requires Prudence, Derek G. Barella

Indiana Law Journal

No abstract provided.

Meeting The Challenge At The Mines: The Americans With Disabilities Act, Susan E. Chetlin, Mark E. Baker

West Virginia Law Review

No abstract provided.

The Dubious Title Vii Cause Of Action For Sexual Favoritism, Michael J. Phillips

Washington and Lee Law Review

No abstract provided.

The Public Policy Exclusion And Insurance For Intentional Employment Discrimination, Sean W. Gallagher

Michigan Law Review

This Note argues that courts choosing to apply the public policy exclusion to insurance for intentional employment discrimination liability should nevertheless permit employers to enforce insurance covering negligent supervision liability and liability imputed to an employer as a result of the intentional discrimination committed by its employees. Part I establishes a framework for understanding the cases in which courts have invoked public policy to refuse enforcement of insurance contracts, arguing that the rationale behind the public policy exclusion is utilitarian and that courts refuse to enforce insurance for liability arising out of intentional wrongdoing on the grounds that such insurance …

Beyond Reasonable Accommodation: The Availability And Structure Of A Cause Of Action For Workplace Harassment Under The Americans With Disabilities Act, Frank S. Ravitch

Cardozo Law Review

Employment discrimination law has undergone a metamorphosis in the last few years. New legislation and judicial interpretation of existing legislation have broadened the rights available to the victims of discrimination, and have created new duties with which employers must comply. The passage of the Americans with Disabilities Act added one of the largest pieces to the new employment discrimination puzzle. Because the ADA is still in the early stages of development, it is essential to define the bases for potential causes of action under the Act, and to delineate workable structures for analyzing those causes of action.

Condescending Contradictions: Richard Posner's Pragmatism And Pregnancy Discrimination, Ann C. Mcginley, Jeffrey W. Stempel

Scholarly Works

Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left …

The Americans With Disabilities Act In The Unionized Workplace, Ann C. Hodges

Law Faculty Publications

This Article explores the issues raised by application of the ADA in the organized employment setting. The Article begins with an overview of the statute and then analyzes its applicability in the unionized workplace. In addition to recommending changes in the statute and regulations to clarify the obligations of employers and unions under the ADA, the Article makes recommendations with respect to judicial interpretation of the statute in three major areas. In Sections III C through E, the Article analyzes the circumstances under which the union should be held liable for discrimination, recommending that courts assess liability based on the …

Verbal Sexual Harassment As Equality-Depriving Conduct, Keith R. Fentonmiller

University of Michigan Journal of Law Reform

Part I of this Note argues that commentators like Browne and some courts have mischaracterized the harm of verbal sexual harassment as mere "offense." Rather, the true harm of a sexually hostile environment created by words and expressive conduct extends beyond offense, emotional distress, and economic displacement; at bottom, the harm is equality-deprivation.

Part II explains how a sexually hostile environment is equality-depriving by arguing that words which create a sexually hostile environment must be understood in historical and social context. Words can be used not only to communicate ideas but also to perform acts of coercion and sexual abuse. …

St. Mary's Honor Center V. Hicks: Questioning The Basic Assumption, Deborah Calloway

Faculty Articles and Papers

No abstract provided.

'If I Knew Then What I Know Now': The Role Of After-Acquired Evidence In Employment Discrimination Cases: An Analysis Of Mckennon V. Nashville Banner, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995). The author expected the Court to address whether after acquired evidence of employee misconduct is a complete defense for an employer's termination decision which would otherwise violate the Age Discrimination in Employment Act or is it relevant only to the scope of the remedy afforded to an employee terminated in violation of the Act.