Civil Rights and Discrimination Commons^™

Civil Rights And Systemic Wrongs, Melissa Hart

Publications

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Publications

No abstract provided.

Excluding Unemployed Workers From Job Opportunities: Why Disparate Impact Protections Still Matter, Helen Norton

Publications

No abstract provided.

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

Publications

The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

Publications

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the …

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 …

Antidiscrimination Rights Of Contingent Workers In The United States, Hyun Joo Kang

Maurer Theses and Dissertations

Title VII of the Civil Rights Act of 1964 prohibits an employer's discriminatory employment practices against an employee on the basis of race, color, religion, gender, or national origin. Most contingent workers in the United States are faced with discriminatory employment practices, such as low wages and low or no benefits, and they are disproportionately women and minorities. Title VII is the focal point, but Title VII has not functioned as a remedy for contingent workers. This dissertation examines why contingent workers suffer discrimination, despite Title VII, and suggests possible solutions.

In the United States, the distinctive interpretation of laws …

Reply Brief For Petitioner. Thompson V. North American Stainless, Lp, 562 U.S. 170 (2011) (No. 09-291), 2010 U.S. S. Ct. Briefs Lexis 2135, Eric Schnapper, David O'Brien Suetholz, Lisa S. Blatt, Anthony Franze

Court Briefs

No abstract provided.

Reinventing The Eeoc, Nancy M. Modesitt

All Faculty Scholarship

The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes …

Brief For Petitioner, Thompson V. North American Stainless, Lp, 562 U.S. 170 (2011) (No. 09-291), 2010 Wl 3501186, Eric Schnapper, David O'Brien Suetholz, Lisa S. Blatt

Court Briefs

QUESTIONS PRESENTED

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiance, who is closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

Fait Accompli?: Where The Supreme Court And Equal Pay Meet A Narrow Legislative Override Under The Lilly Ledbetter Fair Pay Act, Megan Coluccio

Seattle University Law Review

This Comment argues the Lilly Ledbetter Fair Pay Act’s consequences will be minimally felt, so long as the Act is narrowly construed. The Comment suggests congressional action was appropriate after the Supreme Court’s Ledbetter decision and discusses the political and legislative debate leading to the Act. In addition, the Comment analyzes the Act in application, exploring its meaning, implications, and function. The Comment argues that the concerns and consequences arising from the enactment of the Act can be alleviated and avoided by a narrow interpretation of its amendment to Title VII of the Civil Rights Act. Finally, the Comment recommends …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

The United States Supreme Court continued to be extremely active in the realm of employment discrimination during the 2009 survey period. The Court decided five significant employment cases during 2009. Perhaps the most significant was the decision in Gross v. FBL Financial Services, Inc., in which the Court handed employers a huge victory as to the burden of proof necessary to establish age discrimination claims pursuant to the Age Discrimination in Employment Act of 1967 (ADEA). On the other hand, employees were the clear winner in Crawford v. Metropolitan Government of Nashville, in which the Court expanded the …

Supplemental Brief For Petitioner. Thompson V. North American Stainless, Lp, 562 U.S. 170 (2011) (No. 09-291), 2010 U.S. S. Ct. Briefs Lexis 2990, Eric Schnapper, David Suetholz

Court Briefs

No abstract provided.

Discrimination Outside Of The Office: Where To Draw The Walls Of The Workplace For A "Hostile Work Environment" Claim Under Title Vii, Douglas R. Garmager

Chicago-Kent Law Review

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual" on the basis of sex. Accordingly, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court recognized that sex discrimination in employment can give rise to a hostile work environment claim under Title VII. The scope of a hostile work environment claim has not been interpreted uniformly by the lower courts, however, as a circuit split exists today over whether conduct occurring outside the workplace is relevant to a hostile work environment claim. …

Closing The Gap Legislatively: Consequences Of The Lilly Ledbetter Fair Pay Act, Carolyn E. Sorock

Chicago-Kent Law Review

With the Lilly Ledbetter Fair Pay Act of 2009, Congress both reversed the result of the widely criticized Ledbetter Supreme Court case and expanded the statute of limitations for all employment discrimination claims relating to compensation. Under the Act, a compensation-based employment discrimination claim's statute of limitations period of three hundred days begins to run whenever an employee is "affected" by a discriminatory practice. The language of the Act is far-reaching, but just five months after the Act was signed into law, the Supreme Court stepped in again to narrow the Act's application to pension benefits in AT&T Corp. v. …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

University of Michigan Journal of Law Reform

This Article analyzes the application of employment discrimination law to sexual minorities-lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities.

While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Liability For Unconscious Discrimination? A Thought Experiment In The Theory Of Employment Discrimination Law, Patrick S. Shin

Suffolk University Law School Faculty Works

A steadily mounting body of social science research suggests that ascertaining a person’s conscious motives for an action may not always provide a complete explanation of why he did it. The phenomenon of unconscious bias presents a worrisome impediment to the achievement of fair equality in the workplace. There have been numerous deeply insightful articles discussing various aspects of this problem and canvassing its implications for antidiscrimination law. My purpose in this paper is to focus directly on what might be called a more naïve question: should implicit bias be a basis of disparate treatment liability under Title VII? The …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

Scholarly Works

This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

A Miscarriage Of Justice: Pregnancy Discrimination In Sectarian Schools, Lauren E. Fisher

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert

Articles

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called "Bivens "cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years— is that the Court's individual liability model, in …

Gross Disunity, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article will proceed as follows: Part I will explain Gross in terms of causation and unification. Part II will argue that Gross rejected the doctrine of uniformity, a well-established and useful canon of statutory construction, without explanation. Part III will show how the courts‟ post-1991 rejection of uniformity, culminating in Gross, might be seen as a form of judicial recalcitrance. However, that Part will suggest that the Court's rejection of uniformity in Gross is better understood as a rejection of burden-shifting in disparate treatment doctrine. Finally, Part IV will argue that burden-shifting is normatively desirable in disparate treatment doctrine, …

Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention To Develop, Protect And Support A Breastfeeding Culture In The United States, Heather M. Kolinsky

Scholarly Articles

The author argues that the benefits of breastfeeding are overwhelming and that more needs to be done to ensure that all women have a viable option to continue breastfeeding upon returning to work, particularly the working poor and minorities. Those least likely to breastfeed are more likely to be part of an at risk population in terms of health. Most significantly, the lack of a cohesive policy in the workplace has had a disparate impact on the most vulnerable populations of breastfeeding mothers and their children. The lack of federal protection and a patchwork of protection in the states have …

Bridging The Title Vii Gap: Protecting All Workers From “Work Authorization” Discrimination, Rachel K. Alexander

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Show Me The Money The Applicability Of Contract Laws Ratification And Tenderback Doctrines To Title Vii Releases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Employment Discrimination In The Ethnically Diverse Workplace, Tanya K. Hernandez

Faculty Scholarship

Racial integration has long been the touchstone of racial progress in the workplace. But integration is only the beginning of the struggle to end racial discrimination. As workplaces become more diverse, they do not necessarily become less racially discriminatory. Diverse workplaces may be characterized by antagonism between people of different races. Interethnic discrimination may exist alongside the discrimination that has traditionally occurred between blacks and whites, i.e., non-white racial and ethnic groups may engage in disparate-treatment employment discrimination actionable under Title VII of the 1964 Civil Rights Act. Examples of interethnic discrimination occur among members of different ethnic subgroups, as …

The Dean Takes His Stand: Julian Monnet's 1912 Harvard Law Review Article Denouncing Oklahoma's Discriminatory Grandfather Clause, Harry F. Tepker

Faculty Articles

No abstract provided.

Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.

Law Faculty Articles and Essays

In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn.

Back To Color Blindness: Recent Developments In Race Discrimination Law In The United States, Marcia L. Mccormick

All Faculty Scholarship

The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination. This short paper analyzes the Court’s recent …