Civil Rights and Discrimination | Open Access Articles

Evaluating Policy Solutions To Sex-Based Pay Discrimination: Women Workers, Lawmakers, And Cultural Change, Vicky Lovell

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

No abstract provided.

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The New Sex Discrimination: Family Responsibilities, Cynthia Thomas Calvert

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

No abstract provided.

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Commentary: Women’S Employment Rights In The Workplace Of 2007 And 2027, Marley S. Weiss

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

No abstract provided.

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Toward An Integrated Disparate Treatment And Accommodation Framework For Title Vii Religion Cases, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

This Article proposes that courts follow a new, integrated disparate treatment and accommodation framework for all Title VII religion claims. The integrated framework requires employees to show: (1) the employee had a sincerely held religious belief or practice that may or may not have conflicted with a work requirement; (2) the employer knew of the employee's belief; and (3) the employee was subjected to an adverse employment action. The burden would then shift to the employer to show (1) the employer was neutral, and not intentionally biased toward employee's religion in the workplace, by articulating its reasons for acting, which …

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Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

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Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas

Faculty Journal Articles and Book Chapters

This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights …

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Wheel Of Fortune: A Critique Of The "Manifest Imbalance" Requirement For Race-Conscious Affirmative Action Under Title Vii, Kenneth R. Davis

Georgia Law Review

This Article criticizes the Supreme Court's requirement, under Title VII of the 1964 Civil Rights Act, that a voluntary affirmative action plan must seek to eliminate "a manifest imbalance in traditionally segregated job categories." Although supposedly advancing the goals of Title VII, the manifest imbalance requirement interferes with achieving those goals. It prevents civically conscientious employers from instituting affirmative action, while it does nothing to promote the values of equal employment opportunity, meritocracy, or fairness to non minority workers. For example, in Schurr v. Resorts International Hotel, Inc., 196 F.3d 486 (3d Cir. 1998), a hotel in Atlantic City adopted …

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Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

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The Flood Of Pregnancy Discrimination Cases: Balancing The Interests Of Pregnant Women And Their Employers, Jennifer Yue

Kentucky Law Journal

No abstract provided.

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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 …

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Civil Rights Act Of 1964, Henry L. Chambers, Jr.

Law Faculty Publications

The Civil Rights Act of 1964 (42 U.S. C.A.) (the 19 Act) likely has had the greatest transformative effect on American society of any single law. By prohibiting discrimination based on race, color, sex, religion, a national origin in places of public accommodation, in federally assisted programs, in employment, in schools and with respect to voting rights, this massive law has had profound effects on almost every facet of American society.

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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 …

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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 …

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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 …

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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 …

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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 …

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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 …

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

Scholarly Works

No abstract provided.

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The Title Vii Tug-Of-War: Application Of U.S. Employment Discrimination Law Extraterritorially, Latoya S. Brown

Vanderbilt Journal of Transnational Law

Companies around the world increasingly are engaging in cross-border business transactions. Globalization is a must if companies want to continue to be competitive in the marketplace--indeed it is an inevitable reality. However, in the midst of this reality is another reality: the legal implications of establishing operations abroad. Transnational expansion introduces companies to an interesting game of tug-of-war in which companies may find themselves torn between compliance with U.S. law and compliance with the laws of the host country. This Note discusses this tug-of-war in the context of Title VII of the Civil Rights Act of 1964. Over 15 years …

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A Vague And Subjective Standard With Impractical Effects: The Need For Congressional Intervention After Burlington Northern & Santa Fe Railway Co. V. White, Lisa Durham Taylor

ExpressO

The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects employees who report perceived workplace discrimination or who otherwise participate in the investigative or enforcement process of alleged Title VII discrimination. The statute provides little guidance, however, as to the scope of this protection. Thus, disagreement abounded among the lower federal courts, not only as to whether the anti-retaliation provision prohibited employer acts outside the workplace as well as within, but also as to the level of severity to which an alleged retaliatory act must rise in order to support a claim. The Supreme Court sought …

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Federal Employment Law: Current Problems And A Call For Reform, Joseph Prud'homme

Journal of Race, Gender, and Ethnicity

No abstract provided.

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The Fundamental Incoherence Of Title Vii: Making Sense Of Causation In Disparate Treatment Law, Martin J. Katz

Sturm College of Law: Faculty Scholarship

This Article proposes a new approach to both prohibition and compensation. On the prohibition side, it proposes penalties and incentives that are unrelated to compensation. This approach will make clear that discriminatory conduct is prohibited irrespective of its effect on plaintiffs and ensure that such conduct is adequately deterred. On the compensation side, this Article proposes a new causal standard: a “necessity-or-sufficiency” test, along with a comparative fault approach to determine what level of compensation is due. While these proposals may seem radical in the context of disparate treatment law, they are widely accepted in modern tort law—the field from …

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Discrimination Cases In The October 2004 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

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Employee Threshold On Federal Antidiscrimination Statutes: A Matter Of The Merits, Christine Neylon O'Brien, Stephanie Greene

Kentucky Law Journal

No abstract provided.

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Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley

Scholarly Works

Like the women blackjack dealers at the Hard Rock, cocktail servers, exotic dancers, and prostitutes in legal brothels are vulnerable to sexual harassment by customers. The content of the four jobs reveals the fallacy of the "good girl"/"bad girl" dichotomy, because all four jobs require behavior that falls into both categories if we expand the definition of good and bad girls to include gendered behavior as well as sexual behavior. Once the defense applies to discrimination in sexualized environments, it could logically apply to sexual or racial harassment cases in companies that permit their employees to harbor and act upon …

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Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

Professional sports organizations' relationships with their players are, like other employer-employee relationships, subject to scrutiny under the antidiscrimination mandates embedded in Title VII of the Civil Rights Act of 1964. Professional sports organizations are, however, unique among employers in many respects. Most notably, unlike other employers, professional sports organizations attract avid supporters who identify deeply with the teams and their players. To the extent an organization racially discriminates, therefore, such discrimination creates the risk that fans will identify with the homogenous or racially disproportionate roster that results. The consequences of such race-based team identification are wide-reaching and potentially tragic. Through …

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Gender Stereotyping: Expanding The Boundaries Of Title Vii: Proceedings Of The 2006 Annual Meeting, Association Of American Law Schools, Section On Employment Discrimination Law, Michelle A. Travis, Arthur S. Leonard, Joann Williams, Mirriam Cherry

Articles & Chapters

No abstract provided.

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Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …

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Title Vii And Flexible Work Arrangements To Accommodate Religious Practice & Belief

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

This timeline tracks the development of the religious accommodation requirement of Title VII of the Civil Rights Act of 1964. The timeline covers the development of statutory text, relevant EEOC regulations, and Supreme Court precedent.

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Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

All Faculty Scholarship

Proceedings of the 2004 Annual Meeting, Association of American Law Schools, Sections on Employee Benefits and Employment Discrimination. Panel includes: Professor Colleen E. Medill; Professor Helen Norton; Eve Gartner, Esq.; and Professor Elizabeth Pendo.

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Full-Text Articles in Civil Rights and Discrimination

Evaluating Policy Solutions To Sex-Based Pay Discrimination: Women Workers, Lawmakers, And Cultural Change, Vicky Lovell

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

The New Sex Discrimination: Family Responsibilities, Cynthia Thomas Calvert

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

Commentary: Women’S Employment Rights In The Workplace Of 2007 And 2027, Marley S. Weiss

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

Toward An Integrated Disparate Treatment And Accommodation Framework For Title Vii Religion Cases, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas

Faculty Journal Articles and Book Chapters

Wheel Of Fortune: A Critique Of The "Manifest Imbalance" Requirement For Race-Conscious Affirmative Action Under Title Vii, Kenneth R. Davis

Georgia Law Review

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

The Flood Of Pregnancy Discrimination Cases: Balancing The Interests Of Pregnant Women And Their Employers, Jennifer Yue

Kentucky Law Journal

Civil Rights And Related Decisions, Eileen Kaufman

Scholarly Works

Civil Rights Act Of 1964, Henry L. Chambers, Jr.

Law Faculty Publications

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

Faculty Journal Articles and Book Chapters

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

Publications

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

Faculty Scholarship

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

Presentations

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

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

Scholarly Works

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

Scholarly Works

The Title Vii Tug-Of-War: Application Of U.S. Employment Discrimination Law Extraterritorially, Latoya S. Brown

Vanderbilt Journal of Transnational Law

A Vague And Subjective Standard With Impractical Effects: The Need For Congressional Intervention After Burlington Northern & Santa Fe Railway Co. V. White, Lisa Durham Taylor

ExpressO

Federal Employment Law: Current Problems And A Call For Reform, Joseph Prud'homme

Journal of Race, Gender, and Ethnicity

The Fundamental Incoherence Of Title Vii: Making Sense Of Causation In Disparate Treatment Law, Martin J. Katz

Sturm College of Law: Faculty Scholarship

Discrimination Cases In The October 2004 Term, Eileen Kaufman

Scholarly Works

Employee Threshold On Federal Antidiscrimination Statutes: A Matter Of The Merits, Christine Neylon O'Brien, Stephanie Greene

Kentucky Law Journal

Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley

Scholarly Works

Fielding A Team For The Fans: The Societal Consequences And Title Vii Implications Of Race-Considered Roster Construction In Professional Sport, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

Gender Stereotyping: Expanding The Boundaries Of Title Vii: Proceedings Of The 2006 Annual Meeting, Association Of American Law Schools, Section On Employment Discrimination Law, Michelle A. Travis, Arthur S. Leonard, Joann Williams, Mirriam Cherry

Articles & Chapters

Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

Title Vii And Flexible Work Arrangements To Accommodate Religious Practice & Belief

Charts and Summaries of State, U.S., and Foreign Laws and Regulations

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

All Faculty Scholarship