Civil Rights and Discrimination Commons^™

Discrimination In Our Midst: Law School's Potential Liability For Employment Practices, Ann C. Mcginley

Scholarly Works

Studies and articles examining tenured, tenure-track and contract faculty in law schools have exposed the inequalities that women face when compared with their male counterparts. This article asks the legal academic community to consider these conditions in light of established Title VII doctrine which forbids discrimination because of sex. This article offers a hypothetical about the fictitious National Law School, whose labor relationships mimic those of many real law schools in a number of ways. Based on the facts in this hypothetical, the article explores different possible causes of action, either systemic or individual, that employees could reasonably win against …

Recapturing Summary Adjudication Principles In Disparate Treatment Cases, Henry L. Chambers, Jr.

Law Faculty Publications

In the last decade, just as Title VII jury trials have become common, the Supreme Court has given judges more latitude to dispose of both weak and fairly strong disparate treatment cases through summary adjudication, even when Title VII liability is plausible pursuant to the McDonnell Douglas test. 11 This article explains how the Court's disparate treatment jurisprudence results in the abandonment of the summary adjudication principle that weak but winnable cases should be tried before a jury and suggests that the Court correct its mistake. Part I of this article discusses the Supreme Court's summary adjudication doctrine. Part II …

The Politics Of Infertility: Recognizing Coverage Exclusions As Discrimination, Elizabeth Pendo

All Faculty Scholarship

Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit …

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday

Michigan Law Review

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …

Developing A Course On The Rights Of Low-Wage Workers, Shirley Lung

Journal of Legal Education

No abstract provided.

If Women Don't Ask: Implications For Bargaining Encounters, The Equal Pay Act, And Title Vii, Charles B. Craver

Michigan Law Review

Last spring, Jennifer and Richard graduated from the same law school with similar backgrounds. Both were offered associate positions with the same law firm and a $75,000 starting salary. Jennifer enthusiastically accepted the firm's offer, but Richard was hesitant. He informed the hiring partner that comparable firms in this area were paying new associates $80,000 per year. The partner offered Richard a starting salary of $80,000, which he accepted. Felicia and Harold manage similar departments for an e-commerce business. They have similar backgrounds, and have been with this firm for the same number of years. When Harold meets with the …

Employment Law: Desert Palace, Inc. V. Costa: Returning To Title Vii's Core Principles By Eliminating The Direct Evidence Requirement In Mixed-Motive Cases, Daniel P. Johnson

Oklahoma Law Review

No abstract provided.

Employment Law: Congress Giveth And The Supreme Court Taketh Away: Title Vii's Prohibition Of Religious Discrimination In The Workplace, Huma T. Yunus

Oklahoma Law Review

No abstract provided.

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

All Faculty Scholarship

This Article, which is part of a symposium on the 40th Anniversary of Title VII appearing in the Hofstra Labor and Employment Law Journal, evaluates the progress of women in the workforce by critically analyzing the musical "How to Succeed in Business Without Really Trying." Written in the early 1960s and made into a 1967 movie, How to Succeed follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. It also includes the sexual exploits of the exclusively male executive corps among the female …

Employment Law - Racial Discrimination - Circumstantial Evidence Of Racial Discrimination May Be Introduced To Raise A Genuine Issue Of Material Fact, Patricia W. Moore

Faculty Articles

In Hopson v. DaimlerChrysler, the United States Court of Appeals for the Sixth Circuit decided whether summary judgment was appropriate for the defendant on racial discrimination claims based on violations of Title VII, 42 United States Code § 2000e-2000e-17 and the Elliott-Larsen Civil Rights Act, Michigan Compiled Laws Annotated 37.2101.

Discrimination Cases Of The 2002 Term (Symposium: The Fifteenth Annual Supreme Court Review), Eileen Kaufman

Scholarly Works

No abstract provided.

Saving Title Vii: Using Intent To Distinguish Harassment From Expression, Robert Austin Ruescher

Faculty Publications

(Excerpt)

Like two reluctant boxers in a ring, the First Amendment and Title VII of the Civil Rights Act of 1964 have been sparring halfheartedly for years, circling and jabbing each other in courts and law reviews. The bout pits the constitutional right to be free from government censorship against the statutory "right to work in an environment free from discriminatory intimidation, ridicule, and insult." As stated by the Supreme Court in another context, it pits "the First Amendment rights of the speaker" against "the protection the statute provides for the unwilling listener."

Both the First Amendment and Title VII …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment …

Resolving The Title Vii Partner-Employee Debate, Kristin Nicole Johnson

Michigan Law Review

In January of 2001, a New York court issued an order affirming a plaintiff's ability to bring suit against a law firm partnership for discriminatory acts that occurred during her tenure as an associate at the firm. The plaintiff, Stacy Ballen-Stier, joined Hahn & Hessen, L.L.P. as an associate and, on January 1, 1997, the firm invited her to join the partnership. According to Ms. Ballen-Stier's complaint, the words and actions of a fellow partner, Mr. Blejwas, created a hostile and abusive work environment and continued to plague her "even when [she] was away from the office." Ms. Ballen-Stier alleged …

Toward Getting Beyond The Blame Game: A Critique Of The Ideology Of Voluntarism In Title Vii Jurisprudence, Sandi Farrell

Kentucky Law Journal

No abstract provided.

Parsing The Meaning Of Adverse Employment Action In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson

Oklahoma Law Review

No abstract provided.

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions …

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

How The "Equal Opportunity" Sexual Harasser Discriminates On The Basis Of Gender Under Title Vii, Kyle F. Mothershead

Vanderbilt Law Review

Americans commonly know that federal law prohibits workplace sexual harassment. Many might be surprised to find, however, that generally courts have not found liability in the case of the so-called "equal opportunity" harasser.' A simple hypothetical will explain the nature of this peculiar species of harasser. Suppose Ken and Carol are both employed at Happyfun, Inc. as manufacturers of reindeer Christmas ornaments under the direction of their supervisor, Fred. Fred corners each of them daily and asks, "How about some sex today?" No doubt he is sexually harassing both Ken and Carol. If they sue for relief, however, a judge …

Job Segregation, Gender Blindness, And Employee Agency Symposium: Law, Labor, And Gender - New Perspectives On Labor And Gender, Tracy E. Higgins

Faculty Scholarship

Almost forty years after the enactment of Title VII, women's struggle for equality in the workplace continues. Although Title VII was intended to "break[] down old patterns of segregation and hierarchy," the American workplace remains largely gender-segregated. Indeed, more than one-third of all women workers are employed in occupations in which the percentage of women exceeds 80%. Even in disciplines in which women have made gains, top status (and top paying) jobs remain male-dominated while the lower status jobs are filled by women. This pattern of gender segregation, in turn, accounts for a substantial part of the persistent wage gap …

(Un)Welcome Conduct And The Sexually Hostile Environment, Henry L. Chambers, Jr.

Law Faculty Publications

As courts refine the theory underlying sexual harassment and sex discrimination, the unwelcomeness inquiry may become irrelevant to determining whether gender-based conduct is sexually harassing. In addition, the one possible remaining purpose that the unwelcomeness requirement may serve-providing notice to a putative harasser or its employer-is now served by an affirmative defense applicable to many sexual harassment claims. Consequently, its role should be reexamined. This Article does that. Part I of the Article describes a hypothetical situation that provides a context in which to consider unwelcomeness. Part II provides a brief overview of the evolving sexual harassment jurisprudence. Part III …

The Irrational Turn In Employment Discrimination Law: Slouching Toward A Unified Approach To Civil Rights Law, John Valery White

Scholarly Works

This Article argues that the Supreme Court's recent disparate treatment decisions under Title VII of the Civil Rights Act of 1964 represent a trend toward unifying all civil rights law under an approach most closely akin to traditional equity. This trend explains the curious tension between substance and process in the Court's most recent decisions, St. Mary's Honor Center v. Hicks and Reeves v. Sanderson Plumbing. It also explains the Court's uncommon confidence in its yet undefined notions of what constitutes discrimination on the basis of the several protected categories recognized in Title VII and related statutes. The trend toward …

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

Scholarly Works

No abstract provided.

Toward A Motivating Factor Test For Individual Disparate Treatment Claims, Benjamin C. Mizer

Michigan Law Review

Nathan Fields, an African-American employee at the New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD"), was in many ways the typical Title VIP employment discrimination plaintiff, with a case that, on its face, suggested both discriminatory and benign actions by his employer. For six years, Fields worked as a maintenance assistant in the electrical shop at OMRDD's Oswald D. Heck Developmental Center ("Heck"). During that time, he twice applied for a promotion, and on each occasion, Heck selected white employees for the position. In addition, Fields claimed that he was discriminatorily singled out for disciplinary treatment, that …

The Attachment Gap: Employment Discrimination Law, Women's Cultural Caregiving, And The Limits Of Economic And Liberal Legal Theory, Laura T. Kessler

University of Michigan Journal of Law Reform

Title VII has prohibited employment discrimination on the basis of pregnancy since 1978, when Congress passed the Pregnancy Discrimination Act ("PDA"), but it does not require employers to recognize women's caregiving obligations beyond the immediate, physical events of pregnancy and childbirth. The Family and Medical Leave Act of 1993 ("FMLA ") also does little more than provide job security to some relatively privileged women in the case of childbirth. Neither of these statutes, which constitute the bulk of the United States' maternity and parental leave policies, provides for the most common employment leave needs of caregivers, who by all measures …

Schwenk And The Ambiguity In Federal "Sex" Discrimination Jurisprudence: Defining Sex Discrimination Dynamically Under Title Vii, Masako Kanazawa

Seattle University Law Review

This Note examines a new development in federal Title VII sex discrimination jurisprudence specifically in the context of transsexual and homosexual plaintiffs, describing the courts' gradual shift away from formalism towards a more realistic approach in this area. Part II begins by examining the anatomical sex rule established by the three major pre-Schwenk decisions categorically rejecting transsexuals' Title VII claims. This section then considers the two subsequent Supreme Court decisions, Price Waterhouse and Oncale, and the Ninth Circuit's Schwenk opinion. Part II concludes that the Schwenk court correctly read Price Waterhouse and Oncale as mandating a departure from …

Discrimination, Plain And Simple, Henry L. Chambers, Jr.

Law Faculty Publications

This short essay is a brief examination of the Court's relatively recent attempts to simplify Title VII and employment discrimination; it is not intended to be a comprehensive review of the Court's discrimination jurisprudence. Rather, it seeks to identify a few concerns with and implications of the Court's apparent desire to simplify Title VII jurisprudence. Part I briefly examines how the Court has simplified employment discrimination through Hicks and Oncale. Part II examines how the Court's simplifications have been used. Part III suggests concerns that should accompany the Court's simplification.