Civil Rights and Discrimination Commons^™

Salary History And The Equal Pay Act: An Argument For The Adoption Of “Reckless Discrimination” As A Theory Of Liability, Kate Vandenberg

Northwestern Journal of Law & Social Policy

The Equal Pay Act (EPA) purports to prohibit employers from paying female employees less than male employees with similar qualifications; however, the affirmative defenses provided in the EPA are loopholes that perpetuate the gender pay gap. In particular, the fourth affirmative defense allows for wage differentials based on a “factor other than sex.” Many federal circuits have read this defense broadly to include wage differentials based on salary history. That is, an employer can pay a female employee less than her male counterparts because she was paid less by her previous employer. While salary history was once viewed as an …

Stepping Into The Shoes Of The Department Of Justice: The Unusual, Necessary, And Hopeful Path The Illinois Attorney General Took To Require Police Reform In Chicago, Lisa Madigan, Cara Hendrickson, Karyn L. Bass Ehler

Northwestern Journal of Law & Social Policy

No abstract provided.

A Class Action Lawsuit For The Right To A Minimum Education In Detroit, Carter G. Phillips

Northwestern Journal of Law & Social Policy

No abstract provided.

2019 Camp Courthouse Colloquy United States Court Of Appeals For The Second Circuit: Leadership And Mediation, Colin Powell

Cardozo Journal of Conflict Resolution

A mediator serves many roles during the course of a mediation, including facilitator, listener, problem-solver, and agent of reality testing. Often understated is the mediator's role as a leader. To conduct an effective mediation, a mediator must be able to lead counsel and the parties on a path where they will be open to engage in frank risk assessment and consideration of options other than continued litigation. A mediator can learn how to be a better leader by studying leadership in others.

This year's Colloquy focuses on leadership and mediation. The powerful and insightful lessons on leadership drawn from General …

Race, Space, And Surveillance: A Response To #Livingwhileblack: Blackness As Nuisance, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

This article is an invited response to an American University Law Review article titled “#LivingWhileBlack: Blackness as Nuisance” that has been widely discussed in the news media and in academic circles.

To Protect Freedom Of Expression, Why Not Steal Victory From The Jaws Of Defeat?, Evelyn Aswad

Faculty Articles

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation. Those concerns were …

Tracing Biometric Assemblages In India’S Surveillance State: Reproducing Colonial Logics, Reifying Caste Purity, And Quelling Dissent Through Aadhaar, Priya Prabhakar

Scripps Senior Theses

Tracing Biometric Assemblages in India’s Surveillance State seeks to understand the historical conditions that rendered the nation-state of India as having the world’s largest biometric surveillance system: Aadhaar. Surveillance practices used by the British Raj mirrors the current social order of the ruling Bharatiya Janata Party (BJP), as they use surveillance to similar ends in today’s political economy, through the intersecting forces of neoliberalism and ethnonationalism. This thesis is an exploration into how India’s current surveillance regimes cultivate biometric surveillant assemblages through Aadhaar. Contrary to claims that Aadhaar was created to empower the poor, I argue that these surveillance regimes …

Free Speech And Off-Label Rights, Amy J. Sepinwall

Georgia Law Review

When a litigant invokes a constitutional right to
protect interests different from the ones underpinning
the right, he engages in what this Article calls an
off-label rights exercise. The Free Speech Clause has
recently become an especially prominent, and troubling,
site of off-label rights exercises. Two of the most
prominent cases in the Supreme Court’s last term
involved litigants who invoked their constitutional
rights to free speech to protect interests unrelated to
speech or expression. In Janus v. American Federation
of State, County, & Municipal Employees, a state
employee argued that forcing him to pay for the union’s
bargaining activities …

The Chumash Heritage National Marine Sanctuary: An Exploration Of Changing The Discourse On Conservation, Arielle Ben-Hur

Pitzer Senior Theses

In 2015, the Northern Chumash Tribal Council submitted a National Marine Sanctuary Nomination to establish the Chumash Heritage National Marine Sanctuary– a means by which to ensure the protection of one of the most culturally and biologically diverse coastlines in the world. On October 5, 2015, John Armor of the National Oceanic and Atmospheric Administration (NOAA) responded to the nomination, adding it to the inventory of areas NOAA may consider in the future for national marine sanctuary designation.

In my thesis, I explore how the nomination of the Chumash Heritage National Marine Sanctuary acts as a platform from which Traditional …

The Right To Be And Become: Black Home-Educators As Child Privacy Protectors, Najarian R. Peters

Michigan Journal of Race and Law

The right to privacy is one of the most fundamental rights in American jurisprudence. In 1890, Samuel D. Warren and Louis D. Brandeis conceptualized the right to privacy as the right to be let alone and inspired privacy jurisprudence that tracked their initial description. Warren and Brandeis conceptualized further that this right was not exclusively meant to protect one’s body or physical property. Privacy rights were protective of “the products and the processes of the mind” and the “inviolate personality.” Privacy was further understood to protect the ability to “live one’s life as one chooses, free from assault, intrusion or …

Killing The Cat's Paw, Sandra F. Sperino

Faculty Publications

In federal employment discrimination law, courts apply the label "cat's paw" to describe certain cases. Judge Richard Posner first used the term cat's paw in the context of federal discrimination jurisprudence, invoking a fable about an enterprising monkey who tricks a cat into getting hot chestnuts from a fire.' As the cat removes the hot chestnuts from the fire, the monkey eats them, leaving the cat with nothing except burnt paws.

In its traditional form, a cat's paw case is one in which a biased individual passes along negative information about a worker to an "unbiased" decisionmaker. The "unbiased" decisionmaker …

Into The Weeds: Modern Discrimination Law, Sandra F. Sperino

Faculty Publications

Modern discrimination law is the law of minutiae. Judicial energy is not primarily focused on large questions about why workplace inequality exists or how to prevent it. It is not even focused on whether the plaintiff in a particular case was treated differently because of a protected trait. Instead, judicial energy centers on interpreting and applying an ever-growing phalanx of complicated court-created ancillary doctrines.

Since the 1970s, the federal courts have created a number of frameworks to analyze discrimination claims. Each framework provides a roadmap for proving a certain theory of discrimination. Over time, the courts have added bells and …

Feminist Equality Rights Litigation: Evolution Of The Canadian Legal Landscape, Fay Faraday

Commissioned Reports, Studies and Public Policy Documents

This publication was created as part of LEAF’s Feminist Strategic Litigation (FSL) Project. The FSL Project examines the use and impact of feminist strategic litigation to help LEAF, feminists, and gender equality advocates more effectively combat systemic discrimination and oppression.

Recognizing that the legal fight for equality remains a work in progress, this report examines how the landscape of Canadian equality rights litigation has evolved since 1985. It looks both at how the legal meaning of equality has evolved and how feminists have developed distinct ways of working to advance equality. The report examines:

(i) strengths and successes of …

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

American University Law Review

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability …

Dehumanization “Because Of Sex”: The Multiaxial Approach To The Rights Of Sexual Minorities, Shirley Lin

Lewis & Clark Law Review

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …

Workforce Housing And Housing Preference Policies Under The Fair Housing Act, Jeffrey D. Jones

Lewis & Clark Law Review

The workforce housing movement grew out of two urgent realities. First, the lack of affordable housing near where workers are employed has a substantial impact on local economies and local business. Second, the lack of affordable housing near where workers live undermines the twin goals of inclusive com- munities and reversing historical patterns of segregation. The latter remains a primary obstacle to equality of opportunity throughout the United States. There is no one definition of “workforce housing.” The leading definition of workforce housing is provided by the influential Urban Land Institute (ULI). The ULI defines workforce housing as housing that …

Getting A Lawyer While Black: A Field Experiment, Brian Libgober

Lewis & Clark Law Review

In this Article, I present new evidence that African-Americans face unique impediments in obtaining access to counsel. Using a randomized audit design, I show that those with black-sounding names receive only half the callbacks of those with white-sounding names in response to requests for legal representation. I design a larger, follow-up experiment to evaluate variations on the theory of “statistical discrimination”—that lawyers are merely responding to economically relevant signals correlated with race. I find no evidence supporting the expectations of the statistical discrimination theory but some evidence that racial preferences matter. I conclude by presenting a more nuanced theory of …

The Persistence And Uncertain Future Of The Public Interest Class Action, David Marcus

Lewis & Clark Law Review

Cases against government defendants for large-scale injunctive relief often turn on the class certification decision. From the modern class action’s early days until 2011, these “public interest class actions” enjoyed marked success in the federal courts. This procedural favor seemed to lapse when the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes. The decision tightened the requirements that govern class certification in public interest cases. In Wal-Mart’s immediate wake, several courts of appeals vacated certified classes in important structural reform lawsuits. This litigation seemed to face a tough road ahead.

But the public interest class action has persisted. In …

On The Proposed Legalization Of Commercial Surrogacy: I Thought We Had Abolished The Sale Of Human Beings, Phyllis Chesler

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Redefining Tribal Sovereignty For The Era Of Fundamental Rights, Michael Doran

Indiana Law Journal

This Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility …

Title Ix & The Civil Rights Approach To Sexual Harassment In Education, Nancy Chi Cantalupo

Law Faculty Research Publications

No abstract provided.

The Long And Winding Road: Pursuing Gender Equality In Rhode Island, Cassandra L. Feeney

Roger Williams University Law Review

No abstract provided.

Access Law Schools & Diversifying The Profession, Deseriee A. Kennedy

Scholarly Works

Lawyers do not reflect the racial diversity in the United States. The legal profession continues to struggle with ways to achieve and maintain racial diversity. Law schools play a critical role in the path to practice, and therefore an examination of the barriers to the profession they created is warranted. This essay critiques the over-reliance on standardized testing in law school admissions and advocates for an open admissions process that prioritizes racial and academic diversity. It suggests that the benefits of minimizing the role of standardized tests far outweigh any perceived costs in legal education. This essay concludes that the …

The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown

UF Law Faculty Publications

Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the rule …

Children’S Equality Rights: Every Child’S Right To Develop To Their Full Capacity, Nancy E. Dowd

UF Law Faculty Publications

Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to …

Civil Rights—Answering The “Million Dollar” Question: The Meaning Of “Sex” For The Purposes Of Title Ix, Title Vii, And The Equal Protection Clause, And Its Impact On Transgender Students’ Membership In Fraternal Organizations, Jacob Wickliffe

University of Arkansas at Little Rock Law Review

No abstract provided.

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

There’S Nothing Worse Than Losing To A Girl: An Analysis Of Sex Segregation In American Youth Sports, Julia Konieczny

Indiana Journal of Law and Social Equality

No abstract provided.

The Rise Of Zero Tolerance And The Demise Of Family, Mariela Olivares

Georgia State University Law Review

This article explores the intersection of immigration law and family law and argues that the current regime dedicated to decimating immigrant families in the United States does not comport with the history and spirit of immigration law and policy. Policies shifting away from family unity and towards an inhumane treatment of immigrant families is anchored in the political rhetoric that normalizes the oppression of immigrants. By characterizing immigrants as nonhuman—even “animals,” as described by President Donald Trump—the current slate of anti-immigrant policies that specifically target families is normalized. Part I discusses contemporary immigration law that terrorizes the family unit and …

A Source Of Hope: Looking To Massachusetts’S Fair Housing Law As A Guide For Rhode Island’S Proposed Legislation To Protect Public Assistance Recipients From Housing Discrimination, Sarah Friedman

Roger Williams University Law Review

No abstract provided.