Labor and Employment Law Commons^™

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

Scholarly Works

In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

Compelling Arbitration Of Claims Under The Civil Rights Act Of 1866: What Congress Could Not Have Intended, Jean R. Sternlight

Scholarly Works

The Civil Rights Act of 1866 was a very special statute, designed at minimum to eliminate all "badges and incidents of slavery" and to ensure that the freed slaves would be provided with civil rights equal to those of white persons. Its enforcement depends on the availability of a neutral public system of justice. Private arbitration cannot assure these characteristics. Thus, courts should not enforce agreements to arbitrate future disputes that may arise under this statute. This Article, however, does not argue that arbitration of claims under the Civil Rights Act of 1866 should be prohibited altogether. Disputants who mutually …

Board Of Education V. Taxman: The Unpublished Opinions, Ann C. Mcginley, Michael J. Yelnosky

Scholarly Works

On June 27, 1997 the United States Supreme Court granted certiorari in Board of Education v. Taxman to review a judgment of the United States Court of Appeals for the Third Circuit. That court had ruled, en banc, that the school board in Piscataway, New Jersey violated Title VII when it chose to lay off Sharon Taxman, a teacher at Piscataway High School, rather than Debra Williams, her colleague. Taxman quickly became the most anticipated decision of the Term. However, the case settled in November 1997 before argument, so the issues it raised are unresolved. Taxman quickly became the most …

Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley

Scholarly Works

The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, …

Disparate Impact Discrimination: American Oddity Or Internationally Accepted Concept?, Elaine W. Shoben, Rosemary C. Hunter

Scholarly Works

Griggs v. Duke Power Co. was a landmark United States decision because it recognized that barriers to equal employment opportunity need not be overt and that practices that appear neutral on their face may nonetheless have an unjustifiably exclusionary effect on protected groups. This American insight has not been lost on other Western legal systems in the context of their antidiscrimination statutes and opinions. This article explores the favorable reception that disparate impact analysis has had bother in other countries with similar legal heritages and in international law.

Despite the wide acceptance of disparate impact analysis in the international marketplace …

The Emerging Cronyism Defense And Affirmative Action: A Critical Perspective On The Distinction Between Colorblind And Race-Conscious Decision Making Under Title Vii, Ann C. Mcginley

Scholarly Works

In Foster v. Dalton, the United States Supreme Court approved of the promotion of a less-qualified white male over a better-qualified black female under very suspicious circumstances; in Taxman v. Board of Education, the court invalidated the retention of an equally qualified black female over her white counterpart. The law justifies the disparate results in Foster and Taxman by invoking the principle of race and gender “neutrality” in the decision making process. Under this principle, the law generally prohibits employment determinations based consciously on a person's race or gender. An exception to the “neutrality principle” of Title VII is the …

Principles Of Insurance Coverage: A Guide For The Employment Lawyer, Francis J. Mootz Iii

Scholarly Works

Employment lawyers have witnessed a virtual revolution in the law of employment relations during the past thirty years. Although the federal government intervened substantially in private employment relationships in response to the economic catastrophe of the Great Depression, employers remained largely free of regulation until the explosion of statutes and common law developments that commenced in the 1960s and continues today. Recent developments in common law tort and contract principles are particularly troubling for defense counsel in employment matters, since the resulting doctrinal uncertainty renders it difficult to assess the client's exposure with any assurance until the appeals in the …

Foreward, Symposium: Insurance Coverage Of Employment Disputes, Francis J. Mootz Iii

Scholarly Works

This Symposium addresses the most recent insurance coverage issue that requires mastery not only of insurance law concepts but also a rapidly developing area of substantive law. Employers increasingly are finding themselves subject to state and federal regulation of the terms, conditions, and duration of their relationship with employees. The liabilities associated with increased governmental regulation represent a major financial exposure, leading many employers to demand coverage under their various insurance policies. This rapidly evolving area of insurance law achieved some measure of public notice with the recent disclosure that two insurance companies already have paid out nearly a million …

Rethinking Civil Rights And Employment At Will: Toward A Coherent National Discharge Policy, Ann C. Mcginley

Scholarly Works

America's employment discharge policy begs for reform. Although most states have created exceptions to the employment at will doctrine, the doctrine thrives. Title VII of the Civil Rights Act of 1964 (“Title VII”), which bans discrimination in employment based on race, gender, color, religion, and national origin, has proved ineffective in combating employment discrimination. Despite the statutory and common law exceptions to the employment at will doctrine, today's employees may have less job security than in the past. Although I applaud the Commissioners' efforts toward achieving justice in the workplace, I believe that abolishing the employment at will doctrine through …

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 …

Credulous Courts And The Tortured Trilogy: The Improper Use Of Summary Judgment In Title Vii And Adea Cases, Ann C. Mcginley

Scholarly Works

Civil rights are under siege. In mid-1989, the United States Supreme Court decided several cases that severely limit the civil rights claims and remedies available to a plaintiff claiming employment discrimination. This Article examines the gradual and continuing erosion of the factfinder's role in federal employment discrimination cases and its replacement by an increasing use of summary judgment through which the courts make pretrial determinations formerly reserved for the factfinder at trial. This trend not only represents a major shift in court procedure and, in the case of age discrimination claims, a transfer of power from juries to judges, but …

Reinventing Reality: The Impermissible Intrusion Of After-Acquired Evidence In Title Vii Litigation, Ann C. Mcginley

Scholarly Works

This Article analyzes the use of after-acquired evidence to defeat a discrimination victim's claim against her employer. The use of the Mount Healthy and Price Waterhouse mixed motives analysis in after-acquired evidence cases is misplaced because it is impossible for the permissible motive—resume fraud—to have been a factor in the adverse employment decision. Furthermore, after the enactment of the Civil Rights Act of 1991, it would be an improper judicial intrusion upon the power of the legislature for courts to apply mixed motives analysis to these cases. Besides the constitutional limitation on the judiciary's power created by the Civil Rights …

Civil Rights In Employment: The New Generation, Linda H. Edwards

Scholarly Works

In July 1989, Title VII was twenty-five years old. It is generally assumed that the first twenty-five years have seen significant changes in the economic opportunities available to America’s minorities and women. But with the rise to power of the Reagan appointees, the Supreme Court is clearly fashioning a new approach to issues of civil rights in employment. This article analyzes the new Court’s emerging themes and proposes a congressional response.

Watson V. Ft. Worth Bank And Trust: The Changing Face Of Disparate Impact, Linda H. Edwards

Scholarly Works

Title VII of the Civil Rights Act of 1964 constitutes this country’s first serious commitment to eradicating the enormous economic disadvantages caused by hundreds of years of racial and gender-related prejudice. But there is also cause for concern. While members of once excluded groups have entered the mid-level workforce, most have not progressed to top-level positions. Perhaps not surprisingly, the elimination of barriers to mid-level employment has spotlighted the unique barriers to equal employment in top-level jobs. Title VII’s capacity to deal effectively with these barriers will be its major challenge for the next quarter-century. Its success will depend, in …

Test Defamation In The Workplace: False Positive Results In Detecting Lies, Aids, Or Drug Use, Elaine W. Shoben

Scholarly Works

Workplace tests given to applicants or employees can be divided into two general types: (1) Tests with results that measure ability or performance on a continuous, comparative scale and (2) tests with essentially dichotomous results indicating the truth or falsity of some fact about the worker. Aptitude tests or quantified supervisorial ratings fall into the first category. They have been the subject of substantial litigation brought primarily under Title VII of the Civil Rights Act of 1964. In contrast, the second category of workplace tests has received comparatively little judicial attention. This group includes drug tests, other medical tests such …

Mutable Characteristics And The Definition Of Discrimination Under Title Vii, Peter Brandon Bayer

Scholarly Works

Title VII of the Civil Rights Act of 1964 prohibits racial, religious, gender, ethnic, and color discrimination in employment. In most instances the courts interpret the statute very broadly. However, a line of cases holds that discrimination predicated on a forbidden criterion coupled with a ‘mutable’—easily altered—characteristic does not constitute a violation of Title VII. This Article attempts to debunk the ‘mutable’ characteristic doctrine by discerning a general definition of discrimination under Title VII and applying that definition to demonstrate that mutability analysis contradicts the letter and spirit of the law.

Employee Recruitment By Design Or Default: Uncertainty Under Title Vii, Elaine W. Shoben

Scholarly Works

The employment of every new worker is the result of a two-stage process: recruitment of applicants and selection from the applicant pool. A personnel officer may evaluate only John and Jane Worker because Juan and Juanita Worker are not in the applicant pool. What active or passive acts by the company establish the applicant pool? The issue becomes particularly troublesome when Juan and Juanita Worker are members of one minority group and John and Jane Worker are members of another racial or ethnic minority group. May employers legally recruit more actively from one group than another?

This Article examines the …

Review Essay On Affirmative Action, Leslie C. Griffin

Scholarly Works

No abstract provided.

The Use Of Statistics To Prove Intentional Employment Discrimination, Elaine W. Shoben

Scholarly Works

Two decades after the once fiery debate about the meaning of "discrimination" in employment under Title VII of the Civil Rights Act of 1964, the issue has recently been rekindled. In simplest form, the question is whether the type of discrimination statutorily prohibited is only purposeful exclusions, or whether it includes unintended exclusions caused by tests or requirements that disproportionately affect a group defined by race, sex, or ethnicity. The Supreme Court's decision in Griggs v. Duke Power Co. resolved the question in one major area, thus causing the issue to lie dormant since 1971. Griggs held that liability under …

Norris V. Arizona Governing Committee: Titile Vii's Applicability To Arizona's Deferred Compensation Plan, Mary E. Berkheiser

Scholarly Works

Analysis of Norris v. Arizona Governing Comm., 671 F.2d 330 (9^th Cir. 1982).

Compound Discrimination: The Interaction Of Race And Sex In Employment Discrimination, Elaine W. Shoben

Scholarly Works

The courts have not yet clearly resolved whether Title VII of the Civil Rights Act of 1964 prohibits compound discrimination, that is, discrimination based on a combination of protected characteristics—such as race and sex-rather than single protected characteristics—such as race alone or sex alone. Professor Shoben argues that both the logic and the legislative history of Title VII support the view that compound discrimination is separately protected. She then offers a systematic method for statistically determining whether an employer is discriminating on the basis of a combination of characteristics. Finally, Professor Shoben considers whether single plaintiffs can, consistently with rule …

In Defense Of Disparate Impact Analysis Under Title Vii: A Reply To Dr. Cohn, Elaine W. Shoben

Scholarly Works

The preceding article by Dr. Richard M. Cohn' concerning the use of statistics in Title VII employment discrimination cases makes three basic points. First, Cohn rejects the methods used to assess disproportionate differences between groups on tests, such as ability tests. He finds fault both with the approach of the Uniform Guidelines on Employee Selection Procedures and with the method based on finding statistical significance that I have advocated. Second, he also rejects the approach courts have adopted for evaluating the relative exclusion of groups defined by race, sex, or national origin in the employer's work force. He argues that …

Differential Pass-Fail Rates In Employment Testing: Statistical Proof Under Title Vii, Elaine W. Shoben

Scholarly Works

In this Comment, Professor Shoben advocates the use of a statistical technique—a test of the difference between independent proportions—to assess the substantiality of differences in pass rates among various groups on employment tests, in order to facilitate determination of disproportionate impact under title VII of the Civil Rights Act of 1964. She then compares this method with the procedure adopted in the Federal Executive Agency Guidelines on Employee Selection Procedures and suggests several flaws in the latter approach.

Probing The Discriminatory Effects Of Employee Selection Procedures With Disparate Impact Analysis Under Title Vii, Elaine W. Shoben

Scholarly Works

Last term the Supreme Court handed down three decisions in which it defined with some precision the proper use of statistics in Title VII cases. Those decisions filled a void that had existed since Griggs v. Duke Power Co., but they left some questions unanswered. In this article Professor Shoben discusses those decisions and addresses the issues still unresolved. She proposes a structured framework for the systematic analysis of disparate impact cases that is consistent with, yet builds upon, the three recent decisions. In addition, Professor Shoben considers whether allowing a plaintiff to establish a prima facie case with …