Labor and Employment Law Commons^™

The Ministerial Exception And Defamation: Navigating Churches’ Autonomy And Their Communications, Zachary Runge

Pepperdine Law Review

In two recent cases, the Supreme Court has adopted what scholars and lower courts have called the “ministerial exception.” The Court only addressed the ministerial exception’s application to employment discrimination claims. But the Court did not foreclose the possibility of its application to other claims. This Comment argues that the ministerial exception applies to defamation claims arising out of a minister’s termination. After providing the background for the ministerial exception, this Comment explains the current state of the law. Then, this Comment argues that the ministerial exception, as a form of the church autonomy doctrine, applies to the defamation claims …

An Analysis Of Policies Impacting Ex-Offenders And The Barriers Created In Their Transition Into Society: A Qualitative Metasynthesis, Thomas A. Ayala

Theses & Dissertations

In 2018, more than six million people in the United States were under correctional supervision, including incarceration, probation, or parole, equivalent to 1 in 40 adults (Maruschak & Minton, 2020). While this reflects a decline from previous years, prison populations reversed course in 2022, increasing by 2% nationwide, with 36 states and federal facilities reporting higher inmate counts (Nellis, 2024). Since 1973, policy shifts have fueled the rise of mass incarceration (Nellis, 2021; O’Brien, 2020). According to the Pew Center, the United States remains a global outlier, holding 5% of the world’s population, but incarcerates 25% of the 9 million …

Algorithmic Bias In Hiring: Amending Title Vii To Prohibit Ai Discrimination, Michael H. Leroy

Journal of Legislation

I propose amendments to Title VII to address discriminatory hiring related to AI technologies. Section 703(c)’s definition of an “employment agency” should be modified to include “any person who uses artificial intelligence” to procure employees. I also propose a new definition in section 703 that incorporates the expansive definition of AI in 15 U.S.C. 9401(3). These small changes would make AI hiring firms more responsible for discriminatory screening and selection of job applicants, and better protect applicants who are adversely selected by sex, race, disability and other protected characteristics.

Algorithmic Governance And Nondiscrimination Rights In The Workplace, Pauline Kim

Scholarship@WashULaw

This chapter analyzes existing legal responses to the problem of discriminatory algorithms in the workplace. As firms increasingly rely on algorithms or automated decision systems, a type of artificial intelligence, to manage their workforces, concerns have grown that these tools can systematically exclude historically disadvantaged groups. One response is to rely on traditional anti-discrimination law. These laws clearly prohibit certain forms of algorithmic discrimination; however, the complex, opaque nature of algorithms makes identifying and proving discriminatory harms challenging. Another response looks to broader frameworks of data protection and algorithmic regulation to protect against workplace discrimination. These initiatives are promising, but …

Reverse Discrimination: An Opportunity To Modernize And Improve Employment Discrimination Law, William R. Corbett

University of Miami Law Review

The issue of how to prove discrimination in reverse discrimination cases has produced a division in the circuits and some strongly worded opinions about discriminatory discrimination law. The courts begin with the three-stage proof framework developed by the Supreme Court in 1973 in McDonnell Douglas Corp. v. Green, 411 U.S. 792. Some courts adjust the prima facie case, the first stage of the analysis, by requiring a reverse discrimination plaintiff to prove background circumstances that justify the inference that the defendant discriminates in a way that is not consistent with historical patterns of discrimination. Other courts reject the background …

Limitations Of The “Four-Fifths Rule” And Statistical Parity Tests For Measuring Fairness, Pauline Kim, Manish Raghavan

Scholarship@WashULaw

To ensure the fairness of algorithmic decision systems, such as employment selection tools, computer scientists and practitioners often refer to the so-called “four-fifths rule” as a measure of a tool’s compliance with anti-discrimination law. This reliance is problematic because the “rule” is in fact not a legal rule for establishing discrimination, and it offers a crude test that will often be over- and under-inclusive in identifying practices that warrant further scrutiny. The “four-fifths rule” is one of a broader class of statistical tests, which we call Statistical Parity Tests (SPTs), that compare selection rates across demographic groups. While some SPTs …

Given Equal Weight Under The Law: Expanding Title Vii Protections To Prohibit Weight Discrimination, Chelsea L. Yedinak

William & Mary Journal of Race, Gender, and Social Justice

Approximately half of Americans have an overweight or obese body mass index (BMI), yet weight discrimination is legal in nearly every jurisdiction. This means employers can set BMI limits, maximum weights, waist sizes, and more with no legal consequences. This Note examines the history of anti-fat bias and weight discrimination and how that motivates weight discrimination in employment and in the law generally. It then discusses possible solutions. Currently, most scholars propose prohibiting weight discrimination on a state level through legislation similar to Michigan’s Elliott-Larsen Civil Rights Act or on a federal level by recognizing obesity as a disability protected …

Baby Steps: Why The Florida Supreme Court’S New Parental Leave Continuance Rule Reinvigorates The Fmla’S Underlying Gender Equity Goals Within The Legal Profession And Why More States Should Follow Suit, Katie B. Miesner

FIU Law Review

Although women are enrolling in law school and joining the legal profession in significant numbers, law firms are struggling to retain female lawyers. This poses a significant challenge to achieving gender equity at the highest levels of the legal profession, prompting several important questions: Why are women leaving the profession early; what policies or changes should be implemented to address this problem; and who is best suited to lead these efforts? One of the main reasons women leave the profession early is due to their disproportionate caregiving responsibilities. In response, both public and private measures have been introduced to address …

Pretext After Bostock—Disproving One Of The Employer’S Reasons Is Enough, Robert S. Mantell

Washington and Lee Journal of Civil Rights and Social Justice

When an employer gives a pretextual reason for an employee’s termination, that falsehood can help prove that the true reason was discrimination. The dishonesty constitutes “affirmative evidence of guilt.” The trier of fact may “infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” However, when an employer provides multiple reasons for firing an employee, there has been a split of opinion whether the plaintiff must disprove one or all of those reasons.

The Supreme Court’s recent discussion of multiple motives in Bostock v. Clayton County provides the tools to resolve this split and compels rejection of …

Third-Party Retaliation Problems, Alex B. Long

Emory Law Journal

No abstract provided.

To Bar Or Not To Bar: Title I Of The Ada And After-Acquired Evidence Of A Plaintiff's Failure To Satisfy Job Prerequisites, Kathryn Johnson-Monfort

William & Mary Business Law Review

Through enactment of Title I of the Americans with Disabilities Act (ADA) in 1990, Congress unequivocally resolved to prohibit discrimination on the basis of disability in the workplace. However, distortions have since created loopholes through which disability-based employment discrimination may freely slip. An enforcement regulation promulgated by the Equal Employment Opportunity Commission (EEOC) enables such circumvention of the ADA by creating an additional prima facie requirement: a plaintiff must not only be able to perform the essential functions of the position as required by the statute, but must also satisfy all job-related requirements of the position as demanded by the …

Working On The Other Side Of The Fence: Relief For Incarcerated Individuals After Employment Discrimination, Hannah C. Merrill

William & Mary Journal of Race, Gender, and Social Justice

One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” …

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

Scholarship@WashULaw

Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Outsourcing Discrimination, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage …

Aging On Air: Sex, Age, And Television News, Rebecca H. White

Scholarly Works

The best piece of advice I received when I began teaching law was to adopt Charlie Sullivan's and Mike Zimmer's casebook for my Employment Discrimination class. Before I became a law professor, I had no clue how important choosing the right textbook is, not only for the students but for the teacher. I also was unaware of how much I had to learn about a subject I thought I knew well. I had been litigating employment discrimination cases for several years, but when I began teaching, I quickly learned how much I did not know. Charlie's and Mike's casebook, through …

Why Protect Unauthorized Workers? Imperfect Proxies, Unaccountable Employers, And Antidiscrimination Law's Failures, Angela D. Morrison

Faculty Scholarship

This article explores a gap in the scholarship regarding the unauthorized workplace. It describes and names the two main justifications on which advocates and courts have relied to extend federal antidiscrimination protections to unauthorized workers. First, the proxy justification insists that workplace protections must include unauthorized workers because their protection is necessary to protect U.S. citizen and authorized workers. Second, the deterrence/accountability justification states that workplace protections must include unauthorized workers because it will deter employers from future violations of antidiscrimination laws and hold them accountable for violations of immigration law. While these justifications have led to some protection for …

Big Data And Artificial Intelligence: New Challenges For Workplace Equality, Pauline Kim

Scholarship@WashULaw

This essay contains remarks delivered in a keynote speech at the University of Louisville Brandeis School of Law’s 35th Annual Carl A. Warns and Edwin R. Render Labor and Employment Law Institute. Big data and artificial intelligence are increasingly being used by employers in their human resources processes in ways that control access to employment opportunities. This essay describes some of those developments and explains how practices like targeted online recruitment strategies and the use of hiring algorithms to screen applicants raise a significant risk of discriminating against protected groups such as women and racial minorities. It then considers some …

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …

Analytical Nightmare: The Materially Adverse Action Requirement In Disparate Treatment Cases, Esperanza N. Sanchez

Catholic University Law Review

Title VII of the Civil Rights Act of 1964 expressly prohibits employment discrimination on the basis of an individual’s race, color, religion, sex, or national origin. Since its passage, however, federal courts have imported an adverse employment action requirement into Title VII jurisprudence despite its absence from the statutory language. Inconsistent determinations as to which employment actions qualify as sufficiently adverse under Title VII have resulted in an analytical confusion, yielding anemic anti-discrimination protections that, in effect, shelter invidious employment practices from liability. This Note argues that the anti-discrimination jurisprudence surrounding the adverse action requirement diametrically opposes both the letter …

Criminal Employment Law, Benjamin Levin

Scholarship@WashULaw

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Incomprehensible Discrimination, James Grimmelmann, Daniel Westreich

Cornell Law Faculty Publications

The following (fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia is designed to highlight one particularly interesting issue raised by Solon Barocas and Andrew Selbst in Big Data’s Disparate Impact. Their article discusses many ways in which data-intensive algorithmic methods can go wrong when they are used to make employment and other sensitive decisions. Our vignette deals with one in particular: the use of algorithmically derived models that are both predictive of a legitimate goal and have a disparate impact on some individuals. Like Barocas and Selbst, we think it raises fundamental questions about …

Data-Driven Discrimination At Work, Pauline T. Kim

William & Mary Law Review

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Data-Driven Discrimination At Work, Pauline Kim

Scholarship@WashULaw

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Balancing Employer And Employee Interests In Social Media Disputes, Tara R. Flomenhoft

Labor & Employment Law Forum

No abstract provided.

Employment Discrimination: Have The Federal Courts Reached A Consensus On How To Interpret Title Vii Claims Alleged By Plaintiffs Who Identify As Lesbian, Gay, Bisexual, Or Transgender?, Larkin Nicholas

Labor & Employment Law Forum

No abstract provided.

An Overture To Equality: Preventing Subconscious Sex And Gender Biases From Influencing Hiring Decisions, Christy Krawietz

Seattle University Law Review

In many industries, women are less likely than men to be hired, and research suggests that this is due to subconscious gender bias rather than meritorious difference. To combat this bias, some orchestras use gender-blind auditions to hire their musicians. Orchestral hopefuls sit behind a screen to play their pieces, and directors listen to determine whom they want to hire. Some orchestras require applicants to remove their shoes before walking onstage, as even the perceived sound of high heels can affect a director’s decision. Before instituting gender-blind auditions, the top five American orchestras had fewer than five percent women players. …

Why Title Vii's Participation Clause Needs To Be Broadly Interpreted To Protect Those Involved In Internal Investigations, May M. Mansour

St. John's Law Review

(Excerpt)

This Note argues that this narrow interpretation of the statute is contrary to the intention and aim of Title VII and, in turn, should be interpreted more broadly. Part I of this Note gives a brief explanation of the meaning and purpose of Title VII's anti-retaliation provision. Part II focuses on some of the cases that have limited the application of the participation clause to employees who are involved in formal EEOC proceedings. In particular, it focuses on the most recent Second Circuit case, Townsend v. Benjamin Enterprises, Inc., to examine the dangers presented by such a limited …

Employment Discrimination Against Bisexuals: An Empirical Study, Ann E. Tweedy, Karen Yescavage

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.