Labor and Employment Law Commons^™

Compulsory Employment Arbitration And The Eeoc, Richard A. Bales

Pepperdine Law Review

No abstract provided.

Subordinate Bias Liability, Theresa M. Beiner

University of Arkansas at Little Rock Law Review

Often, decisions regarding employment are made with the input of or based on the observations of more than one person. This presents complications for employment discrimination plaintiffs seeking to prove discriminatory animus resulting in an adverse employment decision for the plaintiff. Specifically, many plaintiffs are left to deal with the unresolved issue of whether they have a claim for employment discrimination when a discriminating non-decision making coworker or direct supervisor supplies incorrect or distorted information to their superiors who have the authority to fire them. This is known as the "cat's paw" theory of liability or "subordinate bias liability."

The …

I'M So Lonesome I Could Cry ... But Could I Sue?: Whether 'Interacting With Others' Is A Major Life Activity Under The Ada, Bryan P. Stephenson

Pepperdine Law Review

No abstract provided.

Law Firms As Defendants: Family Responsibilities Discrimination In Legal Workplaces, Joan C. Williams, Stephanie Bornstein, Diana Reddy, Betsy A. Williams

Pepperdine Law Review

No abstract provided.

Keeping Discrimination Theory Front And Center In The Discourse Over Work And Family Conflict, Laura T. Kessler

Pepperdine Law Review

This essay is a contribution to a symposium on balancing career and family. It frames the problem of work/family conflict as a form of sex discrimination. It demonstrates that many of the constructs commonly used to illustrate an absence of employment discrimination - such as the accident, opt-out, time-lag theories - actually fit quite comfortably within various discrimination frameworks. It also contextualizes the problem of work/family conflict within the larger issue of gender bias in the workplace, demonstrating how each contributes to and works together to produce workplace inequality for women. This approach contrasts with the traditional bifurcation of gender …

A Religious Organization’S Autonomy In Matters Of Self-Governance: Hosanna-Tabor And The First Amendment, Carl H. Esbeck

Faculty Publications

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required. Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during …

The Disability History Mystery: Assessing The Employer's Reasonable Accommodation Obligation In "Record Of Disability" Cases, Michael D. Moberly

Pepperdine Law Review

No abstract provided.

Ledbetter V. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007): Faithful To Title Vii Or Blind To Sex Discrimination?, Garrett M. Fahy

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Soul Of A Woman: The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Faculty Working Papers

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act's coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Limiting The Affirmative Defense In The Digital Workplace , Daniel B. Garrie

Michigan Journal of Gender & Law

From 2009 to 2011, there were more than 30,000 sexual harassment claims filed in the United States. The ubiquitous availability of digital technology devices has facilitated many instances of sexual harassment. Such sexual harassment occurs through unprovoked and offensive e-mails, messages posted on electronic bulletin boards, and other means available on the Internet. To date, courts remain silent on this issue. Should this type of sexual harassment be treated differently from physical sexual harassment? The surprising answer is yes. This Article suggests a new judicial framework for addressing sexual harassment perpetrated through digital communications. This framework accounts for the real-world …

Lutheran And Yet Not Lutheran: A Church School Tests The Dilemma Of Church And State, Marie Failinger

Faculty Scholarship

A small Lutheran church school dispute became a nationally debated case, Hosanna-Tabor Evangelical Lutheran Church and v. EEOC, decided by the Supreme Court on 11 January 2012. At the heart of the Supreme Court case was a controversy over the so-called "ministerial exception" to federal anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Until the Sixth Circuit Court of Appeals decision in Hosanna-Tabor, finding that Cheryl Perich was not a minister within the exception, all circuit courts to rule on the issue had recognized a ministerial exception in order …

Subordinate Bias Liability, Theresa M. Beiner

Law Faculty Scholarship

No abstract provided.

Federal Courts At The Boyd School Of Law, Anne R. Traum

Scholarly Works

No abstract provided.

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Publications

No abstract provided.

Taking In Strays: A Critique Of The Stray Comment Doctrine In Employment Discrimination Law, Kerri Lynn Stone

Faculty Publications

This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the …

Title Vii Works - That's Why We Don't Like It, Chuck Henson

Faculty Publications

In response to the universal belief that Title VII of the Civil Rights Act of 1964 is not fulfilling its purpose, this Article presents a different perspective on the reality of this federal employment discrimination law. Title VII is fulfilling the purpose of the Congress that created it. The purpose was not the eradication of all discrimination in employment. The purpose was to balance the prohibition of the most obvious forms of discrimination with the preservation of as much employer decision-making latitude as possible. Moreover, the seminal Supreme Court decision, McDonnell Douglas v. Green, accurately implemented this balance. This Article …

Rethinking Discrimination Law, Sandra F. Sperino

Michigan Law Review

Modern employment discrimination law is defined by an increasingly complex set of frameworks. These frameworks structure the ways that courts, juries, and litigants think about discrimination. This Article challenges whether courts should use the frameworks to conceptualize discrimination. It argues that just as faulty sorting contributes to stereotyping and societal discrimination, courts are using faulty structures to substantively limit discrimination claims. This Article makes three central contributions. First, it demonstrates how discrimination analysis has been reduced to a rote sorting process. It recognizes and makes explicit courts' methodology so that the structure of discrimination analysis and its effects can be …

The Telltale Sign Of Discrimination: Probabilities, Information Asymmetries, And The Systemic Disparate Treatment Theory , Jason R. Bent

University of Michigan Journal of Law Reform

The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International Brotherhood of Teamsters, the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a "pattern or practice" of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about whether the systemic disparate treatment …

Hoisted By Their Own Petard: Struve Applies Pretext Analysis To The Court, Finds Justices’ Motives Questionable, Martin J. Katz

Sturm College of Law: Faculty Scholarship

In her new article, Catherine Struve questions the Court’s motives in Gross. And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis. Like the skilled employment lawyer she is, Professor Struve divides and conquers each of the arguments advanced by the Court for its action. First, she considers the Court’s argument that the Civil Rights Act of 1991 does not apply to ADEA claims. While she concedes that this argument might be correct, she also notes that it is irrelevant. Then, she considers the Court’s textual argument: that there is no …

Ducks And Decoys: Revisiting The Exit-Voice-Loyalty Framework In Assessing The Impact Of A Workplace Dispute Resolution System, Zev J. Eigen, Adam Seth Litwin

Faculty Working Papers

Until now, empirical research has been unable to reliably identify the impact of organizational dispute resolution systems (DRSs) on the workforce at large, in part because of the dearth of data tracking employee perceptions pre- and post- implementation. This study begins to fill this major gap by exploiting survey data from a single, geographically-expansive, US firm with well over 100,000 employees in over a thousand locations. The research design allows us to examine employment relations and human resource (HR) measures, namely, perceptions of justice, organizational commitment, and perceived legal compliance, in the same locations before and after the implementation of …

A Moral Contractual Approach To Labor Law Reform: A Template For Using Ethical Principles To Regulate Behavior Where Law Failed To Do So Effectively, Zev J. Eigen, David S. Sherwyn

Faculty Working Papers

If laws cease to work as they should or as intended, legislators and scholars propose new laws to replace or amend them. This paper posits an alternative—offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test-case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons, and are focused on union election win rates, and less on the election process itself, (3) it is an area of law already statutorily regulating parties' reciprocal contractual obligations, and (4) moral means …

Sex Equality's Unnamed Nemesis, Veronica Percia

Michigan Journal of Gender & Law

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours …

Decent Work, Older Workers, And Vulnerability In The Economic Recession: A Comparative Study Of Australia, The United Kingdom, And The United States, Susan Bisom-Rapp, Andrew Frazer, Malcolm Sargeant

Faculty Scholarship

In countries with aging populations, the global recession presents unique challenges for older workers, and compels an assessment of how they are faring. To this end, the International Labour Organization's concept of decent work provides a useful metric or yardstick. Decent work, a multifaceted conception, assists in revealing the interdependence of measures needed to secure human dignity across the course of working lives. With this in mind, in three English-speaking, common law countries (Australia, the United Kingdom, and the United States), this Article considers several decent work principles applicable to older workers and provides evaluations in light of them. Relevant …

Civil Rights And Systemic Wrongs, Melissa Hart

Publications

Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …

Removing Categorical Constraints On Equal Employment Opportunities And Anti-Discrimination Protections, Anastasia Niedrich

Michigan Journal of Gender & Law

It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's …

What Is In Gina's Genes? The Curious Case Of The Mutant-Hybrid Employment Law, William Corbett

Oklahoma Law Review

No abstract provided.

Do Law Schools Mistreat Women Faculty? Or, Who’S Afraid Of Virginia Woolf?, Dan Subotnik

Scholarly Works

No abstract provided.

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

Scholarly Works

Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than …

Ambivalence And Activism: Employment Discrimination In China, Timothy Webster

Vanderbilt Journal of Transnational Law

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively …

A Taxonomy Of Virtual Work, Miriam A. Cherry

Faculty Publications

(Excerpt)

The blockbuster movie Avatar begins as humans circle the planet Pandora in search of an element, unobtainium, which will boost the profits of their employer, a mining corporation. Pandora, however, is already inhabited by the Na'vi, an alien species of tall, skinny, blue beings, who live in harmony with the natural environment. With the goal of learning more about the Na'vi and their world, a team of human scientists controls and inhabits vat-grown bodies, using these avatars to interact with the Na'vi. Jake, the protagonist, is a former soldier who has become a paraplegic. When Jake's identical twin, a …