Discrimination Statutes, The Common Law, And Proximate Cause, Sandra F. Sperino

Faculty Articles and Other Publications

The Supreme Court has recently hinted that courts should use proximate cause in Title VII cases. This Article anticipates future judicial forays into this area and argues that proximate cause principles should not be imported into federal discrimination law. This inquiry dovetails into a broader conversation about the proper role of proximate cause in federal statutes, a subject which has produced a fractured jurisprudence.

Courts and commentators have often indicated that employment discrimination law is a tort. While this statement may be true, it is too general to provide guidance on whether to apply proximate cause. It ignores that both …

Litigating The Fmla In The Shadow Of Title Vii, Sandra F. Sperino

Faculty Articles and Other Publications

The history of Title VII of the Civil Rights Act of 1964 is a history of frameworks. In an almost predictable pattern, the Supreme Court has recognized a category of employment discrimination, and then, either in the same case, or sometime thereafter, created a multi-part test for evaluating it. Congress enacted the Family and Medical Leave Act (FMLA) in 1993, almost 30 years after it enacted Title VII of the Civil Rights Act. This Essay argues that the FMLA is litigated within the shadow of Title VII, as courts routinely apply complex frameworks developed in the Title VII context to …

Revitalizing State Employment Discrimination Law, Sandra F. Sperino

Faculty Articles and Other Publications

Over the past few decades, federal discrimination law has become captive to an increasingly complex web of analytical frameworks. The courts have been unable to articulate a consistent causation or intent standard for federal law or to provide a uniform account of the type of injury the plaintiff is required to suffer. Part of this failure is demonstrated in the ever-increasing rift between how courts construct the discrimination inquiry for federal age discrimination claims and claims based on other traits, such as sex and race.

Unfortunately, the courts are unnecessarily taking state employment discrimination claims into this federal morass. When …

Beyond Mcdonnell Douglas, Sandra F. Sperino

Faculty Articles and Other Publications

Since 1973, the McDonnell Douglas framework has been a key analytical structure in employment discrimination law. Academic debate regarding the framework has alternately sounded its death knell, posited its irrelevance, or asserted its continued vitality. What has gone unnoticed in this discussion is the gradual weakening of the framework over the past two decades. Rather than casting this test into oblivion, courts are slowly chipping away at its preeminent place as a proof structure.

Little by little, courts are gradually eroding the McDonnell Douglas test's power through both procedural and substantive means. Procedurally, courts have questioned, rejected or diminished the …

"That Indispensable Figment Of The Legal Mind": The Contract Of Employment At Common Law In Ontario, 1890-1979, Claire Isabel Mummé

PhD Dissertations

“The relation between an employer and an isolated employee or worker is typically a relation between a bearer of power and one who is not a bearer of power. In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by the indispensable figment of the legal mind known as the 'contract of employment'.” Otto Kahn-Freund , Labour and the Law (London: Stevens, 1977). This study examines the legal evolution of the common law of employment contracts in Ontario between the 1890s and …

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Cognitive Illiberalism, Summary Judgment, And Title Vii: An Examination Of Ricci V. Destefano, Ann C. Mcginley

NYLS Law Review

No abstract provided.

Essay:1 From The “No Spittin’, No Cussin’ And No Summary Judgment”2 Days Of Employment Discrimination Litigation To The “Defendant’S Summary Judgment A Rmed Without Comment” Days: One Judge’S Four-Decade Perspective, Hon. Mark W. Bennett

NYLS Law Review

No abstract provided.

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

NYLS Law Review

No abstract provided.

Bringing Back Reasonable Inferences: A Short, Simple Suggestion For Addressing Some Problems At The Intersection Of Employment Discrimination And Summary Judgment, Hon. Bernice B. Donald, J. Eric Pardue

NYLS Law Review

No abstract provided.

“Only Procedural”: Oughts On The Substantive Law Dimensions Of Preliminary Procedural Decisions In Employment Discrimination Cases, Elizabeth M. Schneider, Hon. Nancy Gertner

NYLS Law Review

No abstract provided.

Stopped At The Starting Gate: E Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

NYLS Law Review

No abstract provided.

Rescuing The Union Grievance From The Shoals Of Garcetti: A Call For The Return To Reason In Public Workplace Speech Jurisprudence, Eric Marshall

NYLS Law Review

No abstract provided.

Floor To Ceiling: How Setbacks And Challenges To The Anti-Bullying Movement Pose Challenges To Employers Who Wish To Ban Bullying, Kerri Lynn Stone

Faculty Publications

No abstract provided.

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

Labor And Employment Law, Eric Wallace

Law Student Publications

During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …

Justice As Right Relationship: A Philosophical And Theological Reflection On Affirmative Action, Robert John Araujo

Pepperdine Law Review

No abstract provided.

Shifting The Burden: Genuine Disputes And Employment Discrimination Standards Of Proof, Barrett S. Moore

University of Arkansas at Little Rock Law Review

Enacted for the purpose of battling workplace discrimination by targeting discrimination against minorities and the disadvantaged, Title VII has become somewhat of an apparition for good-intentioned employers seeking to follow the law. For example, in Ricci v. DeStefano, the city of New Haven, Connecticut refused to hire white firefighters based on a qualification test because to do so would produce the outcome of hiring too few minority firefighters. Despite New Haven's good intentions, the hiring process illegally brought race into the hiring process, thereby showing that America's relationship with civil rights legislation has come full circle.

At the center of …

The Unsettled State Of Pregnancy Discrimination Claims Under The Florida Civil Rights Act Of 1992, Donna L. Eng

UF Law Faculty Publications

Florida's employment law practitioners are no doubt aware that employment discrimination actions may be brought under both Title VII of the Civil Rights Act of 1964 (Title VII), and under the Florida Civil Rights Act of 1992 (FCRA). Both sections contain similar verbiage, and for years, courts have held the Florida Civil Rights Act be interpreted in conformity with Title VII. However, the statutes differ in an important respect: While Title VII expressly forbids sex discrimination on the basis of pregnancy, the Florida Civil Rights Act of 1992 does not.

Making It Work At Work: Mediation's Impact On Employee/Employer Relationships And Mediator Neutrality , Allison Balc

Pepperdine Dispute Resolution Law Journal

This Comment discusses the ADR process of mediation in the employment setting, specifically addressing its benefits and effects on the employer/employee relationship and the potential for a non-neutral mediator who is paid by, or has some previous tie to, one of the parties. Section IA examines judicial and legislative views of ADR and mediation. IB discusses mediation's effectiveness in the workplace. Section II discusses the mediation process in an employment dispute. Section III discusses the effects of mediation on the employer and employee, empirical studies, the neutrality of mediators, and potential remedies. Section IV discusses neutrality in the mediation process. …

Will Eeoc V. Waffle House, Inc. Signal The Beginning Of The End For Mandatory Arbitration Agreements In The Employment Context? , Marc A. Altenbernt

Pepperdine Dispute Resolution Law Journal

Since the inception of several employment and discrimination statutes, arbitration has grown exponentially as an alternative for the adjudication of employment disputes. The Supreme Court has traditionally held that statutory claims are indeed arbitrable pursuant to a valid arbitration agreement under the Federal Arbitration Act ("FAA"). In an effort to end employment discrimination based on "race, color, religion, sex, or national origin," Congress enacted the Civil Rights Act of 1964 ("Title VII"). In order to adequately effect this calling, the Equal Employment Opportunity Commission ("EEOC") was created as the Act's primary enforcement mechanism. While arbitration agreements under the FAA and …

Employment Law—The Elusive Enforceability Of Employment Covenants Not To Compete In Arkansas, Victoria J. Malony

University of Arkansas at Little Rock Law Review

Generally speaking, a covenant not to compete , or noncompete agreement, is a promise in an employment contract not to engage in the same type of business for a stated time in the same market as the employer. When these agreements are found by courts to be unenforceable, it leaves employers vulnerable to competitors. On the other hand, when they are enforced, employees may be unable to find work in the industry in which they are most experienced.

Because of the conflicts inherent in covenants not to compete, many courts have struggled to create a rule that can be fairly …

Compulsory Pre-Dispute Arbitration Clauses In The Employment Context After Eeoc V. Luce, Forward, Hamilton & Scripps , Maria Wusinich

Pepperdine Dispute Resolution Law Journal

In EEOC v. Luce, Forward, Hamilton & Scripps, decided in 2003, the Ninth Circuit Court of Appeals aligned its view with its sister circuits and with the Supreme Court regarding the enforceability of arbitration agreements in employment discrimination cases. The court held that an employee's agreement to arbitrate a claim arising under federal anti-discrimination law is enforceable. At first glance, it would appear that as far as the judicial branch is concerned, the longstanding issue of the validity of mandatory arbitration agreements in the employment context is now settled. This article, in contrast, posits that the courts will be …

Revisiting The Promise Of Mediation For Employment Discrimination Claims , Susan K. Hippensteele

Pepperdine Dispute Resolution Law Journal

This paper generally examines the theory and practice of alternative dispute resolution (ADR) and specifically examines the role mediation has played in propelling rights discourse away from the center of efforts to achieve equal employment opportunity in the United States. It further addresses assumptions regarding individual employee goals in the context of a legal environment in which litigating to achieve rights-based remedies is increasingly difficult for grievants.

Direct Employer Liability For Punitive Damages, Sandra F. Sperino

Faculty Articles and Other Publications

In Punitive Damages, Due Process, and Employment Discrimination, Joseph Seiner tackles the growing complexity of employment discrimination punitive damages claims and provides a workable solution to a difficult problem. Given the importance of punitive damages in shaping incentives to bring discrimination suits, his contribution is valuable, especially in trying to align recent constitutional punitive damages cases with the underlying discrimination law.

This Essay begins by emphasizing the fundamental idea on which Professor Seiner and I agree-that there should be little room for courts to reduce punitive damages in federal employment discrimination cases based on constitutional concerns about excessiveness. Title …

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 …

Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler

Faculty Publications

Card-check laws, which have been unsuccessfully pursued by private-sector unions, mandate that employers recognize the union as the representative of employees on the basis of signed authorization cards without reliance on a representation election. Card check authorization benefits unions because it short circuits the usual organizing process by eliminating the union's need to further prove majority support in a secret ballot election.' But by doing so, it imposes costs on employers by restricting their efforts to erode union support through aggressive campaign tactics. Our paper seeks to better understand the development of these laws and their effects, and in that …

Sharpening The Blunt Blue Pencil: Renewing The Reasons For Covenants Not To Compete In North Carolina, Jon J. Lee, Kimberly Burke

Faculty Articles

Covenants not to compete are often included in modern employment contracts to prevent employees from working for competitors for a specified amount of time after termination of employment. Although such covenants were initially unenforceable at common law because they represented invalid restraints on trade, most jurisdictions today enforce covenants not to compete where such covenants are reasonable. Jurisdictions differ, however, in their treatment of unreasonable covenants, choosing from one of three approaches: the all-or nothing approach, which prohibits a court from striking out or modifying any part of a covenant; the "strict blue pencil doctrine," which allows a court to …

Workplace Reform In A Jobless Recovery, Marcia L. Mccormick

All Faculty Scholarship

In 2012, the United States was recovering from a recession and policy makers were debating how to solve the country’s economy. This essay looks at the labor and employment reforms (or lack thereof) of President Obama’s first term, and the differing views of the role of government in creating jobs. The article challenges us to think beyond the two solutions commonly discussed: de-regulation and a “New Deal” program.

There are ways current lawmakers could come together to help protect jobs. Some of the solutions offered by the article include using automatic contribution plans, promoting part-time work, and giving employees more …

The Impact Of Alternative Dispute Resolution (Adr) In Employment Law, Douglas Ashman

Purdue Polytechnic Masters Theses

abstract

Ashman, Douglas E. Masters, Degree. Purdue University. The Impact of Alternative Dispute Resolution (ADR) in Employment Law

Major Professor: Linda Naimi

A growing group of distinguished legal observers see cause for concern as ADR methods become more institutionalized and the basic theories and practices of Civil procedure are mediated and justice becomes an exercise in compromise. It is perceived by some observers that the justice system is becoming privatized and ADR is undermining the basic tenants of the American justice system and is a growing replacement for the checks and balances of a once enviable and unique civil justice …