Labor and Employment Law Commons^™

Romance In The Workplace: When "Love" Becomes Litigation, Maureen S. Binetti

Hofstra Labor & Employment Law Journal

No abstract provided.

Federal Employment Law: Current Problems And A Call For Reform, Joseph Prud'homme

Journal of Race, Gender, and Ethnicity

No abstract provided.

Finding The Sex In Sexual Harassment: How Title Vii And Tort Schemes Miss The Point Of Same-Sex Hostile Environment Harassment, Yvonne Zylan

University of Michigan Journal of Law Reform

It has been nearly a quarter century since the United States Supreme Court first recognized the cause of action for a sexually hostile work environment under Title VII of the Civil Rights Act of 1964. In Meritor Savings Bank v. Vinson, the Court essentially adopted the view offered by legal academician Catharine MacKinnon that harassment taking the form of a sexually hostile work environment is a manifestation of gender-based power. In so doing, the Court created a remedy for many aggrieved employees, permitting redress in the federal courts for a problem that makes many workplaces unbearable. At the same …

Strategies For Combating Sexual Harassment: The Role Of Labor Unions, Ann C. Hodges

Law Faculty Publications

This article will discuss the role that unions do play and the role that they can play in eliminating workplace harassment. First, the article will discuss the problem of harassment in the workplace, documenting its frequency and analyzing its forms. Section II will include an examination of harassment in the unionized workplace. Section III will propose a number of reasons that unions should take the lead in addressing workplace harassment, some focused on workers' rights and others on union selfinterest. Finally, in Section IV, the article will recommend several approaches for unions that desire to be in the vanguard of …

Overruling The Jury: Duncan V. Gmc And Appellate Treatment Of Hostile Work Environment Judgments, Dara Purvis

Faculty Scholarship

In 2002, the Eighth Circuit reversed a one million dollar jury award to the plaintiff in a sexual harassment suit against General Motors Corporation. This reversal demonstrates the danger of appellate review of such verdicts, limiting sexual harassment verdicts to the lowest common denominator in that circuit.

Mediation Of A Sexual Harassment Claim, Robert Lewis

Hofstra Labor & Employment Law Journal

No abstract provided.

Miller V. Department Of Corrections: The Application Of Title Vii To Consensual, Indirect Employer Conduct, Stephen Dacus

Oklahoma Law Review

No abstract provided.

Hostile Environment Sexual Harassment & First Amendment Content-Neutrality: Putting The Supreme Court On The Right Path, Peter Caldwell

Hofstra Labor & Employment Law Journal

No abstract provided.

Employer Vicarious Liability For Voluntary Relationships Between Supervisors And Employees, Carrie E. Fischesser

Seattle University Law Review

It is somewhat radical to suggest that an employer should not be held vicariously liable for an employee's voluntary submission to sexual advances where the alleged harasser is a supervisor, and this approach is a marked departure from existing assumptions regarding sexual harassment. Most decisions and writings on the topic have imposed--under a traditional agency theory-- vicarious liability upon the employer for the sexually harassing conduct of its supervisors.4 Specifically, courts addressing this issue have held that “[t]here is no question that a ‘tangible employment action’ occurs when a supervisor abuses his authority to act on his employer's behalf by …

A Revised Tangible Employment Action Analysis: Just What Is An Undesirable Reassignment?, Christine Bradshaw

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Sexual Harassment: Limiting The Affirmative Defense In The Digital Workplace, Donald P. Harris, Daniel B. Garrie, Matthew J. Armstrong

University of Michigan Journal of Law Reform

Digital communications sexual harassment is on the rise. Such harassment occurs through sexually offensive and unwarranted e-mails, placing harassing messages on electronic bulletin boards, and other forms of harassment that occur through the Internet. To date, courts have remained silent on the issue of sexual harassment by digital communications. Should this type of harassment be treated any differently than harassment that occurs in the physical space? The somewhat surprising answer is yes.

This Article advocates applying a new judicial framework for addressing digital communications sexual harassment. This new framework accounts for the real-world technology in the digital workplace and the …

Faragher V. City Of Boca Raton: A Personal Account Of A Sexual Discrimination Plaintiff, Beth Ann Faragher

Hofstra Labor & Employment Law Journal

Former Supreme Court plaintiff Beth Ann Faragher ruminates on the circumstances that led to the Supreme Court's landmark decision in Faragher v. City of Boca Raton. For Ms. Faragher, the case was about much more than the monetary issue involved, specifically whether she should have been awarded $1.00 under Title VII. The case became, in her words, "a national issue of human dignity and civil rights."

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

Hofstra Labor & Employment Law Journal

This Article, which is part of a symposium on the 40th Anniversary of Title VII appearing in the Hofstra Labor and Employment Law Journal, evaluates the progress of women in the workforce by critically analyzing the musical "How to Succeed in Business Without Really Trying." Written in the early 1960s and made into a 1967 movie, How to Succeed follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. It also includes the sexual exploits of the exclusively male executive corps among the female …

Making Title Vii Law And Policy: The Supreme Court's Sexual Harassment Jursiprudence, Ronald Turner

Hofstra Labor & Employment Law Journal

Professor Turner's article focuses on judicial lawmaking and policy-making in an important area of antidiscrimination law - the statutory prohibition of workplace sexual harassment found in Title VII. The article highlights the ways in which the Supreme Court's interpretation and application of Title VII's ban on sex discrimination are contrary to, and fly in the face of the judges-should-make-no-law axiom.

How To Succeed In Business Without Really Trying (Cases): Gender Stereotypes And Sexual Harassment Since The Passage Of Title Vii, Miriam A. Cherry

Faculty Publications

(Excerpt)

Last year I was invited to an undergraduate revival of the musical "How to Succeed in Business Without Really Trying," a comedy about the workplace, which I thought, as a teacher of employment law, I would enjoy. Written in the early 1960s and made into a 1967 movie, "How to Succeed" follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. Although ostensibly a humorous look at the corporate world of the late 1950s and early '60s, I found myself cringing throughout the …

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …

Workplace Harassment: A Proposal For A Bright Line Test Consistent With The First Amendment, Debra D. Burke

Hofstra Labor & Employment Law Journal

No abstract provided.

Same-Sex Harassment: Do Either Price Waterhouse Or Oncale Support The Ninth Circuit's Holding In Nichols V. Azteca Restaurant Enterprises, Inc. That Same-Sex Harassment Based On Failure To Conform To Gender Stereotyopes Is Actionable?, Philip Mcgough

Hofstra Labor & Employment Law Journal

In Nichols v. Azteca Restaurant Enterprises, the Ninth Circuit, overruling a twenty-two year old case, held that same-sex harassment based on gender stereotypes is actionable under Title VII. The court based this holding on the Supreme Court's 1989 opinion in Price Waterhouse v. Hopkins. However reasonable a reading of Title VII, the author argues that Nichols takes a major step beyond Hopkins, and resolves an issue not considered, even by implication, in the case. Further, same-sex harassment based on gender stereotypes is an issue sidestepped by the Supreme Court in Oncale - its only opinion to date dealing with same-sex …

Malignant Indifference: The Wages Of Contemporary Child Labor In The United States, Seymour Moskowitz

Oklahoma Law Review

No abstract provided.

Parsing The Meaning Of "Adverse Employment Action" In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

Parsing The Meaning Of Adverse Employment Action In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson

Oklahoma Law Review

No abstract provided.

License To Harass Women: Requiring Hostile Environment Sexual Harassment To Be “Severe Or Pervasive” Discriminates Among “Terms And Conditions Of Employment, Judith J. Johnson

Journal Articles

Title VII was intended to remedy discrimination; thus, it is ironic that the courts themselves discriminate among "terms and conditions of employment" by treating hostile environment discrimination less favorably, most commonly in sexual harassment cases. As the Supreme Court said in its first sexual harassment case, hostile environment harassment must be "severe or pervasive" to be actionable. However, many lower courts have used this language to excuse harassment against women. This Article suggests that the problem originates in the Court's continued use of the phrase "severe or pervasive" to describe actionable conduct. This rather dramatic terminology in fact overstates the …

The Disparate Impact Hostile Environment Claim: Sexual Harassment Scholarship At A Crossroads, Robert A. Kearney

Hofstra Labor & Employment Law Journal

No abstract provided.

Litigation Narratives: Why Jensen V. Ellerth Didn't Change Sexual Harassment Law, But Still Has A Story Worth Telling, Melissa Hart

Publications

No abstract provided.

Consensual Sex And The Limits Of Harassment Law, Carol Sanger

Faculty Scholarship

This chapter discusses an enormous achievement of the campaign against the harassment of working women, which is the establishment of a set of facts about sex at work that had previously been denied, mocked, and misunderstood. It is now understood that sex can be unwelcome, that unwelcome overtures are neither harmless nor fun, and that consent to sex demanded on the job does not shift the behavior from the category of unwanted sex to the category of the welcome. On the other hand, one of the most ferocious complaints against the establishment of sexual harassment as a legal wrong is …

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

University of Michigan Journal of Law Reform

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the …

All In A Day's Work: Employers' Vicarious Liability For Sexual Harassment, Paula J. Dalley

West Virginia Law Review

No abstract provided.

The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

Michigan Journal of Gender & Law

This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

(Un)Welcome Conduct And The Sexually Hostile Environment, Henry L. Chambers, Jr.

Law Faculty Publications

As courts refine the theory underlying sexual harassment and sex discrimination, the unwelcomeness inquiry may become irrelevant to determining whether gender-based conduct is sexually harassing. In addition, the one possible remaining purpose that the unwelcomeness requirement may serve-providing notice to a putative harasser or its employer-is now served by an affirmative defense applicable to many sexual harassment claims. Consequently, its role should be reexamined. This Article does that. Part I of the Article describes a hypothetical situation that provides a context in which to consider unwelcomeness. Part II provides a brief overview of the evolving sexual harassment jurisprudence. Part III …

Policy Implication Of Rules Governing Harassment And Discrimination Complaints In Private And Federal Employment, Francis Achampong

Hofstra Labor & Employment Law Journal

No abstract provided.