John H. Shannon , Susan A. O'Sullivan-Gavin POST QUON: AN ANALYSIS OF THE EVOLUTION OF NEW MEDIA AND THE EMPLOYMENT RELATIONSHIP 11 Journal of Business & Technology Law 179 (2016) New Media and the employment relationship intersect on several fronts: the initial hiring process, maintenance and termination of an employment relationship, intraoffice communication, contacts with clients and customers, supply chain exchanges, governmental agency relationships, and public relations. In each scenario, both the employer and... 2016
Peter Siegelman PROTECTING THE COMPROMISED WORKER: A CHALLENGE FOR EMPLOYMENT DISCRIMINATION LAW 64 Buffalo Law Review 565 (May, 2016) Only the very best workers are completely satisfactory, and they are not likely to be discriminated against-the cost of discrimination is too great. The law tries to protect average and even below-average workers against being treated more harshly than would be the case if they were of a different race, sex, religion, or national origin, but it has... 2016
Hanna Martin RACE, RELIGION, AND RFRA: THE IMPLICATIONS OF BURWELL v. HOBBY LOBBY STORES, INC. IN EMPLOYMENT DISCRIMINATION 2016 Cardozo Law Review de novo 1 (2016) C1-2Table of Contents Introduction. 2 I. The Prevalence Of White Separatism And White Nationalism In The United States. 4 II. The Religious Freedom Restoration Act and Hobby Lobby. 10 A. The Free Exercise Clause and Passage of the Religious Freedom Restoration Act. 10 B. State Religious Freedom Restoration Acts. 11 C. The Contraceptive Mandate and... 2016
Shirley W. Bi RACE-BASED REVERSE EMPLOYMENT DISCRIMINATION CLAIMS: A COMBINATION OF FACTORS TO THE PRIMA FACIE CASE FOR CAUCASIAN PLAINTIFFS 2016 Cardozo Law Review de novo 40 (2016) C1-2Table of Contents Introduction. 41 I. Background: Reverse Racial Discrimination and the Three Approaches to the McDonnell Douglas Burden-Shifting Framework. 44 A. Back to Title VII and the McDonnell Douglas Framework. 44 B. All Groups Are Protected. 47 C. The First Approach--The Background Circumstances. 48 D. A Second Approach--The Protected... 2016
Hal K. Gillespie, Mark A. Shank, Dallas, Gillespie Sanford, Dallas, Gruber Hurst Johansen Hail Shank RECENT CASE LAW AND DEVELOPMENTS IN EMPLOYMENT LAW 74 The Advocate (Texas) 127 (Spring, 2016) I. FEDERAL CASES. 1 A. Title VII / Discrimination. 1 B. Administrative, Jurisdictional and Procedural. 8 C. Age Discrimination in Employment Act (ADEA). 11 D. Americans with Disability Act (ADA/ADAAA). 16 E. Arbitration. 19 F. Attorney-Client Relationship. 20 G. Attorneys' Fees and Injunctive Relief. 21 H. Employment at-will Relationship. 22 I.... 2016
Craig Robert Senn REDEFINING PROTECTED "OPPOSITION" ACTIVITY IN EMPLOYMENT RETALIATION CASES 37 Cardozo Law Review 2035 (August, 2016) Over the last decade, retaliation claims under our federal employment discrimination laws--such as Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA)--have skyrocketed. In that period, these claims have increased in number by over... 2016
Emily Meyer REIGNING IN THE LITIGIOUS EMPLOYEE: A PROPOSAL FOR FEDERAL ANTI-DISCRIMINATION LAW REFORM 54 University of Louisville Law Review 505 (2016) There is no doubt that discrimination is odious but a frivolous or malicious charge of such conduct . . . is at least equally obnoxious. Consider this scenario: You own a small factory employing fifty workers. You recently transferred a Hispanic employee to a different division in the factory because you believed the employee's skills would be... 2016
Dallan F. Flake RELIGIOUS DISCRIMINATION BASED ON EMPLOYER MISPERCEPTION 2016 Wisconsin Law Review 87 (2016) This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer's misperception of an employee's religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification.... 2016
Joni Hersch , Jennifer Bennett Shinall SOMETHING TO TALK ABOUT: INFORMATION EXCHANGE UNDER EMPLOYMENT LAW 165 University of Pennsylvania Law Review 49 (December, 2016) To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, Equal Employment Opportunity Commission (EEOC) guidance coupled with a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing... 2016
David A. Green THE FALLACY OF LIBERAL DISCOVERY: LITIGATING EMPLOYMENT DISCRIMINATION CASES IN THE E-DISCOVERY AGE 44 Capital University Law Review 693 (Fall, 2016) As part of the Civil Rights Act of 1964, the United States Congress enacted legislation that protects the employment of those who fall into protected categories of race, color, religion, sex, and national origin. Employees may sue their employers for violating Title VII of the Act if the employers fail or refuse to hire or to discharge any... 2016
Michelle Y. DiMaria THE FINE LINE EMPLOYERS WALK: IS IT A JUSTIFIED BUSINESS PRACTICE, OR DISCRIMINATION? 6 American University Labor & Employment Law Forum 1 (2016) The focus on equal protection in employment and labor matters has steadily evolved in the United States in recent decades. This evolution has involved the Equal Employment Opportunity Commission (EEOC) increasing in power and authority to enforce employee protections, which has resulted in increased challenges to employers. Additionally, the... 2016
Joseph A. Dempewolf THROWING THE RED FLAG: A REVIEW OF THE NLRB'S FUMBLED DECISION REGARDING COLLEGIATE FOOTBALL PLAYERS AS EMPLOYEES [NORTHWESTERN UNIV., 362 N.L.R.B. NO. 167 (AUG. 17, 2015)] 55 Washburn Law Journal 789 (Summer, 2016) College football is a sport that bears the same relation to education that bullfighting does to agriculture. - Elbert Hubbard, American Author Every Saturday in the fall, thousands of collegiate football players across the country lace up their cleats and put on their pads, ready to clash with the opposing team. Some play college football with the... 2016
Lu-in Wang WHEN THE CUSTOMER IS KING: EMPLOYMENT DISCRIMINATION AS CUSTOMER SERVICE 23 Virginia Journal of Social Policy and the Law 249 (Fall, 2016) Introduction. 250 I. The Service Triangle: Beyond the Employer-Employee Dyad. 254 II. The Customer as King, the Worker as the Service, and Employment Discrimination as Customer Service. 262 A. The Customer as King. 263 B. The Worker as the Service. 265 C. The Culture of Customer Sovereignty and Harassment of Workers. 268 D. Employment... 2016
Maria Greco-Danaher WITH A LACK OF POLICY AND STAFF TRAINING, EMPLOYERS COULD FACE LIABILITY FOR A NONEMPLOYEE'S RACIAL BIAS 18 Lawyers Journal 7 (May 27, 2016) Most - if not all - employers are aware that both federal and state laws preclude employment discrimination based upon the race or national origin of an employee, and know that illegal activity can include both discriminatory actions and biased statements. Most employers, however, are unaware that certain of those laws preclude discrimination by a... 2016
Timothy M. Snyder YOU'RE FIRED! A CASE FOR AGENCY MODERATION OF MACHINE DATA IN THE EMPLOYMENT CONTEXT 24 George Mason Law Review 243 (Fall, 2016) Imagine a world where computer programs govern your entire work experience: from application, to promotion, to exit. These programs do not simply inform corporate Talent Management about you; they leverage complex algorithms to predict your future performance and make employment decisions that deeply affect you. Upon applying to a job, Talent... 2016
Rachel A. Spector "DIGNIFIED JOBS AT DECENT WAGES": REVIVING AN ECONOMIC EQUITY MODEL OF EMPLOYMENT DISCRIMINATION LAW 36 Berkeley Journal of Employment and Labor Law 123 (2015) That crisis is born of the twin evils of racism and economic deprivation. They rob all people, Negro and white, of dignity, self-respect, and freedom. The original goal of equal employment opportunity laws - most importantly Title VII - was to increase economic opportunity for racial minorities by dismantling discriminatory barriers to attaining... 2015
Sabreena El-Amin ADDRESSING IMPLICIT BIAS EMPLOYMENT DISCRIMINATION: IS LITIGATION ENOUGH? 2015 Harvard Journal on Racial and Ethnic Justice Online 1 (2015) After the election of America's first Black president, many commentators--of all races--began to exclaim that Black people have no more excuses for failure. For these commentators, this historical moment seemed to symbolize that all obstacles had been lifted and that persisting racial disparities had to be the result of agency issues within the... 2015
Joshua P. Thompson, Ralph W. Kasarda AT FIFTY, TITLE VII NEEDS A FACELIFT: TWO REFORMS THAT WOULD ENSURE TITLE VII WORKS TO PROHIBIT ALL RACIAL DISCRIMINATION IN EMPLOYMENT 28 Journal of Civil Rights & Economic Development 257 (Fall 2015) Fifty years have elapsed since President Johnson signed the 1964 Civil Rights Act into law in one of the largest signing ceremonies ever held at the White House. Enacted only ten years after Brown v. Board of Education of Topeka, where the Supreme Court held that racially segregated public schools were unconstitutional, the legislation eliminated... 2015
Ingrid Cepero BANNING THE BOX: RESTRICTING THE USE OF CRIMINAL BACKGROUND CHECKS IN EMPLOYMENT DECISIONS IN SPITE OF EMPLOYERS' PREROGATIVES 10 FIU Law Review 729 (Spring, 2015) People don't realize that all you want to do is have a normal life, and then there's the box you have to check on a job application. --Jamie Scott, convicted felon. Yolanda Quesada devoted her career at Wells Fargo as a customer service representative. She was awarded multiple recognition awards, service excellence pins, certificates of... 2015
Julie A. Totten , Michael W. Disotell BETWEEN THE POSSIBLE AND THE PLAUSIBLE: EMPLOYMENT LITIGATION IN THE WAKE OF TWOMBLY AND IQBAL 31 ABA Journal of Labor & Employment Law 109 (Fall, 2015) Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that plaintiffs plead each claim with a short and plain statement of the claim showing that the pleader is entitled to relief. For decades, plaintiffs were able to meet this pleading requirement by merely alleging the elements of a claim and then relying on discovery to unveil... 2015
John E. Rumel BEYOND NEXUS: A FRAMEWORK FOR EVALUATING K-12 TEACHER OFF-DUTY CONDUCT AND SPEECH IN ADVERSE EMPLOYMENT AND LICENSURE PROCEEDINGS 83 University of Cincinnati Law Review 685 (Spring, 2015) Seldom does a week pass without the popular press reporting on teacher off-duty conduct or speech that causes a stir in the local community and triggers adverse employment or licensure consequences for K-12 teachers. In 2009, a Georgia teacher was forced to resign--an employment consequence which was later upheld by a court--after a parent objected... 2015
Wanjiru Njoya CORPORATE GOVERNANCE AND THE EMPLOYMENT RELATIONSHIP: THE FISSURED WORKPLACE IN CANADA AND THE UNITED KINGDOM 37 Comparative Labor Law and Policy Journal 121 (Fall 2015) Since the early 1980s, a relentless process of vertical disintegration of enterprise has resulted in the fragmentation of work relationships through arrangements such as subcontracting, franchising, or networks of supply chains. Through these mechanisms, workers in positions of social subordination and economic dependence are classified as... 2015
Terrence Reed, Jacqueline Harding, William Kelly EMPLOYEE CLASS ACTIONS FOUR YEARS AFTER WAL-MART v. DUKES 82 Defense Counsel Journal 255 (July, 2015) LAWSUITS arising out of the workplace are one of the fastest growing areas of litigation in the country today. The U.S. Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes was anticipated bring the growth of class actions in the employment context under control. In the immediate aftermath of Dukes, commentators predicted that the decision... 2015
J.H. Verkerke EMPLOYMENT REGULATION AND YOUTH EMPLOYMENT: A CRITICAL PERSPECTIVE 38 Harvard Journal of Law & Public Policy 803 (Summer, 2015) An important body of legal and economic scholarship considers whether, and to what extent, employment regulations increase firms' firing costs and reduce their demand for labor. Researchers have debated this question for decades without reaching a definitive conclusion. In their contributions to this panel, Professor Heriot and Professor Epstein... 2015
Barak Ariel, Ilanit Tobby-Alimi, Irit Cohen, Mazal Ben Ezra, Yafa Cohen, Gabriela Sosinski ETHNIC AND RACIAL EMPLOYMENT DISCRIMINATION IN LOW-WAGE AND HIGH-WAGE MARKETS: RANDOMIZED CONTROLLED TRIALS USING CORRESPONDENCE TESTS IN ISRAEL 9 Law & Ethics of Human Rights 113 (May, 2015) A rich body of literature on employment discrimination exists. Theoretically, discriminatory practices are explained by taste-based discrimination, differences in the bargaining ability of applicants or statistical discrimination. Global experimental research tends to show significant anti-minority attitudes in the hiring process,... 2015
Rosalie Berger Levinson GENDER EQUALITY VS. RELIGIOUS AUTONOMY: SUING RELIGIOUS EMPLOYERS FOR SEXUAL HARASSMENT AFTER HOSANNA-TABOR 11 Stanford Journal of Civil Rights & Civil Liberties 89 (January, 2015) The Supreme Court in Hosanna-Tabor ruled that the Religion Clauses of the Constitution trump the right of ministerial employees to be free from discrimination in the workplace. Further, the ministerial exception is merely a subcategory of the broader ecclesiastical abstention or church autonomy doctrine, which forecloses any cause of action that... 2015
Chuck Henson IN DEFENSE OF MCDONNELL DOUGLAS: THE DOMINATION OF TITLE VII BY THE AT-WILL EMPLOYMENT DOCTRINE 89 Saint John's Law Review 551 (Summer-Fall 2015) It has been said that within Title VII of the Civil Rights Act of 1964, Congress gave the moral principle of equality a foundation in national law. Taken as a statement of Title VII's purpose, such purpose anchors the persistent belief that Congress intended Title VII as a radical and permanent departure from the past. De jure and de facto... 2015
Michael L. Huggins NOT "FIT" FOR HIRE: THE UNITED STATES AND FRANCE ON WEIGHT DISCRIMINATION IN EMPLOYMENT 38 Fordham International Law Journal 889 (April, 2015) Would I employ you if you were obese? No I would not. You would give the wrong impression to the clients of my business. I need people to look energetic, professional and efficient. If you are obese you look lazy. --Katie Hopkins, Former Apprentice Contestant INTRODUCTION. 890 I. WEIGHT DISCRIMINATION IN THE UNITED STATES. 897 A. Attitudes... 2015
Brett D. Baber PRETEXT: PROVING THE EMPLOYER'S DISCRIMINATORY INTENT THROUGH CIRCUMSTANTIAL EVIDENCE 30 Maine Bar Journal 68 (Spring, 2015) It is the rare case when an employer declares an intent to discriminate. I am sorry, we did not hire you because you are black. You were not promoted because you are a woman. Mike, you're fired because you're just too old to work for us. Anne, we are transferring you to the mailroom because your asthma might get aggravated by working in the... 2015
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