Harvey L. Fiser , Patrick D. Hopkins GETTING INSIDE THE EMPLOYEE'S HEAD: NEUROSCIENCE, NEGLIGENT EMPLOYMENT LIABILITY, AND THE PUSH AND PULL FOR NEW TECHNOLOGY 23 Boston University Journal of Science and Technology Law 44 (Winter, 2017) Two months ago, Jack was hired by ThreeSheets Brewery, Inc. as a driver. His job was to load, transport, and unload beer from a central production and distribution center to numerous restaurants, convenience stores, and bars within a 200-mile area--a job where he would be constantly exposed to alcohol and often encouraged to try new flavors. He had... 2017
Camille A. Olson, Gina R. Merrill, Kaitlyn F. Whiteside, Needhy Shah IMPLICIT BIAS THEORY IN EMPLOYMENT LITIGATION 63 Practical Lawyer 37 (October 1, 2017) The term implicit bias is commonly used to refer to ingrained beliefs, whether positive or negative, about other individuals or groups that are triggered automatically. These beliefs are not conscious thoughts but rather represent reflexive reactions at the unconscious level. The developers of the theory, social psychologists Anthony Greenwald... 2017
David L. Hudson Jr. PUBLIC EMPLOYEES, PRIVATE SPEECH 103-MAY ABA Journal 48 (May, 2017) High-profile controversies over police shootings, questionable promotions, racial profiling, attacks on law enforcement and race-based incidents have led to an increase in public employees being disciplined for publicly posting commentary deemed offensive or incendiary. Public employees have been suspended for all manner of speech--supporting the... 2017
David McElhattan , Laura Beth Nielsen , Jill D. Weinberg RACE AND DETERMINATIONS OF DISCRIMINATION: VIGILANCE, CYNICISM, SKEPTICISM, AND ATTITUDES ABOUT LEGAL MOBILIZATION IN EMPLOYMENT CIVIL RIGHTS 51 Law and Society Review 669 (September, 2017) What factors affect whether ordinary citizens believe that workplace decisions involving African-American employees rise to the level of discrimination? When do observers believe targets of possible race discrimination should consider mobilizing the law? We use a factorial design vignette study administered to a nationally representative sample of... 2017
Elaine Luthens RACIAL DISCRIMINATION OR VALID BUSINESS JUDGMENTS?: EMPLOYMENT DISCRIMINATION AND THE BUSINESS JUDGMENT RULE 20 Journal of Gender, Race and Justice 381 (Spring, 2017) I. Introduction. 381 II. Background. 382 A. Employment Discrimination Statutes. 382 1. Title VII of the Civil Rights Act of 1964. 383 2. The Equal Pay Act. 383 3. The Americans with Disabilities Act. 384 4. The Age Discrimination in Employment Act. 384 5. State Statutes. 385 B. The McDonnell Douglas Burden-Shifting Scheme. 385 C. The Business... 2017
Katherine E. Leung RACIAL IDENTITY PERFORMANCE AND EMPLOYMENT DISCRIMINATION LAW 24 Virginia Journal of Social Policy and the Law 57 (Winter, 2017) Introduction. 58 I. Framing Racial Identity Performance Protection. 59 A. Critical Framework. 59 B. The Development of Modern Disparate Impact Theory. 61 II. History of Identity Performance Protections Under Title VII. 63 A. The Evolution of Sex Discrimination Under Title VII. 63 B. Protecting Religious Identity Performance. 66 Before and After... 2017
Matthew W. Green Jr. SAME-SEX SEX AND IMMUTABLE TRAITS: WHY OBERGEFELL v. HODGES CLEARS A PATH TO PROTECTING GAY AND LESBIAN EMPLOYEES FROM WORKPLACE DISCRIMINATION UNDER TITLE VII 20 Journal of Gender, Race and Justice 1 (February, 2017) The plaintiffs also state that, by treating their marriages as if they did not exist, the state . encourages private citizens to deny their marriages and exposes them to discrimination in their daily lives. I. Introduction. 2 II. Same-Sex Sex and Immutable Traits. 7 A. Lawrence, Obergefell, and Same-Sex Sex. 8 1. Due Process and Fundamental Rights.... 2017
Randall John Bunnell SUMMARY JUDGMENT PRINCIPLES IN LIGHT OF TOLAN v. COTTON: EMPLOYMENT DISCRIMINATION IMPLICATIONS IN THE FIFTH CIRCUIT 63 Loyola Law Review 77 (Spring, 2017) INTRODUCTION. 77 I. THE FRAMEWORK AND ITS ARENA. 79 A. The Framework. 80 1. The Establishment of the McDonnell Douglas Framework. 80 2. Proving Pretext. 82 3. Variations on a Theme: Views of Pretext. 84 4. The Fifth Circuit Post-Reeves. 87 B. The Arena. 89 1. A Brief History of Summary Judgment. 89 2. The Summary Judgment Trilogy. 90 3. Recent... 2017
Matthew T. Bodie THE BEST WAY OUT IS ALWAYS THROUGH: CHANGING THE EMPLOYMENT AT-WILL DEFAULT RULE TO PROTECT PERSONAL AUTONOMY 2017 University of Illinois Law Review 223 (2017) Employment at-will is the default rule of termination for the vast majority of American employment relationships. The rule creates a presumption--a strong one--that the contract for employment allows either party to terminate the contract at any point in time. Since its inception, this bright-line rule has given way to carefully curated exceptions,... 2017
Benjamin D. Geffen THE COLLATERAL CONSEQUENCES OF ACQUITTAL: EMPLOYMENT DISCRIMINATION ON THE BASIS OF ARRESTS WITHOUT CONVICTIONS 20 University of Pennsylvania Journal of Law and Social Change 81 (2017) Lawmakers, advocates, and scholars have trained a great deal of attention on the collateral consequences of criminal convictions, particularly the effects of conviction on employment. This article focuses on an overlooked problem: employers' widespread use of non-convictions, including acquittals, to reject job applicants or fire employees. Using... 2017
Alexander M. Nourafshan THE NEW EMPLOYMENT DISCRIMINATION: INTRA-LGBT INTERSECTIONAL INVISIBILITY AND THE MARGINALIZATION OF MINORITY SUBCLASSES IN ANTIDISCRIMINATION LAW 24 Duke Journal of Gender Law & Policy 107 (Spring, 2017) I. Introduction. 108 II. The Roots of Intersectional Invisibility. 111 A. The Single-Axis Framework in Employment Discrimination Law. 111 B. Judicial Responses to Intersectional Claims. 115 III. LGBT Intersectionality. 120 A. LGBT Workplace Discrimination. 122 B. The Precariousness of Intersectional LGBT Claims. 126 C. Intra-LGBT Intersectionality.... 2017
Deborah L. Brake THE SHIFTING SANDS OF EMPLOYMENT DISCRIMINATION: FROM UNJUSTIFIED IMPACT TO DISPARATE TREATMENT IN PREGNANCY AND PAY 105 Georgetown Law Journal 559 (March, 2017) C1-3Table of Contents L1-2Introduction . L3560 I. A Brief Overview of Employment Discrimination Law: The Tyranny of the Proof Frameworks and the Judiciary's Narrow View of Discriminatory Intent. 563 A. TRACING THE IMPACT AND TREATMENT DIVIDE AND THEIR SEPARATE PROOF FRAMEWORKS. 564 B. THE MEANING OF DISCRIMINATORY INTENT: WHAT COURTS HAVE IN MIND.... 2017
Maurice Wexler THE SURVIVAL OF THE INTENTIONALITY DOCTRINE IN EMPLOYMENT LAW: TO BE OR NOT TO BE? 47 University of Memphis Law Review 699 (Spring, 2017) I. Introduction. 700 II. Challenging the Intentionality Doctrine. 701 II. The Long and Short of Implicit Bias. 704 III. Old Fashioned Stereotyping and the Intentionality Doctrine: Their Genesis and Survival. 705 A. One Hundred Fifty Years and Then Some of Explicit Racial Discrimination and Stereotyping and the Intentionality Doctrine. 706 1. Racial... 2017
Todd R. Wulffson, Emily K. Borman THE WAGE EQUALITY ACT OF 2016: PROMOTING EQUITY OR STUNTING EMPLOYMENT? 59-FEB Orange County Lawyer 32 (February, 2017) Celebrated during the month of February, National African American History Month honors the contributions of African Americans to United States history, and recognizes the continuing struggle of many courageous individuals for fair and equal rights. The call for equality is not limited to African Americans, but encompasses the sacrifice's and... 2017
Nina Kucharczyk THINKING OUTSIDE THE BOX: REFORMING EMPLOYMENT DISCRIMINATION DOCTRINE TO COMBAT THE NEGATIVE CONSEQUENCES OF BAN-THE-BOX LEGISLATION 85 Fordham Law Review 2803 (May, 2017) As part of the larger movement to reform the criminal justice system, legislation has recently been implemented to expand job opportunities for formerly incarcerated individuals as they exit the system. Specifically, ban-the-box laws were passed to reduce widespread employment discrimination that formerly incarcerated individuals encounter by... 2017
Sarah Khanghahi THIRTY YEARS AFTER AL-KHAZRAJI: REVISITING EMPLOYMENT DISCRIMINATION UNDER SECTION 1981 64 UCLA Law Review 794 (March, 2017) Many scholars have written about the racialization process experienced by people of Southwest Asia and North African (SWANA) descent, emphasizing the increased discrimination experienced by those perceived as Middle Eastern or SWANA. There is very little scholarship, however, concentrating specifically on employment discrimination faced by those of... 2017
Susan D. Carle ANGRY EMPLOYEES: REVISITING INSUBORDINATION IN TITLE VII CASES 10 Harvard Law & Policy Review 185 (Winter, 2016) To read federal case law decided under Title VII of the Civil Rights Act of 1964 --the provision that prohibits employment discrimination on the basis of race, sex, and other characteristics--is to be struck by the continuing racial and sexual hostility in U.S. workplaces today, and also at courts' too frequent unwillingness to address it. Courts... 2016
Shane O'Halloran DOES TITLE VII WORK FOR TEMPS? FAUSH v. TUESDAY MORNING RECONSIDERS THE EMPLOYMENT RELATIONSHIP 61 Villanova Law Review 653 (2016) And you have all these people say, When are you going to get a real job? I mean, you're going through all the motions of a real job. I mean, you're showing up at a place between eight and five. And technically, you're probably doing as much as anyone else who works there full-time. You know? But you're just sort of this ghost. Matthew Faush was... 2016
Nicholas Larkin 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? 6 American University Labor & Employment Law Forum 1 (2016) Discrimination, especially when it occurs in the workplace, is a controversial and complicated subject that society has struggled to overcome for many years. When workplace discrimination is directed towards those who identify as Lesbian, Gay, Bisexual, or Transgender (LGBT), employment discrimination becomes even more complex. Employment... 2016
Elizabeth P. Weissert GET OUT OF JAIL FREE? PREVENTING EMPLOYMENT DISCRIMINATION AGAINST PEOPLE WITH CRIMINAL RECORDS USING BAN THE BOX LAWS 164 University of Pennsylvania Law Review 1529 (May, 2016) Introduction. 1530 I. The Problem of Discrimination Against People with Criminal Records in Hiring. 1533 A. The Prevalence and Negative Impacts of Employment Discrimination Against People with Criminal Records. 1533 B. Employers' Motivations for Refusing to Hire Job Applicants with Criminal Records. 1536 II. The Limitations of the Current Legal... 2016
Leora F. Eisenstadt , Jeffrey R. Boles INTENT AND LIABILITY IN EMPLOYMENT DISCRIMINATION 53 American Business Law Journal 607 (Winter 2016) In March 2015, The New Yorker brought a question typically debated by legal scholars firmly into the public consciousness when it published the article, The Ellen Pao Trial: What Do We Mean by Discrimination? The article was prompted by an employment discrimination case brought by Ellen Pao, a former junior partner at the Silicon Valley-based... 2016
Shayak Sarkar INTIMATE EMPLOYMENT 39 Harvard Journal of Law & Gender 429 (Summer, 2016) Intimate employees work to facilitate, maintain, and protect our private bodies, moments, and spaces. Amidst such interdependencies, how do we legally balance the interests of employers, including parents and those with physical disabilities, with those of their intimate employees? A national movement for domestic workers' rights unsettles a status... 2016
W. Jonathan Martin II , F. Damon Kitchen , Gary R. Wheeler LABOR AND EMPLOYMENT LAW 67 Mercer Law Review 955 (Summer 2016) This Article surveys the United States Court of Appeals for the Eleventh Circuit precedent from January 1, 2015 to December 31, 2015. The following is a discussion of those opinions. The United States Supreme Court issued three decisions affecting employment law this survey period. First, in Young v. United Parcel Service, Inc., a divided Supreme... 2016
Lawrence D. Rosenthal NO GOOD DEED GOES UNPUNISHED: THE LACK OF PROTECTION FOR VOLUNTEERS UNDER FEDERAL ANTI-DISCRIMINATION STATUTES 2016 Brigham Young University Law Review 117 (2016) One issue that often arises in cases involving Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) is whether a particular individual is an employee. There are many reasons why this issue is important. First, only employees can sue under these... 2016
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
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