Sophia Z. Lee A REVOLUTION AT WAR WITH ITSELF? PRESERVING EMPLOYMENT PREFERENCES FROM WEBER TO RICCI 123 Yale Law Journal 2964 (June, 2014) Two aspects of the constitutional transformation Bruce Ackerman describes in The Civil Rights Revolution were on a collision course, one whose trajectory has implications for Ackerman's account and for his broader theory of constitutional change. Ackerman makes a compelling case that what he terms reverse state action (the targeting of private... 2014
Aaron F. Nadich BAN THE BOX: AN EMPLOYER'S MEDICINE MASKED AS A HEADACHE 19 Roger Williams University Law Review 767 (Summer 2014) Have you ever been convicted of a crime? This was one of the many questions that employers had traditionally included on employment applications to screen out applicants, even though such criteria was often irrelevant to the employer's vacant position. A check in the yes box next to this question could send an application directly to the... 2014
Johnathan J. Smith BANNING THE BOX BUT KEEPING THE DISCRIMINATION?: DISPARATE IMPACT AND EMPLOYERS' OVERRELIANCE ON CRIMINAL BACKGROUND CHECKS 49 Harvard Civil Rights-Civil Liberties Law Review 197 (Winter, 2014) Introduction. 197 I. How Employers' Criminal Background Policies Can Violate Title VII's Disparate Impact Provision. 200 II. Federal Court Responses to Disparate Impact Challenges to Employers' Criminal Records Policies. 202 A. Favorable Treatments of Plaintiffs' Claims. 203 B. Negative Treatment of Plaintiffs' Claims. 204 III. The Impact of the... 2014
Kimani Paul-Emile BEYOND TITLE VII: RETHINKING RACE, EX-OFFENDER STATUS, AND EMPLOYMENT DISCRIMINATION IN THE INFORMATION AGE 100 Virginia Law Review 893 (September, 2014) Introduction. 894 I. Criminal Records, Employment Discrimination, and the Background Checking Industry. 902 A. Criminal History Reports and Commercial Background Checking Companies. 903 B. Problems with Criminal History Reports. 907 C. Race Discrimination in Employment Through the Use of Criminal History Reports. 910 D. Race, Criminal History... 2014
Richard Thompson Ford BIAS IN THE AIR: RETHINKING EMPLOYMENT DISCRIMINATION LAW 66 Stanford Law Review 1381 (June, 2014) Employment discrimination jurisprudence assumes that key concepts such as discrimination, intent, causation, and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise... 2014
Steven L. Willborn COLLEGE ATHLETES AS EMPLOYEES: AN OVERFLOWING QUIVER 69 University of Miami Law Review 65 (Fall 2014) This article discusses whether college athletes should be considered employees under a broad range of employment statutes. The central thesis is that, if college athletes are persistent, it is inevitable that some of them, somewhere, sometime, will be found to be employees. A major reason for this is that the basic rules for determining who is an... 2014
Tammy R. Pettinato DEFYING "COMMON SENSE?": THE LEGITIMACY OF APPLYING TITLE VII TO EMPLOYER CRIMINAL RECORDS POLICIES 14 Nevada Law Journal 770 (Summer 2014) Many ex-offenders face steep odds when searching for employment. Policies banning or restricting employment opportunities for those with criminal records are widespread in both the public and private sectors. Furthermore, the number of employers checking criminal backgrounds is growing. Given the disproportionate number of African American and... 2014
Andrea J. Sinclair DELIMITING TITLE VII: REVERSE RELIGIOUS DISCRIMINATION AND PROXY CLAIMS IN EMPLOYMENT DISCRIMINATION LITIGATION 67 Vanderbilt Law Review 239 (January, 2014) I. Introduction. 240 II. Anti-Discrimination Law and Constitutional Values. 243 A. A Crossroads of Constitutional Principles. 244 1. Religious Expression. 244 2. Privacy. 245 3. Equality. 245 B. Pursuing Equality: Title VII. 246 1. Traditional Title VII Claims. 247 2. Reverse Discrimination Claims. 248 3. Reverse Religious Discrimination Claims.... 2014
Stacey L. Pine EMPLOYMENT ARBITRATION AGREEMENTS AND THE FUTURE OF CLASS-ACTION WAIVERS 4 American University Labor & Employment Law Forum 1 (2014) Nearly a century ago, Congress enacted the Federal Arbitration Act (FAA) to reverse the longstanding judicial hostility that existed towards arbitration agreements, and to encourage the use of arbitration as a means of reducing the excessive costs and delays commonly associated with litigation. As a result of the enactment of the FAA and numerous... 2014
Tammy R. Pettinato EMPLOYMENT DISCRIMINATION AGAINST EX-OFFENDERS: THE PROMISE AND LIMITS OF TITLE VII DISPARATE IMPACT THEORY 98 Marquette Law Review 831 (Winter, 2014) I. Introduction. 832 II. The Collateral Consequences of Convictions. 834 A. Collateral Consequences Generally. 834 B. Particular Employment Consequences. 836 III. Disparate Impact Challenges To Criminal Records Exclusion Policies. 839 A. The New EEOC Enforcement Guidelines. 840 IV. Critiques of Disparate Impact Theory--Treatment in the Courts. 842... 2014
John Dayton, J.D., Ed. D. and Ann Elizabeth Blankenship, J.D., Ph. D. EMPLOYMENT DISCRIMINATION LAW: AN ANALYSIS OF THE IMPACT OF THE U.S. SUPREME COURT'S DECISION IN VANCE V. BALL STATE UNIVERSITY 300 West's Education Law Reporter 713 (March 13, 2014) No one should have to endure employment discrimination or workplace harassment as a condition of making a living. These types of workplace misconduct may indulge the pathologies of office bigots and harassers, but they serve no legitimate workrelated purpose. Instead, employment discrimination and workplace harassment are the antithesis of... 2014
David Sherwyn, Michael Heise, Zev J. Eigen EXPERIMENTAL EVIDENCE THAT RETALIATION CLAIMS ARE UNLIKE OTHER EMPLOYMENT DISCRIMINATION CLAIMS 44 Seton Hall Law Review 455 (2014) I. Introduction. 456 II. The Burden of Proof in Discrimination Cases under Title VII and the ADEA. 460 A. A Brief History. 461 B. The Current and Proposed State of Employment Discrimination Law. 473 III. Employer Retaliation. 475 A. The Law of Employer Retaliation. 479 B. The Supreme Court's Characterization of Employer Retaliation. 482 C.... 2014
Sara Chico, Esq. FEDERAL LABOR AND EMPLOYMENT LAW 2012-2013 TERM ANALYSIS 5 University of Puerto Rico Business Law Journal 190 (2014) I. Introduction. 191 II. Administrative Law. 191 III. Alternative Dispute Resolution. 192 IV. Bankruptcy Automatic Stay. 193 V. Benefits. 194 VI. ERISA. 194 A. Attorney's Fees. 197 VII. Collective Bargaining. 199 VIII. Compensation. 200 A. Fair Labor Standards Act. 201 B. Distribution Tips. 202 IX. Workers' Compensation. 203 X. Discrimination. 204... 2014
Sansan Lin FREE TO RETALIATE: A PLAINTIFF MUST SHOW RETALIATION IS THE ONLY MOTIVATION FOR AN EMPLOYER'S RETALIATORY ACTION 47 Loyola of Los Angeles Law Review 481 (2014) University of Texas Southwestern Medical Center v. Nassar, an employment discrimination case, was overshadowed in the media by other high-profile cases decided in the same three-day period. But the Supreme Court's 5-4 decision in Nassar will significantly weaken workers' rights and protections against discrimination in the workplace. An employee... 2014
Jessica L. Roberts HEALTHISM AND THE LAW OF EMPLOYMENT DISCRIMINATION 99 Iowa Law Review 571 (January, 2014) Recently, several employers around the country announced they would no longer hire applicants who use nicotine, even off the clock. Just last year, one entity adopted a policy that it would not employ individuals classified as severely obese. Read together, nicotine and obesity bans can be understood as employer practices that... 2014
Jessica K. Fink IN DEFENSE OF SNOOPING EMPLOYERS 16 University of Pennsylvania Journal of Business Law 551 (Winter 2014) In recent months, a plethora of states have turned their legislative attention to protecting employee privacy in the workplace, focusing specifically on passing state laws that protect the social media privacy of individuals in their states. Indeed, discussions of workplace privacy are everywhere nowadays: Media stories condemn employers' efforts... 2014
Sarah K. Starnes INTERVIEWING STRIPES INSTEAD OF SUITS: ADDRESSING THE INADEQUACY OF INDIANA'S CURRENT LEGISLATION AND HOW TO ASSIST EMPLOYERS IN EFFECTIVELY HIRING CONVICTED FELONS 49 Valparaiso University Law Review 311 (Fall, 2014) David is the owner of a small retail business. He spends time and effort finding applicants who appear to be efficient and motivated workers who also fit in well with his current team of employees. Because his company is so small, David feels that he must be very careful and considerate when choosing whom he brings into his place of business. He... 2014
Robert Rachal, Page Griffin, Madeline Chimento Rea LABOR AND EMPLOYMENT AND ERISA CLASS ACTIONS AFTER WAL-MART AND COMCAST: A DEFENSE PERSPECTIVE 29 ABA Journal of Labor & Employment Law 319 (Winter, 2014) In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court reminded everyone that class actions are exception[s] to the usual rule that litigation is conducted by and on behalf of the individual named parties only, including in employment discrimination cases. To justify this exception to the usual rule, Wal-Mart requires courts to conduct a rigorous... 2014
Amy J. Zdravecky , Douglas A. Hass ON THE BORDER: THE NLRB'S ENTRY INTO IMMIGRATION ISSUES--THE EMPLOYER'S PERSPECTIVE 29 ABA Journal of Labor & Employment Law 505 (Spring, 2014) Researchers estimate that, as of March 2010, there were approximately eight million undocumented workers employed in the United States. Existing immigration law makes it unlawful to knowingly, or with constructive knowledge, hire such workers. At the same time, the National Labor Relations Act (NLRA or Act) recognizes that undocumented workers have... 2014
Tanya Katerí Hernández ONE PATH FOR "POST-RACIAL" EMPLOYMENT DISCRIMINATION CASES--THE IMPLICIT ASSOCIATION TEST RESEARCH AS SOCIAL FRAMEWORK EVIDENCE 32 Law & Inequality: A Journal of Theory and Practice 309 (Summer, 2014) To create new norms, you have to understand people's existing norms and barriers to change. You have to understand what's getting in their way. The 50th Anniversary of the Civil Rights Act of 1964 finds the status of civil rights in the United States at a critical juncture. The formal edifice of a civil rights structure precariously stands amidst... 2014
Lucas Loafman , Andrew Little RACE, EMPLOYMENT, AND CRIME: THE SHIFTING LANDSCAPE OF DISPARATE IMPACT DISCRIMINATION BASED ON CRIMINAL CONVICTIONS 51 American Business Law Journal 251 (Summer, 2014) The disparate impact theory of discrimination under Title VII of the Civil Rights Act of 1964 is not new, yet it is taking on a different, more antagonistic dimension. Since the early 1970s it has been a recognized theory under which plaintiffs may seek redress for discriminatory practices. In addition, by the mid-1970s the courts recognized that... 2014
Michael Z. Green RETALIATORY EMPLOYMENT ARBITRATION 35 Berkeley Journal of Employment and Labor Law 201 (2014) Introduction 202 I. Overwhelming Supreme Court Enforcement of Agreements to Arbitrate Statutory Employment Discrimination Claims. 206 A. The Civil Rights Act of 1991 and Gilmer v. Interstate/Johnson Lane Corp.. 206 B. The EEOC Response to Gilmer: 1997 Policy Statement on Mandatory Arbitration. 209 C. Circuit City Stores, Inc. v. Adams. 212 D. 14... 2014
Gregory S. Fisher , Erin “Faith” Rose SELLING ICE IN ALASKA: EMPLOYMENT PREFERENCES AND STATUTORY EXEMPTIONS FOR ALASKA NATIVE CORPORATIONS 40 YEARS AFTER ANCSA 31 Alaska Law Review 1 (June, 2014) In 1971, Congress enacted the Alaska Native Claims Settlement Act (ANCSA) in order to settle land disputes between Alaska Natives and the federal government. ANCSA established Alaska Native Corporations (ANCs), which were tasked with managing settlement funds to provide for the health, education, and economic welfare of Alaska Natives. To enable... 2014
Jessica Ireton SOCIAL MEDIA: WHAT CONTROL DO EMPLOYERS HAVE OVER EMPLOYEE SOCIAL MEDIA ACTIVITY IN THE WORKPLACE? 14 Houston Business and Tax Law Journal 144 (2014) I. Introduction. 145 II. Background: Historical Application of the NLRA. 46 A. The Right to Concerted Activity. 146 B. What is Lawfully Prohibited Behavior Under the NLRA?. 148 C. Testing the Limits of Protected Conduct: Atlantic Steel, the Jefferson Standard and Wright Line. 151 III. Analysis: Application of the NLRA to Social Media Cases. 153... 2014
Joseph Fishkin THE ANTI-BOTTLENECK PRINCIPLE IN EMPLOYMENT DISCRIMINATION LAW 91 Washington University Law Review 1429 (2014) State legislatures and the Equal Opportunity Employment Commission (EEOC) have moved in parallel in recent years to provide new protections for the employment prospects of some surprising groups: people who are unemployed, people who have poor credit, and people with past criminal convictions. These new protections confound our usual theories of... 2014
Margo Schlanger , Pauline Kim THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND STRUCTURAL REFORM OF THE AMERICAN WORKPLACE 91 Washington University Law Review 1519 (2014) In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart's corporate culture and highly discretionary decision-making practices led to sex discrimination on a... 2014
Michael Selmi THE EVOLUTION OF EMPLOYMENT DISCRIMINATION LAW: CHANGED DOCTRINE FOR CHANGED SOCIAL CONDITIONS 2014 Wisconsin Law Review 937 (2014) Introduction. 937 I. The 1970s and the Development of Supreme Court Doctrine. 942 A. The Origins of Employment Discrimination Law. 942 B. The Political Backlash of the 1980s. 950 II. The Court's Recent Updating of the Doctrine. 953 A. Ledbetter v. Goodyear Tire: Rejecting the Continuing Violations Doctrine. 954 B. AT&T v. Hulteen and Lost Pension... 2014
Theresa M. Beiner THE MANY LANES OUT OF COURT: AGAINST PRIVATIZATION OF EMPLOYMENT DISCRIMINATION DISPUTES 73 Maryland Law Review 837 (2014) After Congress enacted the first laws prohibiting employment discrimination in 1964, workplaces changed significantly. No longer could employers segregate workplaces based on race or sex. In many workplaces, workers who had been separated now worked side by side. One only need board an airline flight to realize how law can transform jobs and... 2014
Ernest F. Lidge III THE NECESSITY OF EXPANDING PROTECTION FROM RETALIATION FOR EMPLOYEES WHO COMPLAIN ABOUT HOSTILE ENVIRONMENT HARASSMENT 53 University of Louisville Law Review 39 (2014) Our nation's employment discrimination laws contain an inherent contradiction. The law imposes a greater duty on employees to complain when they have suffered from a discriminatory hostile environment than when they have been subjected to a discriminatory tangible employment action. However, the anti-retaliation laws, as a practical matter, provide... 2014
Abigail L. Perdue , Gregory S. Parks THE NTH DECREE: EXAMINING INTRARACIAL USE OF THE N-WORD IN EMPLOYMENT DISCRIMINATION CASES 64 DePaul Law Review 65 (Fall 2014) In 2012, rap moguls Jay-Z and Kanye West won a Grammy for their hit song Ni** as in Paris. In April 2013, Grammy award-winning music artist Rihanna posted a photo on Instagram of herself posing with a black toddler; she captioned it My lil nigga. A few months later, former NBA star Charles Barkley commented, I use the N- word. I'm going to... 2014
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