Bradley A. Areheart THE ANTICLASSIFICATION TURN IN EMPLOYMENT DISCRIMINATION LAW 63 Alabama Law Review 955 (2012) The distinction between antisubordination and anticlassification has existed since the 1970s and has been frequently invoked by scholars to advocate for certain readings of antidiscrimination law. The anticlassification principle prohibits practices that classify people on the basis of a forbidden category. In contrast, the antisubordination... 2012
Candace Hamilton Hester, Chris Meyer, Steven Raphael THE EVOLUTION OF GENDER EMPLOYMENT RATE DIFFERENTIALS WITHIN RACIAL GROUPS IN THE UNITED STATES 41 Journal of Legal Studies 385 (June, 2012) This paper analyzes changes in gender employment rate (GER) differentials for whites and blacks in the United States from 1950 to 2008. We document the evolution of the GER gap, which narrows considerably within both racial groups and turns slightly negative for blacks. We document the changing employment levels that drive these patterns as well as... 2012
Beverley Earle , Gerald Madek , David Missirian THE LEGALITY OF PRE-EMPLOYMENT CREDIT CHECKS: A PROPOSED MODEL STATUTE TO REMEDY AN INEQUITY 20 Virginia Journal of Social Policy and the Law 159 (Fall 2012) Does having bad credit mean that you will perform poorly as an employee? Does it mean you are more likely to engage in illegal conduct on the job? Is this true whether you are a controller for a small, privately-held business, an employee with a company travel card with a $5000 limit or a purchasing card with a $1000 limit, or a janitor who enters... 2012
Ashley M. Cross THE RIGHT TO REMAIN SILENT? GARCETTI v. CEBALLOS AND A PUBLIC EMPLOYEE'S REFUSAL TO SPEAK FALSELY 77 Missouri Law Review 805 (Summer, 2012) In 2007, the Ethics Resource Center (ERC) reported that nearly sixty percent of public employees had witnessed at least one act of misconduct in the workplace within the past twelve months, with the highest levels reported in local governments. The most frequent transgressions observed included lying to employees, abusive behavior, and conflicts of... 2012
Alexandra Harwin TITLE VII CHALLENGES TO EMPLOYMENT DISCRIMINATION AGAINST MINORITY MEN WITH CRIMINAL RECORDS 14 Berkeley Journal of African-American Law & Policy 2 (2012) For job applicants, questions about criminal history are ubiquitous. Nearly three quarters of employment applications inquire into an applicant's criminal background, and nearly half of employers routinely follow up with background checks. Criminal convictions of whatever kind and whatever vintage serve as an automatic bar to employment in... 2012
Charles A. Sullivan TORTIFYING EMPLOYMENT DISCRIMINATION 92 Boston University Law Review 1431 (October, 2012) Introduction. 1432 I. Cat's Paw (aka Subordinate Bias) Liability. 1434 II. Staub's Recasting of Intent. 1450 III. Proximate Cause in Discrimination Cases. 1455 IV. Proximate Cause. 1459 V. Cognitive Bias. 1467 VI. Proximate Cause and Cognitive Bias. 1476 VII. Cognitive Bias in the Courtroom. 1480 Conclusion. 1483 2012
Elizabeth J. Kennedy, J.D. WHEN THE SHOP FLOOR IS IN THE LIVING ROOM: TOWARD A DOMESTIC EMPLOYMENT RELATIONSHIP THEORY 67 New York University Annual Survey of American Law 643 (2012) Introduction. 643 I. The Domestic Work Industry. 646 A. Industry Profile. 646 B. The Limitations of Employment Law in Regulating the Domestic Work Industry. 653 C. Distinguishing Domestic Work. 659 D. Building Power Through Alliances: Domestic Workers United. 664 II. Employment Relationship Theory and Domestic Work. 666 III. Domestic Employment... 2012
Rick Su WORKING ON IMMIGRATION: THREE MODELS OF LABOR AND EMPLOYMENT REGULATION 51 Washburn Law Journal 331 (Spring 2012) The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration, from disagreements about its economic impact to... 2012
Meghan M. Sweeney "WE'D LOVE TO MATCH THEM, BUT...": HOW TEMPORARY EMPLOYMENT AGENCIES UNDERSTAND AND USE RACE AND ETHNICITY 11 Connecticut Public Interest Law Journal 51 (Fall-Winter, 2011) This Article is a qualitative, empirical investigation of discrimination by temporary employment agencies. These agencies are important labor market intermediaries. But the ways in which they use race in making decisions about whether and how to place workers-as well as their understanding of anti-discrimination law-have never been studied. Many... 2011
Andrew Tae-Hyun Kim CULTURE MATTERS: CULTURAL DIFFERENCES IN THE REPORTING OF EMPLOYMENT DISCRIMINATION CLAIMS 20 William & Mary Bill of Rights Journal 405 (December, 2011) Why don't reasonable people complain about discrimination? Behavioral science evidence points to structural barriers, like the fear of retaliation and the lack of sociocultural power in the workplace, that discourage employees from reporting. By not reporting perceived discriminatory or harassing conduct, the employee not only underutilizes Title... 2011
Ernest F. Lidge III DISPARATE TREATMENT EMPLOYMENT DISCRIMINATION AND AN EMPLOYER'S GOOD FAITH: HONEST MISTAKES, BENIGN MOTIVES, AND OTHER SINCERELY HELD BELIEFS 36 Oklahoma City University Law Review 45 (Spring 2011) When does an employer's good faith constitute a defense to a charge of intentional employment discrimination? Suppose an employer terminates an employee because of an honest, but mistaken, belief that the employee stole merchandise. Or suppose an employer desires to hire a female but truly believes that if he does so, his customers will not... 2011
Michael Connett EMPLOYER DISCRIMINATION AGAINST INDIVIDUALS WITH A CRIMINAL RECORD: THE UNFULFILLED ROLE OF STATE FAIR EMPLOYMENT AGENCIES 83 Temple Law Review 1007 (Summer 2011) Unlike discrimination on the basis of traditionally protected characteristics such as race, employer discrimination against ex-offenders can be justified by legitimate business needs. However, when employers fail to consider the job relatedness of a prior offense or the length of time since it occurred, the broadly shared interest in integrating... 2011
David A. Green FRIEND OR FOE: THE SUPREME COURT'S "PLAUSIBLE CLAIM" STANDARD PROVIDES ANOTHER BARRIER FOR PLAINTIFFS IN EMPLOYMENT DISCRIMINATION CASES 39 Southern University Law Review 1 (Fall, 2011) An enormous discrepancy exists between the way we talk about equality in the abstract and the value as translated into laws and justice. Roy Wilkins We are not final because we are infallible, but infallible only because we are final. Justice Robert H. Jackson The Supreme Court should put a notice on all federal courthouse doors: STOP-ENTRANCE... 2011
Pat K. Chew JUDGES' GENDER AND EMPLOYMENT DISCRIMINATION CASES: EMERGING EVIDENCE-BASED EMPIRICAL CONCLUSIONS 14 Journal of Gender, Race and Justice 359 (Spring 2011) Why did we think that women would transform institutions without simultaneously--or alternatively--being transformed by them . . .? Why did we believe that women appointed to positions of power would be representative of women as a group, rather than being those who most resemble the traditional incumbents and are thus considered least likely to... 2011
Robert B. Stulberg, Amy F. Shulman LITIGATING CROSS-BORDER DISCRIMINATION CLAIMS IN MULTIPLE JURISDICTIONS: A GLOBAL STRATEGY FOR EXPATRIATE EMPLOYEES 27 ABA Journal of Labor & Employment Law 61 (Fall, 2011) Americans assigned or seconded to foreign jurisdictions often enjoy protection from discriminatory conduct under the laws of both their home and host countries. Faced with discriminatory conduct, that cannot be otherwise remedied, those employees often are best advised to pursue their claims in both jurisdictions. Such coordinated action has... 2011
Stephen A. Plass MANDATORY ARBITRATION AS AN EMPLOYER'S CONTRACTUAL PREROGATIVE: THE EFFICIENCY CHALLENGE TO EQUAL EMPLOYMENT OPPORTUNITY 33 Cardozo Law Review 195 (October, 2011) During the past twenty years there has been a rebirth of liberty-of- contract jurisprudence in labor and employment law. This doctrine, which dominated legal theory at the turn of the twentieth century, has been widely discredited for its oppressive operation and its effects on workers. Adopted by the Supreme Court at the close of the nineteenth... 2011
Katayoun Alidadi OPENING DOORS TO MUSLIM MINORITIES IN THE WORKPLACE? FROM INDIA'S EMPLOYMENT QUOTA TO EU AND BELGIAN ANTI-DISCRIMINATION LEGISLATION 23 Pace International Law Review 146 (Winter 2011) I. Introduction. 148 A. Organization of Paper. 151 II. Centrality of the Workplace and Perceived Contradictions with Religious Identity. 152 III. Setting the Context: Muslims, A Religious Minority in Europe and in India. 155 A. Introduction. 155 B. Muslims in Europe and Belgium. 157 1. Composition and Background. 157 2. Socio-Economic Situation of... 2011
Andrew Brenton OVERCOMING THE EQUAL PAY ACT AND TITLE VII: WHY FEDERAL SEX-BASED EMPLOYMENT DISCRIMINATION LAWS SHOULD BE REPLACED WITH A SYSTEM FOR ACCREDITING EMPLOYERS FOR THEIR ANTIDISCRIMINATORY EMPLOYMENT PRACTICES 26 Wisconsin Journal of Law, Gender & Society 349 (Fall 2011) Introduction. 350 I. The Equal Pay Act and Title VII of the Civil Rights Act of 1964 Purport to Promote Pay Equity Between the Sexes and Equal Employment Opportunities for Women. 352 A. The Equal Pay Act requires that employees be paid equally for equal work, regardless of sex. 352 B. Title VII of the Civil Rights Act of 1964 prohibits... 2011
Charles A. Sullivan PLAUSIBLY PLEADING EMPLOYMENT DISCRIMINATION 52 William and Mary Law Review 1613 (April, 2011) The Supreme Court's unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules of Civil Procedure, and its application to... 2011
David A. Lacy , Alexandra S. Ray RECKONING WITH EMPLOYMENT DISCRIMINATION IN A "POST RACIAL" ERA 26 Journal of Civil Rights & Economic Development 41 (Fall 2011) Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. In this statement, Dr. Martin Luther King Jr. explains the fundamental need to achieve equality in society, and recognizes that discrimination, in... 2011
Anastasia Niedrich REMOVING CATEGORICAL CONSTRAINTS ON EQUAL EMPLOYMENT OPPORTUNITIES AND ANTI-DISCRIMINATION PROTECTIONS 18 Michigan Journal of Gender & Law 25 (2011) Introduction 26 I. Title VII, Past and Present 32 A. The History and Intent Behind Title VII and the Categorical Approach 32 B. Title VII: The Statute 35 II. Federal Case Precedents Illustrating the Flaws of Title VII's Categorical Approach 38 A. Defining the Because of Sex Provision 40 B. Sex Stereotyping Discrimination--Pre-Price... 2011
Kerri Lynn Stone SHORTCUTS IN EMPLOYMENT DISCRIMINATION LAW 56 Saint Louis University Law Journal 111 (Fall 2011) Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This Article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence--that of... 2011
Joseph Lipps STATE LIFESTYLE STATUTES AND THE BLOGOSPHERE: AUTONOMY FOR PRIVATE EMPLOYEES IN THE INTERNET AGE 72 Ohio State Law Journal 645 (2011) I. Introduction. 645 II. Background. 646 III. Off-Duty Protection Statutes. 654 A. Colorado. 655 B. North Dakota. 657 C. New York. 659 D. California. 661 E. Connecticut. 664 IV. Comparison of Off-Duty Statutes. 665 V. Competing Policy Implications of Off-Duty Statutes. 667 A. Opposition to Off-Duty Protection. 668 B. Benefits of Off-Duty... 2011
John B. Lough Jr. TEST RESULTS 33-FEB Los Angeles Lawyer 32 (February, 2011) WRITTEN EXAMS can serve as a legitimate gatekeeper into many careers, but they also have a nefarious history of being used to keep out minorities. As Justice Ruth Bader Ginsburg observed in Ricci v. DeStefano, Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. While exams can remove nepotism... 2011
Mildred Wigfall Robinson THE CURRENT ECONOMIC SITUATION AND ITS IMPACT ON GENDER, RACE, AND CLASS: THE LEGACY OF RACED (AND GENDERED) EMPLOYMENT 14 Journal of Gender, Race and Justice 431 (Spring 2011) In November 2009, American joblessness soared to 10.2%, the highest unemployment rate reported in a quarter century. The present unemployment rate continues to hover near 10%. More than 15 million Americans are encompassed within this percentage. Moreover, available data suggest that the number of unemployed is actually significantly higher than 15... 2011
Corey A. Ciocchetti THE EAVESDROPPING EMPLOYER: A TWENTY-FIRST CENTURY FRAMEWORK FOR EMPLOYEE MONITORING 48 American Business Law Journal 285 (Summer, 2011) Employers and employees have a love-hate relationship with technology. Both love the benefits of sophisticated hardware and software in a competitive global marketplace. Employees hate that the same technology tethers them to the workplace and records their electronic footprint. Employers hate the potential for liability, distraction, and lost... 2011
Sharona Hoffman THE IMPORTANCE OF IMMUTABILITY IN EMPLOYMENT DISCRIMINATION LAW 52 William and Mary Law Review 1483 (April, 2011) This Article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 2009, two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article's original contribution is an... 2011
David Freeman Engstrom THE LOST ORIGINS OF AMERICAN FAIR EMPLOYMENT LAW: REGULATORY CHOICE AND THE MAKING OF MODERN CIVIL RIGHTS, 1943-1972 63 Stanford Law Review 1071 (May, 2011) By the time Congress enacted Title VII of the Civil Rights Act of 1964, roughly two dozen states had already passed fully enforceable employment discrimination laws and engaged in nearly two decades worth of enforcement efforts. But this early state-level scheme was very different from what most lawyers know as Title VII. Title VII vests primary... 2011
Andrew Kenny THE MEANING OF "BECAUSE" IN EMPLOYMENT DISCRIMINATION LAW: CAUSATION IN TITLE VII RETALIATION CASES AFTER GROSS 78 University of Chicago Law Review 1031 (Summer, 2011) There are several employment discrimination statutes that together seek to safeguard equality in the workplace. Title VII of the Civil Rights Act of 1964 addresses discrimination based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act of 1967 (ADEA) addresses age discrimination. Both statutes make it... 2011
William R. Corbett WHAT IS IN GINA'S GENES? THE CURIOUS CASE OF THE MUTANT-HYBRID EMPLOYMENT LAW 64 Oklahoma Law Review 1 (Fall, 2011) I. Announcing the Discovery of a Mutation. 1 II. The Improbable Enactment of a Mutant Antidiscrimination Law. 4 A. GINA as a Mutant Antidiscrimination Law. 4 B. Enactment Without the Usual Pedigree of an Antidiscrimination Law. 6 III. Improbable Enactment of a Hybrid Antidiscrimination/Privacy Law. 8 A. GINA as a Hybrid Antidiscrimination/Privacy... 2011
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