Andrea Giampetro-Meyer THE PROPER PLACE FOR INTELLECTUAL PROPERTY IN EMPLOYMENT DISCRIMINATION LAW 25 George Mason University Civil Rights Law Journal 1 (Fall, 2014) Intellectual property law . . . [has] far too long . . .been cloaked by a presumption of race and gender neutrality. Every day, in companies across the United States, marketing professionals are making decisions about how to meet the needs of consumers in specific markets. How can a financial services company offer advice to African Americans who... 2014
W. Jonathan Cardi THE ROLE OF NEGLIGENCE DUTY ANALYSIS IN EMPLOYMENT DISCRIMINATION CASES 75 Ohio State Law Journal 1129 (2014) I. Introduction. 1129 II. Duty Reasoning in Employment Discrimination Cases. 1131 A. The Nature of Duty in Tort Law. 1131 B. The Role of Duty Reasoning in Employment Discrimination Cases. 1135 1. Mixed-Motives Cases. 1135 2. Employment at Will. 1140 a. The Development of and Justifications for the Employment-at-Will Principle. 1142 b. Employment at... 2014
William B. Gould IV THE SUPREME COURT, JOB DISCRIMINATION, AFFIRMATIVE ACTION, GLOBALIZATION, AND CLASS ACTIONS: JUSTICE GINSBURG'S TERM 36 University of Hawaii Law Review 371 (Spring, 2014) Thirty-three years ago, I called the October 1980 term of the Supreme Court Justice Brennan's Term, as he registered a number of important labor law dissents as well as authored some majority opinions. That term was just beginning to absorb the results of the 1968 elections, as a result of which President Richard M. Nixon was almost immediately... 2014
Theresa M. Beiner THE TROUBLE WITH TORGERSON: THE LATEST EFFORT TO SUMMARILY ADJUDICATE EMPLOYMENT DISCRIMINATION CASES 14 Nevada Law Journal 673 (Summer 2014) Legal scholars have lamented the use of summary judgment by both courts and defendants in employment discrimination cases. In spite of court statements that employment discrimination cases are not well suited for summary judgment, summary judgment is often granted. Breaking its own precedent on this point, the Eighth Circuit recently has taken what... 2014
Joni Hersch , Blair Druhan Bullock THE USE AND MISUSE OF ECONOMETRIC EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES 71 Washington and Lee Law Review 2365 (Fall, 2014) Statistical analyses play an important role in employment discrimination cases, as the Supreme Court has long recognized. Regression analysis can help a plaintiff establish a claim of discrimination under Title VII of the Civil Rights Act of 1964 by showing that, even when controlling for relevant characteristics, individuals of a certain class... 2014
Trina Jones TITLE VII AT 50: CONTEMPORARY CHALLENGES FOR U.S. EMPLOYMENT DISCRIMINATION LAW 6 Alabama Civil Rights & Civil Liberties Law Review 45 (2014) In June 2003, Jennifer Lu and eight other young adults of color filed a lawsuit against Abercrombie & Fitch (A&F) alleging that the clothing retailer had engaged in race, color, and national origin discrimination by refusing, among other things, to hire qualified African Americans, Latinos/as, and Asians to work on its sales floors as Brand... 2014
Matthew E. Blakely TITLE VII: DISCRIMINATORY USE OF TEST SCORES WATCHDOG EVOLUTION OF THE REGULATION OVER EMPLOYMENT TEST SCORE USAGE FROM 703(H) TO 703(L) 44 Southwestern Law Review 27 (2014) More than 200 years ago, Declaration of Independence drafter Thomas Jefferson opined that an individual's positioning and classification in the fledgling nation should be based on a natural aristocracy of his or her virtues and talents. Proponents of general aptitude examinations, such as those used by universities, surmised that one's virtues... 2014
Lauren Timmons WHOSE ROLE IS IT ANYWAY? APPLYING TITLE VII TO EMPLOYERS' CRIMINAL CONVICTION RECORD POLICIES 49 Wake Forest Law Review 609 (Summer 2014) In the United States, 87% of employers screen job applicants on the basis of their criminal conviction records, a practice that results in the performance of millions of criminal record checks each year. In addition, [o]ver 60 percent of employers indicate that they would probably not or definitely not be willing to hire an applicant with a... 2014
Hon. Bernice B. Donald, J. Eric Pardue BRINGING BACK REASONABLE INFERENCES: A SHORT, SIMPLE SUGGESTION FOR ADDRESSING SOME PROBLEMS AT THE INTERSECTION OF EMPLOYMENT DISCRIMINATION AND SUMMARY JUDGMENT 57 New York Law School Law Review 749 (2012/2013) Almost fifty years ago, Congress passed the Civil Rights Act of 1964. An integral part of that monumental piece of legislation was Title VII, which prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex. In 1991, Congress significantly amended Title VII, providing damage awards and the right to a jury... 2013
Amy Traub CREDIT REPORTS AND EMPLOYMENT: FINDINGS FROM THE 2012 NATIONAL SURVEY ON CREDIT CARD DEBT OF LOW- AND MIDDLE-INCOME HOUSEHOLDS 46 Suffolk University Law Review 983 (2013) Today, it is common for employers to look at job applicants' credit history before making hiring decisions. Even a cursory look at a popular job-listing website reveals that employers require credit checks for jobs as diverse as doing maintenance work, offering telephone technical support, assisting in an office, working as a delivery driver,... 2013
Benjamin L. Ristau DYSFUNCTIONAL DISLOYALTY STANDARDS IN EMPLOYEE CRITICISM CASES 63 Case Western Reserve Law Review 917 (Spring, 2013) Introduction. 917 I. The Roots of Employment Law and the Duty of Loyalty. 921 II. The Public Policy Exception and the Difference Between Pretext and Disloyalty Cases. 923 III. Disloyalty Standards Under the NLRA. 929 IV. The Problem of Reliance on Disloyalty. 936 V. An Objective, Burden-Shifting Solution. 939 Conclusion. 942 Paramedic Dawnmarie... 2013
Lamont E. Stallworth, Ph.D., Daniel J. Kaspar, Esq. EMPLOYING THE PRESIDENTIAL EXECUTIVE ORDER AND THE LAW TO PROVIDE INTEGRATED CONFLICT MANAGEMENT SYSTEMS AND ADR PROCESSES: THE PROPOSED NATIONAL EMPLOYMENT DISPUTE RESOLUTION ACT (NEDRA) 28 Ohio State Journal on Dispute Resolution 171 (2013) I. Introduction II. Overt vs. Unconscious and Subtle Discrimination A. Research on Covert and Modern Discrimination B. Unconscious Discrimination C. Subtle Discrimination III. Factual Realities of Enforcement of Statutory Discrimination Laws IV. The Legal and Public Policy Context of ADR: ADR in the Workplace at a Crossroads A. Self-Regulation of... 2013
Dean J. Schaner, A. John Harper III EMPLOYMENT LAW 45 Texas Tech Law Review 727 (Spring, 2013) I. Introduction. 728 II. Employment Discrimination Case Law Discussion and Analysis. 728 A. Discrimination and Retaliation-Title VII. 728 1. Black v. Pan American Laboratories, L.L.C.. 729 2. Yancy v. U.S. Airways, Inc.. 733 3. Turner v. Kansas City Southern Railway Co.. 734 4. Vaughn v. Woodforest Bank. 736 5. Wesley v. General Drivers,... 2013
Loftus C. Carson, II EMPLOYMENT OPPORTUNITIES AND CONDITIONS FOR THE AFRICAN-AMERICAN LEGAL PROFESSORIATE: PERSPECTIVES FROM THE INSIDE 19 Texas Journal on Civil Liberties & Civil Rights 1 (Fall 2013) I. Introduction. 3 A. The Study. 6 B. The Importance of Racial Diversity in the Professoriate of American Law Schools. 8 II. Background. 11 A. Some Historical Perspective on Faculty Ethnicity in American Institutions of Higher Education. 11 B. An Overview of the Experiences of Higher Education Faculty of Color. 12 C. An Overview of the American Law... 2013
Kristin Sommers Czubkowski EQUAL OPPORTUNITY: FEDERAL EMPLOYEES' RIGHT TO SUE ON TITLE VII AND TORT CLAIMS 80 University of Chicago Law Review 1841 (Fall, 2013) For three years, Donald Rochon experienced a systematic campaign of racial discrimination and harassment from his coworkers that extended far beyond their mutual workplace. In addition to being subjected to racially discriminatory stories regarding African Americans told by his coworkers, Rochon had his competence impugned behind his back, received... 2013
Hon. Mark W. Bennett ESSAY: FROM THE "NO SPITTIN', NO CUSSIN' AND NO SUMMARY JUDGMENT" DAYS OF EMPLOYMENT DISCRIMINATION LITIGATION TO THE ""DEFENDANT'S SUMMARY JUDGMENT AFFIRMED WITHOUT COMMENT" DAYS: ONE JUDGE'S FOUR-DECADE PERSPECTIVE 57 New York Law School Law Review 685 (2012/2013) Nearly seventy-five years after its birth, the time has come to bury summary judgment. The funeral should be swift, dignified, and joyous. The autopsy would reveal that the cause of death was abuse and overuse by my federal judge colleagues. Summary judgment abuse and overuse occurs in all types of cases, but is especially magnified in employment... 2013
Michael A. Gregg IS AFFIRMATIVE ACTION OUT OF DATE? 55-FEB Orange County Lawyer 12 (February, 2013) The U.S. Supreme Court is expected to rule in the case of Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011), before the end of the J Court's term in late June 2013. The case involves a challenge to the consideration of race as a factor in admissions decisions at a public university, but a broad ruling prohibiting the consideration of... 2013
Kendall D. Isaac IS IT "A" OR IS IT "THE"? DECIPHERING THE MOTIVATING-FACTOR STANDARD IN EMPLOYMENT DISCRIMINATION AND RETALIATION CASES 1 Texas A&M Law Review 55 (Fall 2013) The recent Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar has brought exposure to a prevalent problem in employment discrimination and retaliation cases: there is great discrepancy in how plaintiffs have to prove and courts have to assess these claims. Depending on whether the case is based on discrimination or... 2013
Matthew A. Shapiro LABOR GOALS AND ANTIDISCRIMINATION NORMS: EMPLOYER DISCRETION, REASONABLE ACCOMMODATION, AND THE COSTS OF INDIVIDUALIZED TREATMENT 32 Yale Law and Policy Review 1 (Fall 2013) Introduction. 2 I. Labor Goals and Title VII. 9 A. At-Will Employment, Employer Discretion, and Labor Goals. 10 B. Title VII's Consistency with Labor Goals. 16 1. Disparate Treatment. 17 2. Disparate Impact. 21 II. Labor Goals and the ADA. 25 A. The Tension Between the ADA's Accommodation Requirement and Labor Goals. 26 B. Addressing the Tension:... 2013
Garrett A. R. Yursza Warfield , David J. Rini NEW EEOC GUIDANCE: IMPLICATIONS FOR EX-OFFENDER REENTRY AND EMPLOYMENT, OR "IT IS HARD TO ARTICULATE THE MINIMUM QUALIFICATION FOR POSING A LOW RISK OF ATTACKING SOMEONE." 95 Massachusetts Law Review 195 (October, 2013) Jackson served over ten years in Massachusetts state prisons for drug-related crimes he committed in his early 20s. While incarcerated, he participated in prison education programs and earned two college degrees. Upon his release and with the help of a close friend, Jackson was employed part-time as an advocate for other ex-prisoners reentering... 2013
Elizabeth Dunn NO LONGER A PAPER TIGER: THE EEOC AND ITS STATUTORY DUTY TO CONCILIATE 63 Emory Law Journal 455 (2013) Congress created the Equal Employment Opportunity Commission to effectuate the ends of Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. To effectuate those ends, Congress vested the EEOC with authority to not only receive, investigate, and... 2013
Robert Sprague , Abigail E. Fournier ONLINE SOCIAL MEDIA AND THE END OF THE EMPLOYMENT-AT-WILL DOCTRINE 52 Washburn Law Journal 557 (Summer, 2013) The increasing use of online social media platforms such as Facebook, Twitter, and LinkedIn has resulted in two important workplace trends: first, employees are communicating amongst themselves online and, being coworkers, those communications often involve work ; and second, employers are increasingly promulgating social media policies to restrict... 2013
Jill Hale PRIVATE EMPLOYERS & MINORITY PREFERENCES: WILL SOMETHING OTHER THAN A REMEDIAL JUSTIFICATION BE SUFFICIENT? 55 South Texas Law Review 143 (Fall 2013) I. Introduction. 143 II. The Supreme Court's Approach to Affirmative Action. 145 A. Employers Under Title VII. 146 B. Education Under the Equal Protection Clause. 149 III. Non-remedial Justifications in the Workplace. 153 A. Moving Away from Non-remedial Justifications: The Effect of the Lower Standard Under Title VII and Management Prerogatives.... 2013
Hon. Denny Chin SUMMARY JUDGMENT IN EMPLOYMENT DISCRIMINATION CASES: A JUDGE'S PERSPECTIVE 57 New York Law School Law Review 671 (2012/2013) Is summary judgment being unfairly granted in employment discrimination cases? Scholars and practitioners have put forth this proposition, as they have written about the apparent high failure rates of plaintiffs in opposing dispositive pretrial motions in employment discrimination cases. They have contended that: summary judgment is being granted... 2013
Emma Pelkey THE "NOT ME TOO" EVIDENCE DOCTRINE IN EMPLOYMENT LAW: COURTS' DISPARATE TREATMENT OF "ME TOO" VERSUS "NOT ME TOO" EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES 92 Oregon Law Review 545 (2013) Introduction. 546 I. Overview of Me Too Evidence. 547 II. Me Too Evidence in the Pre- Sprint Era. 548 III. The Supreme Court Weighs in on Me Too Evidence. 552 IV. Me Too and Not Me Too Evidence Post- Sprint. 553 A. Me Too Evidence. 553 B. Not Me Too Evidence. 557 C. Me Too vs. Not Me Too Evidence. 561 V. Why Are Courts Treating... 2013
Terence G. Connor, Kevin J. White THE CONSIDERATION OF ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS: A CRITIQUE OF THE EEOC GUIDANCE 43 Seton Hall Law Review 971 (2013) I. Introduction. 971 II. Employer Liability for Negligent Hiring. 974 III. An Overview of Title VII. 977 A. The Birth of Disparate Impact Theory. 979 B. The Narrowing of Disparate Impact Theory. 980 C. Congressional Reaction. 982 D. The Consideration of Criminal Records. 984 IV. The New EEOC Guidance. 990 A. Validity Studies. 991 B. The Green... 2013
Philip J. Moss, Esq. THE COST OF EMPLOYMENT DISCRIMINATION CLAIMS 28 Maine Bar Journal 24 (Winter, 2013) Since passage of the Civil Rights Act of 1964, both the stares and the federal government have expanded the categories of prohibited employment discrimination to include race, color, creed, sex, age, religion, national origin, sexual orientation and genetic information. The passage of such legislation, in and of itself, is a statement that society... 2013
Suzette M. Malveaux THE JURY (OR MORE ACCURATELY THE JUDGE) IS STILL OUT FOR CIVIL RIGHTS AND EMPLOYMENT CASES POST-IQBAL 57 New York Law School Law Review 719 (2012/2013) Five years after Bell Atlantic Corp. v. Twombly and three years after Ashcroft v. Iqbal, the question regarding the impact these seminal Supreme Court decisions are having on the vitality of employment discrimination and other civil rights cases remains. This question was posed at a symposium aptly titled Trial by Jury or Trial by Motion? Summary... 2013
Walker Newell THE LEGACY OF NIXON, REAGAN, AND HORTON: HOW THE TOUGH ON CRIME MOVEMENT ENABLED A NEW REGIME OF RACE-INFLUENCED EMPLOYMENT DISCRIMINATION 15 Berkeley Journal of African-American Law & Policy 3 (2013) In this article, I explore the interaction between an alleged backlash against the Civil Rights Movement of the 1960s, the rise of tough on crime politics, the corresponding explosion in United States incarceration rates, and employment discrimination against individuals with criminal records. I begin by acknowledging scholars who charge that... 2013
Dustin Massie TOO SOON FOR EMPLOYERS TO CELEBRATE?: HOW PLAINTIFFS ARE PREVAILING POST-DUKES 29 ABA Journal of Labor & Employment Law 177 (Fall, 2013) In 2000, after six years of positive performance reviews, Betty Dukes filed a sex discrimination claim against her employer, Wal-Mart, alleging it denied her the requisite training to advance to a higher-salaried position. In 2001, Betty Dukes, along with six other named plaintiffs, filed a Title VII class action on behalf of 1.5 million women who... 2013
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