William R. Corbett UNMASKING A PRETEXT FOR RES IPSA LOQUITUR: A PROPOSAL TO LET EMPLOYMENT DISCRIMINATION SPEAK FOR ITSELF 62 American University Law Review 447 (February, 2013) Has too much tort law been incorporated into the case law under the federal employment discrimination statutes? The debate on this issue has been reinvigorated by the Supreme Court's decision in Staub v. Proctor Hospital. In Staub, the Court referred to the Uniformed Services Employment and Reemployment Rights Act, a federal employment... 2013
Ariana R. Levinson WHAT THE AWARDS TELL US ABOUT LABOR ARBITRATION OF EMPLOYMENT-DISCRIMINATION CLAIMS 46 University of Michigan Journal of Law Reform 789 (Spring 2013) This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor... 2013
James Ruffin Lawrence, III "LET US NOW TRY LIBERTY": FREEING THE PRIVATE SECTOR TO TACKLE NORTH CAROLINA'S TOBACCO ADDICTION BY REINSTATING EMPLOYMENT FREEDOM OF CONTRACT 90 North Carolina Law Review 510 (January, 2012) Introduction. 511 I. Why Employee Health Matters to Employers: Understanding the Rationale for Corporate Health and Wellness Programs. 517 A. The Role of Private Employers in Health Care Finance in the United States. 517 B. The Business Case for Health and Wellness Programs. 520 1. Health Care Market Dynamics and the Basic Business Case. 520 2. The... 2012
Ryan H. Nelson AFFIRMATIVE ACTION FOR LGBT APPLICANTS & EMPLOYEES: A PROPOSED REGULATORY SCHEME 30 Hofstra Labor and Employment Law Journal 179 (Fall 2012) On March 6, 1961, President John F. Kennedy signed into law Executive Order 10,925, requiring certain government contractors to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin. This was the genesis of affirmative action... 2012
John S. Collins ANOTHER HAIRBALL FOR EMPLOYERS? "CAT'S PAW" LIABILITY FOR THE DISCRIMINATORY ACTS OF CO-WORKERS AFTER STAUB V. PROCTOR HOSPITAL 64 Baylor Law Review 908 (Fall, 2012) Eddie is an entry-level employee for a chemical company who has recently been transferred to a new plant. He is an African American man in his mid-thirties. Although Eddie was well liked by employees at the other plant, two of his new co-workers, Brad and David, have behaved strangely towards him ever since he arrived. Brad and David are both white... 2012
Marcia L. McCormick DECOUPLING EMPLOYMENT 16 Lewis & Clark Law Review 499 (Summer 2012) The protected class approach to employment discrimination has not solved the problem of discrimination or of a just distribution of resources. Not only do race and sex prejudice continue to exist, but material and subjective disadvantage continues to be strongly linked to race and sex. While our laws have made social changes, progress on those... 2012
Stuart W. Davidson , Scott M. Pollins , Partner, Of Counsel, Willig Williams & Davidson DETERMINING EMPLOYMENT DISCRIMINATION CASE MERITS UNDER STATE AND FEDERAL LAW 2012 Aspatore 3058210 (August, 2012) In this chapter, we will discuss the most commonly litigated federal employment discrimination laws, the types of conduct those laws proscribe, the types of employers to whom those laws apply, and how to evaluate a potential plaintiff's case under those laws. We intend to provide the reader with practical information that is immediately useful to... 2012
Deborah A. Widiss DIVERGENT INTERESTS: UNION REPRESENTATION OF INDIVIDUAL EMPLOYMENT DISCRIMINATION CLAIMS 87 Indiana Law Journal 421 (Winter, 2012) Professor Michael Green's contribution to this symposium, Reading Ricci and Pyett to Provide Racial Justice Through Union Arbitration, is a hearteningly optimistic assessment of the benefits offered by union arbitration of individual employee discrimination claims as recently permitted by 14 Penn Plaza LLC v. Pyett. Professor Green points out... 2012
Devin D. Collier DON'T GET IT TWISTED: WHY EMPLOYER HAIRSTYLE PROHIBITIONS ARE RACIALLY DISCRIMINATORY 9 Hastings Race and Poverty Law Journal 33 (Winter 2012) Does the way I wear my hair make me a better person? Does the way I wear my hair make me a better friend? Does the way I wear my hair determine my integrity? I am expressing my creativity . . . If I wanna shave it close Or if I wanna rock locks . . . If I wanna wear it braided All down my back I don't see what's wrong with that . . . The above... 2012
Sean M. Heneghan EMPLOYMENT DISCRIMINATION FACED BY THE IMMIGRANT WORKER: A LESSON FROM THE UNITED STATES AND SOUTH AFRICA 35 Fordham International Law Journal 1780 (November, 2012) INTRODUCTION. 1781 I. NATIONAL ORIGIN EMPLOYMENT DISCRIMINATION LAW IN THE UNITED STATES AND SOUTH AFRICA. 1786 A. The United States. 1786 1. Historical, Political, and Social Background. 1786 2. Title VII. 1792 3. Different Ways to Define National Origin Create Differing Protection. 1795 B. South Africa. 1799 1. Historical, Political, and Social... 2012
  EMPLOYMENT DISCRIMINATION--DISPARATE IMPACT--SECOND CIRCUIT DECLINES TO EXTEND RICCI V. DESTEFANO.--BRISCOE V. CITY OF NEW HAVEN, 654 F.3D 200 (2D CIR. 2011). 125 Harvard Law Review 1852 (May, 2012) Title VII of the Civil Rights Act prohibits public and private employers from discriminating on the basis of race, color, religion, sex, or national origin. Plaintiffs can challenge employment practices because they evidence disparate treatment, intentional discrimination on the basis of a protected trait, or because they cause a disparate... 2012
Katrina Grider, Katrina Grider & Associates, 14227 Prospect Point Drive, Cypress, TX 77429, (281) 256-9311 (office), (281) 256-9312 (fax), (800) ASK-4KAT (toll-free), EMPLOYMENT LAW UPDATE U.S. SUPREME COURT, FIFTH CIRCUIT AND MORE 58 The Advocate (Texas) 5 (Spring, 2012) C1-2TABLE OF CONTENTS I. HOT OFF THE PRESS. 1 A. DOL: Department of Labor. 1 1. DOL-IRS Memo on Misclassifying Employees. 1 2. Litigation Against Texas Employers. 1 B. EEOC:. 1 1. EEOC FY 2011 Charge Statistics. 1 2. ADAAA Final Rule. 2 C. IRS: Internal Revenue Service. 3 1. Voluntary Worker Classification Settlement Program. 3 2. Employer Provided... 2012
David M. Blanchard , Principal, Nacht Roumel Salvatore Blanchard & Walker PC ESTABLISHING AN EFFECTIVE STRATEGY FOR EMPLOYMENT DISCRIMINATION AND RETALIATION CASES 2012 Aspatore 3058209 (August, 2012) In 1973, the Supreme Court confronted a case of race discrimination brought under Title VII of the Civil Rights Act. In McDonnell Douglas Corp. v. Green, the Supreme Court laid out the burdens that a plaintiff and defendant would have at summary judgment in cases brought under Title VII. This framework has been imputed to the vast majority of... 2012
Randy J. Kozel FREE SPEECH AND PARITY: A THEORY OF PUBLIC EMPLOYEE RIGHTS 53 William and Mary Law Review 1985 (May, 2012) More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to... 2012
Vijay K. Mago , Elizabeth E. Clarke , Eric Wallace LABOR AND EMPLOYMENT LAW 47 University of Richmond Law Review 201 (Annual Survey 2012) During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to... 2012
Robert T. Carter, Ph.D. , Thomas D. Scheuermann, M.A., J.D. LEGAL AND POLICY STANDARDS FOR ADDRESSING WORKPLACE RACISM: EMPLOYER LIABILITY AND SHARED RESPONSIBILITY FOR RACE-BASED TRAUMATIC STRESS 12 University of Maryland Law Journal of Race, Religion, Gender and Class 1 (Spring 2012) With the celebrated election of the first African-American President, the United States has come a long way from the ugly days of Jim Crow, but there is a paucity of evidence that we are living in anything approaching a post-racial America. While overt bigotry may have receded in recent decades, rumors of its demise as an ongoing social problem... 2012
Roberto ConcepciĆ³n, Jr. NEED NOT APPLY: THE RACIAL DISPARATE IMPACT OF PRE-EMPLOYMENT CRIMINAL BACKGROUND CHECKS 19 Georgetown Journal on Poverty Law and Policy 231 (Spring, 2012) The current economic downturn, characterized by the most devastating recession in generations, continues to transform the employment application process into survival of the fittest. Employers are increasingly using criminal background checks, a permissible practice under the Fair Credit Reporting Act (FCRA), as a litmus test to weed out... 2012
Joe Mulligan NOT IN YOUR BACKYARD: OHIO'S PROHIBITION ON RESIDENCY REQUIREMENTS FOR POLICE OFFICERS, FIREFIGHTERS, AND OTHER MUNICIPAL EMPLOYEES 37 University of Dayton Law Review 351 (Spring, 2012) I. Introduction. 352 II. Background. 355 A. Passage and Rationale for O.R.C. 9.481. 355 B. Events Leading Up to the Showdown at the Ohio Supreme Court. 358 C. The State Prevails at the Ohio Supreme Court. 359 D. How Other States in the Region Deal with Residency Requirements. 363 III. Issues. 366 A. O.R.C. 9.481 Overextended the Intended... 2012
Chika Duru OUT FOR BLOOD: EMPLOYMENT DISCRIMINATION, SICKLE CELL TRAIT, AND THE NFL 9 Hastings Race and Poverty Law Journal 265 (Summer 2012) Introduction. 77 I. Sickle Cell trait, Sports, and People of African Descent. 80 II. Title VII of the Civil Rights Act of 1964 and Disparate Impact. 85 A. DisparateTreatment. 85 B. DisparateImpact. 86 III. Disparate Impact Liability for Sickle Cell Trait Testing in the NFL. 90 A. Business Necessity. 92 B. For Your Own Good. 93 C. Tort Liability as... 2012
Amy Myrick , Robert L. Nelson , Laura Beth Nielsen RACE AND REPRESENTATION: RACIAL DISPARITIES IN LEGAL REPRESENTATION FOR EMPLOYMENT CIVIL RIGHTS PLAINTIFFS 15 NYU Journal of Legislation and Public Policy 705 (2012) Introduction. 707 I. Pro Se Litigation: Data and Past Findings. 708 II. Who Has a Lawyer? Racial Disparities in Representation. 713 A. Statistical Analysis. 713 B. Social Science Explanations for Racial Disparities in Lawyer Use. 720 III. The Pro Se Plaintiffs. 725 A. Billy Dee Did Not See His Case as a Legal Issue. 727 B. Chris Burns Could Not... 2012
Lisa Qi REACTION TO: HOW AFRICAN-AMERICANS CAN BETTER MANEUVER IN THE LABOR MARKET TO CLOSE THE BLACK-WHITE EMPLOYMENT AND INCOME GAPS 4 Georgetown Journal of Law & Modern Critical Race Perspectives 203 (Fall, 2012) Shaba Nassar's How African-Americans Can Better Maneuver in the Labor Market to Close the black-white Employment and Income Gaps ambitiously aims to provide solutions to deeply-rooted racial inequalities between African Americans and whites in American society. Whites presently dominate the workforce, particularly among high-wage, primary... 2012
Katrina Liu REENTERING THE CITY OF BROTHERLY LOVE: EXPANDING EQUAL EMPLOYMENT PROTECTION FOR EX-OFFENDERS IN PHILADELPHIA 22 Temple Political & Civil Rights Law Review 175 (Fall 2012) During World War II, Philadelphia was the site of a bitter race conflict when the Philadelphia Transportation Company (PTC) attempted to racially integrate its drivers. When an ensuing strike by white drivers threatened war production, President Franklin D. Roosevelt sent the army to operate trolleys and to oversee PTC's integration.... 2012
Kenneth G. Dau-Schmidt , Matthew Kelley SWIMMING IN THE CROSSCURRENTS OF HISTORY: LABOR AND EMPLOYMENT LAW UNDER THE OBAMA ADMINISTRATION 87 Indiana Law Journal 1 (Winter, 2012) If there is anyone out there who still doubts that America is a place where all things are possible, who still wonders if the dream of our founders is alive in our time, who still questions the power of our democracy, tonight is your answer . . . . It's the answer spoken by young and old, rich and poor, Democrat and Republican, black, white,... 2012
Kerri Lynn Stone TAKING IN STRAYS: A CRITIQUE OF THE STRAY COMMENT DOCTRINE IN EMPLOYMENT DISCRIMINATION LAW 77 Missouri Law Review 149 (Winter, 2012) A decision maker repeatedly used the word boy when addressing two African-American employees, who then did not receive a promotion for which they had applied. A Puerto Rican doctor whose employer did not renew her contract proffered testimony that her employer's Director of Clinical Services said, Dominican doctors were better than the other... 2012
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
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