Corey A. Ciocchetti , John Holcomb THE FRONTIER OF AFFIRMATIVE ACTION: EMPLOYMENT PREFERENCES & DIVERSITY IN THE PRIVATE WORKPLACE 12 University of Pennsylvania Journal of Business Law 283 (Winter 2010) Affirmative action remains controversial in American jurisprudence and society in general. Corporate policies, governmental programs and judicial decisions merely touching on minority preferences generate scathing media editorials and public outcry. The pro-affirmative action camp accuses opponents of holding back minority advancement. They argue... 2010
David Sherwyn, Michael Heise THE GROSS BEAST OF BURDEN OF PROOF: EXPERIMENTAL EVIDENCE ON HOW THE BURDEN OF PROOF INFLUENCES EMPLOYMENT DISCRIMINATION CASE OUTCOMES 42 Arizona State Law Journal 901 (Fall 2010) Scholarly and public attention to the burden of proof and jury instructions has increased dramatically since the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc. Gross holds that the so-called mixed-motive jury instruction, which we call the motivating factor instruction, is not available in age, and possibly disability and... 2010
Maurice Wexler, Charles C. Warner, Gary R. Siniscalco, John L. Quinn, Adam T. Klein THE LAW OF EMPLOYMENT DISCRIMINATION FROM 1985 TO 2010 25 ABA Journal of Labor & Employment Law 349 (Spring, 2010) The Civil Rights Act of 1964 (1964 CRA) became the law of the land following the longest filibuster in the history of the United States Senate. Title VII of the 1964 CRA prohibits discrimination in employment and, together with the Age Discrimination in Employment Act, the Americans with Disabilities Act, and Executive Order 11246, has become an... 2010
Erica E. Hoodhood THE QUINTESSENTIAL EMPLOYER'S DILEMMA: COMBATING TITLE VII LITIGATION BY MEETING THE ELUSIVE STRONG BASIS IN EVIDENCE STANDARD 45 Valparaiso University Law Review 111 (Fall, 2010) Suppose that Publicus Corporation issues an objective assessment to determine qualified candidates for a promotion and plans to promote the top ten highest scoring candidates. To the corporation's dismay, the test results reveal that the top ten scoring candidates were all white males, although nearly half of the test takers were minorities.... 2010
Howard L. Brown , Honorable Raymond D. Austin THE TWENTY-FIFTH ANNIVERSARY OF THE NAVAJO PREFERENCE IN EMPLOYMENT ACT: A QUARTER-CENTURY OF EVOLUTION, INTERPRETATION, AND APPLICATION OF THE NAVAJO NATION'S EMPLOYMENT PREFERENCE LAWS 40 New Mexico Law Review 17 (Winter 2010) The Navajo Nation is the largest federally recognized Indian Nation in the United States with approximately 225,000 enrolled members. Approximately 180,000 of those members live within the Navajo Nation, in addition to several thousand nonmembers who reside or work there. The population of the Navajo Nation includes a workforce that produces goods... 2010
Autumn George "ADVERSE EMPLOYMENT ACTION"--HOW MUCH HARM MUST BE SHOWN TO SUSTAIN A CLAIM OF DISCRIMINATION UNDER TITLE VII? 60 Mercer Law Review 1075 (Spring 2009) Adverse employment action is judicial shorthand for determining whether a plaintiff showed that an employer's action sufficiently affected the employee's compensation, terms, conditions, or privileges of employment. This is a crucial element to sustain a ยง 703 claim under Title VII of the Civil Rights Act of 1964. However, what does adverse... 2009
Henry H. Drummonds BEYOND THE EMPLOYEE FREE CHOICE ACT: UNLEASHING THE STATES IN LABOR-MANAGEMENT RELATIONS POLICY 19 Cornell Journal of Law & Public Policy 83 (Fall 2009) This Article proposes a major devolution of labor relations policy making authority to the states. Echoing the federalism discussion in other contexts like global warming and prescription drugs, labor relation preemption doctrine should be examined and reformed by Congress. Existing doctrine is entirely judge-made even though only Congress, not the... 2009
Ishra Solieman BORN OSAMA: MUSLIM-AMERICAN EMPLOYMENT DISCRIMINATION 51 Arizona Law Review 1069 (Winter 2009) Muslim-Americans have faced many challenges to their basic civil liberties since the September 11th attacks on the World Trade Centers. One of the areas in which they have felt the most discrimination is in the workplace. The Equal Employment Opportunities Act, otherwise known as Title VII, prohibits employers from discriminating against employees... 2009
Nathan L. Barrett CIVIL RIGHTS-EMPLOYMENT-BEFORE AN EMPLOYER MAY LAWFULLY TAKE RACE-BASED ACTION TO REMEDY A PRACTICE THAT HAS A DISPARATE IMPACT, THE EMPLOYER MUST HAVE A STRONG BASIS IN EVIDENCE TO BELIEVE THAT IT WILL BE SUBJECT TO DISPARATE-IMPACT LIABILITY IF IT FAILS 79 Mississippi Law Journal 467 (Winter 2009) In 2003, New Haven, Connecticut firefighters took a promotional exam to qualify for promotion to the rank of lieutenant or captain. The interested candidates invested both personal time and money to prepare for the exam over a three-month period. The results of the exam revealed that white candidates had outperformed minority candidates. Fearing... 2009
Helen Norton CONSTRAINING PUBLIC EMPLOYEE SPEECH: GOVERNMENT'S CONTROL OF ITS WORKERS' SPEECH TO PROTECT ITS OWN EXPRESSION 59 Duke Law Journal 1 (October, 2009) This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline... 2009
Erwin Chemerinsky COURT'S CONSERVATIVES HOLD SWAY IN EMPLOYMENT CASES 45-SEP Trial 52 (September, 2009) The first four terms of the John Roberts era have shown us a Supreme Court that generally favors employers over workers in employment discrimination cases. This was especially clear during the most recently completed term, where, in three major cases, the Court imposed significant new barriers to workers' ability to get redress for discrimination.... 2009
Megan E. Mowrey DISCRIMINATORY RETALIATION: TITLE VII PROTECTION FOR THE COOPERATING EMPLOYEE 29 Pace Law Review 689 (Summer 2009) Discriminatory retaliation represented 32.3% of all Equal Employment Opportunity Commission (EEOC) claims in 2007, up from 22.6% in 1997. 28.3% of those retaliation charges specifically involved Title VII, an increase from 20.3% in 1997. As the frequency of retaliation claims filed through the EEOC has increased, courts have devoted more time to... 2009
Devah Pager , Bruce Western , David Pedulla EMPLOYMENT DISCRIMINATION AND THE CHANGING LANDSCAPE OF LOW-WAGE LABOR MARKETS 1 University of Chicago Legal Forum 317 (2009) A large body of theoretical and empirical research would lead us to predict a steady decline in discrimination, but several features of contemporary low-wage labor markets may function to sustain or renew racialized decision-making. Shifts in the composition of both low-wage jobs and workers have potentially created new incentives and opportunities... 2009
Ronald Turner EMPLOYMENT LAW 62 SMU Law Review 1097 (Summer 2009) I. INTRODUCTION. 1097 II. JURY SELECTION AND RACE-BASED STRIKES. 1097 III. EMPLOYMENT ARBITRATION. 1102 IV. WHISTLEBLOWERS. 1107 V. EMPLOYMENT-RELATED TORTS. 1112 VI. THE DRAM SHOP ACT. 1114 VII. CONCLUSION. 1117 THIS article surveys significant court decisions and developments in employment law during the Survey period of November 1, 2007 to... 2009
Cian Beecher , Partner, Arthur Cox EMPLOYMENT LAW IN IRELAND 2009 Aspatore 2510866 (August, 2009) A unique aspect of practicing employment law in any EU member state, such as Ireland, is the interaction between local laws and the implementation of pan-European legislation. One key area of legislative focus for the EU has been the development of a significant body of employee protection legislation. By way of example, the EU has legislated on... 2009
Scott A. Moss , Peter H. Huang HOW THE NEW ECONOMICS CAN IMPROVE EMPLOYMENT DISCRIMINATION LAW, AND HOW ECONOMICS CAN SURVIVE THE DEMISE OF THE "RATIONAL ACTOR" 51 William and Mary Law Review 183 (October, 2009) Much employment discrimination law is premised on a purely money-focused reasonable employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of rational actor populated older economic models but has been since modified by behavioral economics and... 2009
Katrina Grider, Katrina Grider & Associates, 14227 Prospect Point Drive, Cypress, Texas 77429, (281) 256-9311 (Office), (281) 256-9312 (Fax), (888) ASK-4KAT (Toll Free Office), LABOR AND EMPLOYMENT LAW UPDATE 46 The Advocate (Texas) 1 (Spring, 2009) C1-3TABLE OF CONTENTS I. LEGISLATIVE DEVELOPMENTS. 1 A. ADA Amendments Act of 2008. 1 1. Substantially Limits is Redefined. 1 a. Pre-ADAAA Law. 2 b. The ADAAA Law. 2 2. Major Life Activities are Enumerated. 2 a. Pre-ADAAA Law. 2 b. The ADAAA Law. 2 3. Major Life Activities are Expanded to Include Major Bodily Functions. 2 a. Pre-ADAAA Law.... 2009
Craig Robert Senn PERCEPTION OVER REALITY: EXTENDING THE ADA'S CONCEPT OF "REGARDED AS" PROTECTION UNDER FEDERAL EMPLOYMENT DISCRIMINATION LAW 36 Florida State University Law Review 827 (Summer, 2009) A head-scratching inconsistency currently exists in federal employment discrimination law. On the one hand, an employer is 100% liable under the Americans with Disabilities Act of 1990 (ADA) if it erroneously regards a person as having an actual disability and then discriminates based on this misperception. On the other hand, many courts have... 2009
Trina Jones RACE, ECONOMIC CLASS, AND EMPLOYMENT OPPORTUNITY 72 Law and Contemporary Problems 57 (Fall 2009) Of the 146,047,000 civilians in the U.S. labor force in 2007, approximately 82% identified themselves as White, 11% as Black or African American, 14% as of Hispanic or Latino/a ethnicity, and 5% as Asian. That year, the median household income for all racial groups was $50,233. With a poverty threshold of $21,027 for a family of four, the median... 2009
Anjana Samant RACE, RELIGION, AND NATIONAL ORIGIN IN POST-9/11 EMPLOYMENT DISCRIMINATION CASES 20 Practical Litigator 45 (March 1, 2009) As some commentators have noted, in this post 9/11 era, Islamic religious difference has been racialized in the context of the war on terror. Margaret Chon & Donna E. Arzt, Walking While Muslim, 68 Law & Contemp. Probs. 215, 215 (2005). Anecdotal evidence compiled by The Council on American-Islamic Relations (CAIR) about the nature of civil... 2009
Mary E. Pivec , Partner, Keller and Heckman LLP REPRESENTING EMPLOYERS CHALLENGED BY HARSH AND CONFLICTING REGULATORY IMPERATIVES 2009 Aspatore 4025310 (November, 2009) I am increasingly drawn to cases that challenge employers to successfully conduct their businesses under complex and often-conflicting labor, immigration, and discrimination laws and regulations. These employers may also face unprecedented legal challenges brought on by the criminalization of ordinary worksite practices and the lure of treble... 2009
Sebastian Krebber STATUS AND POTENTIAL OF THE REGULATION OF LABOR AND EMPLOYMENT LAW AT THE EUROPEAN LEVEL 30 Comparative Labor Law and Policy Journal 875 (Summer 2009) The regulation of labor and employment law at the European level seems to be at a dead end: The last directives that addressed new substantive issues of labor and employment law were passed or proposed between 2000 and 2002. The other directives adopted since only amend, rephrase, or further implement already existing legislation. At about the same... 2009
Ryan Keith Meyer THE UNITED STATES SUPREME COURT ELIMINATES THE "CLASS-OF-ONE" EQUAL PROTECTION CLAIM IN PUBLIC EMPLOYMENT [ENGQUIST V. OR. DEP'T OF AGRIC., 128 S. CT. 2146 (2008)] 48 Washburn Law Journal 529 (Winter 2009) The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. Currently, there are over nineteen million people in the United States employed by a local, state, or federal government. In recent years, the United States Supreme Court has narrowed the scope... 2009
Kate S. Arduini WHY THE AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT IS DESTINED TO FAIL: LACK OF PROTECTION FOR THE "TRULY" DISABLED, IMPRACTICABILITY OF EMPLOYER COMPLIANCE, AND THE NEGATIVE IMPACT IT WILL HAVE ON OUR ALREADY STRUGGLING ECONOMY 2 Drexel Law Review 161 (Fall 2009) On September 25, 2008, former President George W. Bush signed the Americans with Disabilities Act Amendment Act of 2008 (ADAAA), setting into motion perhaps the most extensive change to employment law in the last decade. The ADAAA, which took effect on January 1, 2009, aims to reinstitute the original congressional intent behind the Americans with... 2009
Major Steven M. Ranieri "IF AT FIRST YOU DON'T SUCCEED .": AN ARGUMENT GIVING FEDERAL AGENCIES THE ABILITY TO CHALLENGE ADVERSE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DECISIONS IN FEDERAL COURT 2008-SEP Army Lawyer 23 (September, 2008) Title VII of the Civil Rights Act of 1964, as amended, prohibits employment discrimination in hiring, firing, compensation, terms, conditions, or privileges of employment on the basis of race, color, religion, sex, or national origin. The Equal Employment Opportunity Commission (EEOC) enforces these prohibitions against federal agencies through a... 2008
Alan K. Tannenwald AN IRONIC TWIST IN EMPLOYMENT LAW: THE CONSERVATIVE CASE FOR AMENDING TITLE VII TO BAN DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION 9 Georgetown Journal of Gender and the Law 269 (2008) In 1964, Congress took the bold step of enacting Title VII of the Civil Rights Act of 1964, which outlawed employment discrimination against racial and religious minorities, as well as women. Subsequently, similar protections have been extended to both individuals over 40 years old and those with debilitating disabilities. To further promote... 2008
Tricia M. Beckles CLASS OF ONE: ARE EMPLOYMENT DISCRIMINATION PLAINTIFFS AT AN INSURMOUNTABLE DISADVANTAGE IF THEY HAVE NO "SIMILARLY SITUATED" COMPARATORS? 10 University of Pennsylvania Journal of Business and Employment Law 459 (Winter 2008) This Comment will investigate a subset of employment discrimination plaintiffs--those I call the class of one. This class of one includes plaintiffs who hold a unique position at a small office or are the only employees who have a specific set of job characteristics within a larger office. An illustrative example is an office with six... 2008
Maya R. Warrier DARE TO STEP OUT OF THE FOGG: SINGLE-MOTIVE VERSUS MIXED-MOTIVE ANALYSIS IN TITLE VII EMPLOYMENT DISCRIMINATION CASES 47 University of Louisville Law Review 409 (Winter Issue, 2008) The enactment of the Civil Rights Act of 1964 marked the high point of civil rights activism. Within this Act, the provisions of Title VII established one of the most important . . . statutory prohibitions against employment discrimination because it took the protections offered by the Constitution even further to eradicate employment... 2008
Robert L. Nelson , Ellen C. Berrey , Laura Beth Nielsen DIVERGENT PATHS: CONFLICTING CONCEPTIONS OF EMPLOYMENT DISCRIMINATION IN LAW AND THE SOCIAL SCIENCES 4 Annual Review of Law and Social Science 103 (2008) systemic discrimination, implicit bias, discrimination litigation, organizations Legal conceptions of employment discrimination have become increasingly narrow over the past two decades as the law has adopted a perpetrator model of discrimination that emphasizes purposeful intent. This tendency runs counter to social scientific research that... 2008
Miranda Fleschert ELEVATOR COMPANY GOES DOWN: MANDATORY ARBITRATION PROVISIONS AS APPLIED TO PENDING CIVIL RIGHTS CLAIMS IN THE EMPLOYMENT CONTEXT 2008 Journal of Dispute Resolution 571 (2008) In Goldsmith v. Bagby Elevator Company, the Eleventh Circuit Court of Appeals carved a distinction in the employment context between mandatory pre-dispute arbitration agreements and compulsory arbitration agreements as applied to pending claims of discrimination. In doing so, the court warns employers that any effort to terminate an employee's... 2008
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