Gregory B. Reilly, Katy Shi-Klepper EMPLOYERS BEWARE: PITFALLS AND PROMISE OF ELECTRONIC INFORMATION IN EMPLOYMENT LITIGATION 252-JUN New Jersey Lawyer, the Magazine 14 (June, 2008) Since the electronic discovery amendments to the federal rules came into effect in December 2006, there has been a plethora of articles in respected legal publications regarding the parade of horribles awaiting unwitting counsel and their clients should they fail to preserve and/or produce electronic information in discovery. This article is... 2008
  EMPLOYMENT DISCRIMINATION REMEDIES: THE SHAPE OF LAWSUITS, THE SHAPE OF THE LAW: PROCEEDINGS OF THE 2008 ANNUAL MEETING ASSOCIATION OF AMERICAN LAW SCHOOLS SECTION ON EMPLOYMENT DISCRIMINATION LAW AND SECTION ON REMEDIES 12 Employee Rights and Employment Policy Journal 297 (2008) Professor Michael P. Allen : Good afternoon. I want to welcome you on behalf of both the Remedies Section and the Employment Discrimination Law Section to our joint program this afternoon. My name is Mike Allen and I'm the chair-elect of the Remedies Section. Remedies always come at the end of a lawsuit and so Paul was gracious to let me actually... 2008
Benjamin I. Sachs EMPLOYMENT LAW AS LABOR LAW 29 Cardozo Law Review 2685 (May, 2008) More than seventy years ago, the United States Congress centralized nearly all of American labor law into a single federal statute. The National Labor Relations Act (NLRA or the Act) was designed to be sweepingly broad, dictating the kinds of employees who could organize, the types of organizations workers could form, and the subjects over which... 2008
David A. Lowe ENFORCING THE EMPLOYMENT RIGHTS OF AMERICAN WORKERS ABROAD 24 Labor Lawyer 213 (Fall, 2008) As the economy continues its steady march toward globalization, more companies are becoming multinational, and more Americans are working overseas. American employers are increasingly sending U.S. workers on expatriate assignments to explore new markets, supervise the construction of foreign facilities, negotiate with overseas suppliers, or manage... 2008
Frank L. Day, Jr. FEDERAL EMPLOYMENT DISCRIMINATION--JONES v. R.R. DONNELLEY & SONS CO.: THE INADEQUACY OF THE FEDERAL "CATCHALL" STATUTE OF LIMITATIONS 38 University of Memphis Law Review 231 (Winter, 2008) I. Introduction. 232 II. The History of § 1981. 233 III. Determining the Appropriate Limitations Period for § 1981 Claims Before Congress Enacted the Four-Year Catchall Statute of Limitations. 239 IV. The Federal Catchall Statute of Limitations & Its Purposes. 243 V. The Context and Holding of Jones v. R.R. Donnelley & Sons Co.. 246 VI. Does § 1658... 2008
Elizabeth M. Ellis GARCETTI V. CEBALLOS: PUBLIC EMPLOYEES LEFT TO DECIDE "YOUR CONSCIENCE OR YOUR JOB" 41 Indiana Law Review 187 (2008) The Supreme Court recognized that the First Amendment was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Memorializing that ideal, the Supreme Court stated that the government may not deny a benefit to a person on a basis that infringes his constitutionally... 2008
Tristin K. Green INSULAR INDIVIDUALISM: EMPLOYMENT DISCRIMINATION LAW AFTER LEDBETTER V. GOODYEAR 43 Harvard Civil Rights-Civil Liberties Law Review 353 (Summer 2008) When the Supreme Court decided Ledbetter v. Goodyear Tire and Rubber Co. last year, holding that an employee must assert a Title VII pay discrimination claim within 180 days of when the pay decision was first made, commentators--both legal and non-legal--immediately recognized the obstacle the decision poses for individuals suffering from... 2008
Lee Reeves PRAGMATISM OVER POLITICS: RECENT TRENDS IN LOWER COURT EMPLOYMENT DISCRIMINATION JURISPRUDENCE 73 Missouri Law Review 481 (Spring, 2008) Introduction. 482 I. The Limits of Political Affiliation as an Explanatory Variable in Employment Discrimination Cases. 484 II. Toward A Pragmatic Theory of Employment Discrimination Jurisprudence: Aggregate Trends in Workload and Employment Discrimination Filings. 496 A. Aggregate Trends in District Court. 496 B. Aggregate Trends in the Courts of... 2008
Sandra B. Durant THE APPLICATION OF AMERICAN ANTI-DISCRIMINATION LAWS IN A GLOBAL WORK ENVIRONMENT 54 Practical Lawyer 29 (August 1, 2008) It shall be an unlawful employment practice for an fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin. 42 U.S.C.... 2008
Carl H. Esbeck THE APPLICATION OF RFRA TO OVERRIDE EMPLOYMENT NON-DISCRIMINATION CLAUSES EMBEDDED IN FEDERAL SOCIAL SERVICE PROGRAMS 9 Engage: The Journal of the Federalist Society Practice Groups 140 (June 1, 2008) The basic federal employment nondiscrimination law is Title VII of the Civil Rights Act of 1964. The Act prohibits discrimination in employment on the basis of race, color, national origin, sex, or religion, and is binding when an employer has fifteen or more employees. However, section 702(a) of the act acknowledges the freedom of religious... 2008
David L. Hudson Jr. THE GARCETTI EFFECT 94-JAN ABA Journal 16 (January, 2008) When he dismissed their federal claims last March, U.S. District Judge W. Allen Pepper Jr. was nevertheless pained at the fate of three Mississippi prison officials who claimed retaliation after they reported that a fellow officer had beaten an inmate. The judge knew where to direct his misgivings: at the U.S. Supreme Court's 2006 decision Garcetti... 2008
Nicole B. Porter THE PERFECT COMPROMISE: BRIDGING THE GAP BETWEEN AT-WILL EMPLOYMENT AND JUST CAUSE 87 Nebraska Law Review 62 (2008) I. Introduction. 63 II. The Law. 66 A. Employment At-Will Presumption. 66 B. Common Law Exceptions. 67 C. Statutory Exceptions. 68 III. Dismissing the Alternatives. 70 A. The Problem with At-Will Employment. 70 1. Inconsistency and Mass Confusion. 70 2. The Egregious Termination Cases. 71 3. Undermines Anti-Discrimination Statutes. 75 B. The... 2008
Daria Roithmayr THEM THAT HAS, GETS 27 Mississippi College Law Review 373 (2007-2008) In 2004, sociologists Robert Sampson and Jeffrey Morenoff published a remarkable study on the persistence of poverty in Chicago neighborhoods from 1970 to 1990. The authors made several important findings. First, those neighborhoods that were poor in 1970 were almost all poor twenty years later in 1990. Even as poverty rates dramatically increased... 2008
Brian P. McCarthy TRANS EMPLOYEES AND PERSONAL APPEARANCE STANDARDS UNDER TITLE VII 50 Arizona Law Review 939 (2008) Transgender and transsexual individuals, collectively known as transpeople, are routinely demoted, terminated, or denied employment simply because of their appearance. For many years, trans employees have been unable to challenge such discriminatory practices under Title VII. This Note explores the status of trans employees in the jurisprudence of... 2008
Jessica Fink UNINTENDED CONSEQUENCES: HOW ANTIDISCRIMINATION LITIGATION INCREASES GROUP BIAS IN EMPLOYER-DEFENDANTS 38 New Mexico Law Review 333 (Spring, 2008) Since the passage of Title VII of the Civil Rights Act of 1964, countless individuals have turned to the courts to redress alleged violations of their civil rights. Indeed, in the four-plus decades since the passage of Title VII, discrimination claims brought under Title VII (along with its counterparts within the federal antidiscrimination... 2008
Keaton Wong WEIGHING INFLUENCE: EMPLOYMENT DISCRIMINATION AND THE THEORY OF SUBORDINATE BIAS LIABILITY 57 American University Law Review 1729 (August, 2008) Introduction. 1729 I. Background. 1735 A. The Anti-Discrimination Statutes. 1735 B. Agency Principles. 1737 II. The Theory of Subordinate Bias Liability. 1739 A. The Mere Influence or Involvement Standard. 1740 1. Influence. 1741 2. Involvement. 1742 3. Influence and involvement. 1743 B. The Actual Decision-Maker Standard. 1744 C. The Causal Nexus... 2008
Kara M. Farina WHEN DOES DISCRIMINATION "OCCUR?": THE SUPREME COURT'S LIMITATION ON AN EMPLOYEE'S ABILITY TO CHALLENGE DISCRIMINATORY PAY UNDER TITLE VII 38 Golden Gate University Law Review 249 (Winter 2008) After working for the same company for over fifteen years and just before her retirement, Violet discovered that she was earning only sixty percent of what her male co-workers were making. Violet, an employee of Tiremaker, had no reason to suspect such a significant discrepancy in her pay because she was first hired at a starting salary equivalent... 2008
Paul M. Secunda WHITHER THE PICKERING RIGHTS OF FEDERAL EMPLOYEES? 79 University of Colorado Law Review 1101 (2008) As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Board of Education. Instead, the Bush Court found that Congress had established an effective,... 2008
William T. Bielby , Pamela Coukos "STATISTICAL DUELING" WITH UNCONVENTIONAL WEAPONS: WHAT COURTS SHOULD KNOW ABOUT EXPERTS IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS 56 Emory Law Journal 1563 (2007) When statistical evidence is offered in a litigation context, the result can be bad law and bad statistics. In recent high-profile, high-stakes employment discrimination class actions against large multinationals like UPS, Wal-Mart, and Marriott, plaintiffs have claimed that decentralized and highly discretionary management practices result in... 2007
Deanna C. Brinkerhoff A MORE EMPLOYEE-FRIENDLY STANDARD FOR PRETEXT CLAIMS AFTER ASH V. TYSON 8 Nevada Law Journal 474 (Fall 2007) A recent Gallup Poll reported that fifteen percent of American workers claim their employers discriminated against them during a one-year period spanning from 2004 to 2005. The most frequent type of discrimination occurred in promotion decisions, which comprised thirty-three percent of the total reported incidents. Employment discrimination cases... 2007
Tristin K. Green A STRUCTURAL APPROACH AS ANTIDISCRIMINATION MANDATE: LOCATING EMPLOYER WRONG 60 Vanderbilt Law Review 849 (April, 2007) I. Defining a Structural Approach. 854 A. The Problem of Structural Discrimination: Implicit Bias and Organizational Context. 854 B. A Structural Approach to Employment Discrimination Law: Seeking Change in Organizational Context. 857 II. Reclaiming the Normative Core of Employment Discrimination Law. 865 A. A Meaningful Normative Divide: Costs and... 2007
Christine Neylon O'Brien , Jonathan J. Darrow ADVERSE EMPLOYMENT CONSEQUENCES TRIGGERED BY CRIMINAL CONVICTIONS: RECENT CASES INTERPRET STATE STATUTES PROHIBITING DISCRIMINATION 42 Wake Forest Law Review 991 (Winter 2007) In a scene from the movie Good Will Hunting, an M.I.T. mathematics professor mistakenly reprimands Will, the brilliant young janitor played by Matt Damon, for writing on the blackboard where he is actually solving an impossibly difficult equation. After the professor realizes that Will has solved the problem rather than defaced the board, he tracks... 2007
by Barbara J. Fick BCI Coca-Cola Bottling Co. of Los Angeles 34 Preview of United States Supreme Court Cases 391 (April 16, 2007) In litigating a disparate treatment discrimination lawsuit under Title VII, the plaintiff must prove that the defendant's decision was based on a prohibited motive, such as race. When only one person is involved in making a decision, it is that person's motive which is at issue. But if multiple persons play a role in the decision-making process, it... 2007
Julie C. Suk DISCRIMINATION AT WILL: JOB SECURITY PROTECTIONS AND EQUAL EMPLOYMENT OPPORTUNITY IN CONFLICT 60 Stanford Law Review 73 (October, 2007) The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or... 2007
  DISPUTE RESOLUTION IN ACTION: EXAMINING THE REALITY OF EMPLOYMENT DISCRIMINATION CASES: PROCEEDINGS OF THE 2007 ANNUAL MEETING, ASSOCIATION OF AMERICAN LAW SCHOOLS, SECTIONS ON EMPLOYMENT DISCRIMINATION AND ALTERNATIVE DISPUTE RESOLUTION 11 Employee Rights and Employment Policy Journal 139 (2007) Michelle A. Travis : Welcome to our panel on Dispute Resolution in Action: Examining the Reality of Employment Discrimination Cases, which is jointly sponsored by the AALS Section on Employment Discrimination and the AALS Section on Alternative Dispute Resolution (ADR). I am Michelle Travis, from the University of San Francisco School of Law. I am... 2007
Diane Heckman EDUCATIONAL ATHLETIC EMPLOYMENT AND CIVIL RIGHTS: EXAMINING DISCRIMINATION BASED ON DISABILITY, AGE, AND RACE 18 Marquette Sports Law Review 101 (Fall 2007) I. Introduction II. Disability Discrimination A. Individuals with Disabilities Education Act (IDEA) B. Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) C. Americans with Disabilities Act of 1990 (ADA) i. Title III: Public Accommodation 1. Generally 2. PGA Tour, Inc. v. Martin ii. Title II: Public Entities iii. Title I: Employment... 2007
Kaylin Redman Hart EMPLOYMENT LAW-TITLE VII AND THE ANTI-RETALIATION PROVISION-BEYOND EMPLOYMENT AND THE WORKPLACE: THE UNITED STATES SUPREME COURT RESOLVES THE SPLIT AND SHIFTS THE BALANCE. BURLINGTON NORTHERN & SANTA FE CO. V. WHITE, 126 S. CT. 2405 (2006). 29 University of Arkansas at Little Rock Law Review 569 (Spring, 2007) Employers have always known that it is foolish to take action against an employee following protected activity, and now, after the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, employers should proceed with even greater caution. In 2005, 29.5% of all illegal discrimination claims filed with the Equal Employment... 2007
Naomi C. Earp FORTY-THREE AND COUNTING: EEOC'S CHALLENGES AND SUCCESSES AND EMERGING TRENDS IN THE EMPLOYMENT ARENA 25 Hofstra Labor and Employment Law Journal 133 (Fall 2007) 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 the years before and immediately after the passage of Title VII of the Civil Rights Act of 1964, discrimination was blatant and pervasive, as... 2007
Michael Bentley HOW AMERICAN EMPLOYERS (ALMOST) LEARNED TO RESPECT THEIR ELDERS: SMITH V. CITY OF JACKSON AND THE AVAILABILITY OF THE DISPARATE IMPACT THEORY UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT 26 Mississippi College Law Review 347 (2006-2007) Age must give way to youth, no doubt. But not yet, not yet. Thirty-four years after the Supreme Court first sensed that built-in headwinds might perpetuate discriminatory employment practices and thus violate Title VII of the Civil Rights Act, even absent a discriminatory intent, the Court extended its disparate impact theory to claims brought... 2007
Naomi Schoenbaum IT'S TIME THAT YOU KNOW: THE SHORTCOMINGS OF IGNORANCE AS FAIRNESS IN EMPLOYMENT LAW AND THE NEED FOR AN "INFORMATION-SHIFTING" MODEL 30 Harvard Journal of Law & Gender 99 (Winter, 2007) Knowledge is power; so, too, is the ability to control access to knowledge, and it must be wielded with awareness and purpose. This is equally as true in the employment context as in other realms, and it is paramount at the hiring stage. During the hiring stage, employers have a wealth of information about what criteria they are looking for in... 2007
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