Nicholas M. Strohmayer DRAWING THE LINE: NISWANDER'S BALANCE BETWEEN EMPLOYER CONFIDENTIALITY INTERESTS AND EMPLOYEE TITLE VII ANTI-RETALIATION RIGHTS 95 Iowa Law Review 1037 (March, 2010) Employer confidentiality policies involve an employee's promise not to share information deemed confidential by an employer. Breaching these confidentiality promises involves serious consequences, including discharge. In certain circumstances, employees may breach the confidentiality policy for legitimate reasons. In Niswander v.... 2010
Harry G. Hutchison EMPLOYEE FREE CHOICE OR EMPLOYEE FORGED CHOICE? RACE IN THE MIRROR OF EXCLUSIONARY HIERARCHY 15 Michigan Journal of Race and Law 369 (Spring 2010) The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of... 2010
Tanya Katerí Hernández EMPLOYMENT DISCRIMINATION IN THE ETHNICALLY DIVERSE WORKPLACE 49 Judges' Journal 33 (Fall, 2010) Racial integration has long been the touchstone of racial progress in the workplace. But integration is only the beginning of the struggle to end racial discrimination. As workplaces become more diverse, they do not necessarily become less racially discriminatory. Diverse workplaces may be characterized by antagonism between people of different... 2010
Alicia Luke EMPLOYMENT DISCRIMINATION LITIGATION: SOCIAL SCIENCE EVIDENCE AND A SOLUTION FOR THE PROBLEM OF PRESUMPTIONS 29 Temple Journal of Science, Technology & Environmental Law 75 (Spring 2010) The presumptions underlying employment discrimination claims have undergone an immense shift since the Civil Rights Act (Title VII) of 1964 was first enacted. Title VII made it illegal for an employer to make hiring, termination, or other employment decisions such as wages or promotions, based on an employee's race, color, religion, sex, or... 2010
Maria Fleisher EMPLOYMENT LAW--TITLE VII--FIRE DEPARTMENT MUST ENFORCE TEST RESULTS THAT OPERATED TO EXCLUDE MOST MINORITIES FROM GETTING PROMOTIONS. RICCI v. DESTEFANO, 129 S. CT. 2658 (2009) 40 Cumberland Law Review 301 (2009-2010) The Supreme Court addressed reverse discrimination and Tide VII of the Civil Rights Act of 1964 in Ricci v. DeStefano. In Ricci, the petitioner, Frank Ricci, and several other firefighters from the New Haven, Connecticut Fire Department, brought suit against the City of New Haven (the City) and several city officials after the City chose to discard... 2010
Stacy A. Hickox ENSURING ENFORCEABILITY AND FAIRNESS IN THE ARBITRATION OF EMPLOYMENT DISPUTES 16 Widener Law Review 101 (2010) Private arbitration of employment law claims has become common in recent years. The United States Supreme Court has shown a strong preference for requiring that an employee pursue an employment claim through an arbitration program rather than seeking to enforce her rights in court. At the same time, legislation has been introduced to try to protect... 2010
Darcy M. Pottle FEDERAL EMPLOYER SANCTIONS AS IMMIGRATION FEDERALISM 16 Michigan Journal of Race and Law 99 (Fall 2010) Introduction. 990 I. IRCA's Employer Sanctions: From Punishment to Decentralization of Power. 105 A. A Brief History of IRCA's Employer Sanctions. 105 B. Employers as Private Immigration Screeners. 112 1. The I-9 Process. 114 2. E-Verify: An Attempt to Salvage Work Authorization Verification. 116 II. Federal Exclusivity in Immigration Enforcement.... 2010
Brian S. Clarke GROSSLY RESTRICTED PLEADING: TWOMBLY/IQBAL, GROSS, AND CANNIBALISTIC FACTS IN COMPOUND EMPLOYMENT DISCRIMINATION CLAIMS 2010 Utah Law Review 1101 (2010) Over its last three terms, the United States Supreme Court has drastically altered the pleading standards for civil actions. Beginning in Bell Atlantic Corp. v. Twombly, and concluding with Ashcroft v. Iqbal, the Court redefined the requirements of notice pleading under Federal Rule of Civil Procedure 8(a)(2) and the standard of review on motions... 2010
Dan L. Schaap, Kelln A. Zimmer, Alicia Q. Currin-Moore, Edward D. Dowdy LABOR AND EMPLOYMENT 42 Texas Tech Law Review 781 (Spring, 2010) This Article will address the Fifth Circuit's decisions from June 1, 2008 to June 30, 2009 involving civil rights and anti-discrimination statutes; federal disability, age, and benefit legislation; federal wage, hour, and benefit laws; and labor relations. The Article only covers published decisions, and while it attempts to thoroughly review labor... 2010
Janet Ainsworth LANGUAGE, POWER, AND IDENTITY IN THE WORKPLACE: ENFORCEMENT OF 'ENGLISH-ONLY' RULES BY EMPLOYERS 9 Seattle Journal for Social Justice 233 (Fall/Winter, 2010) In recent years, the American workplace has mirrored American society in its increasing ethnic diversity. Employers have responded to this diversity in the workforce in various ways, sometimes embracing it as a valuable resource for entrepreneurial success in the modern world, but other times seeking to suppress it in favor of maintaining a... 2010
Ariana R. Levinson LEGAL ETHICS IN THE EMPLOYMENT LAW CONTEXT: WHO IS THE CLIENT? 37 Northern Kentucky Law Review 1 (2010) The question is: Who is the client? Many ethical decisions attorneys must make emanate from this basic question. Thus, for those employment lawyers who represent, interact with, or sue unions or corporations, it is important to understand who the client is for different purposes such as representation, the attorney-client privilege, and ex parte... 2010
Patrick S. Shin LIABILITY FOR UNCONSCIOUS DISCRIMINATION? A THOUGHT EXPERIMENT IN THE THEORY OF EMPLOYMENT DISCRIMINATION LAW 62 Hastings Law Journal 67 (November, 2010) Recent scholarship in employment discrimination law has wrestled with the problem of unconscious bias and its implications for antidiscrimination law. This Article addresses what some might regard as a naïve question: Should actions influenced by unconscious bias be regarded as discrimination under Title VII? The question might be considered naïve... 2010
Jennifer Dianne Thomas MANDATORY WELLNESS PROGRAMS: A PLAN TO REDUCE HEALTH CARE COSTS OR A SUBTERFUGE TO DISCRIMINATE AGAINST OVERWEIGHT EMPLOYEES? 53 Howard Law Journal 513 (Winter 2010) In many ways, social conditioning in American society silently encourages a palpable level of disdain for overweight individuals. Overweight members of our society face discrimination that is open, obvious, and wonted. In the workplace, overweight yet equally qualified applicants are: less likely to be hired; [p]erceived as unfit for jobs... 2010
Emily J. Carson OFF THE RECORD: WHY THE EEOC SHOULD CHANGE ITS GUIDELINES REGARDING EMPLOYERS' CONSIDERATION OF EMPLOYEES' CRIMINAL RECORDS DURING THE HIRING PROCESS 36 Journal of Corporation Law 221 (Fall 2010) I. Introduction. 222 II. Background. 222 A. The Use of Criminal Records During the Hiring Process Has a Disparate Impact on Minority Applicants. 223 B. The EEOC's Origins and Authority Regarding Title VII. 224 C. The EEOC's Current Guidelines Regarding Employers' Use of Criminal Records During the Hiring Process. 226 III. Analysis. 227 A. The... 2010
Katerina Linos PATH DEPENDENCE IN DISCRIMINATION LAW: EMPLOYMENT CASES IN THE UNITED STATES AND THE EUROPEAN UNION 35 Yale Journal of International Law 115 (Winter 2010) I. Introduction. 116 II. Theoretical Framework. 120 A. Path Dependence in Markets, Legislatures, and Courts. 122 B. Examining Path-Dependent Processes Empirically. 124 C. EU and U.S. Doctrine in Context. 126 1. Citizens' Attitudes Toward Minority Groups. 127 2. Courts in the United States and the European Union. 129 3. Other Differences. 131 III.... 2010
Roberto Concepción, Jr. PRE-EMPLOYMENT CREDIT CHECKS: EFFECTUATING DISPARATE IMPACT ON RACIAL MINORITIES UNDER THE GUISE OF JOB-RELATEDNESS AND BUSINESS NECESSITY 12 Scholar: St. Mary's Law Review on Minority Issues (Spring 2010) I. Introduction. 524 II. The Fair Credit Reporting Act: The Backdrop of a Discriminatory Employment Practice. 527 III. Effectuating Disparate Impact Under the Guise of Job-Relatedness and Business Necessity. 529 A. Disparate Impact of Pre-Employment Credit Checks on Racial Minorities. 530 B. Pre-Employment Credit Checks Are Neither Job-Related nor... 2010
Elise M. Bloom , Partner and Co-Chair, Labor & Employment Law Department, Proskauer Rose LLP RESPONDING TO KEY CHANGES IN EMPLOYMENT LAW 2010 Aspatore 282922 (January, 2010) The Supreme Court was asked to render decisions in several notable employment law cases in 2009, including: Locke v. Karass, 129 S. Ct. 798 (2009): Whether union requirements that non-member employees pay a service fee through a pooling arrangement, which is used to fund litigation that may not specifically be for the benefit of those nonmembers,... 2010
Kenneth G. Dau-Schmidt , Todd Dvorak REVIEW OF LABOR AND EMPLOYMENT DECISIONS FROM THE UNITED STATES SUPREME COURT'S 2008-2009 TERM 25 ABA Journal of Labor & Employment Law 107 (Winter, 2010) In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination... 2010
Katie R. Kormanyos RICCI V. DESTEFANO: HOW THE SUPREME COURT MUDDLED EMPLOYMENT DISCRIMINATION LAW AND DOOMED EMPLOYERS TO COSTLY LITIGATION 41 University of Toledo Law Review 975 (Summer 2010) IN June 2009, the United States Supreme Court created headlines nationwide when it handed down a decision favoring white firefighters who had brought a Title VII race discrimination action against the city of New Haven, Connecticut. The Court's decision was widely anticipated. Writing for the majority, Justice Anthony Kennedy claimed that the... 2010
Thomas J. Davis, Arizona State University ROBERT SAMUEL SMITH, RACE, LABOR, & CIVIL RIGHTS: GRIGGS versus DUKE POWER AND THE STRUGGLE FOR EQUAL EMPLOYMENT OPPORTUNITY, BATON ROUGE: LOUISIANA STATE UNIVERSITY PRESS, 2008. PP. X + 234. $37.50 (ISBN 978-0-8071-3363-7) 28 Law and History Review 293 (February, 2010) Jobs have been crucial to freedom in modern societies based on producing and acquiring property. The famed August 1963 March on Washington for Jobs and Freedom in its title emphasized the crucial connection in the United States. Exploitation and exclusion of black labor, reaching back to slavery and advancing through Jim Crow segregation and... 2010
Angela Onwuachi-Willig TEACHING EMPLOYMENT DISCRIMINATION 54 Saint Louis University Law Journal 755 (Spring 2010) Teaching civil rights to this generation's law students can come with its own unique challenges. For many of these students, civil rights struggles are a phenomenon of the past. Title VII of the Civil Rights Act of 1964 and sections 4 and 5 of the Voting Rights Act of 1965 had been in existence for twenty years when much of this generation of... 2010
Elizabeth M. Schneider THE CHANGING SHAPE OF FEDERAL CIVIL PRETRIAL PRACTICE: THE DISPARATE IMPACT ON CIVIL RIGHTS AND EMPLOYMENT DISCRIMINATION CASES 158 University of Pennsylvania Law Review 517 (January, 2010) Introduction. 518 I. The Changing Nature of Civil Pretrial Practice in the Federal Courts. 523 A. Pleading. 527 B. Summary Judgment, Iqbal, and Scott. 537 C. Daubert. 551 II. Implications for Federal Civil Litigation. 556 III. Why Is This Happening?. 562 IV. Correcting the Impact. 569 2010
Jillian T. Weiss THE FIRST AMENDMENT RIGHT TO FREE EXERCISE OF RELIGION, NONDISCRIMINATION STATUTES BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY, AND THE FREE EXERCISE CLAIMS OF NON-CHURCH-RELATED EMPLOYERS 12 Florida Coastal Law Review 15 (Fall 2010) In a number of recent political issue campaigns regarding the enactment of employment protections law based on sexual orientation and gender identity, opponents of such laws have often raised concerns about the infringement on the religious freedoms of business owners. While there are often legislative exemptions for churches and other religious... 2010
Mary-Rose Papandrea THE FREE SPEECH RIGHTS OF OFF-DUTY GOVERNMENT EMPLOYEES 2010 Brigham Young University Law Review 2117 (2010) Until recently, Andrew Shirvell was an assistant attorney general in Michigan. This past fall, he created a blog attacking the openly gay president of the University of Michigan student body as a racist and liar who was promoting a radical homosexual agenda. Initially, Michigan Attorney General Michael Cox--Shirvell's boss--condemned... 2010
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 § 703 claim under Title VII of the Civil Rights Act of 1964. However, what does adverse... 2009
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