Gwendolyn Leachman, Ph.D., Jurisprudence and Social Policy, 2010 (UC Berkeley) JORDAN V. ALTERNATIVE RES. CORP.: THE FOURTH CIRCUIT LIMITS PROTECTION FROM RETALIATION FOR EMPLOYEES REPORTING A HOSTILE WORK ENVIRONMENT 28 Berkeley Journal of Employment and Labor Law 599 (2007) An employee makes a grossly racially discriminatory remark at work, and is discovered to have made many similar comments in the past. Is the fellow employee who reports the remark to his employer--pursuant to the employer's anti-discrimination policy--protected from retaliatory discharge? If you said yes, you're not a reasonable person, at least... 2007
Tanya Katerí Hernández LATINO INTER-ETHNIC EMPLOYMENT DISCRIMINATION AND THE "DIVERSITY" DEFENSE 42 Harvard Civil Rights-Civil Liberties Law Review 259 (Summer, 2007) For the great enemy of truth is very often not the lie--deliberate, contrived and dishonest--but the myth, persistent, persuasive and unrealistic. With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary... 2007
Charles W. “Rocky” Rhodes PUBLIC EMPLOYEE SPEECH RIGHTS FALL PREY TO AN EMERGING DOCTRINAL FORMALISM 15 William & Mary Bill of Rights Journal 1173 (April, 2007) Long live formalism. It is what makes a government a government of laws and not of men. Despite this toast from Justice Scalia in 1997, formalism's use in constitutional discourse had waned considerably in the decades since the New Deal. The pre-New Deal Court's formalism preference, evident in its rule-based categorical distinctions between... 2007
Irina Kashcheyeva REACHING A COMPROMISE: HOW TO SAVE MICHIGAN EX-OFFENDERS FROM UNEMPLOYMENT AND MICHIGAN EMPLOYERS FROM NEGLIGENT HIRING LIABILITY 2007 Michigan State Law Review 1051 (Winter 2007) C1-3Table of Contents L1-2Introduction . L31052 I. Survey of Negligent Hiring Doctrine in Michigan. 1055 A. Negligent Hiring in Michigan at Its Nascent Stage. 1056 B. An Evasive Concept of Legal Duty: The Triggering Factors. 1057 C. Establishing Proximate Causation: In the Hands of Jurors?. 1060 II. Records-Based Employment Discrimination: Federal... 2007
Nicole B. Porter REASONABLE BURDENS: RESOLVING THE CONFLICT BETWEEN DISABLED EMPLOYEES AND THEIR COWORKERS 34 Florida State University Law Review 313 (Winter, 2007) This Article addresses one of the most difficult issues under the reasonable accommodation provision of the Americans with Disabilities Act (ADA): how to resolve the conflict that arises when accommodating a disabled employee negatively affects or interferes with the rights of other employees. Several scholars and the Supreme Court (in U.S.... 2007
Sandra F. Sperino RECREATING DIVERSITY IN EMPLOYMENT LAW BY DEBUNKING THE MYTH OF THE MCDONNELL DOUGLAS MONOLITH 44 Houston Law Review 349 (Summer 2007) I. Introduction. 350 II. The Importance of State Law in Developing Discrimination Law. 353 III. Creating and Maintaining the Monolithic Myth. 359 A. The McDonnell Douglas Framework. 360 B. Examining the Origins of the Monolithic Standard. 362 C. Discussing Federalism Through Specific Examples. 365 1. Examining Reverse-Discrimination Standards. 366... 2007
Jennifer D. Growe REFORM THE EEOC GUIDELINES: PROTECT EMPLOYEES FROM GENDER DISCRIMINATION AS MANDATED BY TITLE VII 24 Washington University Journal of Law and Policy 275 (2007) Although Title VII of the Civil Rights Act of 1964 (Title VII or the Act) expressly prohibits sex discrimination in employment, the courts and the Equal Employment Opportunity Commission (EEOC), empowered with enforcing Title VII, have promulgated different standards for sexual harassment and sex discrimination. This phenomenon has had the... 2007
Anjetta McQueen SECURITY BLANKET: THE STATE SECRETS PRIVILEGE THREAT TO PUBLIC EMPLOYMENT RIGHTS 22 Labor Lawyer 329 (Winter/Spring, 2007) Because it is so powerful and can trample legitimate claims against the government, the state secrets privilege is not to be lightly invoked. In January 2006, the Supreme Courtwithout commentdeclined to hear an appeal by a former covert Central Intelligence Agency (CIA) officer who had accused the agency of race discrimination. Jeffrey... 2007
Lorrie E. Bradley STRIKING BACK AGAINST RETALIATORY DISCRIMINATION: HOW BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY V. WHITE EXPANDS PROTECTIONS FOR EMPLOYEES UNDER TITLE VII'S PARTICIPATION AND OPPOSITION CLAUSES 85 North Carolina Law Review 1224 (May, 2007) What happens when someone claims she has been discriminated against at work? We usually focus on two actors: the aggrieved employee and the employer. The reports, charges, and court filings, however, often reveal a wider cast of characters, including the claimant's coworkers, supervisors, and occasionally organized groups in the workplace or... 2007
Dennis R. Kuhn , John A. Pearce II THE LEGALITY OF USING EMPLOYEE APPEARANCE POLICIES TO PROMOTE ORGANIZATIONAL CULTURE 24 Hofstra Labor and Employment Law Journal 181 (Winter 2007) An organizational culture is a learned body of tradition consisting of the beliefs, norms, values, and premises that are held by the members of an organization, and provides the basis for behavior that satisfies the standards of group membership. Since organizational culture influences employee attitudes on commitment, motivation, morale, and... 2007
Ritu Mahajan THE NAKED TRUTH: APPEARANCE DISCRIMINATION, EMPLOYMENT, AND THE LAW 14 Asian American Law Journal 165 (May, 2007) Physical beauty elicits benefits that are more than skin deep. In every aspect of our lives we are reminded that appearance matters. Evidence suggests that society tends to attribute to those who are physically attractive the added qualities of sociability, friendliness, and competence. The appropriate standards for appearance are measured and... 2007
Anand Swaminathan THE RUBRIC OF FORCE: EMPLOYMENT DISCRIMINATION IN THE CONTEXT OF SUBTLE BIASES AND JUDICIAL HOSTILITY 3 Modern American 21 (Spring, 2007) When the United States Supreme Court instructed lower federal courts to enforce Brown v. Board of Education with all deliberate speed, it made vagueness and gradualism its official policy for social advancement. Fifty years along the path of gradualism, has our society lost the ability to make continuing progress in combating racial... 2007
LaToya S. Brown THE TITLE VII TUG-OF-WAR: APPLICATION OF U.S. EMPLOYMENT DISCRIMINATION LAW EXTRATERRITORIALLY 40 Vanderbilt Journal of Transnational Law 833 (May, 2007) Companies around the world increasingly are engaging in cross-border business transactions. Globalization is a must if companies want to continue to be competitive in the marketplace--indeed it is an inevitable reality. However, in the midst of this reality is another reality: the legal implications of establishing operations abroad. Transnational... 2007
Ernest F. Lidge III WHAT TYPES OF EMPLOYER ACTIONS ARE COGNIZABLE UNDER TITLE VII?: THE RAMIFICATIONS OF BURLINGTON NORTHERN & SANTA FE RAILROAD CO. V. WHITE 59 Rutgers Law Review 497 (Spring 2007) In Burlington Northern & Santa Fe Railroad Co. v. White, the Supreme Court discussed two open questions regarding coverage under Title VII. Both questions relate to the kinds of employer actions that will trigger liability under Title VII's anti-retaliation provision. First, does the employer's retaliatory action have to be related to the... 2007
Clare Tower Putnam WHEN CAN A LAW FIRM DISCRIMINATE AMONG ITS OWN EMPLOYEES TO MEET A CLIENT'S REQUEST? REFLECTIONS ON THE ACC'S CALL TO ACTION 9 University of Pennsylvania Journal of Labor and Employment Law 657 (Spring 2007) Robert Black and William White are senior associates at Makeus Lotsuf Munnie, LLP, a large law firm in Metropolis. They both went to good colleges and the same top-tier law school. The firm has several hundred lawyers and has had success over the years in hiring, retaining and promoting female and minority attorneys. Both Bob and Will have done... 2007
Yoonjo J. Lee WHITE PRIVILEGE OR BLESSING?: STANDING TO SUE AS NON-TARGETED BYSTANDERS OF RACIAL DISCRIMINATION IN HOUSING AND EMPLOYMENT 28 Hamline Journal of Public Law and Policy 557 (Spring 2007) As elite judges summarily determine which interests are worthy of legal cognizance, they unsurprisingly embrace concerns that strike closest to home, sustaining harms that mirror the experiences and predilections of their own lives. In the early 1920's, in a forgotten portion of New York City, Paul was born to Italian immigrants. During that time... 2007
William Lynch A NATION ESTABLISHED BY IMMIGRANTS SANCTIONS EMPLOYERS FOR REQUIRING ENGLISH TO BE SPOKEN AT WORK: ENGLISH-ONLY WORK RULES AND NATIONAL ORIGIN DISCRIMINATION 16 Temple Political & Civil Rights Law Review 65 (Fall 2006) As Gregor Samsa awoke one morning from uneasy dreams he found himself transformed in his bed into a gigantic insect. Pedro Perez awoke one morning from uneasy dreams. Arriving at work at 6:30 a.m. sharp, he found posted on the wall: Absolutely No Guns, Knives or Weapons of any kind are allowed on these Premises at any time! English is the... 2006
Linda Hamilton Krieger , Susan T. Fiske BEHAVIORAL REALISM IN EMPLOYMENT DISCRIMINATION LAW: IMPLICIT BIAS AND DISPARATE TREATMENT 94 California Law Review 997 (July, 2006) The first call of a theory of law is that it should fit the facts. - Oliver Wendell Holmes Although they serve different social functions and employ different methods and tools, both law and the empirical social sciences need, use, and produce theories of human behavior. But their respective relationships to these theories differ in significant... 2006
Cynthia L. Estlund BETWEEN RIGHTS AND CONTRACT: ARBITRATION AGREEMENTS AND NON-COMPETE COVENANTS AS A HYBRID FORM OF EMPLOYMENT LAW 155 University of Pennsylvania Law Review 379 (December, 2006) The employment relationship is governed largely by contract, but with a heavy overlay of rights: minimum terms and individual rights that are established by external law and are typically nonwaivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Both of the... 2006
Daniel S. Klein BRIDGING THE FALCON GAP: DO CLAIMS OF SUBJECTIVE DECISIONMAKING IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS SATISFY THE RULE 23(A) COMMONALITY AND TYPICALITY REQUIREMENTS? 25 Review of Litigation 131 (Winter 2006) I. Introduction. 132 II. General Telephone Company of the Southwest v.Falcon and the Oracular Footnote Fifteen. 138 A. Introduction. 138 B. Footnote Fifteen Indicates that Subjective Decisionmaking is an Example of a Policy that Can Provide a Common Issue for a Class. 141 C. Problems Inherent in Interpreting Footnote Fifteen as an Exception to... 2006
Andrew M. Milz BUT NAMES WILL NEVER HURT ME?: EL-HAKEM V. BJY, INC. AND TITLE VII LIABILITY FOR RACE DISCRIMINATION BASED ON AN EMPLOYEE'S NAME 16 Temple Political & Civil Rights Law Review 283 (Fall 2006) In El-Hakem v. BJY, Inc. the Ninth Circuit Court of Appeals was faced with deciding whether a manager's persistent referral to an Arab employee by a Westernized, non-Arabic name against the employee's repeated objections was race discrimination. The appellants, an engineering firm and its Chief Executive Officer, contested the district court's... 2006
Ronald C. Brown CHINA'S EMPLOYMENT DISCRIMINATION LAWS DURING ECONOMIC TRANSITION 19 Columbia Journal of Asian Law 361 (Spring 2006) I. INTRODUCTION. 362 II. CHINA'S CURRENT CONDITIONS AFFECTING HUMAN RESOURCES MANAGEMENT. 363 A. Economic Transition to a Socialist Market Economy. 363 B. Human Rights Management Practices in China. 365 1. Regulation of Labor Market Management. 365 III. CHINA'S ANTI-DISCRIMINATION LAWS. 386 A. Laws Providing Protected Status . 386 1. The 1994... 2006
Samuel A. Marcosson CLIENT COUNSELING AS AN ETHICAL OBLIGATION: ADVISING EMPLOYERS BEFORE THEY DISCRIMINATE 33 Northern Kentucky Law Review 221 (2006) The ethical practice of employment discrimination law on the defense side requires more of an attorney than merely providing strong representation for a client accused of discrimination. Before that accusation ever happens, the attorney must provide learned and aggressive counseling, designed both to educate the employer about its obligations, and... 2006
Creola Johnson CREDENTIALISM AND THE PROLIFERATION OF FAKE DEGREES: THE EMPLOYER PRETENDS TO NEED A DEGREE; THE EMPLOYEE PRETENDS TO HAVE ONE 23 Hofstra Labor and Employment Law Journal 269 (Winter 2006) A report from the U.S. General Accounting Office recently exposed 463 federal employees with degrees from schools believed to be diploma mills--sham schools that sell college degrees to individuals who complete little or no academic work to earn them. This report, along with other investigative work, confirmed the claims of diploma mill... 2006
Lorin J. Lapidus DIVERSITY'S DIVERGENCE: A POST-GRUTTER EXAMINATION OF RACIAL PREFERENCES IN PUBLIC EMPLOYMENT 28 Western New England Law Review 199 (2006) In The Odyssey, Homer wrote, I, she said, was to listen to them, but you must tie me hard in hurtful bonds, to hold me fast in position upright against the mast, with the ropes' ends fastened around it; but if I supplicate you and implore you to set me free, then you must tie me fast with even more lashings. . . . . So they sang, in sweet... 2006
Alexis C. Knapp DRIVING THEM AWAY--THE EMPLOYEE WHO QUITS IN RESPONSE TO HARASSMENT THE SUPREME COURT SUDERS DECISION--CONSTRUCTIVE DISCHARGE AND THE AFFIRMATIVE DEFENSE REVIEWING HISTORY TO FIND A PREDICTABLE CONTINUATION OF SEXUAL HARASSMENT JURISPRUDENCE AND EMPLOYER 6 Houston Business and Tax Law Journal 280 (2006) I. Introduction. 282 II. The History Behind Suders--An Introduction to Title VII and the Beginnings of Non-Discrimination. 284 A. Civil Rights Legislation and the Impacts on American Business. 284 1. Early Attempts to Correct Employment Discrimination. 284 2. Title VII--Adding Enforcement and Increasing the Stakes. 285 3. Damages Under Title... 2006
Jennifer D. McCollum EMPLOYERS' GREATEST ENEMY: SECOND-HAND EVIDENCE IN HOSTILE WORK ENVIRONMENT CLAIMS 59 SMU Law Review 1869 (Fall 2006) I. INTRODUCTION. 1870 II. HOSTILE WORK ENVIRONMENT CLAIMS GENERALLY. 1872 A. The Law. 1872 B. A Typical Case Example. 1873 III. IS SECOND-HAND EVIDENCE EVEN RELEVANT?. 1876 A. The Rules of Evidence. 1876 B. The Rule 403 Balancing Act. 1878 C. Examples of Partially Successful Irrelevance Arguments. 1879 D. Relevant to What?. 1882 IV. COURT-IMPOSED... 2006
Joi Leonard, Daniel Greenberg, Kristen A. Sluyter EMPLOYMENT LAW 28 University of Arkansas at Little Rock Law Review 713 (Summer 2006) In Smith v. City of Jackson, Mississippi, the City adopted a pay plan that included raises for all City employees for the purposes of attracting and retaining qualified people, being more competitive with other public-sector agencies, and ensuring equitable compensation regardless of age, sex, race, or disability. Part of the plan, which granted... 2006
Beth McQuaid EMPLOYMENT LAW 30 American Journal of Trial Advocacy 453 (Fall, 2006) Direct or circumstantial evidence of discrimination is often unavailable to plaintiffs who have been harmed by an act of discrimination. In the 1973 case of McDonnell Douglas Corp. v. Green, the United States Supreme Court laid out an indirect method of establishing a prima facie case of racial discrimination in the workplace under Title VII of the... 2006
Thomas G. Eron EMPLOYMENT LAW 56 Syracuse Law Review 735 (2006) Introduction. 735 I. At Will and Contractual Employment Relationships. 736 A. Contract Claims for Unpaid Compensation Brought by At-Will Employees. 736 B. Exceptions to the At-Will Doctrine. 738 C. Employment Contract Interpretation Issues. 739 II. Employment Torts. 741 A. Defamation. 741 B. Employer Liability for Employee Assaults and Other... 2006
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