Ryan P. Harley SEXUAL HARASSMENT IN THE WORKPLACE--PROMPT AND REMEDIAL ACTION AS A MEASURE OF EMPLOYER LIABILITY UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 27 Whittier Law Review 533 (Winter 2005) The war between the sexes is and always will be with us. The problem is that there is just too much fraternization with the enemy. A writer once wrote all women who worked outside the home had to do so with the expectation that they would likely experience sexual harassment on the job at some time in their working lives. The pervasiveness of... 2005
Sarah Benjes SMITH v. CITY OF JACKSON: A PRETEXT OF VICTORY FOR EMPLOYEES 83 Denver University Law Review 231 (2005) Age discrimination plagues many older workers in America today. Recent studies reveal that while companies purport to value older employees, they often discriminate against older workers in their hiring, training, and employment practices. In 2004, workers submitted 17,837 age discrimination charges to the Equal Employment Opportunity Commission... 2005
Rosalie Berger Levinson SUPERIMPOSING TITLE VII'S ADVERSE ACTION REQUIREMENT ON FIRST AMENDMENT RETALIATION CLAIMS: A CHILLING PROSPECT FOR GOVERNMENT EMPLOYEE SPEECH 79 Tulane Law Review 669 (February, 2005) Frequently, we see headlines with disclosures being made by government employees who have become disappointed and disillusioned by the operation of government. The question of whether government employees with this inside, critical knowledge should have the right to come forward has been the subject of numerous Supreme Court and lower court... 2005
Michael Z. Green TACKLING EMPLOYMENT DISCRIMINATION WITH ADR: DOES MEDIATION OFFER A SHIELD FOR THE HAVES OR REAL OPPORTUNITY FOR THE HAVE-NOTS? 26 Berkeley Journal of Employment and Labor Law 321 (2005) I. Introduction: Markers for Justice and Mediation Opportunities in the New Millennium. 323 II. Employment Discrimination and the Road to Mediation. 327 III. Employment Discrimination Mediation Examined Under the Lens of Social Justice: Expecting a Transformative Pipedream While Tilting at Neutrality Windmills. 334 A. Concerns About Mediators... 2005
Lisa Marshall THE CHARACTER OF DISCRIMINATION LAW: THE INCOMPATIBILITY OF RULE 404 AND EMPLOYMENT DISCRIMINATION SUITS 114 Yale Law Journal 1063 (March, 2005) Introduction. 1064 I. Proof of a Violation. 1067 II. Discrimination's Dance Around 404(B). 1070 A. The First Other Purpose: Motive. 1074 B. The Second Other Purpose: Intent. 1076 C. The True Purpose in Discrimination Suits: Propensity. 1082 III. The Consequences of the Incompatibility. 1083 A. The Purposes of Rule 404 and the Effects of... 2005
Jeffrey A. Mandell THE PROCEDURAL POSTURE OF MINIMUM EMPLOYEE THRESHOLDS IN FEDERAL ANTIDISCRIMINATION STATUTES 72 University of Chicago Law Review 1047 (Summer 2005) Title VII of the Civil Rights Act of 1964 provides federal relief to victims of employment discrimination on the basis of race, color, religion, sex, and national origin. This federal relief neither obviates nor mitigates state discrimination remedies. Under federal supplementary jurisdiction, Title VII plaintiffs may pursue state and federal... 2005
Audrey J. Lee UNCONSCIOUS BIAS THEORY IN EMPLOYMENT DISCRIMINATION LITIGATION 40 Harvard Civil Rights-Civil Liberties Law Review 481 (Summer, 2005) Deborah, an African American woman, worked as an administrative assistant for her employer for several years. She consistently received positive performance reviews until she came under the supervision of a new administrative director, Joan, who is white. One of only a handful of minority employees, Deborah became subjected to increased scrutiny by... 2005
Larry L. Rowe WEST VIRGINIA RACE RELATIONS AT THE TURN OF THE 21ST CENTURY: A NEW HISTORICAL PERSPECTIVE AND LEGISLATIVE STUDY OF RACIAL DISPARITIES IN EDUCATION, HEALTH, CIVIL RIGHTS, CRIMINAL JUSTICE, ECONOMIC DEVELOPMENT AND EMPLOYMENT 107 West Virginia Law Review 637 (Spring 2005) I. Introduction: Self Evaluation with a Historical Perspective. 638 II. After the Horror of Slavery: Segregation Days in Old Malden. 639 III. A Romantic Life in Segregation Days with No Bitterness Over Race Discrimination. 643 IV. A White Kid Growing Up In Rural Southern West Virginia. 644 V. Celebrating Brown v. Board of Education: Reflection and... 2005
Adam W. Aston "FAIR AND FULL EMPLOYMENT": FORTY YEARS OF UNFULFILLED PROMISES 15 Washington University Journal of Law and Policy 285 (2004) I enlist every employer, every labor union, and every agency of Government--whether affected directly by these measures or not--in the task of seeing to it that no false lines are drawn in assuring equality of the right and opportunity to make a decent living. -- President John F. Kennedy While President John F. Kennedy's promise to put a man on... 2004
James R. Todd "IT'S NOT MY PROBLEM": HOW WORKPLACE VIOLENCE AND POTENTIAL EMPLOYER LIABILITY LEAD TO EMPLOYMENT DISCRIMINATION OF EX-CONVICTS 36 Arizona State Law Journal 725 (Summer, 2004) I. Introduction. 726 II. How Various Jurisdictions Approach the Use of Conviction Records in the Hiring of Prospective Employees. 729 A. The Disallowance of Employment Discrimination Based Solely on Conviction Records: The State Approach. 730 1. Wisconsin Fair Employment Act. 731 2. New York's Human Rights Law. 735 B. Equal Employment Opportunities... 2004
Cheryl L. Wade "WE ARE AN EQUAL OPPORTUNITY EMPLOYER": DIVERSITY DOUBLESPEAK 61 Washington and Lee Law Review 1541 (Fall, 2004) There are too few discussions about race and race relations among corporate managers and directors. The rhetoric used in these infrequent discussions revolves around the idea of diversity in the workplace. In recent years, when speaking about employees and race issues, corporate actors have become curiously silent about discrimination and racism.... 2004
Laya Sleiman A DUTY TO MAKE REASONABLE EFFORTS AND A DEFENSE OF THE DISPARATE IMPACT DOCTRINE IN EMPLOYMENT DISCRIMINATION LAW 72 Fordham Law Review 2677 (May, 2004) In 1997, five women brought a class action against the Southeastern Pennsylvania Transportation Authority (SEPTA) claiming that SEPTA's physical fitness test, which applicants were required to pass in order to be eligible for employment, had a discriminatory effect on women. The plaintiffs satisfied all administrative requirements for positions... 2004
Terry Tolliver CLERKSHIP EMPLOYERS NEEDED FOR DIVERSITY PROGRAM 48-NOV Res Gestae 38 (November, 2004) On behalf of the Indiana State Bar Association's Committee for Racial Diversity in the Legal Profession and the Indiana Supreme Court's Conference for Legal Education Opportunity program (Indiana CLEO), I would like to once again invite you to participate in our joint program, Gateway to Diversity: A Summer Employment Program in the Indiana Legal... 2004
Carolyn L. Wheeler COMMENTS ON PRETEXT IN EMPLOYMENT DISCRIMINATION LITIGATION: MANDATORY INSTRUCTIONS FOR PERMISSIBLE INFERENCES? 61 Washington and Lee Law Review 459 (Winter, 2004) It is perhaps surprising that nearly forty years after Congress enacted Title VII, courts still struggle with the most fundamental questions of how to analyze evidence proffered to prove discrimination, and how to instruct juries charged with determining whether employers have violated the law. Although jury trials have been available in Title VII... 2004
Elaine W. Shoben DISPARATE IMPACT THEORY IN EMPLOYMENT DISCRIMINATION: WHAT'S GRIGGS STILL GOOD FOR? WHAT NOT? 42 Brandeis Law Journal 597 (Spring, 2004) Is disparate impact a dead theory of employment discrimination? Definitely not. The theory itself has a more stable legal status than it did when the Supreme Court embraced it in its 1971 opinion Griggs v. Duke Power Co. But is it thriving in litigation? It appears to be neither thriving nor dead. It has become a relatively less vital tool,... 2004
Suzy Fox , Lamont E. Stallworth EMPLOYEE PERCEPTIONS OF INTERNAL CONFLICT MANAGEMENT PROGRAMS AND ADR PROCESSES FOR PREVENTING AND RESOLVING INCIDENTS OF WORKPLACE BULLYING: ETHICAL CHALLENGES FOR DECISION-MAKERS IN ORGANIZATIONS 8 Employee Rights and Employment Policy Journal 375 (2004) I. Introduction. 376 A. Workplace Bullying. 376 B. Racial/Ethnic Bullying. 378 C. Conflict Management and Alternative Dispute Resolution (ADR) Processes. 380 D. Bullying vs. Statutory-Based Workplace Disputes: A Gap in the Law. 385 E. When the Bully is the Supervisor. 386 F. Ethical Challenges to Organization Decision-Makers. 388 G. The Current... 2004
Megan E. Mowrey, Virginia Ward Vaughn EMPLOYER LIABILITY FOR SEXUAL HARASSMENT CULMINATING IN CONSTRUCTIVE DISCHARGE: RESOLVING THE TANGIBLE EMPLOYMENT ACTION QUESTION 14 Southern California Review of Law and Women's Studies 25 (Fall, 2004) Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on an individual's sex. The United States Supreme Court recognized that one form of sex discrimination is sexual harassment in the workplace and that an employer can be held liable for a supervisor's sexually harassing conduct towards an employee if such conduct led... 2004
Patricia Nemeth , Daniel Villaire EMPLOYMENT AND LABOR LAW 50 Wayne Law Review 517 (Summer, 2004) I. Introduction. 518 II. Pleading and Proving Employment Claims. 518 A. Whistleblowers' Protection Act--Retaliation and Pretext. 519 B. Cause of Action for Damages under the Employee Right to Know Act. 521 C. City Charter as Basis for Private Cause of Action. 525 III. Sexual Harassment. 531 A. No Individual Liability under the ELCRA for... 2004
Virginia A. Berlando EMPLOYMENT DISCRIMINATION CLAIMANTS ARE NOT REQUIRED TO EXHIBIT DIRECT EVIDENCE OF DISCRIMINATION: DESERT PALACE, INC. V. COSTA 6 Duquesne Business Law Journal 267 (Spring 2004) EMPLOYMENT LAW - The United States Supreme Court held that direct evidence is not required to prove employment discrimination in a mixed-motive case under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. (2004); Section 2000e-2(m) unambiguously states that an employee only needs to demonstrate that an employer used an illegal... 2004
Eyana J. Smith EMPLOYMENT DISCRIMINATION IN THE FIRM: DOES THE LEGAL SYSTEM PROVIDE REMEDIES FOR WOMEN AND MINORITY MEMBERS OF THE BAR? 6 University of Pennsylvania Journal of Labor and Employment Law 789 (Spring 2004) It has been fifty years since the ratification of Title VII of the Civil Rights Act of 1964, and still a question remains as to whether legal professionals, primarily attorneys, have a rightful claim under Title VII against their employers for acts of employment discrimination. The case law in this area is sparse; this is partly because of the... 2004
Patricia Moore EMPLOYMENT LAW − RACIAL DISCRIMINATION − CIRCUMSTANTIAL EVIDENCE OF RACIAL DISCRIMINATION MAY BE INTRODUCED TO RAISE A GENUINE ISSUE OF MATERIAL FACT. HOPSON V. DAIMLERCHRYSLER CORP., 306 F.3D 427 (6TH CIR. 2002). 81 University of Detroit Mercy Law Review 397 (Spring 2004) In Hopson v. DaimlerChrysler, the United States Court of Appeals for the Sixth Circuit decided whether summary judgment was appropriate for the defendant on racial discrimination claims based on violations of Title VII, 42 United States Code § 2000e-2000e-17 (2000) and the Elliott-Larsen Civil Rights Act, Michigan Compiled Laws Annotated 37.2101... 2004
  EMPLOYMENT LAW -- VICARIOUS LIABILITY -- FIRST CIRCUIT HOLDS THAT CLASSIFICATION OF CONSTRUCTIVE DISCHARGE AS A TANGIBLE EMPLOYMENT ACTION SHOULD BE LEFT TO CASE-BY-CASE DETERMINATION. -- REED V. MBNA MARKETING SYSTEMS, INC., 333 F.3D 27 (1ST CIR. 2003) 117 Harvard Law Review 1004 (January, 2004) In Burlington Industries, Inc. v. Ellerth and its companion case, Faragher v. City of Boca Raton, the Supreme Court determined that an employer is subject to vicarious liability under Title VII when a supervisor who has authority over an employee creates an actionable hostile environment. In setting this standard, the Court held that an employer is... 2004
Elizabeth Zaiden Mazzarella EMPLOYMENT LAW: DAWAVENDEWA v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT: THE NEED FOR CONGRESSIONAL CHANGE IN NATIVE AMERICAN HIRING PREFERENCES 28 American Indian Law Review 413 (2003-2004) C1-3Table of Contents I. Introduction. 413 II. National Origin Defined in Title VII. 414 A. Overview of Title VII. 414 B. Case History: Courts' Explanations of National Origin. 416 C. Title VII's Application toward Employment on Indian Reservations. 417 III. Indian Self-Determination Act. 420 IV. Dawavendewa v. Salt River Project Agricultural... 2004
Susan Bisom-Rapp EXCEEDING OUR BOUNDARIES: TRANSNATIONAL EMPLOYMENT LAW PRACTICE AND THE EXPORT OF AMERICAN LAWYERING STYLES TO THE GLOBAL WORKSITE 25 Comparative Labor Law and Policy Journal 257 (Winter 2004) Although the word globalization may be controversial, few doubt that in the future there will be more cross-border flows of capital, goods, people, services and ideas. . . . Lawyers and others who deliver legal services must be prepared for such a world, whether or not they engage personally in legal work which we currently think of as... 2004
Michael Z. Green FINDING LAWYERS FOR EMPLOYEES IN DISCRIMINATION DISPUTES AS A CRITICAL PRESCRIPTION FOR UNIONS TO EMBRACE RACIAL JUSTICE 7 University of Pennsylvania Journal of Labor and Employment Law 55 (Fall 2004) I. Introduction. 57 II. Obtaining Counsel For Unrepresented Employees: An Employment Discrimination Dispute Resolution Dilemma for the Twenty-First Century. 64 A. Employment Discrimination Litigation and Its Frustrations Without Counsel. 66 B. Alternatives to Employment Discrimination Litigation and Its Frustrations Without Counsel. 69 III. A... 2004
Erin Scanga GLASS CEILING EMPLOYMENT AND RACIAL DISCRIMINATION IN HIRING FOR HEAD COACHING POSITIONS IN THE NATIONAL FOOTBALL LEAGUE 14 Seton Hall Journal of Sports and Entertainment Law 481 (2004) Racism, both conscious and unconscious, continues to interfere with merit-based hiring practices throughout the United States. Discriminatory hiring practices in the National Football League (NFL) can be seen as a microcosm of society. This Comment will focus on the existing hiring practices in the NFL to demonstrate that a system of... 2004
Vicki Schultz , Gabrielle S. Friedman , Abigail C. Saguy , Tanya K. Hernandez , David Yamada GLOBAL PERSPECTIVES ON WORKPLACE HARASSMENT LAW: PROCEEDINGS OF THE 2004 ANNUAL MEETING, ASSOCIATION OF AMERICAN LAW SCHOOLS SECTION ON LABOR RELATIONS AND EMPLOYMENT LAW 8 Employee Rights and Employment Policy Journal 151 (2004) Professor Vicki Schultz: Good afternoon, and welcome! I'm Vicki Schultz, and I am this year's chair of the Labor and Employment Relations Section. I'm very pleased to see that so many of you have turned out for the terrific panel our section is sponsoring this year. Our panel is entitled, Global Perspectives on Workplace Harassment Law. As most... 2004
Jean R. Sternlight IN SEARCH OF THE BEST PROCEDURE FOR ENFORCING EMPLOYMENT DISCRIMINATION LAWS: A COMPARATIVE ANALYSIS 78 Tulane Law Review 1401 (May, 2004) As our world effectively shrinks, many countries are beginning to reach a striking substantive consensus regarding the prohibition of employment discrimination. Yet, and in sharp contrast, nothing approaching consensus has yet emerged regarding the best procedural method with which to resolve individual claims of employment discrimination. Instead,... 2004
Amanda J. Zaremba NATIONAL RAILROAD PASSENGER CORP. V. MORGAN: THE FILING QUANDARY FOR LEGALLY ILL-EQUIPPED EMPLOYEES AND ETERNALLY LIABLE EMPLOYERS 72 University of Cincinnati Law Review 1129 (Spring, 2004) The discrimination occurred from the very start for Arthur Logan. In 1990, on his first day at Traintrak, Logan expected to assume the duties of an electrician. However, Traintrak told him that the title of his job was only Electrician Helper. He was disappointed with this title, especially when he discovered that Traintrak had hired less... 2004
Rhonda M. Reaves ONE OF THESE THINGS IS NOT LIKE THE OTHER: ANALOGIZING AGEISM TO RACISM IN EMPLOYMENT DISCRIMINATION CASES 38 University of Richmond Law Review 839 (May, 2004) I. Introduction. 841 II. The Role of Analogy in Anti-Discrimination Law. 845 A. Use of Analogies Lends Moral Force in Support of Extending the Law to New Groups. 846 B. Failure To Acknowledge Difference Can Undermine the Moral Force of Analogy. 847 C. The Experiences of Older Workers and Workers of Color Are Disanalogous in Certain Respects. 848 1.... 2004
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