William J. Vollmer PRETEXT IN EMPLOYMENT DISCRIMINATION LITIGATION: MANDATORY INSTRUCTIONS FOR PERMISSIBLE INFERENCES? 61 Washington and Lee Law Review 407 (Winter, 2004) C1-3Table of Contents I. Introduction. 408 II. Development of the McDonnell Douglas Framework. 413 III. Background of the Circuit Split. 417 A. Post-Hicks and Pre-Reeves Circuit Decisions. 417 B. Post-Reeves Circuit Decisions. 423 C. Townsend v. Lumbermens Mutual Casualty Co.. 426 IV. Reconciliation of the Circuit Split. 429 A. Argument for... 2004
Virginia Brown REVISITING THE PUBLIC POLICY EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE FOLLOWING THIBODEAU v. DESIGN GROUP ONE ARCHITECTS: APPLYING AN ETHIC OF CARE ANALYSIS 3 Connecticut Public Interest Law Journal 295 (Spring, 2004) In 2002, in Thibodeau v. Design Group One Architects, the Connecticut Supreme Court holds that Connecticut's Fair Employment Practices Act, General Statute ยง 46a-60, provides immunity to employers who have less than three employees. This case will likely stir up controversy among business and civil liberties groups. In Thibodeau, Nicole Ann... 2004
Catherine Lovly, Matthew J. Mehnert SOMETHING EVERY LAWYER NEEDS TO KNOW: THE EMPLOYER-EMPLOYEE DISTINCTION IN THE MODERN LAW FIRM 21 Hofstra Labor and Employment Law Journal 663 (Spring 2004) The federal anti-discrimination statutes, including Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) (herein known collectively as the Acts), were promulgated by Congress in an attempt to rid the workplace of varying forms of discrimination... 2004
Marisa Anne Pagnattaro WHAT DO YOU DO WHEN YOU ARE NOT AT WORK?: LIMITING THE USE OF OFF-DUTY CONDUCT AS THE BASIS FOR ADVERSE EMPLOYMENT DECISIONS 6 University of Pennsylvania Journal of Labor and Employment Law 625 (Spring 2004) I. Introduction. 626 II. It's None of Your Business: Employees' ReasonablE Expectation of Privacy for Off-Duty Conduct. 629 A. Common Law Tort Theories for Invasion of Privacy. 630 1. Intrusion Upon Seclusion. 631 2. Publicizing Private Facts. 637 B. State Statutory Protection of Off Duty Conduct. 640 1. Lawful Use of Consumable Products,... 2004
Robert W. Sikkel WHAT EEO-1 REPORTS REALLY TELL US 15 Practical Litigator 17 (September 1, 2004) Three categories of employers must file the EEO-1: Private employers with 100 or more employees; Private employers with less than 100 employees if affiliated with, owned, or controlled by another company, and the employees of the related companies total 100 or more; and Federal contractors if they are not exempt, have 50 or more employees, and... 2004
George O. Luce WHY DISPARATE IMPACT CLAIMS SHOULD NOT BE ALLOWED UNDER THE FEDERAL EMPLOYER PROVISIONS OF THE ADEA 99 Northwestern University Law Review 437 (Fall 2004) One of the most controversial issues in employment law is whether the Age Discrimination in Employment Act of 1967 (ADEA) permits disparate impact causes of action. The controversy has centered almost exclusively on the ADEA provisions which govern private employers and state and local government employers. The related provisions which govern... 2004
Melissa Hart WILL EMPLOYMENT DISCRIMINATION CLASS ACTIONS SURVIVE? 37 Akron Law Review 813 (2004) For more than 30 years, employment discrimination cases have typified the sort of civil rights action that courts and commentators describe as uniquely suited to resolution by class action litigation. As the Supreme Court recognized in 1977, suits alleging racial or ethnic discrimination are often by their nature class suits, involving classwide... 2004
Stephen D. Sugarman "LIFESTYLE" DISCRIMINATION IN EMPLOYMENT 24 Berkeley Journal of Employment and Labor Law 377 (2003) I. Introduction. 378 II. Employer Interests. 382 III. Off Duty Worker Behavior that may Clash with Employer Interests. 384 A. Personal (Social/Sexual) Relationships. 384 B. Civic/Political Activities. 388 C. Leisure Activities. 389 D. Moonlighting. 390 E. Daily Living. 391 F. Illegal Acts. 393 IV. Implementing Employer Concerns About Off-Duty... 2003
Richard A. Bales , Elaine M. Korb A SURVEY OF KENTUCKY EMPLOYMENT LAW: A LOOK AT EMPLOYMENT DISCRIMINATION CLAIMS BROUGHT UNDER THE KENTUCKY CIVIL RIGHTS ACT 30 Northern Kentucky Law Review 71 (2003) In a national landscape that has recently been plagued by steady economic downturn, pervaded by spiraling unemployment, and clouded with financial doubt and instability, the notion of job security appears to be extremely ephemeral and fleeting. Jobs, much less careers, are relatively scarce and employees across the nation including both... 2003
Ernest F. Lidge III AN EMPLOYER'S EXCLUSION OF COVERAGE FOR CONTRACEPTIVE DRUGS IS NOT PER SE SEX DISCRIMINATION 76 Temple Law Review 533 (Fall 2003) I. Introduction. 533 II. Two Disparate Treatment Theories. 535 A. Disparate Treatment Theory I--Erickson v. Bartell Drug Co.--The PDA Established That Discrimination Includes Denial of any Gender Specific Benefit.. 536 1. The Supreme Court Case Law. 536 a. General Electric Co. v. Gilbert. 536 b. The PDA and Newport News Shipbuilding & Dry Dock... 2003
Michael D. Meuti DISABLING LEGISLATION: THE JUDICIAL EROSION OF THE ADA'S PROTECTION FOR EMPLOYEES WITH PSYCHIATRIC DISORDERS 14 Stanford Law and Policy Review 445 (2003) Dammit, not again, I think as my alarm goes off for the fifth time this morning. It is 8:44; I'm supposed to be at work in sixteen minutes. I pull myself out of bed, which has somehow evolved into a Herculean task. As I wander into the shower, I begin to think back to the days when everything was easier. I was always at the top of my class, and... 2003
David C. Bratz, Amanda A. Owen DISCRIMINATION AND HARASSMENT CLAIMS AGAINST MARITIME EMPLOYERS: PREPARING FOR AND FACING DOWN THE INEVITABLE 15 University of San Francisco Maritime Law Journal 111 (2002-2003) Introduction. 113 I. Federal and State Anti-Discrimination Statutes In addition to Traditional Maritime Law May Govern Claims of Discrimination and Harassment at Sea. 114 A. The Jones Act and General Maritime Law. 115 1. Claims for Harassment by Seamen Are Treated Typically as Ones for Negligent Infliction of Emotional Distress under Jones Act. 115... 2003
John Alan Doran, Christopher Michael Mason DISPROPORTIONATE INCONGRUITY: STATE SOVEREIGN IMMUNITY AND THE FUTURE OF FEDERAL EMPLOYMENT DISCRIMINATION LAW 2003 Law Review of Michigan State University Detroit College of Law 1 (Spring 2003) I. Early History. 3 II. Contemporary Jurisprudence. 8 III. The Future of Federal Employment Laws as Applied to the States. 15 A. The Family and Medical Leave Act. 16 1. The Conflict Between the Circuits. 19 2. The Future of the FMLA as Applied to the States. 22 a. Those FMLA Provisions Not Directly Linked to Gender-Based Discrimination Violate the... 2003
Michael R. Sarno EMPLOYERS WHO IMPLEMENT PRE-EMPLOYMENT TESTS TO SCREEN THEIR APPLICANTS, BEWARE (OR NOT?): AN ANALYSIS OF LANNING V. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND THE BUSINESS NECESSITY DEFENSE AS APPLIED IN THIRD CIRCUIT EMPLOYMENT DISCRIMINATIO 48 Villanova Law Review 1403 (2003) Suppose that in order to merely qualify for an interview for a position as a firefighter, each applicant--within four minutes and while wearing a twenty-pound vest--has to carry a fifty-pound hose up six flights of stairs and then drag the equivalent of a 175-pound person one hundred feet. Suppose further that this test results in only a small... 2003
Jeffrey I. Slonim EMPLOYMENT DISCRIMINATION IN HIGHER EDUCATION: A SURVEY OF THE CASE LAW FROM 2001 29 Journal of College and University Law 327 (2003) Cases raising issues of discrimination in employment generally have burgeoned, and the past year saw decisions in many cases involving higher-education employers. A substantial portion of those represented the application of established standards to particular sets of facts, treating claims of discrimination based on race, age, national origin, and... 2003
Vivian Berger EMPLOYMENT MEDIATION IN THE TWENTY-FIRST CENTURY: CHALLENGES IN A CHANGING ENVIRONMENT 5 University of Pennsylvania Journal of Labor and Employment Law 487 (Spring 2003) I. Changes in the Workplace and Workplace Complaints: How They Undermine Litigation of Claims of Employment Discrimination. 489 A. Changes in the Workplace. 489 B. Changes in Workplace Complaints. 492 C. The Impact of Change on the Efficacy of Employment Civil Rights Litigation. 498 D. Suggested Reforms, Continued Litigation. 503 II.... 2003
Julia Bruzina ERICKSON V. BARTELL: THE "COMMON SENSE" APPROACH TO EMPLOYER-BASED INSURANCE FOR WOMEN 47 Saint Louis University Law Journal 463 (Spring 2003) We do not want special privileges. We do not need special privileges. We outlast you--we outlive you--we nag you to death. So why should we want special privileges? I believe we can hold our own. We are entitled to this little crumb of equality. The addition of that little terrifying word s-e-x will not hurt this legislation in any way. In fact,... 2003
Howard F. Chang IMMIGRATION AND THE WORKPLACE: IMMIGRATION RESTRICTIONS AS EMPLOYMENT DISCRIMINATION 78 Chicago-Kent Law Review 291 (2003) I. The Liberal Ideal and the Cosmopolitan Perspective. 295 A. Immigration Restrictions and Global Economic Welfare. 296 B. Justice and the Alien. 298 II. Immigration Restrictions and National Economic Welfare. 303 A. Effects of Immigration in the Labor Market. 304 1. Effects on Native Workers: Empirical Evidence. 305 2. Income Distribution and the... 2003
Nancy J. King LABOR LAW FOR MANAGERS OF NON-UNION EMPLOYEES IN TRADITIONAL AND CYBER WORKPLACES 40 American Business Law Journal 827 (Summer 2003) A review of recent cases involving section 7 of the National Labor Relations Act (NLRA) reveals two themes that are very important to non-union managers in the private sector. First, it is time for renewed discussion of the application of traditional labor law to non-union workplaces. New insights are needed because the National Labor Relations... 2003
Judith J. Johnson LICENSE TO HARASS WOMEN: REQUIRING HOSTILE ENVIRONMENT SEXUAL HARASSMENT TO BE "SEVERE OR PERVASIVE" DISCRIMINATES AMONG "TERMS AND CONDITIONS" OF EMPLOYMENT 62 Maryland Law Review 85 (2003) Title VII was intended to remedy discrimination; thus, it is ironic that the courts themselves discriminate among terms and conditions of employment by treating hostile environment discrimination less favorably, most commonly in sexual harassment cases. As the Supreme Court said in its first sexual harassment case, hostile environment harassment... 2003
Michael Z. Green OPPOSING EXCESSIVE USE OF EMPLOYER BARGAINING POWER IN MANDATORY ARBITRATION AGREEMENTS THROUGH COLLECTIVE EMPLOYEE ACTIONS 10 Texas Wesleyan Law Review 77 (Fall 2003) I. Introduction. 77 II. An Unfettered Policy Preference for Arbitration of Employment Claims Despite the Lack of Bargaining Power for Individual Employees. 80 III. Exploring the Reasons for Employer Bargaining Power Excess: A Balance of Perceived Corporate Greed Versus Heightened Fears of Large Jury Verdicts. 88 IV. Using Unions to Provide... 2003
Rosalie Berger Levinson PARSING THE MEANING OF "ADVERSE EMPLOYMENT ACTION" IN TITLE VII DISPARATE TREATMENT, SEXUAL HARASSMENT, AND RETALIATION CLAIMS: WHAT SHOULD BE ACTIONABLE WRONGDOING? 56 Oklahoma Law Review 623 (Fall 2003) Title VII of the Civil Rights Act of 1964 prohibits disparate treatment on the basis of race, religion, sex, and national origin with regard to all terms and conditions of employment. Title VII also bans retaliatory discrimination against those who complain of Title VII violations. Despite the broad language in the text, the circuit courts are... 2003
Sujata S. Menjoge TESTING THE LIMITS OF ANTI-DISCRIMINATION LAW: HOW EMPLOYERS' USE OF PRE-EMPLOYMENT PSYCHOLOGICAL AND PERSONALITY TESTS CAN CIRCUMVENT TITLE VII AND THE ADA 82 North Carolina Law Review 326 (December, 2003) Introduction. 326 I. Overview of Psychological and Personality Tests. 329 II. Discrimination on the Basis of Race, Religion, National Origin, and Sex. 333 A. Overview of Title VII. 333 B. Discrimination Through Psychological and Personality Tests. 337 1. Circumvention of Regulations on Interview Questions. 337 2. Elimination of Candidates on the... 2003
Megan Jordan Strickland THE IMPACT OF INTERPRETATION: THE AGE DISCRIMINATION IN EMPLOYMENT ACT AS DETERMINED BY THE SIXTH CIRCUIT 28 Seton Hall Legislative Journal 197 (2003) I. INTRODUCTION. 197 II. THE ADEA: PROVIDING PROTECTION FOR OLDER WORKERS. 199 A. The Legislative Background of the ADEA. 200 B. The Structure and Evolution of an ADEA Claim. 204 III. STATE AND FEDERAL INTERPRETATIONS OF AGE DISCRIMINATION STATUTES AND LANGUAGE. 208 A. Various States Already Permit Reverse Age Discrimination Claims. 208 B. Federal... 2003
Michael Selmi THE PRICE OF DISCRIMINATION: THE NATURE OF CLASS ACTION EMPLOYMENT DISCRIMINATION LITIGATION AND ITS EFFECTS 81 Texas Law Review 1249 (April, 2003) The last decade has seen an explosion of employment discrimination class action lawsuits that have been resolved through record breaking settlements. The best known of these cases is the $176 million settlement involving Texaco, one that came on the heels of the much publicized discovery of tape-recorded meetings that seemingly indicated the use of... 2003
Chad Derum , Karen Engle THE RISE OF THE PERSONAL ANIMOSITY PRESUMPTION IN TITLE VII AND THE RETURN TO "NO CAUSE" EMPLOYMENT 81 Texas Law Review 1177 (April, 2003) I. Introduction. 1178 II. From McDonnell Douglas to Hicks. 1183 A. The Development of the Title VII Burden-of-Proof Doctrine. 1183 1. From McDonnell Douglas to Reeves. 1183 2. Hicks and Personal Animosity.. 1185 3. The Furnco Presumption.. 1186 B. Three Critiques of the Case Law. 1188 1. Unconscious Bias.. 1188 2. Employment at Will.. 1190 3.... 2003
Frank J. Cavico THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IN THE PRIVATE EMPLOYMENT SECTOR 21 Hofstra Labor and Employment Law Journal 109 (Fall 2003) I. Introduction. 110 II. Background and Controlling Law. 111 III. Elements of the Cause of Action. 113 A. Introduction. 113 B. Extreme and Outrageous Conduct. 116 1. Extreme Outrage v. Insults and Indignities. 116 C. Intent. 128 1. Requisite Intention. 128 2. Recklessness v. Negligence. 128 3. Transferred Intent. 130 D. Distress. 130 1. Actual... 2003
Chad Blumenfield TOWARDS AN ADEQUATE CERTIFICATION POLICY IN TITLE VII EMPLOYMENT DISCRIMINATION CLASS ACTIONS INVOLVING SUPERVISORS AND NON-SUPERVISORS 2003 University of Chicago Legal Forum 661 (2003) Now that America has rid itself of the morally reprehensible institutions of slavery and segregation, racial discrimination may find its most common remaining expression in the workplace. As the Supreme Court has noted, racial discrimination is by definition class discrimination. It is not surprising, then, that plaintiffs wishing to remedy... 2003
David Benjamin Oppenheimer VERDICTS MATTER: AN EMPIRICAL STUDY OF CALIFORNIA EMPLOYMENT DISCRIMINATION AND WRONGFUL DISCHARGE JURY VERDICTS REVEALS LOW SUCCESS RATES FOR WOMEN AND MINORITIES 37 U.C. Davis Law Review 511 (December, 2003) Introduction. 513 I. A Review of Prior Employment Discrimination and Wrongful Discharge Jury verdict Research. 518 II. Verdicts Matter: How Jury Verdict Data Were Used to Justify the Imposition of Damage Caps in the 1991 Civil Rights Act. 528 III. The Results of a Comprehensive Survey of California Employment Discrimination and Wrongful Discharge... 2003
Thomas Earl Geu ARE EMPLOYEE APPRAISALS MAKING THE GRADE? A BASIC PRIMER AND ILLUSTRATIVE APPLICATION OF FEDERAL PRIVATE EMPLOYMENT DISCRIMINATION LAW 47 South Dakota Law Review 430 (2002) At General Electric, for example, supervisors identify the top 20 percent and bottom 10 percent of their managerial and professional employees every year. The bottom 10 percent are not likely to stay. I. INTRODUCTION. 430 II. EMPLOYEE PERFORMANCE APPRAISAL DYNAMICS: CONNECTING LAW AND BUSINESS. 433 A. The Complaint Against Ford. 433 B. Employee... 2002
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