Harry J. Holzer, Steven Raphael, Michael A. Stoll, Georgetown Public Policy Institute, University of California, Berkeley, University of California, Los Angeles PERCEIVED CRIMINALITY, CRIMINAL BACKGROUND CHECKS, AND THE RACIAL HIRING PRACTICES OF EMPLOYERS 49 Journal of Law & Economics 451 (October, 2006) In this paper, we analyze the effect of employer-initiated criminal background checks on the likelihood that employers hire African Americans. We find that employers who check criminal backgrounds are more likely to hire African American workers, especially men. This effect is stronger among those employers who report an aversion to hiring those... 2006
Cassandra M. Gandara POST-9/11 BACKLASH DISCRIMINATION IN THE WORKPLACE: EMPLOYERS BEWARE OF POTENTIAL DOUBLE RECOVERY 7 Houston Business and Tax Law Journal 169 (2006) I. Introduction. 169 II. Background. 170 A. The Backlash. 170 B. The Evolution of Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission. 174 1. Claims Based on Religious Discrimination. 176 a. Religion . 177 b. Reasonable Accommodation and Undue Hardship . 178 2. Claims Based on Hostile Work Environment.... 2006
Kelly Gallagher RETHINKING THE FAIR CREDIT REPORTING ACT: WHEN REQUESTING CREDIT REPORTS FOR "EMPLOYMENT PURPOSES" GOES TOO FAR 91 Iowa Law Review 1593 (July, 2006) The Fair Credit Reporting Act, tort law, discrimination law, and state statutes offer employees inadequate protection from employers who make good credit histories a condition of employment. Congress should amend the Fair Credit Reporting Act to limit an employer's right to procure credit reports on employees for whom the report has no... 2006
D. Frank Vinik, Ellen M. Babbitt, David M. Friebus THE "QUIET REVOLUTION" IN EMPLOYMENT LAW & ITS IMPLICATIONS FOR COLLEGES AND UNIVERSITIES 33 Journal of College and University Law 33 (2006) Since the initial passage of the Civil Rights Act of 1964, courts and Congress have consistently expanded the reach of liability for workplace harassment and other discrimination. Until recently, however, most employment discrimination laws--and the court decisions interpreting them--remained simply prohibitive, outlawing discrimination without... 2006
Lisa M. Cox THE "TAINTED DECISION-MAKING APPROACH": A SOLUTION FOR THE MIXED MESSAGES BATSON GETS FROM EMPLOYMENT DISCRIMINATION 56 Case Western Reserve Law Review 769 (Spring, 2006) The decision in Batson v. Kentucky recognizes the defendant's right to challenge the prosecution's peremptory challenges if it is shown the prosecutor is using the challenges to discriminate against potential jurors on the basis of race. After a showing of possible discrimination, the prosecutor has the opportunity to give a legitimate reason for... 2006
Jared M. Mellott THE DIVERSITY RATIONALE FOR AFFIRMATIVE ACTION IN EMPLOYMENT AFTER GRUTTER: THE CASE FOR CONTAINMENT 48 William and Mary Law Review 1091 (December, 2006) In recent years, American employers expanded racially preferential affirmative action policies geared toward hiring, retaining, and promoting racial minorities for positions that they might otherwise not gain in a more color-blind society. The less sweeping affirmative action policies of an earlier era were based on remedial justifications. But... 2006
Leticia M. Saucedo THE EMPLOYER PREFERENCE FOR THE SUBSERVIENT WORKER AND THE MAKING OF THE BROWN COLLAR WORKPLACE 67 Ohio State Law Journal 961 (2006) The existence of a rapidly growing Latino immigrant population in the United States raises questions about how the brown collar worker is being incorporated into our economy. Newly arrived Latino immigrants, or brown collar workers, are increasingly found in segregated workplaces throughout the country. They typically perform the least... 2006
Marilee L. Miller THE EMPLOYER STRIKES BACK: THE CASE FOR A BROAD READING OF TITLE VII'S BAR ON RETALIATION 2006 Utah Law Review 505 (2006) Suppose a female supervisor--who is particularly concerned about maintaining a collegial work environment--makes a point of smiling when she passes her employees in the hallway. But a certain male employee, who recently filed a complaint charging racial discrimination against this same supervisor, finds that every time he passes her in the hall,... 2006
David K. Haase, Emma Sullivan THE FALL-OUT FROM DUKES v. WAL-MART STORES, INC.--THE EXTENT TO WHICH SUBJECTIVE DECISION-MAKING PROCESSES ARE SUSCEPTIBLE TO CLASS TREATMENT AND HOW EMPLOYERS CAN MINIMIZE THEIR RISK 22 Labor Lawyer 153 (Fall, 2006) Employees seeking to certify class actions against employers often claim that an employer has used a subjective decision-making process to systematically discriminate against employees of a protected group, causing disparate treatment of and/or a disparate impact on class members. This article analyzes the factors affecting courts' decisions as to... 2006
Irene Gamer THE RETALIATORY HARASSMENT CLAIM: EXPANDING EMPLOYER LIABILITY IN TITLE VII LAWSUITS 3 Seton Hall Circuit Review 269 (Fall, 2006) I. Introduction. 270 II. Title VII Generally. 272 III. What it Means to Discriminate under the Main Discrimination Provision. 274 A. Hostile Work Environment Discrimination. 276 B. Courts' Divergent Interpretations of HWE Law. 278 IV. What it Means to Discriminate under the Retaliation Provision. 282 A. The Retaliatory Discrimination Standard. 283... 2006
Richard Carlson THE SMALL FIRM EXEMPTION AND THE SINGLE EMPLOYER DOCTRINE IN EMPLOYMENT DISCRIMINATION LAW 80 Saint John's Law Review 1197 (Fall 2006) Laws prohibiting discrimination in employment often make an exception for the small firm. Title VII, which is the model for many other federal and state discrimination laws, sets a threshold for employer coverage at fifteen employees. A firm employing fewer employees is exempt. As long as it employs no more than fourteen, it can refuse to hire... 2006
Sebastian Krebber THE SOCIAL RIGHTS APPROACH OF THE EUROPEAN COURT OF JUSTICE TO ENFORCE EUROPEAN EMPLOYMENT LAW 27 Comparative Labor Law and Policy Journal 377 (Spring 2006) Mangold v. Helm, the first age discrimination case decided by the European Court of Justice in November 2005, is the most startling employment law decision of that Court for the past thirty years. Disregarding longstanding principles of European law developed by the Court itself, the European Court of Justice applies a directive directly between... 2006
David Freeman Engstrom THE TAFT PROPOSAL OF 1946 & THE (NON-) MAKING OF AMERICAN FAIR EMPLOYMENT LAW 9 Green Bag 181 (Winter, 2006) For those familiar with the evolution of American fair employment law, the years clustered around 1970 provide the most obvious opportunities to identify so-called critical junctures those hinge moments in history when a number of different pathways of legal or political development remain open. It was during this period that federal appeals... 2006
Carrie Lewand CIVIL RIGHTS -- REVERSE DISCRIMINATION -- A PLAINTIFF CLAIMING REVERSE DISCRIMINATION NEED NO LONGER PROVE THE DEFENDANT IS THAT UNUSUAL EMPLOYER WHO DISCRIMINATES AGAINST THE MAJORITY. LIND V. CITY OF BATTLE CREEK, 681 N.W.2D 334 (MICH. 2004). 83 University of Detroit Mercy Law Review 1 (Fall 2005) In Lind v. City of Battle Creek, the Michigan Supreme Court overruled Allen v. Comprehensive Health Services stating that the Allen test of proving reverse discrimination was inconsistent with the Michigan Civil Rights Act. The court declared that a majority plaintiff will no longer have to meet the background circumstances test to prove a case... 2005
Ann C. McGinley DISCRIMINATION IN OUR MIDST: LAW SCHOOLS' POTENTIAL LIABILITY FOR EMPLOYMENT PRACTICES 14 UCLA Women's Law Journal 1 (Fall/Winter 2005) Every day we enter restaurants, grocery stores, professional offices, and universities where inequality is obvious, but we hardly notice it. Managers of restaurants and grocery stores are men, while the workers are predominantly women. Professionals and professors are ordinarily men, while their nurses, secretaries, and administrative assistants... 2005
Earl M. Jones, III , Jason R. Dugas , Jennifer A. Youpa EMPLOYMENT AND LABOR LAW 58 SMU Law Review 785 (Summer 2005) IN this Survey, we highlight some of the most notable 2004 employment law-related cases and legislation. Most notably, the survey year saw practitioners and courts alike assessing the fallout from the 2003 Desert Palace v. Costa decision on judicially-crafted frameworks for evaluating employment discrimination cases. Moreover, the Texas Supreme... 2005
Ali Razzaghi HILL v. LOCKHEED MARTIN LOGISTICS MANAGEMENT, INC.: "SUBSTANTIALLY INFLUENCING" THE FOURTH CIRCUIT TO CHANGE ITS STANDARD FOR IMPUTING EMPLOYER LIABILITY FOR THE BIASES OF A NON-DECISIONMAKER 73 University of Cincinnati Law Review 1709 (Summer, 2005) John Hancock once said, the greatest ability in business is to get along with others and to influence their actions. While Mr. Hancock was probably not referring to the issues of vicarious liability in the context of employment law jurisprudence, his principle is helpful in framing a critical issue confronting federal courts today. Courts are not... 2005
Monica Johnson INDIRECT EMPLOYER LIABILITY: THE NINTH CIRCUIT LIMITS LIABILITY FOR RACIAL DISCRIMINATION 38 U.C. Davis Law Review 573 (February, 2005) Introduction 574 I. Background. 576 A. Title VII. 576 B. Application of Title VII When the Defendant Failed to Remedy a Discriminatory Environment. 579 1. The United States Supreme Court in Goodman v. Lukens Steel Co.. 579 2. The Ninth Circuit in Little v. Windermere Relocation, Inc.. 580 C. Application of Title VII to Indirect Employers. 582 1.... 2005
Daniel Hutzenbiler JUDICIAL REVIEW OF THE EMPLOYMENT RELATIONSHIP: AN OVERVIEW OF IMPORTANT NINTH CIRCUIT EMPLOYMENT LAW DECISIONS OF 2004 41 Willamette Law Review 551 (Survey 2005) In 2004, the Ninth Circuit issued numerous opinions in the employment law context. This Article addresses six of the most important of those decisions, involving the following topics: religious discrimination in the workplace, a racially hostile work environment, disparate treatment sexual discrimination, enforcement of a contractual non-compete... 2005
James J. Savina LABOR AND EMPLOYMENT LAW 37 Texas Tech Law Review 1031 (Spring, 2005) I. Introduction. 1031 II. Title VII, Section 1981, the Americans with Disabilities Act (ADA), and the Texas Commission on Human Rights Act (TCHRA). 1032 A. Saving Untimely Claims. 1032 B. Fifth Circuit Continues Its Strict Construction of Adverse Employment Actions. 1034 C. Proving Discrimination. 1036 1. Pregnancy Discrimination. 1036 2. Race,... 2005
Amy Crowe MAY I SPEAK? ISSUES RAISED BY EMPLOYER'S ENGLISH-ONLY POLICIES 30 Journal of Corporation Law 593 (Spring 2005) I. Introduction to English-Only Cases. 593 II. Background. 594 A. Facts of Griggs v. Duke Power Company. 595 B. The Development of the Burden-Shifting Test. 595 C. The Civil Rights Act of 1991. 596 D. The Evolution of Disparate Impact Cases. 596 E. The EEOC's Guidelines on National Origin. 597 F. The EEOC's Guidelines on English-Only Policies. 598... 2005
  PROOF AND PERVASIVENESS: EMPLOYMENT DISCRIMINATION IN LAW AND REALITY AFTER DESERT PALACE, INC. V. COSTA: PROCEEDINGS OF THE 2005 ANNUAL MEETING, ASSOCIATION OF AMERICAN LAW SCHOOLS, SECTIONS ON EMPLOYMENT DISCRIMINATION, CIVIL RIGHTS, LABOR RELATIONS AND 9 Employee Rights and Employment Policy Journal 427 (2005) Professor Joseph E. Slater : Good morning and welcome. My name is Joe Slater. I'm from the University of Toledo College of Law. Today, we are addressing two of the most important issues in employment discrimination law: first, how much discrimination is out there and who's really doing it; and second, how do you go about proving it. We have three... 2005
Randy J. Kozel RECONCEPTUALIZING PUBLIC EMPLOYEE SPEECH 99 Northwestern University Law Review 1007 (Spring 2005) I. Introduction. 1007 II. The Contours and Shortfalls of Disruption and Public Concern . 1010 A. The State of the Law. 1010 B. The Problems with Modern Public Employee Speech Law. 1018 III. Theorizing the Holmesian Model of Public Employee Speech. 1028 A. Employee Free Speech Rights, Decoupling Governmental Functions, and the Market for... 2005
Laura Beth Nielsen , Robert L. Nelson RIGHTS REALIZED? AN EMPIRICAL ANALYSIS OF EMPLOYMENT DISCRIMINATION LITIGATION AS A CLAIMING SYSTEM 2005 Wisconsin Law Review 663 (2005) Forty years after the passage of the Civil Rights Act of 1964, the foundation of contemporary employment discrimination law is subject to unprecedented attack. On one hand, critics of the current system from the employer perspective argue that the system is overexpansive, fostering frivolous claims in a context of steadily improving rights... 2005
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
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