Samuel Issacharoff , Justin Nelson DISCRIMINATION WITH A DIFFERENCE: CAN EMPLOYMENT DISCRIMINATION LAW ACCOMMODATE THE AMERICANS WITH DISABILITIES ACT? 79 North Carolina Law Review 307 (January, 2001) This Article explains that all employment discrimination laws not only condemn the subjugation of defined groups, they also impose significant redistributive costs. The Article uses the Americans with Disabilities Act as an example to examine how much redistribution is proper under the rubric of nondiscrimination. The most recent ADA cases, most... 2001
Susan K. Declercq , Kimberly G. Musolf EMPLOYMENT AND LABOR LAW 47 Wayne Law Review 529 (Summer, 2001) This Article addresses developments in employment and labor law in Michigan courts during the Survey period, which includes cases decided between June 1, 1999 and May 31, 2000. Section II deals with employment discrimination cases, including race, age, and disability discrimination claims. Section III discusses caselaw in the area of employee... 2001
Earl M. Jones, III , Jennifer A. Youpa , Stacey S. Calvert , William Murley EMPLOYMENT AND LABOR LAW 54 SMU Law Review 1307 (Summer 2001) THE Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc. will change summary judgment practice in federal employment discrimination cases for Texas employment lawyers. This is evident from cases already decided during the Survey period. What is not evident--yet--is the extent of the change. With respect to common law claims,... 2001
Joan Gabel , Nancy Mansfield , Ellwood Oakley , Tom Lundin Jr. EVOLVING CONFLICT BETWEEN STANDARDS FOR EMPLOYMENT DISCRIMINATION LIABILITY AND THE DELEGATION OF THAT LIABILITY: DOES EMPLOYMENT PRACTICES LIABILITY INSURANCE OFFER APPROPRIATE RISK TRANSFERENCE? 4 University of Pennsylvania Journal of Labor and Employment Law 1 (Fall 2001) Employment Practices Liability Insurance (EPLI) makes delegable the damage award accompanying an adverse judgment in an employment law case. Modern employment law imposes such damages on employers to compensate victims and encourage compliance. Since Burlington and Ellerth, the Supreme Court has intensified employer liability to strengthen the... 2001
Susan Bisom-Rapp FIXING WATCHES WITH SLEDGEHAMMERS: THE QUESTIONABLE EMBRACE OF EMPLOYEE SEXUAL HARASSMENT TRAINING BY THE LEGAL PROFESSION 24 University of Arkansas at Little Rock Law Review 147 (Fall, 2001) Although judicially recognized as a form of sex discrimination for over two decades, sexual harassment remains a persistent problem for many American workers, especially those who are women. The recent suits brought against and ultimately settled by Mitsubishi and Ford illustrate how pervasive sexual harassment can be in a given workplace and, more... 2001
B. Glenn George IF YOU'RE NOT PART OF THE SOLUTION, YOU'RE PART OF THE PROBLEM: EMPLOYER LIABILITY FOR SEXUAL HARASSMENT 13 Yale Journal of Law & Feminism 133 (2001) Employer liability is rarely disputed in most claims under Title VII of the Civil Rights Act of 1964. The more routine decisions constituting employment discrimination - hirings, firings, promotions, etc. - are easily attributed to the employer who granted her or his supervisors or agents the authority to make such judgments. Strict liability is... 2001
Daniel M. Tardiff KNOCKING ON THE COURTROOM DOOR: FINALLY AN ANSWER FROM WITHIN FOR EMPLOYMENT TESTERS 32 Loyola University Chicago Law Journal 909 (Summer 2001) The legacy of slavery and racial prejudice continues to affect American culture, and, over the years, it has served as the subject of numerous studies and essays. While discrimination appears in many forms and in many areas of American life, often very subtle in nature, an organized civil rights movement to eradicate discrimination in the area of... 2001
Joanna L. Grossman MAKING A FEDERAL CASE OUT OF IT: SECTION 1981 AND AT-WILL EMPLOYMENT 67 Brooklyn Law Review 329 (Winter, 2001) Employment at will is not a state of nature but a continuing contractual relation. Most Americans work at willthey can quit in a huff, but be fired on a whim. That is the double-edged sword of at-will employment. What these workers gain in freedom, they sometimes lose in rights. One of the rights at-will employees have tried to claim, with... 2001
Eric M.D. Zion OVERCOMING ADVERSITY: DISTINGUISHING RETALIATION FROM GENERAL PROHIBITIONS UNDER FEDERAL EMPLOYMENT DISCRIMINATION LAW 76 Indiana Law Journal 191 (Winter, 2001) In Japan, a rubber company demanded a senior researcher enter early retirement at fifty-three years of age. He refused, and in response, the company moved him out of his office into the corner of the factory with only a bare desk for furniture. His new job, according to the company, was to turn in a report on the same topic every two weeks entitled... 2001
Michael L. Russell PREVIOUS ACTS OF EMPLOYMENT DISCRIMINATION: PROBATIVE OR PREJUDICIAL? 25 American Journal of Trial Advocacy 297 (Fall, 2001) In his Article, professor of law and practicing attorney Michael Russell examines the question of whether past acts of discrimination should be introduced as evidence relating to an employer's character. Using the Federal Rules of Evidence as a basis, he analyzes whether such evidence has probative value or is merely prejudicial and suggests a... 2001
Kari Jahnke PROTECTING EMPLOYEES FROM EMPLOYEES: APPLYING TITLE VII'S ANTI-RETALIATION PROVISION TO COWORKER HARASSMENT 19 Law & Inequality: A Journal of Theory and Practice 101 (Winter 2001) Imagine going to work every day knowing that you must endure your coworkers' degrading and derogatory comments. Your work environment is so full of hostility and anger toward you that you not only dread, but also fear, facing your coworkers everyday. You feel hopeless because you are unable to end the animosity provoked solely by characteristics... 2001
Donna E. Young RACIAL RELEASES, INVOLUNTARY SEPARATIONS, AND EMPLOYMENT AT-WILL 34 Loyola of Los Angeles Law Review 351 (January, 2001) People of color in the United States have a complicated relationship with the world of work. For us, work has signified indentured servitude, slavery, mob violence, exploitation, drudgery, exhaustion, and ill-health. On the job, we have been subjected to long arduous hours, poor working conditions, and demeaning tasks. We have been segregated,... 2001
Matt Bachrack, Jennifer Herring, Dawn Jessen RECENT DECISIONS OF THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT: EMPLOYMENT LAW 69 George Washington Law Review 609 (May, 2001) In Local 702, International Brotherhood of Electrical Workers v. NLRB, the D.C. Circuit clarified the three part test for finding an unfair labor practice under section 8(a)(3) of the National Labor Relations Act (NLRA). The dispute arose out of a lockout instituted by the Central Illinois Public Service Company (CIPS) in response to inside... 2001
Scotty Shively RESURGENCE OF THE CLASS ACTION LAWSUIT IN EMPLOYMENT DISCRIMINATION CASES: NEW OBSTACLES PRESENTED BY THE 1991 AMENDMENTS TO THE CIVIL RIGHTS ACT 23 University of Arkansas at Little Rock Law Review 925 (Summer, 2001) Microsoft was recently named in a five billion dollar class action lawsuit brought by seven current and former African-American employees claiming race discrimination. This reflects what many employment lawyers have noticed: a definite resurgence in the use of the class action device to bring employment discrimination lawsuits against employers.... 2001
Susan Sturm SECOND GENERATION EMPLOYMENT DISCRIMINATION: A STRUCTURAL APPROACH 101 Columbia Law Review 458 (April, 2001) The judiciary's traditional rule-based approach has been successful in reducing overt discrimination against women and people of color. It has been less effective in addressing more subtle and complex forms of workplace inequity. These second generation forms of bias result from patterns of interaction, informal norms, networking, mentoring, and... 2001
Theresa M. Beiner SEX, SCIENCE AND SOCIAL KNOWLEDGE: THE IMPLICATIONS OF SOCIAL SCIENCE RESEARCH ON IMPUTING LIABILITY TO EMPLOYERS FOR SEXUAL HARASSMENT 7 William and Mary Journal of Women and the Law 273 (Winter, 2001) Senator Specter: . . . [U]nderstanding of the fact that you're 25 and that . . . you're shortly out of law school and the pressures that exist in this world . . . . [E]ven considering all of that, given your own expert standing and the fact that here you have the chief law enforcement officer of the country on this subject [sexual harassment] and... 2001
Susan W. Kline SURVEY OF EMPLOYMENT LAW DEVELOPMENTS FOR INDIANA PRACTITIONERS 34 Indiana Law Review 675 (2001) Although no seismic shifts occurred in Indiana employment law during the survey period, there were a number of noteworthy developments. Observers generally agree that the Seventh Circuit continues to be more pro-employer than most other Circuits. However, two of the female justices of the Seventh Circuit called for more plaintiff-friendly... 2001
Ann K. Hadrava THE AMENDMENT TO FEDERAL RULE OF CIVIL PROCEDURE 26(B)(1) SCOPE OF DISCOVERY: AN EMPIRICAL ANALYSIS OF ITS POTENTIAL "RELEVANCY" TO EMPLOYMENT DISCRIMINATION ACTIONS 26 Oklahoma City University Law Review 1111 (Fall, 2001) Effective December 1, 2000, a three-part package of amendments to the Federal Rules of Civil Procedure was promulgated, the most significant of which entailed amendments to discovery Rules 26 through 37. The overarching principle behind the change was to reduce cost and increase the efficiency of discovery, while yet preserving the policy of full... 2001
Laura T. Kessler THE ATTACHMENT GAP: EMPLOYMENT DISCRIMINATION LAW, WOMEN'S CULTURAL CAREGIVING, AND THE LIMITS OF ECONOMIC AND LIBERAL LEGAL THEORY 34 University of Michigan Journal of Law Reform 371 (Spring 2001) Title VII has prohibited employment discrimination on the basis of pregnancy since 1978, when Congress passed the Pregnancy Discrimination Act (PDA), but it does not require employers to recognize women's caregiving obligations beyond the immediate, physical events of pregnancy and childbirth. The Family and Medical Leave Act of 1993 (FMLA)... 2001
Harry Hutchison THE COLLISION OF EMPLOYMENT-AT-WILL, SECTION 1981 & GONZALEZ: DISCHARGE, CONSENT AND CONTRACT SUFFICIENCY 3 University of Pennsylvania Journal of Labor and Employment Law 207 (Winter 2001) [M]en must be left, without interference to buy and sell where they please, and to discharge or retain employes [sic] at will for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act per se. It is a right which an employe [sic] may exercise in the same way, to the same extent, for the same cause or want... 2001
John J. Donohue III, Steven D. Levitt, Stanford Law School, University of Chicago and AmericanBar Foundation THE IMPACT OF RACE ON POLICING AND ARRESTS 44 Journal of Law & Economics 367 (October, 2001) Race has long been recognized as playing a critical role in policing. In spite of this awareness, there has been little previous research that attempts to quantitatively analyze the impact of officer race on tangible outcomes. In this paper, we examine the relationship between the racial composition of a city's police force and the racial patterns... 2001
Katherine V.W. Stone THE NEW PSYCHOLOGICAL CONTRACT: IMPLICATIONS OF THE CHANGING WORKPLACE FOR LABOR AND EMPLOYMENT LAW 48 UCLA Law Review 519 (February, 2001) In this Article, Professor Stone describes the profound changes that are occurring in the employment relationship in the United States. Firms are dismantling their internal labor markets and abandoning their implicit promises of orderly promotion and long-term job security. No longer is employment centered on a single, primary employer. Instead,... 2001
Alexandra Gruber , Barbara Kritchevsky THE UNEASY COEXISTENCE OF EQUAL PROTECTION AND FREE SPEECH CLAIMS IN THE PUBLIC EMPLOYMENT CONTEXT 31 University of Memphis Law Review 559 (Spring 2001) I. Introduction 560 II. First Amendment Protections in the Public Employment Context 564 A. The Public/Private Speech Distinction 565 B. Balancing a Public Employer's Interest in Efficient Operations Against the Employee's Interest in Speaking on a Matter of Public Concern 571 III. The Equal Protection Clause of the Fourteenth Amendment and... 2001
Michael Evan Gold TOWARDS A UNIFIED THEORY OF THE LAW OF EMPLOYMENT DISCRIMINATION 22 Berkeley Journal of Employment and Labor Law 175 (2001) I. Introduction. 177 II. Individual Disparate Treatment. 180 A. Direct Evidence of Individual Disparate Treatment. 180 B. Circumstantial Evidence of Individual Disparate Treatment. 181 1. Unequal Treatment. 181 2. The McDonnell Douglas Formula. 184 3. Two Senses of Prima Facie Case . 188 C. A Conventional Statement of the Prima Facie Case in the... 2001
Rebecca Hanner White , Linda Hamilton Krieger WHOSE MOTIVE MATTERS?: DISCRIMINATION IN MULTI-ACTOR EMPLOYMENT DECISION MAKING 61 Louisiana Law Review 495 (Summer, 2001) The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination. This statement by the Supreme Court in Reeves v. Sanderson Plumbing Products recites a basic and familiar principle of employment discrimination law. A successful disparate... 2001
Tobi T. Bromfield YOUR DNA IS YOUR RESUME: HOW INADEQUATE PROTECTION OF GENETIC INFORMATION PERPETUATES EMPLOYMENT DISCRIMINATION 7 Washington and Lee Race and Ethnic Ancestry Law Journal 117 (Spring, 2001) Genetic testing, the new Pandora's Box of medical knowledge, cannot be greeted with full embrace. While genetic testing is useful for indicating the number of persons likely to contract a known disorder, potential harm exists when identified groups which carry a presently known genetic disease are singled out. This technology's youth and potential... 2001
Kingsley R. Browne ZERO TOLERANCE FOR THE FIRST AMENDMENT: TITLE VII'S REGULATION OF EMPLOYEE SPEECH 27 Ohio Northern University Law Review 563 (2001) In Meritor Savings Bank, FSB v. Vinson, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits sexual harassment of the hostile environment variety, stating that employees need not run a gauntlet of sexual abuse in return for the privilege of being allowed to work. The Court appeared to endorse the EEOC Guidelines,... 2001
Kamla Alexander A MODEST PROPOSAL: THE "REASONABLE VICTIM" STANDARD AND ALASKA EMPLOYERS' AFFIRMATIVE DEFENSE TO VICARIOUS LIABILITY FOR SEXUAL HARASSMENT 17 Alaska Law Review 297 (December, 2000) This Note examines the Alaska Supreme Court's nascent interpretation of Alaska's anti-discrimination statute in sexual harassment cases. The Note begins by analyzing the history of sexual harassment case law in Alaska. The Note then discusses the benefits of applying the reasonable victim standard in the Alaska Supreme Court's determinations of... 2000
Philip Harvey AN ANALYSIS OF THE PRINCIPAL STRATEGIES THAT HAVE INFLUENCED THE DEVELOPMENT OF AMERICAN EMPLOYMENT AND SOCIAL WELFARE LAW DURING THE 20TH CENTURY 21 Berkeley Journal of Employment and Labor Law 677 (2000) I. Introduction. 678 II. Responses to Joblessness. 686 A. The Behavioralist Approach. 686 B. The Job Shortage Approach. 689 C. The Structuralist Approach. 694 III. Assessing the Strategies. 701 A. Job Seekers and Job Vacancies. 702 B. Wage Rates and Unemployment Rates: Supply and Demand Analysis. 709 C. Macroeconomic Barriers to Full Employment.... 2000
B. Glenn George AN INVITED SCRUTINY OF PRIVACY, EMPLOYMENT, AND SEXUAL HARASSMENT: A REVIEW OFTHE UNWANTED GAZE: THE DESTRUCTION OF PRIVACY IN AMERICA 11 UCLA Women's Law Journal 107 (Winter 2000) Professor George reviews Jeffrey Rosen's book, The Unwanted Gaze: The Destruction of Privacy in America. In her Book Review, Professor George focuses on Professor Rosen's discussion of sexual harassment law and his proposal that the claim of hostile environment sexual harassment be eliminated as a cause of action under Title VII of the Civil Rights... 2000
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