Elizabeth M. Iglesias , JoAnne Durako , Devon Wayne Carbado , Margaret E. Montoya , Michael A. Olivas , Rex R. Perschbacher , Douglas D. Scherer , Vicki Schultz LABOR AND EMPLOYMENT IN THE ACADEMY - A CRITICAL LOOK AT THE IVORY TOWER: PROCEEDINGS OF THE 2002 ANNUAL MEETING OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS, JOINT PROGRAM OF THE SECTION ON LABOR RELATIONS AND EMPLOYMENT LAW AND SECTION ON MINORITY GROUPS 6 Employee Rights and Employment Policy Journal 129 (2002) Professor Elizabeth M. Iglesias: Welcome to the joint program of the Section on Labor Relations and Employment Law and Section on Minority Groups, and Happy New Year. You know from the materials in the AALS conference program overview that the purpose of this panel is to examine the structure and practices organizing work in the legal academy. This... 2002
Lawrence D. Rosenthal MOTIONS FOR SUMMARY JUDGMENT WHEN EMPLOYERS OFFER MULTIPLE JUSTIFICATIONS FOR ADVERSE EMPLOYMENT ACTIONS: WHY THE EXCEPTIONS SHOULD SWALLOW THE RULE 2002 Utah Law Review 335 (2002) When employers are forced to defend their adverse employment actions, they often articulate numerous justifications for the at-issue decisions. Unfortunately for plaintiffs, the general rule that has developed concerning these cases of multiple justifications is that, to defeat employers' motions for summary judgment, plaintiffs must typically... 2002
Leroy D. Clark MOVEMENTS IN CRISIS: EMPLOYEE-OWNED BUSINESSES--A STRATEGY FOR COALITION BETWEEN UNIONS AND CIVIL RIGHTS ORGANIZATIONS 46 Howard Law Journal 49 (Fall 2002) Our country has seen two great movements for justice: one led by labor unions to protect workers, and the other led by civil rights organizations to end racial segregation and discrimination. The two movements have had much in common in terms of the tasks that they confronted and the tactics used. Both built organizations based on a growing... 2002
Peggie R. Smith PARENTAL-STATUS EMPLOYMENT DISCRIMINATION: A WRONG IN NEED OF A RIGHT? 35 University of Michigan Journal of Law Reform 569 (Spring 2002) This Article evaluates strategies to challenge employment discrimination based on parental status. Specifically, it examines proposals put forth by some commentators to establish parental status as a protected class. While such a suggestion is attractive, the Article argues that it ultimately offers few practical advantages and remains wedded to a... 2002
Laina Rose Reinsmith PROVING AN EMPLOYER'S INTENT: DISPARATE TREATMENT DISCRIMINATION AND THE STRAY REMARKS DOCTRINE AFTER REEVES v. SANDERSON PLUMBING PRODUCTS 55 Vanderbilt Law Review 219 (January, 2002) I. L2-5,T5Introduction 220 II. L2-5,T5Making a Case Under Title VII and the ADEA 222 A. L3-5,T5An Overview of Title VII and the ADEA 222 B. L3-5,T5Choosing A Claim: Disparate Impact or Disparate Treatment 224 1. L4-5,T5Disparate Impact Claims: Violations Absent Discriminatory Motive 225 2. L4-5,T5Disparate Treatment Claims: Proving Discriminatory... 2002
John H. Marks SMOKE, MIRRORS, AND THE DISAPPEARANCE OF "VICARIOUS" LIABILITY: THE EMERGENCE OF A DUBIOUS SUMMARY-JUDGMENT SAFE HARBOR FOR EMPLOYERS WHOSE SUPERVISORY PERSONNEL COMMIT HOSTILE ENVIRONMENT WORKPLACE HARASSMENT 38 Houston Law Review 1401 (Spring 2002) I. Introduction. 1402 II. The Supreme Court's Harassment Jurisprudence Under Title VII. 1407 A. The Definition of Workplace Harassment: An Inherently Vague Threshold of Intangible Discriminatory Abuse. 1408 B. The Scope of Employer Liability for Workplace Harassment: A Qualified Form of Vicarious Liability. 1413 III. A Dubious Safe Harbor... 2002
Cathy Currie STAYING ON THE STRAIGHTER AND NARROWER: A CRITICISM OF THE COURT'S DEFINITION OF ADVERSE EMPLOYMENT ACTION UNDER THE RETALIATION PROVISION OF TITLE VII 43 South Texas Law Review 1323 (Fall 2002) I. Introduction. 1324 II. Background. 1325 A. Title VII Generally--Language and Purpose. 1325 B. Elements of the Retaliation Claim. 1328 C. The Advent of Hostile Environment Claims. 1329 D. Evolution of Title VII Discrimination Law Through Supreme Court Precedent. 1331 E. Current Interpretations of the Retaliation Statute--EEOC Guidelines and the... 2002
Mitchell Peterson THE APPLICABILITY OF FEDERAL EMPLOYMENT LAW TO INDIAN TRIBES 47 South Dakota Law Review 631 (2002) Employment is one of the most fundamental relationships in the lives of Americans, and, accordingly, Congress has extensively regulated the employment relationship. In the context of Indian tribes as employers, the extent of federal regulation is unclear. Both Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities... 2002
Ernest F. Lidge III THE COURTS' MISUSE OF THE SIMILARLY SITUATED CONCEPT IN EMPLOYMENT DISCRIMINATION LAW 67 Missouri Law Review 831 (Fall 2002) I. Introduction. 831 II. A Short Summary of Employment Discrimination Law. 833 A. Types of Employment Discrimination Claims. 833 B. The Statutes. 834 C. Proving an Individual Disparate Treatment Case. 834 III. Problem I--Requiring a Similarly Situated Showing as an Element of the Prima Facie Case. 839 A. A Brief Survey of the Circuits. 839 B. The... 2002
John Valery White THE IRRATIONAL TURN IN EMPLOYMENT DISCRIMINATION LAW: SLOUCHING TOWARD A UNIFIED APPROACH TO CIVIL RIGHTS LAW 53 Mercer Law Review 709 (Winter 2002) This Article argues that the Supreme Court's recent disparate treatment decisions under Title VII of the Civil Rights Act of 1964 represent a trend toward unifying all civil rights law under an approach most closely akin to traditional equity. This trend explains the curious tension between substance and process in the Court's most recent... 2002
JoAnne Ray THE TEN WORST TRANSPORTATION INDUSTRY EMPLOYER MISTAKES 2001-2003 30 Transportation Law Journal 81 (Fall 2002) Sponsoring defined benefit pension plans topped the list of the most expensive employment-related mistakes made in the transportation industry during the 2001-2003 survey period. Two other errors, failing to pay overtime in California and hiring commercial drivers with poor safety records, cost several transportation industry employers, or their... 2002
Joanne Gelfand, Esq. THE TREATMENT OF EMPLOYMENT DISCRIMINATION CLAIMS IN BANKRUPTCY: PRIORITY STATUS, STAY RELIEF, DISCHARGEABILITY, AND EXEMPTIONS 56 University of Miami Law Review 601 (April, 2002) Bankruptcy courts, facing a surge in claims stemming from employment discrimination, are slowly exploring the impact of this area of law on case administration. An inherent conflict exists between the policies underlying employment discrimination and bankruptcy laws. On the one hand, employment discrimination laws seek to protect employees by... 2002
Thomas M. Hruz THE UNWISDOM OF THE WISCONSIN FAIR EMPLOYMENT ACT'S BAN OF EMPLOYMENT DISCRIMINATION ON THE BASIS OF CONVICTION RECORDS 85 Marquette Law Review 779 (Spring 2002) I. Introduction. 781 II. Current Status of the Legality of Conviction Record Consideration in Employment Decisions. 783 A. Wisconsin's Fair Employment Act. 783 1. General Provisions, Purpose, and Enforcement. 783 2. Conviction Record. 786 a. Statutory Directives and Exceptions. 787 b. The Substantial Relation Test. 788 i. Overview. 788 ii. The... 2002
Frank J. Cavico TORTIOUS INTERFERENCE WITH CONTRACT IN THE AT-WILL EMPLOYMENT CONTEXT 79 University of Detroit Mercy Law Review 503 (Summer 2002) Employees facing termination, especially employees at-will, frequently have sought to challenge their dismissals with traditional exceptions to the at-will doctrine, such as the implied contract, public policy, and implied covenant of good faith exceptions to the employment at-will doctrine. Not all states, however, recognize such exceptions... 2002
Catherine L. Fisk UNION LAWYERS AND EMPLOYMENT LAW 23 Berkeley Journal of Employment and Labor Law 57 (2002) I. Introduction. 58 II. Unions, the Enforcement of Employment Law, and the Problem of Certification Elections. 63 A. The NLRA Protects the Rights of Employees to Obtain Union Assistance in the Enforcement of Employment Law in Non-Union Workplaces. 63 B. The Permissibility of Providing Legal Representation During an Organizing Campaign. 65 1. NLRB... 2002
Michael H. Leroy , Peter Feuille WHEN IS COST AN UNLAWFUL BARRIER TO ALTERNATIVE DISPUTE RESOLUTION? THE EVER GREEN TREE OF MANDATORY EMPLOYMENT ARBITRATION 50 UCLA Law Review 143 (October, 2002) During its last term, the U.S. Supreme Court reaffirmed its approval of mandatory arbitration in Circuit City Stores, Inc. v. Adams and Green Tree Financial Corp.-Alabama v. Randolph. The 5-4 votes in these decisions show, however, that this public policy remains controversial. Many firms now require employees to waive their right to sue on... 2002
Kari Jahnke 2000 STUDENT WRITING COMPETITION WINNER: RETALIATORY HARASSMENT AGAINST EMPLOYEES BY EMPLOYEES: SHOULD THE EMPLOYER BE LIABLE? 16 Labor Lawyer 465 (Winter/Spring, 2001) Anna used to enjoy her responsibilities and challenges as a customer service representative and excelled at her job. However, she now dreads work every day. Her work environment is full of hostility and anger toward her. Her co-workers make degrading and derogatory comments regarding her African-American heritage, calling her names and berating... 2001
John Sanchez 2001 SURVEY OF FLORIDA PUBLIC EMPLOYMENT LAW 26 Nova Law Review 191 (Fall, 2001) This article spans the several stages of public employment, beginning with the law governing the hiring of employees. Part II surveys current issues arising out of residency requirements for public employees; how privatization, also known as outsourcing, a process high on Governor Jeb Bush's list of priorities, is fundamentally changing the... 2001
Christina M. Sautter A MATTER OF CLASS: THE IMPACT OF BROWN V. MCLEAN ON EMPLOYEE DISCHARGE CASES 46 Villanova Law Review 421 (2001) We have seen the enemy and sometimes he or she works [or worked] for us. This may be the attitude that many employers have towards their former (litigious) employees as current and former employees file an increasing number of employment discrimination claims each year. Congress originally enacted Title VII of the Civil Rights Act of 1964 (Title... 2001
James E. Macdonald , Caryn L. Beck-Dudley A NATURAL LAW DEFENSE TO THE EMPLOYMENT LAW QUESTION: A RESPONSE TO RICHARD EPSTEIN 38 American Business Law Journal 363 (Winter, 2001) Every individual is continually exerting himself to find out the most advantageous employment for whatever capital he can demand. It is his own advantage, indeed, and not that of the society, which he has in view. But the study of his own advantage naturally, or rather necessarily, leads him to prefer that employment which is most advantageous to... 2001
Christopher M. Courts AN ADVERSE EMPLOYMENT ACTION--NOT JUST AN UNFRIENDLY PLACE TO WORK: CO-WORKER RETALIATORY HARASSMENT UNDER TITLE VII 87 Iowa Law Review 235 (October, 2001) I. Introduction. 236 II. Background: Retaliation Claims and Title VII. 237 A. Scope of Protection Under Title VII. 237 B. Elements of a Title VII Retaliation Claim. 240 C. Activities Considered to Be Adverse Employment Actions Under the Narrow View. 241 D. Activities Considered to Be Adverse Employment Actions Under the Broad View. 243 III.... 2001
Susan Bisom-Rapp AN OUNCE OF PREVENTION IS A POOR SUBSTITUTE FOR A POUND OF CURE: CONFRONTING THE DEVELOPING JURISPRUDENCE OF EDUCATION AND PREVENTION IN EMPLOYMENT DISCRIMINATION LAW 22 Berkeley Journal of Employment and Labor Law 1 (2001) I. Introduction. 2 II. Evolution of the Jurisprudence of Education and Prevention. 6 III. The New Jurisprudence in Context: Regulations by the Regulated. 13 A. The Sum and Substance of Anti-Discrimination Training Programs. 15 1. Sexual Harassment Training in Context. 17 2. Diversity Training in Context. 20 B. Anti-Discrimination Training and the... 2001
Michael Green BLACK PLAINTIFFS AND CLASS ACTION EMPLOYMENT DISCRIMINATION LAWSUITS IN CORPORATE AMERICA 6 University of the District of Columbia Law Review 105 (Fall 2001) Class action lawsuits initiated by black employees against corporations have been commonplace in the United States in recent years. Why has there been an influx of litigation targeted to corporate America? Is there an epidemic of discrimination directed toward black employees in many companies--or is this legal action a result of a phenomenon that... 2001
David L. Hudson Jr. CONFUSION OVER 'COMPARABLES' 37-NOV Tennessee Bar Journal 25 (November, 2001) Employment discrimination plaintiffs face a difficult task in seeking to prove unlawful discriminatory intent or disparate treatment. Employees often cannot produce direct evidence of discriminatory intent because employers mask their intent behind the proverbial legitimate, nondiscriminatory reason. The Sixth Circuit has bluntly stated: Direct... 2001
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
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