|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...
|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...
|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...
|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...
|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...
|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,...
|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...
|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....
|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...
|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...
|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...
|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...
|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)...
|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...
|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...
|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,...
|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...
|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...
|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...
|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...
|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,...
|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...
|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....
|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...
|Joyce E. Taber
|AN UNANSWERED QUESTION ABOUT MANDATORY ARBITRATION: SHOULD A MANDATORY ARBITRATION CLAUSE PRECLUDE THE EEOC FROM SEEKING MONETARY RELIEF ON AN EMPLOYEE'S BEHALF IN A TITLE VII CASE?
|50 American University Law Review 281 (October, 2000)
|Introduction. 282 I. Background. 285 A. Gilmer and Mandatory Arbitration Under the FAA. 285 B. Title VII Statutory Scheme and Remedies. 288 II. Circuit Split on Scope of EEOC Remedies and Monetary Relief. 292 A. Only Injunctive Relief. 292 1. Second Circuit: EEOC v. Kidder, Peabody & Co.. 292 2. Fourth Circuit: EEOC v. Waffle House, Inc.. 297 B....
|Elizabeth M. Adamitis
|APPEARANCE MATTERS: A PROPOSAL TO PROHIBIT APPEARANCE DISCRIMINATION IN EMPLOYMENT
|75 Washington Law Review 195 (January, 2000)
|The consideration of appearance in the employment decisionmaking context is prevalent and widely accepted. Nonetheless, statutory protection against such discrimination remains limited. Federal protection applies only to claims related to already-protected categories of discrimination, including disability, race, color, religion, sex,...
|Licia M. Williams
|DOES AN AT-WILL EMPLOYEE HAVE A CONTRACT SUFFICIENT TO SUPPORT A RACE DISCRIMINATION CLAIM AGAINST AN EMPLOYER UNDER 42 U.S.C. § 1981?
|30 University of Memphis Law Review 923 (Summer, 2000)
|I. L2-5Introduction 924 II. L2-5Section 1981 Interpretation 930 A. L4-5Section 1981 Interpretation Under Patterson v. McLean Credit Union 932 B. L4-5Section 1981 Interpretation Following the Amendments of the Civil Rights Act of 1991 935 III. L2-5The Federal Circuit and District Court Interpretations of Whether an At-Will Employee Has Standing To...
|Victoria K. Lin
|EMBRACING MINORITY HOUSING AND EMPLOYMENT RIGHTS IN THE NEW MILLENNIUM
|31 McGeorge Law Review 211 (Winter, 2000)
|With regard to urban housing and employment, the first half of the twentieth century saw racially restrictive covenants garner public attention, while the latter half experienced a focus on sexual orientation discrimination in employment. As the nation enters the twenty-first century, California is demonstrating a growing acceptance of racial...
|Mark E. Schreiber
|EMPLOYER E-MAIL AND INTERNET RISKS, POLICY GUIDELINES AND INVESTIGATIONS
|85 Massachusetts Law Review 74 (Fall, 2000)
|Cyberstalking, on-line threats of violence, sex sites and spam complicate the efficiency and compromise the integrity of employer-provided systems and Internet access. Companies may face claims of discrimination or sexual harassment arising from their employees' sexual, racial, or otherwise threatening or harassing e-mails or Internet graphics or...
|EMPLOYER LIABILITY FOR WORKPLACE SEXUAL HARASSMENT PERPETRATED BY SUPERVISORS:THE VICARIOUS LIABILITY STANDARD OF BURLINGTON INDUSTRIES, INC. V. ELLERTHAND FARAGHER V. CITY OF BOCA RATON
|36 Willamette Law Review 141 (Winter 2000)
|In 1998, the United States Supreme Court set forth standards governing the burden of proof in hostile environment sexual harassment cases where a plaintiff seeks to hold an employer accountable for a supervisor's harassment. The holdings of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton placed the burden upon the employer...