Tatiana Hyman THE HARMS OF RACIST ONLINE HATE SPEECH IN THE POST-COVID WORKING WORLD: EXPANDING EMPLOYEE PROTECTIONS 89 Fordham Law Review 1553 (March, 2021) In one year, the COVID-19 pandemic and egregious incidents of racial violence have created significant shifts in the United States's workplace culture and social climate. Many employers are transitioning employees to long-term or permanent remote work, and conversations about racial justice are more pervasive and divisive, especially on social... 2021
Craig R. Senn ACCOMMODATING GOOD-FAITH EMPLOYERS IN TITLE VII DISPARATE IMPACT CASES 94 Tulane Law Review 639 (April, 2020) This Article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer's facially neutral job policy or criterion inadvertently but disproportionately affects individuals... 2020
John E. Rumel BEYOND ABERCROMBIE AND HEFFERNAN: TOWARD A UNIFORM APPROACH TO DISCRIMINATION AND RETALIATION CLAIMS BASED ON MISPERCEPTION THEORY IN THE EMPLOYMENT CONTEXT 24 Employee Rights and Employment Policy Journal 189 (2020) Imagine these two scenarios: a man with dark complexion and kinky hair works for an employer who has just hired a white manager and assigns the manager to supervise the employee. The employee is Polynesian, not African American. Unfortunately, the supervisor harbors racist sentiments against African Americans and, for that reason, eventually... 2020
Joan C. Williams , Rachel M. Korn , Sky Mihaylo BEYOND IMPLICIT BIAS: LITIGATING RACE AND GENDER EMPLOYMENT DISCRIMINATION USING DATA FROM THE WORKPLACE EXPERIENCES SURVEY 72 Hastings Law Journal 337 (November, 2020) This Article joins other voices in challenging what I will call the implicit bias consensus in employment discrimination law, first crystallized in the work of Susan Sturm and Linda Hamilton Krieger. The implicit bias consensus has two basic components. The first is that most employment discrimination today is what Sturm christened second... 2020
Marc Chase McAllister COMPARE THIS: HOW EMPLOYERS USE COMPARATOR EVIDENCE TO DEFEAT EMPLOYMENT DISCRIMINATION CLAIMS 2020 Michigan State Law Review 803 (2020) Employment discrimination statutes prohibit employers from discriminating against individuals on the basis of certain protected characteristics, such as race or sex. For intentional discrimination claims, plaintiffs often attempt to prove an employer's discriminatory intent with comparator evidence demonstrating that the plaintiff was treated... 2020
Read Rydberg HASSEN v. RUSTON LOUISIANA HOSPITAL CO.: A FIFTH CIRCUIT MAJORITY GIVES LEEWAY TO EMPLOYERS DEFENDING ALLEGATIONS OF DISCRIMINATION 94 Tulane Law Review 1085 (May, 2020) I. Introduction. 1085 II. Background. 1088 A. Overview of Federal Anti-Discrimination Protections for Employees. 1088 B. The Employer's Burden to Offer Legitimate and Consistent Explanations for Potentially Discriminatory Actions. 1089 III. Analysis of the Court's Decision. 1091 A. The Majority's Lenient Concept of a Consistent Explanation. 1091 B.... 2020
Katelyn W. Harrell, Member, LSBA Labor and Employment Law Section, Jackson Lewis, P.C., Ste. 1900, 650 Poydras St., New Orleans, LA 70130 LABOR AND EMPLOYMENT LAW 68 Louisiana Bar Journal 50 (June/July, 2020) In Thompson v. Zinke, 795 Fed. Appx. 294 (5 Cir. 2020), the 5th Circuit affirmed the Eastern District of Louisiana's grant of summary judgment regarding appellant's racial discrimination claims under Title VII. Appellant alleged that racial discrimination caused his employer to choose a white applicant with less seniority and experience over him... 2020
E. Patrick McDermott , Ruth Obar PERCEPTIONAL DIFFERENCES BETWEEN MEDIATION PARTIES AND THEIR INFLUENCE ON RESOLUTION OF EMPLOYMENT RIGHTS DISPUTES AT THE EEOC 24 Employee Rights and Employment Policy Journal 135 (2020) Mediation vindicates employee rights far more often than do judicial or arbitration processes. Hence, analysis of the mediation process is critical to understanding resolution of employment rights disputes. This study examines how mediation participants' perceptions of the procedural and distributive justice aspects of their mediation influence the... 2020
Amy L. Wax PURSUING DIVERSITY: FROM EDUCATION TO EMPLOYMENT 10/30/2020 University of Chicago Law Review Online 94 (October 30, 2020) A core ideal of Anglo-American law is that legal wrongs should be remedied by restoring the injured victim to the rightful position. That position is defined as the one the victim would have occupied had the legal injury never been inflicted. This aspiration has exerted a powerful influence on American legal practice across the board. Although,... 2020
Bobbi M. Bittker RACIAL AND ETHNIC DISPARITIES IN EMPLOYER-SPONSORED HEALTH COVERAGE 45 Human Rights 18 (2020) Health care as a human right is a principle building momentum in the current political climate, where proposals for universal health care have again taken center stage. A healthy society is composed of healthy individuals. Yet, civil rights violations resulting in many racial and ethnic disparities still need to be addressed in order to deliver... 2020
Samuel K. Baier REDUCING EMPLOYMENT BARRIERS FOR PEOPLE WITH CRIMINAL RECORDS 46 Journal of Corporation Law 219 (Fall, 2020) I. Introduction. 220 II. Background. 220 A. Why Employers Disfavor Applicants with Criminal Records. 221 B. Employment Barriers' Negative Effects on the Public. 223 C. Financial Benefits to Employers That Hire People with Criminal Records. 227 D. Risk-Mitigation Benefits for Employers That Hire People with Criminal Records. 228 E. Existing... 2020
Lindsay F. Wiley , Samuel R. Bagenstos THE PERSONAL RESPONSIBILITY PANDEMIC: CENTERING SOLIDARITY IN PUBLIC HEALTH AND EMPLOYMENT LAW 52 Arizona State Law Journal 1235 (Winter 2020) Our nation's response to the coronavirus pandemic has revealed fundamental flaws in our legal regimes governing both public health and employment. Public health orders have called on individuals to make sacrifices to protect society as a whole. Simple fairness dictates that the burdens should be shared as widely as the benefits. And the case for... 2020
Anat Alon-Beck TIMES THEY ARE A-CHANGIN': WHEN TECH EMPLOYEES REVOLT! 80 Maryland Law Review 120 (2020) The COVID-19 pandemic sparked social distancing, economic crisis, mass layoffs, furloughs, inequality, and civil unrest. Corporate responses to the pandemic have profound effects on employee rights, employees' role in the corporations that they serve, and overall economic activity in the United States. In the last few decades, corporate governance... 2020
Shameka Rolla TITLE VII AND COLOR: HOW BRINGING TITLE VII CLAIMS UNDER THE PROTECTED CLASS OF COLOR CAN FURTHER HIGHLIGHT COLORISM IN EMPLOYMENT AND SOCIETY AT LARGE 10 Wake Forest Journal of Law and Policy 277 (March, 2020) In January 2018, Lupita Nyong'o announced that she would write a children's book. In the book, titled Sulwe, a five-year-old Kenyan girl, unable to see the beauty in her dark complexion, is determined to lighten her skin. With a global skin-lightening industry that was worth $4.8 billion in 2017, and that is projected to grow to $8.9 billion by... 2020
Christine Neylon O'Brien TWENTY-FIRST CENTURY LABOR LAW: STRIKING THE RIGHT BALANCE BETWEEN WORKPLACE CIVILITY RULES THAT ACCOMMODATE EQUAL EMPLOYMENT OPPORTUNITY OBLIGATIONS AND THE LOSS OF PROTECTION FOR CONCERTED ACTIVITIES UNDER THE NATIONAL LABOR RELATIONS ACT 12 William & Mary Business Law Review 167 (November, 2020) Employees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may... 2020
Ra'Mon Jones WHAT THE HAIR: EMPLOYMENT DISCRIMINATION AGAINST BLACK PEOPLE BASED ON HAIRSTYLES 36 Harvard Blackletter Law Journal 27 (Spring, 2020) When you see a person with an afro, braids, dreadlocks (locs), or any other popular natural hairstyle, do you think of them as unprofessional or unemployable? Apparently, many employers do. Black men and women who don their natural tresses, either wooly and full, in intricate twists or braids, or in velvet-ropy locs often receive bold and awkward... 2020
Andrew Melzer , Whittney Barth WHETHER EMPLOYEES CAN BE FIRED FOR PARTICIPATING IN PEACEFUL PROTESTS 2020 University of Illinois Law Review Online 221 (Fall, 2020) Protestors across the country have poured into the streets in the days and weeks following the police killings of George Floyd in Minneapolis, Minnesota and Breonna Taylor in Louisville, Kentucky, among others. These tragic deaths are but the latest chapter in the long struggle for racial justice and systemic reform in the United States. As the... 2020
Matthew U. Scherer , Allan G. King , Marko J. Mrkonich APPLYING OLD RULES TO NEW TOOLS: EMPLOYMENT DISCRIMINATION LAW IN THE AGE OF ALGORITHMS 71 South Carolina Law Review 449 (Winter 2019) I. Introduction. 450 II. Background. 453 A. Algorithmic Selection Tools. 453 1. Machine Learning and Deep Learning. 453 2. Algorithmic Employee Selection. 456 B. Law of Discrimination. 457 1. Disparate Treatment. 459 2. Disparate Impact. 460 a. The Development of the Disparate Impact Doctrine. 460 b. Prima Facie Case. 462 c. Business Necessity... 2019
Brent K. Nakamura , Lauren B. Edelman BAKKE AT 40: HOW DIVERSITY MATTERS IN THE EMPLOYMENT CONTEXT 52 U.C. Davis Law Review 2627 (June, 2019) C1-3Table of Contents L1-2Introduction . L32629 I. Diversity as a Compelling State Interest in Education; in Employment, Not So Much. 2631 II. Public-Facing Symbolism and Commitments to Diversity in the Workplace and Higher Education. 2636 III. Why Diversity Structures Are Not Evidence of a Diverse Workforce or a Nondiscriminatory Workplace. 2640... 2019
Julie A. Gafkay BALANCING CUSTOMER CARE AND EMPLOYEE CIVIL RIGHTS 98-JUN Michigan Bar Journal 18 (June, 2019) When a patient or customer is denied service or receives inferior service based on race or color, it seems obvious he or she should be protected under the Civil Rights Acts. What about discrimination in the inverse situation: when a patient or customer preference for services based on race is granted and an employee is excluded from performing his... 2019
Melissa Pascualini BAN THE BOX: BREAKING BARRIERS TO EMPLOYMENT IN THE PRIVATE SECTOR 37 Hofstra Labor and Employment Law Journal 255 (Fall, 2019) Discrimination in the workplace is normally thought of as affecting individuals of different race, religion, or sexual orientation; however, one of the most common and long-lasting types of workplace discrimination is based on an applicant's criminal history. Many individuals convicted of a crime are forced to be followed with a criminal record for... 2019
Bradley A. Areheart, Jessica L. Roberts GINA, BIG DATA, AND THE FUTURE OF EMPLOYEE PRIVACY 128 Yale Law Journal 710 (January, 2019) Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. We argue that the Genetic Information Nondiscrimination Act (GINA) offers a blueprint for preventing employers from breaching employee privacy. GINA has faced significant criticism since its enactment in 2008:... 2019
Ruqaiijah Yearby INTERNALIZED OPPRESSION: THE IMPACT OF GENDER AND RACIAL BIAS IN EMPLOYMENT ON THE HEALTH STATUS OF WOMEN OF COLOR 49 Seton Hall Law Review 1037 (2019) As advocates from the #MeToo and #TimesUp movements work to end sexual harassment and unequal pay in employment, they must not ignore the unique problems women of color face. As noted in Kimberle Crenshaw's theory of intersectionality, women of color face gender and racial bias in employment, thus eradicating gender bias will not make women of... 2019
Brittney Watkins KAEPERNICK CAN KICK IT!: EMPLOYMENT DISCRIMINATION, POLITICAL ACTIVISM, AND SPEECH IN THE NFL 59 Washington University Journal of Law & Policy 259 (2019) There is never time in the future in which we will work out our salvation. The challenge is in the moment, the time is always now. --James Baldwin, Nobody Knows My Name Anti-discrimination laws do not offer enough protection against employment discrimination. Colin Kaepernick has yet to be hired by hired by an NFL team following his anti-police... 2019
Jean R. Sternlight MANDATORY ARBITRATION STYMIES PROGRESS TOWARDS JUSTICE IN EMPLOYMENT LAW: WHERE TO, #METOO? 54 Harvard Civil Rights-Civil Liberties Law Review 155 (Winter, 2019) The arc of the moral universe is long, but it bends towards justice. Introduction. 156 I. Courts' Interpretations and Reinterpretations (Often) Bring Greater Justice. 161 II. The Rise and Stultifying Impact of Mandatory Employment Arbitration. 170 A. What is Employment Arbitration?. 170 B. Is Mandatory Employment Arbitration Legal?. 175 C. Impact... 2019
Austin Howard NETWORKING AWAY THE AMERICAN DREAM: HOW REINTERPRETING TITLE VII CAN REDUCE EMPLOYER RELIANCE ON EXCLUSIVE NETWORKS IN HIRING AND BROADEN ACCESS TO PROFESSIONAL OPPORTUNITY 41 Cardozo Law Review 721 (December, 2019) C1-2Table of Contents Introduction. 722 I. Background. 729 A. Title VII of the Civil Rights Act of 1964. 729 B. Griggs v. Duke Power Co.: The Birth of Disparate Impact. 732 C. Burden-Shifting for Disparate Impact Claims. 734 D. Wards Cove Packing Co. v. Atonio: Easing the Burden on Employers & Imposing a Heightened Causation Requirement on... 2019
Elizabeth C. Tippett OPPORTUNITY DISCRIMINATION: A HIDDEN LIABILITY EMPLOYERS CAN FIX 23 Employee Rights and Employment Policy Journal 165 (2019) Society has embraced the rhetoric of equal opportunity without fulfilling its promise. - Kimberlé Crenshaw I. Introduction. 165 II. Existing Law. 170 A. How Courts Define Adverse Employment Action. 170 B. The Legal Significance of Opportunity Discrimination in Title VII Jurisprudence. 176 C. How Lost Opportunities Can Help Establish Causation.... 2019
George S. Scoville III PURGED BY PRESS RELEASE: FIRST RESPONDERS, FREE SPEECH, AND PUBLIC EMPLOYMENT RETALIATION IN THE DIGITAL AGE 97 Oregon Law Review 477 (2019) Introduction. 479 I. Firing Anthony Venable. 483 II. Speech Retaliation Claims Pursuant to Section 1983. 485 A. The Section 1983 Civil Rights Claim. 486 B. Pickering Distinguishes Categories of Speakers and Speech. 488 C. Myers Narrows What Constitutes a Matter of Public Concern. 490 D. Garcetti Severely Limits Speech Protections for Public... 2019
Hina B. Shah RADICAL RECONSTRUCTION: (RE) EMBRACING AFFIRMATIVE ACTION IN PRIVATE EMPLOYMENT 48 University of Baltimore Law Review 203 (Spring, 2019) You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, you are free to compete with all the others, and still justly believe that you have been completely fair. The history of employment in this country is the history of racism. Using public and private... 2019
Amy Dygert RECONCILING THE MINISTERIAL EXCEPTION AND TITLE VII: CLARIFYING THE EMPLOYER'S BURDEN FOR THE MINISTERIAL EXCEPTION 58 Washington University Journal of Law & Policy 367 (2019) The ministerial exception, under the Free Exercise and Establishment Clauses of the First Amendment, provides an immunity for churches or religious organizations from employment discrimination claims. Under the exception, qualifying religious organizations are protected from employment discrimination claims brought by employees who hold or held a... 2019
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