Anna S. Rominger , Pamela Sandoval EMPLOYEE TESTING: RECONCILING THE TWIN GOALS OF PRODUCTIVITY AND FAIRNESS 10 DePaul Business Law Journal 299 (Spring-Summer 1998) C1-3Table of Contents I. Introduction. 301 II. The Genesis of Testing Human Potential. 304 III. The Development of Fair Employment Policy. 305 A. Stage One: Congress Acts to Remedy Disparate Treatment. 306 B. Stage Two: Courts Implement the Job-Relatedness Doctrine. 308 C. Stage Three: Courts Examine Expert Evidence to Determine Validity. 312 D.... 1998
Audrey C. Tan EMPLOYER LIABILITY FOR RACIST HATE SPEECH BY THIRD-PARTIES: COMPARISON OF APPROACHES IN GREAT BRITAIN AND THE UNITED STATES. 20 Loyola of Los Angeles International and Comparative Law Journal 873 (December, 1998) Two young African-American women answer an advertisement that seeks temporary waitresses for a dinner at a large hotel. The two women are hired and told to report to the hotel's main banquet hall the next night. They do so and, except for a bit of confusion over drink orders, things proceed quite well for the next few hours. As the women begin to... 1998
Kara McCarthy Perry EMPLOYMENT DISCRIMINATION--RACIAL DISCRIMINATION--A RATIONAL FACTFINDER COULD FIND THAT A SINGLE DEROGATORY RACIAL SLUR UTTERED BY AN EMPLOYEE'S SUPERIOR AMOUNTS TO DISCRIMINATORY CONDUCT SEVERE ENOUGH TO CREATE A HOSTILE WORK ENVIRONMENT AND OUTRAGEOUS E 28 Seton Hall Law Review 1419 (1998) On January 31, 1992, plaintiff Carrie Taylor, an African-American woman who worked as a Burlington County Sheriff's Officer since 1972, encountered the defendant, Sheriff Henry Metzger, while receiving firearms training at the Burlington County Police Academy. See Taylor v. Metzger, No. A-9, 1998 WL 63084, at *1 (N.J. Feb. 18, 1998). When Taylor... 1998
M. Christina Floyd EMPLOYMENT LAW 32 University of Richmond Law Review 1199 (November, 1998) There have been a variety of developments in employment law since the Annual Survey of Virginia Law last included an article on this topic. This article focuses primarily upon two significant areas: (1) wrongful discharge and (2) employment contract claims which have been litigated since September 1996. Public sector employment, unemployment... 1998
Robert Belton EMPLOYMENT LAW: A REVIEW OF THE 1997 TERM DECISIONS OF THE SUPREME COURT 2 Employee Rights and Employment Policy Journal 267 (1998) The Supreme Court has decided a significant number of individual employee rights cases since its landmark 1971 decision in Griggs v. Duke Power Co. Griggs is one of the most important developments in individual employee rights jurisprudence. Since Griggs, the Supreme Court has decided more than 150 cases involving individual (as opposed to... 1998
Robert P. Henley EMPLOYMENT: SEXUAL HARASSMENT 75 Denver University Law Review 829 (1998) Sexual harassment in the workplace has been an enigma both in the nature of the acts which violate Title VII and the extent of an employer's liability for the acts of harassing employees. In recent decades Supreme Court rulings have broadly advanced the goals of congressional legislation to define both actionable sexual harassment in the workplace... 1998
John V. Jansonius , Andrew M. Gould EXPERT WITNESSES IN EMPLOYMENT LITIGATION: THE ROLE OF RELIABILITY IN ASSESSING ADMISSIBILITY 50 Baylor Law Review 267 (Spring 1998) There are a sort of men whose visages Do cream and mantle like a standing pond And do a willful stillness entertain, With purpose to be dress'd in an opinion Of wisdom, gravity, profound conceit, And who should say, I am Sir Oracle, And when I open my lips let no dog bark! C1-3Table of Contents I. Introduction. 268 II. Historical Development of... 1998
John M. Vande Walle IN THE EYE OF THE BEHOLDER: ISSUES OF DISTRIBUTIVE AND CORRECTIVE JUSTICE IN THE ADA'S EMPLOYMENT PROTECTION FOR PERSONS REGARDED AS DISABLED 73 Chicago-Kent Law Review 897 (1998) Unlike other federal statutes protecting persons from employment discrimination on the basis of race, sex, color, national origin, religion, or age, the Americans with Disabilities Act (ADA) protects persons from employment discrimination on the basis of a characteristic that not all persons possess. The ADA's protection is reserved for... 1998
Lawrence H. Clore , Robin W. Coopwood , Shelly A. Leibham LABOR & EMPLOYMENT 29 Texas Tech Law Review 735 (1998) I. Introduction. 735 II. The Age Discrimination in Employment Act. 736 III. The Americans with Disabilities Act. 739 IV. The Family and Medical Leave Act. 743 V. The Federal Arbitration Act. 744 VI. The National Labor Relations Act. 747 VII. The Occupational Safety and Health Act. 750 VIII. Public Employees. 750 IX. Title VII of the Civil Rights... 1998
Jeffrey M. Hirsch LABOR LAW OBSTACLES TO THE COLLECTIVE NEGOTIATION AND IMPLEMENTATION OF EMPLOYEE STOCK OWNERSHIP PLANS: A RESPONSE TO HENRY HANSMANN AND OTHER "SURVIVALISTS" 67 Fordham Law Review 957 (December, 1998) POLICY debate in the United States over how best to promote employee productivity increasingly emphasizes the importance of employee ownership of firms. Employee ownership plans, which can vary from those that merely serve as a form of pension to those through which employees undertake a complete buy-out of a firm, have increased in large part as a... 1998
Laura L. Hirschfeld LEGAL DRUGS? NOT WITHOUT LEGAL REFORM: THE IMPACT OF DRUG LEGALIZATION ON EMPLOYERS UNDER CURRENT THEORIES OF ENTERPRISE LIABILITY 7 Cornell Journal of Law & Public Policy 757 (Spring 1998) The good, say the mystics of muscle, is Society--a thing which they define as an organism that possesses no physical form, a superbeing embodied in no one in particular and everyone in general except yourself. . . . Man's mind, say the mystics of muscle, must be subordinated to the will of Society. . . . Man's standard of value, say the mystics of... 1998
Theodore J. St. Antoine MANDATORY ARBITRATION OF EMPLOYEE DISCRIMINATION CLAIMS: UNMITIGATED EVIL OR BLESSING IN DISGUISE? 15 Thomas M. Cooley Law Review 1 (1998) Things are seldom what they seem: Skim milk masquerades as cream; Highlows pass as patent leathers; Jackdaws strut in peacock's feathers . . . . Black sheep dwell in every fold; All that glitters is not gold. W.S. Gilbert H.M.S. Pinafore One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace... 1998
William H. Daughtrey, Jr. , Donnie L. Kidd, Jr. MODIFICATIONS NECESSARY FOR COMMERCIAL ARBITRATION LAW TO PROTECT STATUTORY RIGHTS AGAINST DISCRIMINATION IN EMPLOYMENT: A DISCUSSION AND PROPOSALS FOR CHANGE 14 Ohio State Journal on Dispute Resolution 29 (1998) Consider the case of a woman named Martha, a middle-aged African American who is a relatively well-paid secretary for a large manufacturing corporation. Before she began her first workday, the company required her to sign an employment agreement. Later, having watched younger, white secretaries receive promotions instead of herself, Martha believed... 1998
Karen B. Brown NOT COLOR- OR GENDER-NEUTRAL: NEW TAX TREATMENT OF EMPLOYMENT DISCRIMINATION DAMAGES 7 Southern California Review of Law and Women's Studies 223 (Spring 1998) To support a host of tax give aways offered as a palliative to small businesses required to pay a higher minimum wage, Congress eliminated a venerated Internal Revenue Code (IRC) provision that supported exclusion from gross income of damages received on account of race- and gender-based employment discrimination. Congress' 1996 amendment of IRC... 1998
EDWARD LIEBER PICKETING THE INFORMATION SUPERHIGHWAY: MUST EMPLOYERS BARGAIN WITH A UNION OVER THEIR E-MAIL POLICY? 1998 Annual Survey of American Law 517 (1998) There are over twenty million e-mail users in the United States today. It is estimated that in the year 2000, there will be over forty million users. E-mail use is especially prevalent in the workplace; as of 1996, 90% of employers with over 1000 employees utilized e-mail as either a means of interoffice communication or as an integral part of... 1998
David N. Rosen , Jonathan M. Freiman REMODELING MCDONNELL DOUGLAS: FISHER V. VASSAR COLLEGE AND THE STRUCTURE OF EMPLOYMENT DISCRIMINATION LAW 17 QLR 725 (Winter 1998) In Fisher v. Vassar College, the Second Circuit debated, long and fractiously, the meaning of a central structure of employment discrimination law: the sequence of proof created by the Supreme Court in McDonnell Douglas Corp. v. Green. McDonnell Douglas involved a claim of a racially discriminatory refusal to hire. The Court said that the... 1998
Melissa A. Essary, Terence D. Friedman RETALIATION CLAIMS UNDER TITLE VII, THE ADEA, AND THE ADA: UNTOUCHABLE EMPLOYEES, UNCERTAIN EMPLOYERS, UNRESOLVED COURTS 63 Missouri Law Review 115 (Winter 1998) C1-3Table of Contents Introduction 116 II. The Anti-Retaliation Clause. 118 A. Procedure. 119 B. Prima Facie Case. 120 III. Protected Activity. 121 A. Participation. 121 1. EEOC Claims. 121 2. Employee Engaging in Her Own Investigation as Participation. 123 B. Opposition. 125 1. Protesting Directly to the Employer. 125 2. Opposing a Practice Not... 1998
Mary Louise Fellows ROCKING THE TAX CODE: A CASE STUDY OF EMPLOYMENT-RELATED CHILD-CARE EXPENDITURES 10 Yale Journal of Law & Feminism 307 (1998) Introduction. 308 I. Current Tax Treatment of Employment-Related Child-Care Expenditures. 312 II. The History of Waged Childcare. 315 A. Domestic Work from the Nineteenth Century Until World War II. 316 1. The Respectability/Degeneracy Distinction. 316 2. The Cult of Respectability in the Last Half of the Nineteenth Century. 318 3. Geographic... 1998
  SELECTED LABOR AND EMPLOYMENT LAW UPDATES 1 University of Pennsylvania Journal of Labor and Employment Law 789 (Fall, 1998) This section of the Journal provides notes on recent cases, pending or newly-enacted legislation, and other current legal materials. The Updates section is designed to aid the practitioner in relating the Symposium topic and Journal articles to the daily practice of labor and employment law. The Journal welcomes outside submissions of brief... 1998
Julie A. Springer , Phyllis Pollard , R. Paige Arnette SURVEY OF SELECTED EVIDENTIARY ISSUES IN EMPLOYMENT LAW LITIGATION 50 Baylor Law Review 415 (Spring 1998) C1-3Table of Contents I. Introduction. 416 II. Plaintiff's Prior Sexual Behavior and Attitude. 416 A. Plaintiff's Sexual Behavior with the Alleged Harasser and in the Workplace. 417 B. Plaintiff's Sexual Behavior with Third Parties and Outside the Workplace. 422 C. The Sexual Harassment Shield--Rule 412. 425 III. Plaintiff's Psychological and... 1998
Julie S. Northup THE "SAME ACTOR INFERENCE" IN EMPLOYMENT DISCRIMINATION: CHEAP JUSTICE? 73 Washington Law Review 193 (January, 1998) In Proud v. Stone, a 1991 age-related employment discrimination case, the Fourth Circuit established the evidentiary principle that a strong inference of nondiscrimination arises when the same person hires and then fires the plaintiff within a short period of time. This same actor inference has been adopted in varying degrees by six... 1998
Karen F. Mahoney THE AFTER-ACQUIRED EVIDENCE DOCTRINE: AN ADDITIONAL HURDLE FOR THE VICTIM OF EMPLOYMENT DISCRIMINATION 3 Suffolk Journal of Trial and Appellate Advocacy 111 (1998) The lesson for employers: If you don't like the hand you're dealt, reshuffle the deck. In employment discrimination law practice, opposing parties must climb a series of steps before reaching trial. At one such step, the defendant employer decides which defense to assert against the plaintiff employee's allegation of discrimination. If in agreement... 1998
Gilbert F. Casellas THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: CHALLENGES FOR THE TWENTY-FIRST CENTURY 1 University of Pennsylvania Journal of Labor and Employment Law 1 (Spring, 1998) Who is more deserving of protection from discrimination on the job? Some might argue in favor of African Americans, who were the objects of the most offensive, legally sanctioned racial oppression of any group in our country's history. The civil rights movement and resulting legislation were a reaction to the segregation imposed on African... 1998
Gerald J. “Jerry” Huffman, Jr. THE NEW LOUISIANA EMPLOYMENT STATUTES: WHAT HATH THE LEGISLATURE WROUGHT 58 Louisiana Law Review 1033 (Summer 1998) Louisiana, as with many southern states, was slow to enact employment discrimination legislation. While Congress had provided protection against racial, sexual, religious discrimination in 1964, age discrimination in 1967, and disability discrimination in 1973, our state's first enactment in this area was to provide protection against age... 1998
Marley S. Weiss THE SUPREME COURT 1997-1998 LABOR AND EMPLOYMENT LAW TERM (PART I): THE SEXUAL HARASSMENT DECISIONS 14 Labor Lawyer 261 (Fall, 1998) Specialists in the field of labor and employment law will remember this Supreme Court term as the year of the sexual harassment trilogy, or perhaps, counting the Title IX case decided this year, quartet. The Paula Jones litigation has further contributed to the public impression that this has been the year of sexual harassment litigation. At the... 1998
Cynthia L. Estlund THE WORKPLACE IN A RACIALLY DIVERSE SOCIETY: PRELIMINARY THOUGHTS ON THE ROLE OF LABOR AND EMPLOYMENT LAW 1 University of Pennsylvania Journal of Labor and Employment Law 49 (Spring, 1998) President Clinton stirred some hope, along with some cynicism, in his effort to initiate a national conversation about race. Race unquestionably divides Americans-particularly black and white Americans-in their experiences and in their perceptions of the world, of social policy, and of each other. Few question the need for a more honest... 1998
Joseph J. Ward A CALL FOR PRICE WATERHOUSE II: THE LEGACY OF JUSTICE O'CONNOR'S DIRECT EVIDENCE REQUIREMENT FOR MIXED-MOTIVE EMPLOYMENT DISCRIMINATION CLAIMS 61 Albany Law Review 627 (1997) In 1989 the United States Supreme Court decided Price Waterhouse v. Hopkins, a mixed-motive employment discrimination case establishing the requirement that a plaintiff must produce direct evidence of discrimination before the burden of proof will shift to the defendant in Title VII claims. Prior to its decision in Price Waterhouse, the Court had... 1997
Carroll Seron, PH.D., Project Coordinator, Martin Frankel, PH.D. Douglas Muzzio, PH.D. Joseph Pereira, PH.D. Gregg Van Ryzin, PH.D., School of Public Affairs Baruch College, City University of New York in Collaboration With Louis Harris and Associates, In A REPORT OF THE PERCEPTIONS AND EXPERIENCES OF LAWYERS, JUDGES, AND COURT EMPLOYEES CONCERNING GENDER, RACIAL AND ETHNIC FAIRNESS IN THE FEDERAL COURTS OF THE SECOND CIRCUIT OF THE UNITED STATES 1997 Annual Survey of American Law 415 (1997) Summary. 419 Chapter 1 Introduction. 429 Chapter 2 Does Gender or Race Matter in the Federal Courts of the Second Circuit?. 434 Chapter 3 Interactions Among Professionals. 450 Chapter 4 The Treatment of Parties and Witnesses. 471 Appendix A Design of the Study of Gender, Racial, and Ethnic Fairness in the Federal Courts of the Second Circuit:... 1997
Theresa M. Waugh ADDING TO THE CONFUSION SURROUNDING EMPLOYMENT DISCRIMINATION ACTIONS TO THE SECOND CIRCUIT: CHERTKOVA v. CONNECTICUT GENERAL LIFE INSURANCE CO. 29 Connecticut Law Review 1827 (Summer, 1997) On August 9, 1996, the Second Circuit Court of Appeals decided Chertkova v. Connecticut General Life Insurance Company, an employment discrimination action involving a plaintiff's challenge to the district court's decision granting summary judgment to the defendant. Though ultimately yielding a valid outcome, the court of appeals' analysis... 1997
Amy C. Singleton CIVIL RIGHTS--HOSTILE WORK ENVIRONMENT HARASSMENT--DUTY OF EMPLOYER TO ELIMINATE "COLD SHOULDER TREATMENT" 64 Tennessee Law Review 537 (Winter, 1997) Brenda Campbell sued her employer, Florida Steel Corporation, alleging that she had been subjected to discrimination based on race and sex by several of her co-workers. The plaintiff, a black female, initially complained to her supervisor that three of her male co-workers had harassed her by making sexually explicit and racially derogatory... 1997
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