Alex B. Long TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS: "THE OTHER WHITE MEAT" OF EMPLOYMENT LAW 84 Minnesota Law Review 863 (April, 2000) When an attorney representing the interests of an employer receives a copy of a newly-filed complaint, she almost invariably can expect to find buried among the allegations of wrongful conduct an assertion of some collateral tort. In addition to the typical claims of discrimination, wrongful discharge, or breach of contract, a defense attorney can... 2000
Robert M. Smith UNION-NEGOTIATED WAIVERS OF AN EMPLOYEE'S FEDERAL FORUM RIGHTS TO STATUTORY CLAIMS: ARE THEY AN EFFECTIVE MEANS TO EXCLUSIVITY? 65 Missouri Law Review 229 (Winter 2000) Virtually every collective bargaining agreement provides for the use of labor arbitration in the event that the employer, and the union representing the employee, are unable to reach a mutually agreeable result. However, even after Wright v. Universal Maritime Service Corp., it remains unclear whether an agreement to arbitrate can require... 2000
Christina M. Royer WEST V. GIBSON : FEDERAL EMPLOYEES WIN THE BATTLE, BUT ULTIMATELY LOSE THE WAR FOR COMPENSATORY DAMAGES UNDER TITLE VII 33 Akron Law Review 417 (2000) Whatever the EEOC's original mission, and whatever the original hope, today the agency is clearly a failure, serving as little more than an administrative obstacle to resolution of claims . In 1991, Congress passed the Civil Rights Act of 1991 (hereinafter 1991 CRA), which allows victims of intentional employment discrimination to recover... 2000
Pamela J. Holder A SQUARE PEG TRYING TO FIT INTO A ROUND HOLE: THE FEDERAL COMMUNICATION COMMISSION'S EQUAL EMPLOYMENT OPPORTUNITY REGULATIONS IN LUTHERAN CHURCH MISSOURI-SYNOD V. FEDERAL COMMUNICATIONS COMMISSION 32 Akron Law Review 351 (1999) In Lutheran Church-Missouri Synod v. Federal Communication Commission, the District of Columbia Circuit Court of Appeals held that the Federal Communications Commission's equal employment regulations (EEO) were unconstitutional. The Church challenged the application of the FCC's religious preference exemption policy and the future effect of the EEO... 1999
Judith J. Johnson A UNIFORM STANDARD FOR EXEMPLARY DAMAGES IN EMPLOYMENT DISCRIMINATION CASES 33 University of Richmond Law Review 41 (March, 1999) The standards for exemplary damages in employment discrimination cases are in disarray. The major federal provisions that prohibit private employment discrimination, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 1981 (§ 1981), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act... 1999
Rachel M. Wolf A. Inviting Employers to Retaliate Against Employees Who Assert Their Rights Under Title VII 58 Maryland Law Review 1280 (1999) In Munday v. Waste Management of North America, Inc., the United States Court of Appeals for the Fourth Circuit held that an employer's conduct of instruct[ing] [other] employees to ignore and spy on their coworker after she filed an employment discrimination charge did not, in itself, constitute actionable retaliation under section 704(a) of... 1999
STACEY M. BRANDENBURG ALTERNATIVES TO EMPLOYMENT DISCRIMINATION AT PRIVATE RELIGIOUS SCHOOLS 1999 Annual Survey of American Law 335 (1999) Congress launched a seemingly formidable attack on employment discrimination in passing Title VII of the Civil Rights Act of 1964 (the Act), which outlaws the deprivation of employment opportunities on account of race, color, religion, sex, or national origin. The Act also created the Equal Employment Opportunity Commission which, empowered by... 1999
Geraldine Szott Moohr ARBITRATION AND THE GOALS OF EMPLOYMENT DISCRIMINATION LAW 56 Washington and Lee Law Review 395 (Spring 1999) Table of Contents I. Introduction. 396 II. Arbitration. 401 A. The Federal Arbitration Act and Commercial Arbitration. 404 B. Federal Labor Law and Labor Arbitration. 405 III. The Supreme Court and the Arbitration of Statutory Claims. 406 A. Public Policy Renders Statutory Claims Inarbitrable. 407 1. Commercial Arbitration of Securities Fraud... 1999
Jennifer L. Reichert AT-WILL EMPLOYEE MAY FILE §1981 CLAIM, FOURTH CIRCUIT RULES 35-JUN Trial 96 (June, 1999) A ruling by the Fourth Circuit may help put to rest the common defense argument that at-will employment is not a contractual relationship and, therefore, at-will employees cannot sue for civil rights violations under 42 U.S.C. §1981. The Fourth Circuit joins the Fifth Circuit in ruling that these employees may file race discrimination claims under... 1999
Susan Bisom-Rapp BULLETPROOFING THE WORKPLACE: SYMBOL AND SUBSTANCE IN EMPLOYMENT DISCRIMINATION LAW PRACTICE 26 Florida State University Law Review 959 (Summer, 1999) I. Introduction. 959 II. Law in Everyday Life: Employer Responses to Civil Rights Law. 967 III. Defense Practice in Everyday Life. 976 A. The Ubiquity of Litigation Prevention Advice. 980 B. Why Employers Listen. 984 C. Scripting Reality with Litigation Prevention Advice. 988 1. Ensuring the Continual Production of Favorable Evidence. 992 (a)... 1999
Noel Evans CIVIL RIGHTS--FEDERAL REMEDIES: THE UNITED STATES SUPREME COURT, AS FEDERAL FLAGSHIP FOR EMPLOYMENT EQUALITY, BALANCES RESPONSIBILITY BETWEEN EMPLOYER AND VICTIM BY IMPOSING VICARIOUS LIABILITY SUBJECT TO AN AFFIRMATIVE DEFENSEFOR SUPERVISOR SEXUAL HARASS 75 North Dakota Law Review 87 (1999) Kimberly Ellerth was employed in March 1993 by Burlington Industries, Inc., initially as a merchandising assistant and later promoted to sales representative. Fifteen months later, Ellerth resigned after being repeatedly subjected to sexually inappropriate remarks and touches by a supervisor, Theodore Slowik. Besides degrading and offensive... 1999
Lynn Evans CONFUSION IN THE COURT: SEXUAL HARASSMENT LAW, EMPLOYER LIABILITY, AND STATUTORY PURPOSE 21 Loyola of Los Angeles International and Comparative Law Journal 521 (July, 1999) Sexual harassment law has come a long way in the twenty years since the term sexual harassment first entered the lexicon. The behavior once regarded as a normal if sometimes offensive part of human interaction is now, depending on the circumstances, redressable as illegal discrimination based on gender. In particular, more and more U.S. courts... 1999
  CONSTITUTIONAL LAW--EQUAL PROTECTION--D.C. CIRCUIT FINDS FCC'S EQUAL EMPLOYMENT OPPORTUNITY REGULATIONS UNCONSTITUTIONAL.--LUTHERAN CHURCH-MISSOURI SYNOD V. FCC, 141 F.3D 344 (D.C. CIR.), REH'G EN BANC DENIED, 154 F.3D 487 (D.C. CIR. 1998). 112 Harvard Law Review 988 (February, 1999) In Adarand Constructors, Inc. v. Pena, the Supreme Court's most recent affirmative action decision, the Court determined that strict scrutiny must be applied to all federal, state, and local government programs that employ racial classifications. Last April, in Lutheran Church-Missouri Synod v. FCC, the Court of Appeals for the District of Columbia... 1999
By Susan Bisom-Rapp DISCERNING FORM FROM SUBSTANCE: UNDERSTANDING EMPLOYER LITIGATION PREVENTION STRATEGIES 3 Employee Rights and Employment Policy Journal 1 (1999) Employment discrimination law has reached its mature phase. Long gone are the days when women and minorities were categorically denied access to the most lucrative and prestigious occupations. The civil rights revolution has enabled members of many protected groups to make significant economic gains. Yet despite undeniable progress, empirical... 1999
AndrÉ G. Travieso EMPLOYEE FREE SPEECH RIGHTS IN THE WORKPLACE: BALANCING THE FIRST AMENDMENT AGAINST RACIST SPEECH BY POLICE OFFICERS 51 Rutgers Law Review 1377 (Summer, 1999) Debates have long raged on the extent to which state governments as employers are entitled to limit the constitutional rights to the freedom of speech and expression of their public employees. Although the issue had been considered by the courts, it was not the subject of much debate until a recent incident in New York City involving a police... 1999
B. Glenn George EMPLOYER LIABILITY FOR SEXUAL HARASSMENT: THE BUCK STOPS WHERE? 34 Wake Forest Law Review 1 (Spring 1999) The author reviews recent Supreme Court guidance that refines and clarifies the standard for employer liability in Title VII sexual harassment cases. Although some have touted these recent cases as a victory for the plaintiffs, which impose greater liability on employers, these decisions have added few practical implications for employer behavior.... 1999
Louis P. DiLorenzo , Laura H. Harshbarger EMPLOYER LIABILITY FOR SUPERVISOR HARASSMENT AFTER ELLERTH AND FARAGHER 6 Duke Journal of Gender Law & Policy 3 (Spring, 1999) In recent years, the law of sexual harassment under Title VII has been evolving at an exhausting pace. The amount of development in Title VII case law is due as much to the sheer number of sexual harassment suits as to the relative lack of guidance from the Supreme Court in this area. However, in its most recent term, the Supreme Court granted... 1999
Matt Vega EMPLOYER LIABILITY IN SEXUAL HARASSMENT CASES: TWO NEW U.S. SUPREME COURT DECISIONS 60 Alabama Lawyer 43 (January, 1999) In its most recent term, the United States Supreme Court issued three decisions that significantly expand the law against sexual harassment in the workplace (and one additional decision concerning liability of educational institutions for sexual harassment of students by employees). Two of these landmark cases, Burlington Industries, Inc.,... 1999
Jill Kreisberg EMPLOYERS AND EMPLOYEES BEWARE: THE DUTIES IMPOSED BY THE RECENT SUPREME COURT DECISIONS AND THEIR IMPACT ON SEXUAL HARASSMENT LAW 6 Cardozo Women's Law Journal 153 (1999) The now infamous case brought by Paula Corbin Jones against President Clinton did more than lead the President down the road to impeachment. The case gave national attention to the problem of sexual harassment for the first time since Anita Hill's allegations of sexual harassment by Justice Clarence Thomas. While the nation watched the unfolding... 1999
Angela Scott EMPLOYERS BEWARE! THE UNITED STATES SUPREME COURT OPENS THE FLOODGATES ON EMPLOYER LIABILITY UNDER TITLE VII. BURLINGTON INDUSTRIES, INC. V. ELLERTH, 118 S. CT. 2257 (1998) 24 Southern Illinois University Law Journal 157 (Fall, 1999) The United States Court of Appeals for the Seventh Circuit, when deciding Jansen v. Packaging Corp. of America, appealed to the United States Supreme Court to bring order to the chaotic case law in this important field of practice. The Supreme Court answered by agreeing to hear two sexual harassment cases to clarify employer liability for sex... 1999
by Peter Reed Corbin ; and Richard L. Ruth EMPLOYMENT DISCRIMINATION 50 Mercer Law Review 969 (Summer 1999) The 1998 survey period presented an extremely active year in the employment discrimination arena, not only for the Eleventh Circuit, but also for the United States Supreme Court. Three key decisions were rendered by the Supreme Court on sexual harassment and same-sex discrimination, and another decision was rendered on the arbitrability of ADA... 1999
Tracey Williams Overman EMPLOYMENT DISCRIMINATION LAW-TITLE VII AND SAME-SEX SEXUAL HARASSMENT-CLOSING THE GREAT DIVIDE: WHAT TO DO IN A SAME-SEX SEXUAL HARASSMENT CASE. ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC., 118 S. CT. 998 (1998). 21 University of Arkansas at Little Rock Law Review 323 (Winter, 1999) In Oncale v. Sundowner Offshore Services, Inc., the United States Supreme Court decided that same-sex sexual harassment is a form of sex discrimination; it then held that sex discrimination comprised of same-sex sexual harassment is actionable under Title VII of the Civil Rights Act of 1964. The decision ended a division among lower courts... 1999
Bryan J. Pattison EMPLOYMENT LAW: BURLINGTON INDUSTRIES, INC. V. ELLERTH AND FARAGHER V. CITY OF BOCA RATON: A CLEAR RULE OF DETERRENCE OR AN INVITATION TO LITIGATE? THE SUPREME COURT RULES ON EMPLOYER LIABILITY FOR SUPERVISORY SEXUAL HARASSMENT 52 Oklahoma Law Review 461 (Fall, 1999) In the 1982 best-seller In Search of Excellence, management consultants Tom Peters and Robert Waterman issued these simple words of advice to companies aspiring to obtain the status of excellence: Treat people as adults; [t]reat them as partners; treat them with dignity; treat them with respect . . . ; [t] here [is] hardly a more pervasive theme... 1999
Michelle Cucuzza EVALUATING EMOTIONAL DISTRESS DAMAGE AWARDS TO PROMOTE SETTLEMENT OF EMPLOYMENT DISCRIMINATION CLAIMS IN THE SECOND CIRCUIT 65 Brooklyn Law Review 393 (Spring, 1999) Although the number of civil cases filed in our nation's federal courts rose sharply in the past decade, the escalation of employment discrimination litigation has been particularly astounding. The Second Circuit, which at last glance maintained the fifth largest docket of all the circuits, has also experienced a surge in employment litigation. As... 1999
Michael D. Moberly EVOLUTION IN THE CIVIL RIGHTS REVOLUTION: THE SURVIVAL OF EMPLOYMENT DISCRIMINATION CLAIMS FOR PAIN AND SUFFERING 17 Hofstra Labor & Employment Law Journal 1 (Fall 1999) Title VII of the Civil Rights Act of 1964 (Title VII) protects individuals from employment discrimination on a variety of bases, including race, color, religion, sex and national origin. As the first comprehensive federal employment discrimination legislation ever enacted, Title VII heralded a revolutionary change in the legal landscape and in... 1999
Valerie H. Hunt FARAGHER V. BOCA RATON: EMPLOYER LIABILITY IN HOSTILE ENVIRONMENT SEXUAL HARASSMENT CASES--IGNORANCE IS NO LONGER BLISS 52 Arkansas Law Review 479 (1999) Title VII of the Civil Rights Act of 1964 (Title VII) protects an employee from sexual harassment in the workplace. Under Title VII, employers cannot discriminate against any individual with respect to terms, conditions, or privileges of employment based on such individual's race, color, religion, sex, or national origin. In applying Title VII's... 1999
Lionel M. Schooler FIFTH CIRCUIT HOLDS THAT AT-WILL EMPLOYEES HAVE CAUSE OF ACTION UNDER SECTION 1981 FOR RACIAL DISCRIMINATION DURING EMPLOYMENT 36-FEB Houston Lawyer 42 (January-February, 1999) The United States Court of Appeals for the Fifth Circuit recently confronted an issue of first impression in Fadeyi vs. Planned Parenthood Association of Lubbock, Inc.: Whether a Texas employment-at-will relationship is a contract for the purposes of 42 U.S.C. § 1981. Finding that such a relationship is such a contract, the Court reversed a... 1999
Robert E. Wone HOW FREE IS HARASSMENT FREE? EMPLOYER LIABILITY FOR THIRD-PARTY RACIAL HARASSMENT 2 University of Pennsylvania Journal of Labor and Employment Law 179 (Spring 1999) Freda and Sonia, both African-Americans, are waitresses at a local hotel. A local civic group has booked the ballroom and invited a noted comedian as the entertainment for the evening. The group has informed the hotel management that the comedian will be performing. The hotel manager is aware, from personal experience at another banquet, that the... 1999
Kim Houghton INTERNET PORNOGRAPHY IN THE LIBRARY: CAN THE PUBLIC LIBRARY EMPLOYER BE LIABLE FOR THIRD-PARTY SEXUAL HARASSMENT WHEN A CLIENT DISPLAYS INTERNET PORNOGRAPHY TO STAFF? 65 Brooklyn Law Review 827 (Fall 1999) On its website, the American Civil Liberties Union (ACLU) provides answers to questions interested parties might pose regarding public library attempts to restrict access to Internet materials of a sexual nature, including the following: Q: Would libraries that do not use blocking software be liable for sexual harassment in the library? A: No.... 1999
Lisa Gelhaus JUDGE SAYS PIZZA HUT IS RESPONSIBLE FOR EMPLOYEES' RACIAL HARASSMENT 35-MAR Trial 98 (March, 1999) Pizza Hut of America, Inc., settled a lawsuit after a federal judge found that restaurant employees' discourteous service to an African American family was racially motivated and that the company was liable under the Illinois Hate Crimes Act of 1995. The late December settlement comes several months after U.S. District Judge William Hart denied... 1999
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