Robert Cavallaro CORPORATE BUYER BEWARE: DEFICIENCIES IN DIRECTORS' AND OFFICERS' INSURANCE FOR EMPLOYMENT PRACTICES LIABILITY 26 Hofstra Law Review 217 (Fall 1997) C1-3Contents I. Introduction. 218 II. Directors' and Officers' Liability Insurance. 220 A. Introduction. 220 B. Background. 221 C. Two Coverages Within One Policy. 223 III. Employment-Related Liability on the Rise. 224 IV. Wrongful Employment Practices. 227 V. Title VII, ADEA, ADA, and the 1991 Act. 228 VI. The Federal Circuit Courts' Position on... 1997
Stacey Dansky ELIMINATING STRICT EMPLOYER LIABILITY IN QUID PRO QUO SEXUAL HARASSMENT CASES 76 Texas Law Review 435 (December, 1997) The circuit courts' treatment of employer liability for quid pro quo sexual harassment has become devoid of meaningful analysis. Once a plaintiff makes out a prima facie case of quid pro quo sexual harassment, an employer's liability for the harassing acts of its supervisors is usually a foregone conclusion--courts almost uniformly hold employers... 1997
Donna Domagala EMPLOYEE SUGGESTION PLANS: BUILDING A BETTER MOUSETRAP OR THE MISAPPROPRIATION OF IDEAS? 31 Suffolk University Law Review 391 (1997) The purpose of having an employee suggestion plan is to reward ideas and promote employee participation in the manufacturing process. These programs are to give the employees incentives to work harder and generate possible improvements. The rewards given may be minimal compared to the benefits to the company, but an employee that is rewarded may... 1997
Richard L. Ruth EMPLOYMENT DISCRIMINATION 48 Mercer Law Review 1527 (Summer 1997) The 1996 survey period presented a rather unique year for the Eleventh Circuit in the employment discrimination arena. For example, the long anticipated wave of Americans with Disabilities Act (ADA) litigation finally reached shore. In a different twist, employers fared better than in past years on summary judgment appeals. Finally, the first... 1997
Thomas P. Hustoles , Michelle Caprara Smith EMPLOYMENT DISCRIMINATION CASES IN HIGHER EDUCATION: A REVIEW OF THE 1995 JUDICIAL DECISIONS 23 Journal of College and University Law 403 (Winter, 1997) Although there were no new Supreme Court decisions involving higher education employment discrimination in 1995, the lower courts further applied and developed the precedents established by the Supreme Court in this area. Part I discusses race, color and national origin discrimination claims brought under Title VII and analogous state laws, and... 1997
Paul W. Mollica EMPLOYMENT DISCRIMINATION CASES IN THE SEVENTH CIRCUIT 1 Employee Rights and Employment Policy Journal 63 (Fall 1997) Judge Richard A. Posner, chief judge of the U.S. Court of Appeals of the Seventh Circuit, laments the lack of scholarship into his own branch of the judiciary, the intermediate federal appellate courts. In his 1996 edition of The Federal Courts, Judge Posner remarks that although those courts publish roughly 100 times as many opinions as the... 1997
Greg Guidry EMPLOYMENT DISCRIMINATION CLAIMS IN LOUISIANA 45 Louisiana Bar Journal 240 (October, 1997) The recent highly publicized Texaco settlement of a class action race discrimination claim for $176 million--reportedly the largest settlement ever paid in a race discrimination case--has heightened the awareness of the employment discrimination dynamic in the American workplace. What the Anita Hill/Clarence Thomas hearings did for sexual... 1997
Christopher S. Miller , Brian D. Poe EMPLOYMENT LAW IMPLICATIONS IN THE CONTROL AND MONITORING OF E-MAIL SYSTEMS 6 University of Miami Business Law Journal 95 (Spring, 1997) Like the computer or fax machine, electronic mail (e-mail) has become an indispensable tool of the workplace as one of the principal means of business communication. It was recently estimated that more than 60 million workers currently communicate using e-mail in some fashion, and it has been projected that more than 60 billion e-mail messages... 1997
David G. Harris EMPLOYMENT LAW: O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. - ELIMINATING THE REPLACEMENT OUTSIDE THE PROTECTED CLASS ELEMENT IN ADEA HIRING AND REPLACEMENT CASES 50 Oklahoma Law Review 283 (Summer 1997) Discrimination based on age negatively affects not only those discriminated against but also society as a whole by placing a premium on a presumption of decreased productivity, rather than continued ability. As life expectancies continue to rise, discrimination against older Americans will become an even greater issue in American society. By the... 1997
B. Stephanie Siegmann EMPLOYMENT LAW-HIRE YOUR FRIENDS: FIRST CIRCUIT ACCEPTS "CRONYISM" AS VALID COUNTERARGUMENT TO TITLE VII DISPARATE TREATMENT ACTION-FOSTER v. DALTON, 71 F.3d 52 (1st Cir. 1995) 30 Suffolk University Law Review 991 (Fall, 1997) Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against any individual based upon their race, color, religion, sex, or national origin. In disparate-treatment employment discrimination cases, employees must prove that their employer treated them less favorably than other similarly situated employees... 1997
Theresa M. Beiner , John M. A. DiPippa HOSTILE ENVIRONMENTS AND THE RELIGIOUS EMPLOYEE 19 University of Arkansas at Little Rock Law Journal 577 (Summer, 1997) This article tackles a rarely discussed subject: harassment of religious employees in the workplace. Curious about the manner in which courts were addressing such claims, we examined harassment cases under both Title VII of the Civil Rights Act of 1964 and parallel state laws involving religious employees. What we found was that religious employees... 1997
Francis J. Mootz III INSURANCE COVERAGE OF EMPLOYMENT DISCRIMINATION CLAIMS 52 University of Miami Law Review 1 (October, 1997) I. Introduction: Using Risk Management Techniques to Avoid and Minimize Employment Discrimination Liabilities. 2 II. The Three Dimensions' of Liability Insurance Coverage. 7 A. Primary Coverages. 8 1. Worker's Compensation and Employer's Liability. 8 2. Commercial General Liability. 10 3. Directors and Officers. 12 4. Errors and Omissions. 13 5.... 1997
Lino A. Graglia LESSONS FROM THE LUDICROUS: HOW EMPLOYMENT LAWS ARE DESTROYING THE AMERICAN WORKPLACE 2 Texas Review of Law and Politics 129 (Fall 1997) Walter Olson's The Excuse Factory: How Employment Law is Paralyzing the American Workplace describes the effects of changes in employment law since the mid-1960s. Written with verve, wit, and total clarity, it is one of the most needed books of our time. Olson demonstrates, with hosts of incredulous examples, how so many laws that purport to... 1997
Kingsley R. Browne NONREMEDIAL JUSTIFICATIONS FOR AFFIRMATIVE ACTION IN EMPLOYMENT; A CRITIQUE OF THE JUSTICE DEPARTMENT POSITION 12 Labor Lawyer 451 (Winter/Spring, 1997) In the aftermath of the U.S. Supreme Court's ruling in Adarand Constructors, Inc. v. Pena, which ruled that federally-sponsored racial preferences must meet the same strict scrutiny as state-sponsored plans, supporters of affirmative action have devoted their energies toward formulation of justifications for preferences that will satisfy legal... 1997
Gary Minda OPPORTUNISTIC DOWNSIZING OF AGING WORKERS: THE 1990S VERSION OF AGE AND PENSION DISCRIMINATION IN EMPLOYMENT 48 Hastings Law Journal 511 (March, 1997) In this Article, I am interested in exploring how an otherwise forbidden version of age and pension discrimination in employment can be practiced by firms which have implemented downsizing or reduction-in-force (RIF) strategies. My goal will be to explain how this form of discrimination can be perpetuated in the name of cost containment policies. I... 1997
Samuel Estreicher PREDISPUTE AGREEMENTS TO ARBITRATE STATUTORY EMPLOYMENT CLAIMS 72 New York University Law Review 1344 (December 1, 1997) Over the last decade, the Supreme Court, through its interpretation of the Federal Arbitration Act of 1925 (FAA), has expanded the role of arbitration in the resolution of legal disputes, including disputes arising under federal and state statutes. Recently, much debate has arisen over the issue of whether the FAA applies to employment contracts,... 1997
Michael D. Moberly PROCEEDING GEOMETRICALLY: RETHINKING PARALLEL STATE AND FEDERAL EMPLOYMENT DISCRIMINATION LITIGATION 18 Whittier Law Review 499 (Spring 1997) Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Other federal discrimination laws patterned after Title VII, such as the Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, and the Americans with... 1997
Judith Olans Brown , Stephen N. Subrin , Phyllis Tropper Baumann SOME THOUGHTS ABOUT SOCIAL PERCEPTION AND EMPLOYMENT DISCRIMINATION LAW: A MODEST PROPOSAL FOR REOPENING THE JUDICIAL DIALOGUE 46 Emory Law Journal 1487 (Fall 1997) In the past we, like many others have written extensively about institutionalized discrimination. Most recently, in 1992, we demonstrated how the federal courts, and particularly the Supreme Court, had significantly weakened Title VII of the Civil Rights Act of 1964 by construing procedural rules in a consistently pro-defendant manner. Five years... 1997
Barbara J. Fick THE CASE FOR MAINTAINING AND ENCOURAGING THE USE OF VOLUNTARY AFFIRMATIVE ACTION IN PRIVATE SECTOR EMPLOYMENT 11 Notre Dame Journal of Law, Ethics & Public Policy 159 (1997) A precondition for any discussion of affirmative action is defining the meaning of the term. The concept of affirmative action has been bandied about in such an elastic way that many people view it as a code word for reverse discrimination, lower standards or rigid quotas. As used in this paper, affirmative action is a flexible tool to promote... 1997
Mark S. Brodin THE DEMISE OF CIRCUMSTANTIAL PROOF IN EMPLOYMENT DISCRIMINATION LITIGATION: ST. MARY'S HONOR CENTER v. HICKS, PRETEXT, AND THE "PERSONALITY" EXCUSE 18 Berkeley Journal of Employment and Labor Law 183 (1997) Since the enactment of Title VII of the Civil Rights Act of 1964 the courts have struggled to define the burdens of proof surrounding the central issue of an employer's alleged discriminatory intent. What evolved was the McDonnell Douglas framework, premised upon established concepts of circumstantial proof and inference. The approach permits... 1997
Richard A. Bales THE DISCORD BETWEEN COLLECTIVE BARGAINING AND INDIVIDUAL EMPLOYMENT RIGHTS: THEORETICAL ORIGINS AND A PROPOSED RECONCILIATION 77 Boston University Law Review 687 (October, 1997) Introduction. 688 I. The Decline of Collective Bargaining and the Emergence of Individual Employment Rights. 693 A. The Disappearance of Unions from the Private Sector Workplace. 693 B. The Emergence of Individual Employment Rights. 697 II. Doctrinal Sources of the Conflict Between Collective Bargaining and Individual Employment Rights. 702 A.... 1997
  THE EXCUSE FACTORY: HOW EMPLOYMENT LAW IS PARALYZING THE AMERICAN WORKPLACE. By Walter K. Olson. New York: The Free Press. 1997. PP. 378. $25.00. 111 Harvard Law Review 440 (November, 1997) Motivated by the sudden and explosive growth in the field of employment law, The Excuse Factory critically analyzes the practical effects of employment law in the workplace. Tracing the development of employment law in courts, legislatures, and regulatory agencies, and using anecdotes that are personal, and sometimes unbelievable, Olson examines... 1997
Suzanne U. Samuels THE LASTING LEGACY OF INTERNATIONAL UNION, U.A.W. v. JOHNSON CONTROLS: EQUAL EMPLOYMENT AND WORKPLACE HEALTH AND SAFETY FIVE YEARS LATER 12 Wisconsin Women's Law Journal 1 (Spring 1997) In 1991, the United States Supreme Court handed down its anxiously awaited opinion in United Auto Workers v. Johnson Controls. In an unanimous decision, the Court struck down the employer's fetal protection policy as violative of Title VII of the 1964 Civil Rights Act. The Court held that this policy, which barred fertile women from jobs... 1997
Burton Kainen , Shel D. Myers TURNING OFF THE POWER ON EMPLOYEES: USING EMPLOYEES' SURREPTITIOUS TAPE-RECORDINGS AND E-MAIL INTRUSIONS IN PURSUIT OF EMPLOYER RIGHTS 27 Stetson Law Review 91 (Summer 1997) With the advent of the computer and telecommunications age, and the proliferation of more sophisticated, high-quality recording devices and surveillance equipment, much has been written on the issue of protecting privacy rights of employees in the workplace. A review of this literature and relevant legal precedent suggests that employees generally... 1997
Pat P. Putignano WHY DOMA AND NOT ENDA?: A REVIEW OF RECENT FEDERAL HOSTILITY TO EXPAND EMPLOYMENT RIGHTS AND PROTECTION BEYOND TRADITIONAL NOTIONS 15 Hofstra Labor & Employment Law Journal 177 (Fall 1997) Approximately thirty years have passed since Martin Luther King, Jr. lead thousands of African-Americans on a march to Washington, and Rosa Parks decided to sit in the front of the bus. Yet, as the fight by African-Americans to end racial discrimination in the workplace continues in the midst of great strides, another minority group still fights... 1997
Brendan Sweeney "DOWNSIZING" THE AGE DISCRIMINATION IN EMPLOYMENT ACT: THE AVAILABILITY OF DISPARATE IMPACT LIABILITY 41 Villanova Law Review 1527 (1996) Since the passage of the Age Discrimination in Employment Act of 1967 (ADEA), age discrimination has progressively gained attention in the courts and in the popular media. When an employer terminates or fails to hire a worker who is over forty because of the employer's belief that older workers are slower, more expensive or close-minded, the... 1996
Allen R. Kamp ANTI-PREFERENCE IN EMPLOYMENT LAW: A PRELIMINARY ANALYSIS 18 Chicano-Latino Law Review 59 (Fall 1996) There recently have been proposals to ban preferences for an individual group based on factors such as race, sex, or color. They would add a ban on preferences based on these categories to the already existing ban on discrimination. Characterized as being anti-affirmative action, these proposals have been debated in terms of their constitutionality... 1996
Virginia W. Wei ASIAN WOMEN AND EMPLOYMENT DISCRIMINATION: USING INTERSECTIONALITY THEORY TO ADDRESS TITLE VII CLAIMS BASED ON COMBINED FACTORS OF RACE, GENDER AND NATIONAL ORIGIN 37 Boston College Law Review 771 (July, 1996) born into the skin of yellow women we are born into the armor of warriors Kitty Tsui, Chinatown Talking Story Women of color experience discrimination in multiple spheres that cannot be categorized as solely race-based or solely gender-based. Their experiences are a result of both their race and gender. The identities of women of color must... 1996
David J. Willbrand BETTER LATE THAN NEVER? THE FUNCTION AND ROLE OF AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT DISCRIMINATION LITIGATION 64 University of Cincinnati Law Review 617 (Winter 1996) In employment discrimination litigation, after-acquired evidence refers to that evidence of certain employee misconduct or dishonesty uncovered by an employer after its effectuation of an employment decision adverse to the employee. Such culpable conduct can be classified into two basic categories: (1) on-the-job misconduct and (2) resume or... 1996
Celia Garrett, Scott Nehrbass BOSSES BEWARE--IT'S A JUNGLE OUT THERE: SUPERVISOR LIABILITY IN EMPLOYMENT LITIGATION 65-DEC Journal of the Kansas Bar Association 20 (December, 1996) Supervisors are frequently a target for disgruntled employees in lawsuits arising from workplace disputes. Whether a plaintiff may directly sue and recover from a supervisor varies depending on the claim asserted. Supervisor liability under federal and state discrimination statutes has been treated inconsistently by courts and is an issue that... 1996
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