Joshua A. Hawks-Ladds LABOR RELATIONS AND EMPLOYMENT LAW: 1998 DEVELOPMENTS IN CONNECTICUT 73 Connecticut Bar Journal 223 (August, 1999) This article reviews significant 1998 employment-related decisions of the Connecticut supreme, appellate, and superior courts and the State of Connecticut Board of Labor Relations, as well as important 1998 legislation. Momentous supreme court decisions were sparse in 1998, with Brittell v. Department of Correction standing out as the most... 1999
Rodric B. Schoen PICKERING PLUS THIRTY YEARS: PUBLIC EMPLOYEES AND FREE SPEECH 30 Texas Tech Law Review 5 (1999) I. Introduction. 5 II. Public Employee Speech: Protected or Not Protected?. 7 A. The First Major Case: Pickering. 7 B. Two Minor Cases: Mt. Healthy and Givhan. 13 C. The Second Major Case: Connick. 16 1. The Connick Majority. 16 2. The Connick Dissent. 23 3. Connick's Impact: The Balancing Test Causes Confusion. 24 D. The Final Major Case: Rankin.... 1999
Andrew P. Morriss PRIVATE AMICI CURIAE AND THE SUPREME COURT'S 1997-1998 TERM EMPLOYMENT LAW JURISPRUDENCE 7 William & Mary Bill of Rights Journal 823 (April, 1999) The amicus curiae brief has become a common occurrence in today's legal arena, especially with the proliferation of private interest groups that specialize in numerous topics of political and social interest. The substantial increase in the use of amici briefs, however, has sparked criticism concerning both the costs (in effort and resources)... 1999
Leigh Woodruff Marquardt PROGRAMMING THE FUTURE OF EQUAL EMPLOYMENT OPPORTUNITY IN BROADCASTING: LUTHERAN CHURCH-MISSOURI SYNOD V. FCC 6 Villanova Sports and Entertainment Law Journal 347 (1999) Minorities and women have a very small role in the communications industry. Bias both conscious and unconscious, reflecting traditional and unexamined . . . habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice. Despite the growing importance... 1999
Scott K. Hewitt PUBLIC EMPLOYMENT: DISCRIMINATION 28 Stetson Law Review 929 (Winter, 1999) Under the burden shifting framework of Title VII, circumstantial evidence that an employer stated the plaintiff was intimidating because of his strut and because he was a very large, very strong, very muscular, black man compared to three overweight white men, did establish a genuine issue of material fact as to the truth of the employer's... 1999
Brenda R. Mesker SEX DISCRIMINATION: DEFINING STANDARDS OF EMPLOYER LIABILITY FOR HOSTILE WORK ENVIRONMENT CLAIMS 38 Washburn Law Journal 977 (Summer 1999) Employer liability for sexual harassment perpetrated by a supervisor against a subordinate employee is an area of the law that has produced much debate in recent years. In Faragher v. City of Boca Raton, the United States Supreme Court establishes a standard by which to evaluate employer liability under Title VII of the Civil Rights Act of 1964 for... 1999
Joseph C. Feldman STANDING AND DELIVERING ON TITLE VII'S PROMISES: WHITE EMPLOYEES' ABILITY TO SUE EMPLOYERS FOR DISCRIMINATION AGAINST NONWHITES 25 New York University Review of Law and Social Change 569 (1999) Over twenty-five years ago, the Supreme Court in Trafficante v. Metropolitan Life Insurance Co. held that a white resident of an apartment complex had standing to sue the building owners for rental practices that discriminated against minority applicants. In a unanimous ruling, the Court reasoned that because the owner's racially discriminatory... 1999
Jennifer R. Taylor THE "SAME ACTOR INFERENCE:" A MECHANISM FOR EMPLOYMENT DISCRIMINATION? 101 West Virginia Law Review 565 (Spring, 1999) I. Introduction. 565 II. Background. 567 A. McDonnell Douglas Corp. v. Green. 567 B. Proud v. Stone. 568 III. Recent Developments. 570 A. The Expansion of the Same Actor Inference to Include All Protected Classes and the Elimination of the Time Requirement Expressed in Proud. 571 1. Gender Discrimination and Time Requirement. 571 2. Race and... 1999
Elizabeth M. Brama THE CHANGING BURDEN OF EMPLOYER LIABILITY FOR WORKPLACE DISCRIMINATION 83 Minnesota Law Review 1481 (May, 1999) Kimberly Ellerth worked as a salesperson for Burlington Industries before she quit, claiming she had been forced out of her job by workplace sexual harassment. Ellerth alleged that Ted Slowik, a supervisor and vice president of her division, repeatedly propositioned her, made lewd and offensive sexual remarks, and threatened her job when she... 1999
Paul Buchanan,Courtney W. Wiswall THE EVOLVING UNDERSTANDING OF WORKPLACE HARASSMENT AND EMPLOYER LIABILITY: IMPLICATIONS OF RECENT SUPREME COURT DECISIONS UNDER TITLE VII 34 Wake Forest Law Review 55 (Spring 1999) The authors discuss the impact of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, two recent United States Supreme Court decisions addressing employer liability for sexually harassing conduct of subordinate employees by supervisors. The authors explore the practical implications of those rulings on employers'... 1999
Ernest F. Lidge III THE MEANING OF DISCRIMINATION: WHY COURTS HAVE ERRED IN REQUIRING EMPLOYMENT DISCRIMINATION PLAINTIFFS TO PROVE THAT THE EMPLOYER'S ACTION WAS MATERIALLY ADVERSE OR ULTIMATE 47 University of Kansas Law Review 333 (January, 1999) I. Introduction. 334 II. Proving an Employment Discrimination Case. 340 A. Types of Discrimination Claims. 340 B. The Statutory Language. 341 C. Proving an Individual Disparate Treatment Case. 341 III. The Development of the Materially Adverse Requirement. 346 A. Ferguson and the Transformation of Adverse from a Shorthand Expression to a... 1999
Marley S. Weiss THE SUPREME COURT 1997-1998 LABOR AND EMPLOYMENT LAW TERM (PART II): THE NLRA, TAKINGS CLAUSE, AND ADA CASES 14 Labor Lawyer 533 (Winter/Spring, 1999) The 1997-1998 Supreme Court term had more than its share of significant employment-related cases, and assessed as a whole, it signals some important trends indicative of future directions the Court may take in the field of labor and employment law. Out of fifteen decisions in cases raising at least one workplace law claim, at least five merit... 1999
Jessica Mollie Marlies THE WHYS OF LIES AND VAUGHAN V. METRAHEALTH: CAN AN EMPLOYER'S LIE BE USED TO MAKE AN INFERENCE OF DISCRIMINATION? 77 North Carolina Law Review 2246 (September, 1999) Imagine that you are an African-American job applicant. You apply for a position for which you are qualified, but the employer does not hire you. Instead, it continues the search and hires a white applicant with similar qualifications. You suspect that the employer did not hire you because of racial prejudice. You file suit, and the employer... 1999
Deana A. Pollard UNCONSCIOUS BIAS AND SELF-CRITICAL ANALYSIS: THE CASE FOR A QUALIFIED EVIDENTIARY EQUAL EMPLOYMENT OPPORTUNITY PRIVILEGE 74 Washington Law Review 913 (October, 1999) Recent breakthroughs in social psychology have resulted in the ability to measure unconscious bias scientifically. Studies indicate that prejudiced responses are largely unconscious, the result of normal cognitive processing and stereotypical associations of which the prejudiced subject may be completely unaware. The studies also indicate... 1999
Stuart J. Goldstein VICARIOUS EMPLOYER LIABILITY FOR SUPERVISORY SEXUAL HARASSMENT: "SEE NO EVIL, HEAR NO EVIL" IS NO EXCUSE 29 Seton Hall Law Review 1037 (1999) Claims of sexual harassment in the workplace are generally brought under Title VII of the Civil Rights Act of 1964, which, in part, prohibits employment discrimination on the basis of sex. As the number of sexual harassment complaints skyrockets, courtrooms, boardrooms, and lunchrooms across the country are buzzing with discussion and debate over... 1999
Harry T. Edwards WHERE ARE WE HEADING WITH MANDATORY ARBITRATION OF STATUTORY CLAIMS IN EMPLOYMENT? 16 Georgia State University Law Review 293 (Winter, 1999) The subject of mandatory arbitration of statutory claims in employment has been a matter of great interest to the courts in recent years. My thinking on this subject is influenced by my current position as a federal judge. It is also informed, however, by my former work as a labor law practitioner in Chicago, my time as a labor law teacher and... 1999
David Monassebian A SURVEY OF FEDERAL CASES INVOLVING EMPLOYER VICARIOUS LIABILITY FOR SEXUAL HARASSMENT 8 Boston University Public Interest Law Journal 175 (Fall, 1998) The plaintiff, a former employee of Burlington Industries Inc., invoked Title VII of the Civil Rights Act of 1964 against Burlington Industries, Inc. seeking damages, arguing that she was subjected to constant sexual harassment by her supervisor. Hostile work environment sexual harassment, distinguished from quid pro quo sexual harassment, is... 1998
Mark C. Weber BEYOND THE AMERICANS WITH DISABILITIES ACT:A NATIONAL EMPLOYMENT POLICY FOR PEOPLE WITH DISABILITIES 46 Buffalo Law Review 123 (WINTER 1998) Of all the personal narratives about individuals with disabilities and employment, one of the most revealing is that of the well-dressed business traveler, sitting in an airport in her wheelchair with a styrofoam cup full of coffee in her hand. Along comes another traveler, who smiles at her, and then drops a quarter into the cup. The story is... 1998
Mary Ellen Maatman CHOOSING WORDS AND CREATING WORLDS: THE SUPREME COURT'S RHETORIC AND ITS CONSTITUTIVE EFFECTS ON EMPLOYMENT DISCRIMINATION LAW 60 University of Pittsburgh Law Review 1 (Fall, 1998) In 1964, Congress enacted a law for the eradication of discrimination in employment, but said little about the nature of the acts it intended to prohibit. The statute precludes employers from making employment decisions because of ... race, color, religion, sex, or national origin. Congress has never statutorily defined the term because of,... 1998
Suzanne M. Guitar COLLATERAL ESTOPPEL AND EMPLOYMENT SECURITY COMMISSION DECISIONS: STUNTED EFFORTS TO MINIMIZE LITIGATION COSTS 49 South Carolina Law Review 1151 (Summer 1998) In Shelton v. Oscar Mayer Foods Corp. the Supreme Court of South Carolina held that the judicially created doctrine of collateral estoppel should not be applied to prevent the relitigation of issues previously decided in Employment Security Commission (ESC) hearings. In so holding, South Carolina joined the ranks of numerous other jurisdictions... 1998
John-Paul Motley COMPULSORY ARBITRATION AGREEMENTS IN EMPLOYMENT CONTRACTS FROM GARDNER-DENVER TO AUSTIN: THE LEGAL UNCERTAINTY AND WHY EMPLOYERS SHOULD CHOOSE NOT TO USE PREEMPLOYMENT ARBITRATION AGREEMENTS 51 Vanderbilt Law Review 687 (April 1, 1998) I. Introduction. 688 II. Supreme Court History on Enforceability of Mandatory Arbitration Clauses in Labor and Employment Agreements. 690 A. The Federal Arbitration Act of 1925. 691 B. Alexander v. Gardner-Denver Co. and Its Progeny. 693 C. Mitsubishi Trilogy of Arbitration Cases Involving Statutory Claims. 695 D. Gilmer v. Interstate/Johnson Lane... 1998
Alfred W. Blumrosen , Ruth G. Blumrosen , Marco Carmignani , Thomas Daly DOWNSIZING AND EMPLOYEE RIGHTS 50 Rutgers Law Review 943 (Spring, 1998) This Article examines how millions of jobs have been lost through the downsizing process in the last decade, with little regard for Title VII, the ADEA, ERISA, and state contract law. It explains how employers insulate themselves from liability by planning in advance to pay severance pay to those who are fired in exchange for waivers of all rights.... 1998
Alfred W. Blumrosen , Ruth G. Blumrosen , Marco Carmignani , Thomas Daly DOWNSIZING--EMPLOYEE RIGHTS OR EMPLOYER PREROGATIVE? 2 Employee Rights and Employment Policy Journal 1 (1998) I. Introduction. 3 A. The Downsizing Plan. 4 B. Emerging Worker Rights to Timely Information Concerning Major Employment Issues. 9 II. Reviewing the Decision to Downsize. 12 A. Review under Title VII. 13 1. Downsizing is a Selection Procedure Under Title VII. 13 2. Establishing Disparate Impact of Downsizing. 14 3. Disparate Impact Doctrine... 1998
David Charny , G. Mitu Gulati EFFICIENCY-WAGES, TOURNAMENTS, AND DISCRIMINATION: A THEORY OF EMPLOYMENT DISCRIMINATION LAW FOR "HIGH-LEVEL" JOBS 33 Harvard Civil Rights-Civil Liberties Law Review 57 (Winter, 1998) Although economists and sociologists continue to dispute the role of discrimination law in contributing to blacks' economic progress in the 1960s and 1970s, there is an emerging consensus that the success story of that period is unlikely to be replicated in the next decade. The circumstances that enabled the law to be effective during that period... 1998
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
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