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
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
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