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
Ronald Turner COMPULSORY ARBITRATION OF EMPLOYMENT DISCRIMINATION CLAIMS WITH SPECIAL REFERENCE TO THE THREE A'S-ACCESS, ADJUDICATION, AND ACCEPTABILITY 31 Wake Forest Law Review 231 (Spring 1996) In recent years, companies and employees have turned more frequently to compulsory arbitration to resolve employment and labor disputes. The use of compulsory arbitration to resolve statutory-based discrimination claims, in particular, has come under increasing scrutiny. Concerns have developed over the possibility that compulsory arbitration may... 1996
Adrian Rust DEFENSES OF LEGISLATIVE IMMUNITY AND QUALIFIED IMMUNITY DO NOT APPLY TO LOCAL OFFICIALS WHO VOTE TO REPLACE AN EMPLOYEE BECAUSE OF THE EMPLOYEE'S RACE 25 Stetson Law Review 963 (Spring, 1996) The United States Court of Appeals for the Eleventh Circuit held defenses of legislative immunity and qualified immunity did not apply to members of a county board of commissioners who cast the deciding votes to replace a white female clerk based solely on her race. Id. at 407-08. The Board of Commissioners of Fulton County, Georgia voted to... 1996
Theresa M. Beiner DO REINDEER GAMES COUNT AS TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT UNDER TITLE VII? 37 Boston College Law Review 643 (July, 1996) The Civil Rights Act of 1991 has expanded the type of relief available under Title VII of the Civil Rights Act of 1964 (Title VII) and related legislation and has solidified the theories of relief under that law. Despite these improvements, there still is a need for gap-filling in the way Title VII is applied. Many commentators and governmental... 1996
Suzanne E. Riley EMPLOYEES' RETALIATION CLAIMS UNDER 42 U.S.C. S 1981: RAMIFICATIONS OF THE CIVIL RIGHTS ACT OF 1991 79 Marquette Law Review 579 (Winter 1996) Prior to the United States Supreme Court's decision in Patterson v. McLean Credit Union, lower courts consistently recognized employer liability under 42 U.S.C. s 1981 (s 1981) for retaliation against employees. Section 1981 prohibited retaliation against employees for such actions as filing an Equal Employment Opportunity Commission (EEOC) charge,... 1996
George H. Singer EMPLOYING ALTERNATIVE DISPUTE RESOLUTION: WORKING AT FINDING BETTER WAYS TO RESOLVE EMPLOYER-EMPLOYEE STRIFE 72 North Dakota Law Review 299 (1996) Employment litigation is a little like holy war and a lot like divorce. Both sides are so convinced their cause is just that compromise is possible only when litigants are convinced that trial will not produce justice. Delay favors the deep pocket. Before the settlement, legal fees mount, but the money holder gets an interest free loan. Not... 1996
Mary Cornish EMPLOYMENT AND PAY EQUITY IN CANADA - SUCCESS BRINGS BOTH ATTACKS AND NEW INITIATIVES 22 Canada-United States Law Journal 265 (1996) The profile of Canada's workforce is changing. Many young aboriginal people are entering the workforce; more women than ever before are working outside the home; people with disabilities are claiming their right to participate fully in employment; the population is becoming more racially and culturally diverse. All of these changes are being... 1996
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