Renee Levay EMPLOYMENT LAW--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION V. WALDEN BOOK CO.: DOES/SHOULD TITLE VII APPLY TO SAME-GENDER SEXUAL HARASSMENT? 26 University of Memphis Law Review 1601 (Summer 1996) William J. Newberry, an employee of Walden Book Company, doing business as Waldenbooks, alleged that he was sexually harassed by his immediate supervisor Perry Porch, a homosexual male. According to Newberry, the hostile work environment created by Porch had the effect of a constructive discharge. In December of 1993, the Equal Employment... 1996
Alison M. Donahue EMPLOYMENT LAW--RAMIFICATIONS OF ST. MARY'S HONOR CENTER v. HICKS: THE THIRD CIRCUIT'S REVIVAL OF THE "PRETEXT-ONLY" STANDARD AT SUMMARY JUDGMENT 41 Villanova Law Review 1287 (1996) For over twenty years, America has waged war against employment discrimination. Two congressional enactments, Title VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in Employment Act of 1967 (ADEA), marked the first stage of the crusade against arbitrary discrimination in the workplace. A series of United States Supreme... 1996
Ann Hassenpflug, Ph.D. andRobert O. Riggs, Ed.D. GUILTY UNTIL PROVEN INNOCENT? PROTECTING THE RIGHTS OF SCHOOL DISTRICT EMPLOYEES 104 West's Education Law Reporter 981 (January, 1996) Who steals my purse steals trash; 'tis something, nothing; Twas mine, tis his, and has been slave to thousands. But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed. Othello, act III, sc. iii In 1992 the Ohio Court of Appeals ruled that Richard Douglas, an assistant principal at a middle school... 1996
David S. Molot II. SECTION 1981--PROVING EMPLOYMENT DISCRIMINATION AFTER ST. MARY'S HONOR CENTER v. HICKS 64 George Washington Law Review 1157 (June-August, 1996) In Barbour v. Merrill, the D.C. Circuit affirmed, in part, the district court's finding of employment discrimination against the defendants under 42 U.S.C. s 1981. In so ruling, the D.C. Circuit attempted to clarify how a plaintiff may establish a case of employment discrimination under s 1981 in light of the Supreme Court's recent decision in St.... 1996
Calum Anderson INSURANCE COVERAGE FOR EMPLOYMENT-RELATED LITIGATION: CONNECTICUT LAW 18 Western New England Law Review 199 (1996) Connecticut, perhaps as much as any other state in the nation, has experienced a spectacular rise in employment-related litigation. This increased litigation can be explained by examining the confluence of two recent phenomena -- one economic, one legal. The first phenomenon is the dramatic downturn of the Connecticut economy, resulting in... 1996
Michael J. Leech LEGALIZING EMPLOYMENT DISCRIMINATION: A FOOLISH AND DANGEROUS POLICY 29 John Marshall Law Review 587 (Spring 1996) Professor Richard A. Epstein's extreme proposal to abolish employment discrimination laws is misguided and unwise. Reasonable people may differ on questions such as the forms of discrimination that should be actionable, the proof required to establish a violation, the enforcement mechanisms to use and the remedies that should be available.... 1996
Brent T. Carney PART-TIME EMPLOYEES DIVIDE THE CIRCUITS: AN INTERPRETATION OF "EMPLOYER" UNDER TITLE VII AND THE ADEA 31 New England Law Review 167 (Fall 1996) Title VII of the Civil Rights Act of 1964 (Title VII) permits employees in both the public- and private-sectors to bring claims against employers for racial and gender discrimination. Likewise, the Age Discrimina tion in Employment Act of 1967 (ADEA) authorizes public- and private-sector employees, who have been discriminated against at the... 1996
Laura W. Stein PRESERVING UNIONIZED EMPLOYEES' INDIVIDUAL EMPLOYMENT RIGHTS: AN ARGUMENT AGAINST SECTION 301 PREEMPTION 17 Berkeley Journal of Employment and Labor Law 1 (1996) Federal and state courts continue to struggle with the issue of when to preempt state employment laws under section 301 of the Labor Management Relations Act. The struggle is seen within the decisions of the Supreme Court. Just within the past decade the Supreme Court has used several tests to determine whether a state law should be preempted. The... 1996
Floyd D. Weatherspoon REMEDYING EMPLOYMENT DISCRIMINATION AGAINST AFRICAN-AMERICAN MALES: STEREOTYPICAL BIASES ENGENDER A CASE OF RACE PLUS SEX DISCRIMINATION 36 Washburn Law Journal 23 (Fall 1996) I. Introduction. 24 II. Stereotypical Biases Adversely Impact the Employment of African-American Males. 27 A. Why Are African-American Males Unemployed or Underemployed?. 28 B. Negative Stereotypical Biases Against African-American Males. 33 C. Impact on Employment Decisions. 37 III. Enforcement and Theories of Employment Discrimination Laws. 41 A.... 1996
Ann C. McGinley RETHINKING CIVIL RIGHTS AND EMPLOYMENT AT WILL: TOWARD A COHERENT NATIONAL DISCHARGE POLICY 57 Ohio State Law Journal 1443 (1996) I. Introduction: Discrimination, Expectations, and Exceptions. 1444 II. The Surge and Decline of Civil Rights in Employment. 1448 A. From Property to Dignity: An Evolution of Rights. 1450 B. EEOC: Administrative Overload. 1452 C. Judicial Hostility Toward Civil Rights in Employment. 1455 1. Background History of the McDonnell Douglas Standard. 1456... 1996
Louisa Nuckolls SHOULD WHITE EMPLOYEES HAVE STANDING TO SUE THEIR EMPLOYERS UNDER SECTION 1981 BECAUSE OF THEIR ASSOCIATION WITH MINORITIES OR MINORITY ORGANIZATIONS? THE CLEMES V. DEL NORTE COUNTY UNIFIED SCHOOL DISTRICT DECISION 8 DePaul Business Law Journal 261 (Spring/Summer 1996) I. Introduction. 262 II. Background. 264 A. History of Section 1981 -- Its Rise and Its Expansion Into Private Employment. 264 III. Analysis. 266 A. Standing Under Section 1981. 266 1. Elements For Actions Arising Under Section 1981. 268 2. The Right To Actions Arising Under Retaliation. 269 3. Authority for Standing of White Employees To Sue Their... 1996
Rosalie Berger Levinson SILENCING GOVERNMENT EMPLOYEE WHISTLEBLOWERS IN THE NAME OF "EFFICIENCY" 23 Ohio Northern University Law Review 17 (1996) [T]he threat of dismissal from public employment is ... a potent means of inhibiting speech.... Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions. INTRODUCTION. 17 I. THE EXPANSION AND CONTRACTION OF THE SPEECH RIGHTS OF GOVERNMENT... 1996
S. Jenell Trigg THE FEDERAL COMMUNICATIONS COMMISSION'S EQUAL OPPORTUNITY EMPLOYMENT PROGRAM AND THE EFFECT OF ADARAND CONSTRUCTORS, INC. V. PENA 4 CommLaw Conspectus 237 (Summer 1996) In [t]he communications industry, the employment picture is not what it should or can be. Affirmative action. Few Americans are neutral on the subject. This all too familiar phrase invokes a variety of emotions in people ranging from anger to apathy. The demise of affirmative action has become the rhetorical cry of conservative politicians and... 1996
Michael Selmi THE VALUE OF THE EEOC: REEXAMINING THE AGENCY'S ROLE IN EMPLOYMENT DISCRIMINATION LAW 57 Ohio State Law Journal 1 (1996) The Equal Employment Opportunity Commission (EEOC) has long been at the center of employment discrimination law so much so that since the passage of the Civil Rights Act of 1964, the vast majority of employment discrimination claims have been initially processed by that agency. Another indication of how solidly entrenched the EEOC has become is... 1996
Michele L. Giovagnoli TO BE OR NOT TO BE?: RECENT RESISTANCE TO MANDATORY ARBITRATION AGREEMENTS IN THE EMPLOYMENT ARENA 64 UMKC Law Review 547 (Spring, 1996) I. INTRODUCTION. 548 II. ALTERNATIVE DISPUTE RESOLUTION PROCESSES. 550 A. Increased Use of ADR. 551 B. Types of ADR. 552 C. ADR: Arbitration In The Employment Arena. 555 III. THE HISTORY OF COMPULSORY ARBITRATION. 556 A. Early Arbitration. 556 B. Alexander v. Gardner-Denver Co.. 557 C. The Mitsubishi Trilogy. 558 IV. GILMER v. INTERSTATE/JOHNSON... 1996
Kara L. Gross TOWARD GENDER EQUALITY AND UNDERSTANDING: RECOGNIZING THAT SAME-SEX SEXUAL HARASSMENT IS SEX DISCRIMINATION: "WE TAKE THESE WORDS [OF TITLE VII] TO MEAN THAT GENDER MUST BE IRRELEVANT TO EMPLOYMENT DECISIONS." -- U.S. SUPREME COURT (1989) 62 Brooklyn Law Review 1165 (Fall 1996) Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of protected categories. Title VII's provision prohibiting sex discrimination was enacted to eliminate gender inequality in the workplace by ensuring that employment decisions are based on individual merit and not on the gender of the employee. Therefore,... 1996
Pamela M. Martey "THE LAST TEMPTATION IS THE GREATEST TREASON: TO DO THE RIGHT DEED FOR THE WRONG REASON": AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT DISCRIMINATION CLAIMS: MCKENNON V. NASHVILLE BANNER PUBLISHING CO. 28 Creighton Law Review 1031 (June, 1995) Many state and federal statutes protect employees from being discharged by employers based on improper motives. The Age Discrimination in Employment Act of 1967 (ADEA) and the Civil Rights Act of 1964 (1964 Act) are two of the federal statutes that serve to protect individual employees from an employer's discriminatory conduct. Under the ADEA,... 1995
Charles W. Hemingway A CLOSER LOOK AT WATERS v. CHURCHILL AND UNITED STATES v. NATIONAL TREASURY EMPLOYEES UNION: CONSTITUTIONAL TENSIONS BETWEEN THE GOVERNMENT AS EMPLOYER AND THE CITIZEN AS FEDERAL EMPLOYEE 44 American University Law Review 2231 (August 1, 1995) C1-3Table of Contents Introduction. 2233 I. Sources of Federal Government Authority Over Its Civilian Employees. 2238 A. The Concept of Status'. 2238 B. Appointment as Effecting a Change in Status. 2241 II. Defining the Bounds of Federal Employee Procedural Protections. 2247 A. Legislative Expansion of Federal Employee WorkplaceRights. 2247 1.... 1995
Kenneth A. Sprang AFTER-ACQUIRED EVIDENCE: TONIC FOR AN EMPLOYER'S COGNITIVE DISSONANCE 60 Missouri Law Review 89 (Winter 1995) I. Prologue. 90 II. Introduction. 95 III. Development of the After-Acquired Evidence Doctrine. 100 A. After-Acquired Evidence in Industrial Relations Tribunals . 100 B. The After-Acquired Evidence Doctrine in the Federal Courts . 102 IV. Rationales for Restricting the Use of After-Acquired Evidence. 117 A. The After-Acquired Evidence Doctrine Is... 1995
William Buffalo , Kevin J. Wadzinski APPLICATION OF FEDERAL AND STATE LABOR AND EMPLOYMENT LAWS TO INDIAN TRIBAL EMPLOYERS 25 University of Memphis Law Review 1365 (Summer 1995) I. Introduction. 1366 II. Title VII and the ADA: Express Exemptions for Tribal Employers. 1367 A. Title VII. 1367 B. Americans with Disabilities Act. 1376 III. Applicability of Statutes of General Operation. 1376 A. Occupational Safety and Health Act. 1377 B. Age Discrimination in Employment Act. 1383 C. Employment Retirement Security Act. 1386 D.... 1995
Michael R. Holden ARBITRATION OF STATE-LAW CLAIMS BY EMPLOYEES: AN ARGUMENT FOR CONTAINING FEDERAL ARBITRATION LAW 80 Cornell Law Review 1695 (September, 1995) When Robin Harris's new boss demoted her, replaced her with a white man, and cut her salary, she attributed his actions to racial discrimination. After she sued in a state court, she was surprised to learn that she had signed a form requiring her to arbitrate instead. Like many employees, she had waived the right to assert claims against her... 1995
Deanna Weisse Turner CIVIL RIGHTS--EMPLOYER'S BEWARE: THE SUPREME COURT'S REJECTION OF THE PSYCHOLOGICAL INJURY REQUIREMENT IN HARRIS V. FORKLIFT SYSTEMS, INC., 114 S.CT. 376 (1993), MAKES IT EASIER FOR EMPLOYEES TO ESTABLISH A CLAIM FOR SEXUAL HARASSMENT BASED ON A HOSTILE W 17 University of Arkansas at Little Rock Law Journal 839 (1995) In October of 1991, Americans were glued to their television sets as Professor Anita Hill revealed to the Senate Judiciary Committee her allegations that Supreme Court nominee Clarence Thomas repeatedly pressured her for dates and graphically described to her scenes from pornographic films. For many viewers, and possibly some Senators, it was the... 1995
Michael C. Sloan DISPARATE IMPACT IN THE AGE DISCRIMINATION IN EMPLOYMENT ACT: WILL THE supreme court permit it? 1995 Wisconsin Law Review 507 (1995) In Hazen Paper Co. v. Biggins, the United States Supreme Court ruled that firing an employee shortly before his pension vested was not evidence of age discrimination under the Age Discrimination in Employment Act (ADEA). In finding no violation of the ADEA when the factor motivating the employer is some feature other than age, Hazen Paper... 1995
Alan Story EMPLOYER SPEECH, UNION REPRESENTATION ELECTIONS, AND THE FIRST AMENDMENT 16 Berkeley Journal of Employment and Labor Law 356 (1995) In the 1940s, non-coercive employer interventions during union representation election campaigns were accorded First Amendment protection, in dictum , by the Supreme Court and statutory protection by one of the Taft-Hartley amendments to the National Labor Relations Act (NLRA). Such protections, which allowed the $100 million-a-year union... 1995
Stephanie Van Auken EMPLOYMENT LAW SURVEY 72 Denver University Law Review 663 (1995) Prejudice, like the spider, makes everywhere its home. It has neither taste nor choice of place, and all that it requires is room. If the one prepares her food by poisoning it to her palate and her use, the other does the same. Prejudice may be denominated the spider of the mind. Thomas Paine Congress designed Title VII of the Civil Rights Act of... 1995
David Benjamin Oppenheimer EXACERBATING THE EXASPERATING: TITLE VII LIABILITY OF EMPLOYERS FOR SEXUAL HARASSMENT COMMITTED BY THEIR SUPERVISORS 81 Cornell Law Review 66 (November, 1995) Introduction. 68 I. The Exasperating Problem of Applying the Common Law of Master and Servant in Assessing Liability for Workplace Injuries. 77 A. Vicarious Liability Based on the Relationship Between the Employer and the Harasser. 80 1. Liability Based on Harassment Within the Scope of the Supervisor's Authority. 80 a. The Requirement that the... 1995
George Rutherglen FROM RACE TO AGE: THE EXPANDING SCOPE OF EMPLOYMENT DISCRIMINATION LAW 24 Journal of Legal Studies 491 (June, 1995) The Age Discrimination in Employment Act (ADEA) goes beyond the model of racial discrimination in prohibiting discrimination on a ground not recognized in the Constitution. As a consequence, the individuals protected by the ADEA differ sharply from those protected by earlier statutes such as Title VII of the Civil Rights Act of 1964. An examination... 1995
Jonathan Levy IN RESPONSE TO FAIR EMPLOYMENT COUNCIL OF GREATER WASHINGTON, INC. v. BMC MARKETING CORP.: EMPLOYMENT TESTERS DO HAVE A LEG TO STAND ON 80 Minnesota Law Review 123 (November, 1995) In December 1990, the Fair Employment Council of Greater Washington (the Council) tested an employment agency run by BMC Marketing Corporation (BMC). On two separate days, the Council sent one white and one black tester, an individual who poses as a job candidate to uncover discriminatory practices, with comparable credentials to BMC. Although... 1995
G. Paul Carriere MARCANTEL V. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT: THE FIFTH CIRCUIT FINDS THAT GOOD FAITH SETTLEMENTS OF PAST TITLE VII EMPLOYMENT DISCRIMINATION CLAIMS DO NOT GIVE RISE TO CLAIMS BY ADVERSELY AFFECTED EMPLOYEES 69 Tulane Law Review 1357 (April 1, 1995) In 1989, pursuant to a consent decree issued by a federal district court, the Louisiana Department of Transportation and Development (DOTD) appointed Melvin Villery, a black male employee, to a then-vacant position as maintenance supervisor. Shortly thereafter, Allan Marcantel, a white male employee, filed suit alleging that the DOTD had illegally... 1995
Robert Brookins MIXED-MOTIVES, TITLE VII, AND REMOVING SEXISM FROM EMPLOYMENT: THE REALITY AND THE RHETORIC 59 Albany Law Review 1 (1995) I. Introduction. 5 A. Nature of the Problem. 5 B. Organization of This Article. 10 II. A Profile of Sexual Stereotypes. 11 A. The Metamorphosis of Sexism. 11 B. Stereotypes and the Nature of Modern Sex Discrimination. 15 1. The Nature and Functions of Stereotypes. 15 2. The Hierarchy of Stereotypes. 17 3. Stereotypes and the Resilience of Sexism.... 1995
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