J. Hoult Verkerke NOTICE LIABILITY IN EMPLOYMENT DISCRIMINATION LAW 81 Virginia Law Review 273 (March, 1995) L1-2Introduction 274 I. The Law of Employer Liability . 280 II. Employer Liability as an Agency Problem . 286 A. Respondeat Superior . 290 1. The Business Purpose Test . 292 2. Authority, Foreseeability, and Causation . 298 B. Negligent Hiring, Supervision, or Retention . 305 C. An Economic Perspective on Vicarious Liability . 307 1. Enterprise... 1995
Robert B. Fitzpatrick , Marlissa S. Briggett RECENT DEVELOPMENTS IN EMPLOYMENT LAW 30 Tort & Insurance Law Journal 316 (Winter, 1995) In the last several years there has been an onslaught of new federal laws governing the workplace, including the Civil Rights Act of 1991, the Americans with Disabilities Act, and the Family and Medical Leave Act. In addition, the courts have established an unusual number of new precedents, many of which represent substantial departures from what... 1995
Kristen T. Saam REWARDING EMPLOYERS' LIES: MAKING INTENTIONAL DISCRIMINATION UNDER TITLE VII HARDER TO PROVE 44 DePaul Law Review 673 (Winter 1995) America is far better for honoring our commitment to the fundamental principle that all are created equal, that everyone is entitled to the opportunity to compete for jobs for which they qualify, to gain those qualifications through education, to travel, to use public accommodations and to live wherever they can afford. While the quotation above is... 1995
Terri L. Dill ST. MARY'S HONOR CENTER v. HICKS: REFINING THE BURDENS OF PROOF IN EMPLOYMENT DISCRIMINATION LITIGATION 48 Arkansas Law Review 617 (1995) The element of intent has become the most critical element in Title VII disparate treatment cases. Direct evidence of intent to discriminate is rarely available; therefore, plaintiffs are forced to rely on circumstantial evidence to prove the defendant acted in a discriminatory manner prohibited by Title VII. To accommodate this reality, employment... 1995
Kenneth R. Davis THE AFTER-ACQUIRED EVIDENCE DOCTRINE: A DUBIOUS DEFENSE IN EMPLOYMENT DISCRIMINATION CASES 22 Pepperdine Law Review 365 (1995) When a fired employee charges his former employer with discriminatory termination, the employer may have a partial or complete defense, even if the employer violated civil rights law. Such a defense arises if, during the litigation, the employer discovers evidence of employee misconduct that would have provided legal grounds for firing the employee... 1995
Linda Hamilton Krieger THE CONTENT OF OUR CATEGORIES: A COGNITIVE BIAS APPROACH TO DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY 47 Stanford Law Review 1161 (July 1, 1995) Title VII's disparate treatment model of discrimination is premised on the notion that intergroup bias is motivational in origin. This premise, in turn, is based on a number of assumptions regarding the nature of human inference and the respective roles played by cognition and motivation in social judgment and decisionmaking. Applying insights from... 1995
Stephen L. Hayford , Michael J. Evers THE INTERACTION BETWEEN THE EMPLOYMENT-AT-WILL DOCTRINE AND EMPLOYER-EMPLOYEE AGREEMENTS TO ARBITRATE STATUTORY FAIR EMPLOYMENT PRACTICES CLAIMS: DIFFICULT CHOICES FOR AT-WILL EMPLOYERS 73 North Carolina Law Review 443 (January, 1995) In 1991, the Supreme Court signalled a change in its attitude toward the enforcement of agreements between employers and individual employees to arbitrate statutory fair employment practice claims. Although Gilmer v. Interstate Johnson/Lane Corp. approved the arbitration of claims arising under just one of the several existing fair employment... 1995
J. Hagood Tighe THE REFINED PRETEXT-PLUS ANALYSIS: EMPLOYEES' AND EMPLOYERS' RESPECTIVE BURDENS AFTER HICKS 46 South Carolina Law Review 333 (Winter, 1995) I. Introduction. 333 II. McDonnell Douglas Model of Proof. 336 A. The Prima Facie Case. 336 B. The Legitimate, Nondiscriminatory Reason. 338 C. Proving Pretext. 339 III. St. Mary's Honor Center v. Hicks. 341 A. Majority Opinion. 342 B. The Dissent. 346 C. The New Model of Proof: A Refined Pretext-Plus Test. 348 IV. The Fundamental Misunderstanding... 1995
Kenneth R. Davis THE STUMBLING THREE-STEP, BURDEN-SHIFTING APPROACH IN EMPLOYMENT DISCRIMINATION CASES 61 Brooklyn Law Review 703 (Fall 1995) In 1973, an ambitious Supreme Court decided McDonnell Douglas Corp. v. Green. The case introduced an elaborate three-stage, burden-shifting framework for disparate-treatment employment discrimination cases. Unique in design, the approach requires that the plaintiff establish, at stage one, the elements of a prima facie case, though the Court noted... 1995
Patrick Clarke TRIBAL AFFILIATION BASED EMPLOYMENT PREFERENCES: IS THIS AN ALLOWABLE PRACTICE UNDER TITLE VII'S INDIAN PREFERENCE PROVISIONS? 20 Thurgood Marshall Law Review 291 (Spring, 1995) Poverty is the everyday life of the American Indian. No other group in American life is so victimized by poverty. The average income of Indian families on reservations is $1500 a year--unemployment is 7 or 8 times the national averagethe Indian life span of 42 years is far short of the national average of 62--Indian babies have only half as much... 1995
Glen Allen Staszewski USING AGENCY PRINCIPLES FOR GUIDANCE IN FINDING EMPLOYER LIABILITY FOR A SUPERVISOR'S HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT 48 Vanderbilt Law Review 1057 (May, 1995) I. Introduction II. Meritor Savings Bank, FSB v. Vinson A. Proceedings Below B. The Supreme Court's Directive III. A Proper Application of Agency Principles in the Sexual Harassment Context A. Section 219(1): Scope of Employment B. Section 219(2)(a): Master Intended the Conduct or Its Consequences C. Section 219(2)(b): Negligence 1. Actual... 1995
Joanne C. Brant "OUR SHIELD BELONGS TO THE LORD": RELIGIOUS EMPLOYERS AND A CONSTITUTIONAL RIGHT TO DISCRIMINATE 21 Hastings Constitutional Law Quarterly 275 (Winter, 1994) C1-3Table of Contents L1-2Introduction 276 I. Religious Institutions and Title VII. 283 A. A Brief Overview of Title VII. 283 B. Constitutional Issues: The Uneasy Coexistence of McClure and Smith. 289 1. The McClure Case and Its Progeny. 291 a. The Church Property Cases. 293 b. The Limits of McClure. 296 c. The Regulatory Establishment Defense... 1994
Brian R. Suffredini, Staff Member, Boston College Law Review A. REDUCTIONS-IN-FORCE DO NOT ABSOLVE EMPLOYERS FROM TITLE VII LIABILITY: JOSEY v. JOHN R. HOLLINGSWORTH CORPORATION 35 Boston College Law Review 495 (March, 1994) Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from making employment decisions on the basis of race, color, religion, sex or national origin. Congress enacted Title VII to assure the equality of employment opportunities by eliminating arbitrary preferences for any group, minority or majority. Accordingly, an employer... 1994
Bob E. Lype AFTER-ACQUIRED EVIDENCE IN DEFENDING EMPLOYMENT DISCRIMINATION CLAIMS 61 Defense Counsel Journal 573 (October, 1994) The cases are in disarray and awaiting clarification, but meanwhile, after-acquired evidence is a powerful defense tool for employers ONE EVOLVING element in the employer's defense to claims of employment-related discrimination is the potential effect of after-acquired evidence of the employee's wrongdoing. As employers and defense counsel have... 1994
Mary L. Heen AN ALTERNATIVE APPROACH TO THE TAXATION OF EMPLOYMENT DISCRIMINATION RECOVERIES UNDER FEDERAL CIVIL RIGHTS STATUTES: INCOME FROM HUMAN CAPITAL, REALIZATION, AND NONRECOGITION 72 North Carolina Law Review 549 (March, 1994) The taxation of employment discrimination recoveries under federal civil rights statutes, according to the United States Supreme Court's pronouncement in United States v. Burke, turns on whether a particular claim is sufficiently tort-like to warrant exclusion from income as a personal injury. In place of the tort-like standard, Professor Mary... 1994
Vicki J. Limas APPLICATION OF FEDERAL LABOR AND EMPLOYMENT STATUTES TO NATIVE AMERICAN TRIBES: RESPECTING SOVEREIGNTY AND ACHIEVING CONSISTENCY 26 Arizona State Law Journal 681 (Fall, 1994) As Native American tribal economies continue to develop and grow, tribal governments and businesses are providing additional revenues for tribal operations and significant sources of employment for tribal members and others. With increased employment opportunities, however, come increasing numbers of employment disputes. The federal government... 1994
Lieutenant Colonel R. Philip Deavel, USAF BIRMINGHAM'S EMPLOYMENT DISCRIMINATION WAR: A CLARION CALL FOR STRICT MERITOCRACY IN GOVERNMENT EMPLOYMENT 38 Air Force Law Review 197 (1994) Contrary to the allegations of some opponents of this Title, there is nothing in it that will give any power to any, Commission or to any court to require hiring, firing or promotion of employees in order to meet a racial quota or to achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is nonexistent. In fact,... 1994
Patrick M. Edwards CIVIL RIGHTS -- TITLE VII EMPLOYMENT DISCRIMINATION -- PROOF OF EMPLOYER PRETEXT DOES NOT ENTITLE EMPLOYEE TO A DECISION WITHOUT FURTHER PROOF OF DISCRIMINATION. ST. MARY'S HONOR CENTER V. HICKS, 113 S. CT.2742 (1993). 71 University of Detroit Mercy Law Review 693 (Spring 1994) In 1978 Melvin Hicks began working as a correctional officer for St. Mary's Honor Center (St. Mary's), a halfway house operated by the State of Missouri. Within a year and a half Hicks was promoted to shift commander, one of only six supervisory positions at the house. In 1983, numerous complaints concerning conditions at St. Mary's led to an... 1994
Stephanie L. Kralik CIVIL RIGHTS--THE SCOPE OF TITLE VII PROTECTION FOR EMPLOYEES CHALLENGING ENGLISH-ONLY RULES--GARCIA V. SPUN STEAK CO., 998 F.2D 1480 (9TH CIR. 1993). 67 Temple Law Review 393 (Spring 1994) The United States has often been described as a nation of immigrants--a melting pot of a multitude of cultures, heritages, and languages. The most recent wave of immigrants is overwhelmingly comprised of people from Spanish-speaking countries. The close proximity of these Spanish-speaking countries to the United States and the advent of modern... 1994
Michael Mankes COMBATTING INDIVIDUAL EMPLOYMENT DISCRIMINATION IN THE UNITED STATES AND GREAT BRITAIN: A NOVEL REMEDIAL APPROACH 16 Comparative Labor Law Journal 67 (Fall, 1994) Employment discrimination exists where employees are dismissed or mistreated on account of race, gender, religion, national origin, age, or physical or mental handicap. To provide a remedy for victims of employment discrimination and to eliminate such unfair and unequal conduct, the United States has enacted antidiscrimination legislation and... 1994
Susan Bisom-Rapp CONTEXTUALIZING THE DEBATE: HOW FEMINIST AND CRITICAL RACE SCHOLARSHIP CAN INFORM THE TEACHING OF EMPLOYMENT DISCRIMINATION LAW 44 Journal of Legal Education 366 (September, 1994) The past ten years have seen the creation of a rich body of literature--both critical and prescriptive--addressing how feminist and critical race theory can inform law school curriculum and pedagogy. Critiques of traditional first-year casebooks have been developed. Articles suggesting ways of presenting substantive material have been written.... 1994
Michael A. Zubrensky DESPITE THE SMOKE, THERE IS NO GUN: DIRECT EVIDENCE REQUIREMENTS IN MIXED-MOTIVES EMPLOYMENT LAW AFTER PRICE WATERHOUSE v. HOPKINS 46 Stanford Law Review 959 (April, 1994) Plaintiffs in mixed-motives employment discrimination suits often face the daunting task of producing direct evidence of the defendant's improper motive, despite the fact that discrimination may be subtle or covert. Charting the emergence of mixed-motives liability, Michael Zubrensky argues that courts requiring such smoking gun evidence are... 1994
David A. Robinson DISCOVERY OF THE PLAINTIFF'S MENTAL HEALTH HISTORY IN AN EMPLOYMENT DISCRIMINATION CASE 16 Western New England Law Review 55 (1994) Psychotherapy has an unpleasant side effect for patients who happen to be victims of employment discrimination. If they sue their employers for discrimination and claim emotional distress damages, their employers will demand to see their therapy records. For these employees, the Civil Rights Act of 1991 (CRA 91) is like a rainbow. They can reach... 1994
Leroy D. Clark EMPLOYMENT DISCRIMINATION TESTING: THEORIES OF STANDING AND A REPLY TO PROFESSOR YELNOSKY 28 University of Michigan Journal of Law Reform 1 (Fall, 1994) In this Article, Professor Clark addresses the legal issues surrounding the use of testers -- individuals who deliberately apply for employment to detect sex and race discrimination. He surveys three theoretical justifications for granting standing to organizations that run testing programs. Professor Clark then responds to a previous article by... 1994
Professor Eileen Kaufman EMPLOYMENT DISCRIMINATION: RECENT DEVELOPMENTS IN THE SUPREME COURT 10 Touro Law Review 525 (Winter, 1994) Our final speaker is Professor Eileen Kaufman of Touro Law School. She has been recognized by New York State Court Judges for her expertise as a Pattern Jury Instruction Committee member and as a reporter for Volume II of the Pattern Jury Instructions. Furthermore, I would like to point out to all of you that the remarkable work she has done on... 1994
Shannon R. Joseph EMPLOYMENT DISCRIMINATION: SHOULDERING THE BURDEN OF PROOF AFTER ST. MARY'S HONOR CENTER V. HICKS 29 Wake Forest Law Review 963 (Fall 1994) In what has been called the most intellectually dubious ruling of the 1993 Spring term, the 5-4 majority of the Supreme Court in St. Mary's Honor Center v. Hicks reshaped the framework governing the allocation of the burden of proof in Title VII actions. Until Hicks , a plaintiff could prevail in a Title VII action if, after the employer offered... 1994
Tim D. Gray EMPLOYMENT DISCRIMINATION: SUMMARY JUDGMENT AND RULE 301 AFTER ST. MARY'S HONOR CENTER v. HICKS 15 Mississippi College Law Review 217 (Fall, 1994) Plaintiffs in disparate treatment employment discrimination suits are faced with a formidable task. In order to prevail they must prove that the defendant-employer was motivated by a discriminatory intent. Most plaintiffs are not so lucky as to have smoking gun evidence of the employer's discriminatory intent. In McDonnell Douglas Corp. v. Green,... 1994
Paul G. Beers EMPLOYMENT LAW 28 University of Richmond Law Review 1007 (October, 1994) The focus of this article is upon employment law in Virginia during 1993 and the first half of 1994. In addition, significant judicial decisions from 1992 are covered. Workers' compensation and unemployment compensation are excluded as topics. Public sector employment law also lies outside the scope of this article. Nevertheless, two decisions of... 1994
Maria Therese Mancini EMPLOYMENT LAW--PROVING PRETEXT MAY BE INSUFFICIENT IN TITLE VII EMPLOYMENT DISCRIMINATION CASES--ST. MARY'S HONOR CENTER V. HICKS, 113 S. CT. 2742 (1993) 28 Suffolk University Law Review 235 (Spring 1994) Title VII of the Civil Rights Act of 1964 prohibits employers from making employment decisions based on an employee's race. In St. Mary's Honor Center v. Hicks, the Supreme Court of the United States considered whether a factfinder's rejection of an employer's asserted reasons for its employment decision entitles the affected employee to a judgment... 1994
Thomas E. Claps EMPLOYMENT LAW-SEXUAL HARASSMENT-TO STATE A VALID CAUSE OF ACTION FOR HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT AGAINST A SUPERVISOR, A FEMALE PLAINTIFF MUST ALLEGE THAT THE HARASSING CONDUCT OCCURED BECAUSE OF HER SEX, AND THAT A REASONABLE WOMEN IN THE 24 Seton Hall Law Review 2195 (1994) Sexual harassment has been the most dominant workplace issue in the United States in recent years. The visibility of sexual harassment has been fostered by the controversial Hill-Thomas hearings, the Navy Tailhook scandal, and recent harassment allegations against many prominent members of the United States Senate. Public recognition, discussion,... 1994
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