Cara D. Helper ENFORCING THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION GUIDELINES ON DISCRIMINATION BECAUSE OF NATIONAL ORIGIN: THE OVEREXTENSION OF ENGLISH-ONLY RULES IN GARCIA V. SPUN STEAK CO. 79 Minnesota Law Review 391 (December, 1994) The English-speaking majority's attempts to standardize the English language comprise a recurring theme throughout American history. This insecurity in relation to minority languages, and the corresponding concern with ensuring the supremacy of the English language, resurfaced following the most recent wave of immigration from Latin America and... 1994
Raymond Nardo EVIDENTIARY ISSUES IN EMPLOYMENT DISCRIMINATION LITIGATION 9 Journal of the Suffolk Academy of Law 139 (1994) In the past few years we have witnessed the passage of the Civil Rights Act of 1991 and the Americans with Disabilities Act (ADA). These legislative enactments have profoundly affected the law of employment discrimination. Just as important, however, are several recent opinions of the United States Supreme Court. It is crucial that practitioners in... 1994
Donna M. Gitter FRENCH CRIMINALIZATION OF RACIAL EMPLOYMENT DISCRIMINATION COMPARED TO THE IMPOSITION OF CIVIL PENALTIES IN THE UNITED STATES 15 Comparative Labor Law Journal 488 (Summer, 1994) Le dæesir du privilege et le goCut de l'æegalitæe sont les deux passions dominantes des Fran(cais. -- Charles de Gaulle The desire for privilege and the taste for equality are the two dominant passions among the French. -- Charles de Gaulle The notion of equality amongst all individuals undergirds political and legal theory in both France and the... 1994
Robert A. Machson, Joseph P. Monteleone INSURANCE COVERAGE FOR WRONGFUL EMPLOYMENT PRACTICES CLAIMS UNDER VARIOUS LIABILITY POLICIES 49 Business Lawyer 689 (February, 1994) Observers of litigation trends over the past several years have noted the significant increase in the frequency of employment-related claims. Lawsuits against employers by employees and former employees are reportedly one of the fastest growing areas of litigation across the country. Many businesses, believing they are protected from this new... 1994
Dennis P. Duffy INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND EMPLOYMENT AT WILL: THE CASE AGAINST "TORTIFICATION" OF LABOR AND EMPLOYMENT LAW 74 Boston University Law Review 387 (May 1, 1994) The law governing the employment relationship in the United States has undergone rapid change in the last few decades. Twenty years ago, courts almost universally held that unless the legislature had specifically stated otherwise, employees were retained at will and could be terminated for any reason or for no reason at all. Legislation dealing... 1994
Kimberli R. Black PERSONALITY SCREENING IN EMPLOYMENT 32 American Business Law Journal 69 (1994) Introduction Personality tests are a form of psychological testing employers often use for screening job applicants and for making promotion and other job-related decisions. These tests measure motivational, emotional, interpersonal and attitudinal characteristics. They are primarily concerned with affective or nonintellectual behavior. Both the... 1994
John O. McGinnis THE BAR AGAINST CHALLENGES TO EMPLOYMENT DISCRIMINATION CONSENT DECREES: A PUBLIC CHOICE PERSPECTIVE 54 Louisiana Law Review 1507 (July, 1994) One of the traditional hallmarks of the procedural protections afforded by Anglo-American jurisprudence is that a person is not legally bound by an in personam judgment in litigation to which he is a stranger. In other words, you get your day in court to vindicate your personal individual rights and cannot be bound by the litigation decisions of... 1994
Tom Werner THE COMMON LAW EMPLOYMENT-AT-WILL DOCTRINE: CURRENT EXCEPTIONS FOR IOWA EMPLOYEES 43 Drake Law Review 291 (1994) C1-3Table of Contents I. Introduction. 292 II. Development of the Employment-at-Will Doctrine. 293 III. The Breach of Contract Exception. 297 A. Breach of Express Contracts. 297 B. Implied-in-Fact Contracts. 301 IV. Breach of Contract Actions: Employee Handbooks and Policies. 307 A. Iowa Cases. 307 B. Contract Remedies. 311 V. The Public Policy... 1994
Paul Burstein, Mark Evan Edwards THE IMPACT OF EMPLOYMENT DISCRIMINATION LITIGATION ON RACIAL DISPARITY IN EARNINGS: EVIDENCE AND UNRESOLVED ISSUES 28 Law and Society Review 79 (1994) What is the relationship between employment discrimination litigation and the relative earnings of blacks and whites in the United States? Do victories in court affect blacks' relative earnings? Are gains in earnings associated with legal victories enduring or temporary? Can litigation be an effective tactic in efforts at social reform? Data on... 1994
Susan J. Schleck TITLE VII - BURDEN OF PROOF - EMPLOYEE HAS ULTIMATE BURDEN OF PROOF IN A TITLE VII CASE TO SHOW DISCRIMINATORY INTENT EVEN IF EMPLOYER'S REASONS FOR DISMISSAL ARE PRETEXTUAL -- ST. MARY'S HONOR CENTER V. HICKS, 113 S. CT. 2742 (1993). 25 Seton Hall Law Review 696 (1994) Congress enacted Title VII of the Civil Rights Act of 1964 to provide relief to employees who have been harmed by employer discrimination on the basis of race, color, religion, sex, or national origin. Title VII was created during a time of serious civil unrest in the United States. In enacting the Civil Rights Act of 1964, including Title VII,... 1994
Ronald Turner TITLE VII AND HOSTILE ENVIRONMENT SEXUAL HARASSMENT: MISLABELING THE STANDARD OF EMPLOYER LIABILITY 71 University of Detroit Mercy Law Review 817 (Summer, 1994) The United States Supreme Court, in Meritor Savings Bank v. Vinson, held that a claim of hostile environment sexual harassment is a form of sex discrimination actionable under Title VII of the Civil Rights Act of 1964 (Title VII). Declining to issue a definitive rule on employer liability for hostile environment harassment, the Court reasoned... 1994
David B. Ezra "GET OFF YOUR BUTTS": THE EMPLOYER'S RIGHT TO REGULATE EMPLOYEE SMOKING 60 Tennessee Law Review 905 (Summer, 1993) Smokers in the workplace are the modern day lepers. In order to smoke, many are exiled into cramped smokers' lounges or pushed outside into the cold by employer policies requiring a smoke-free workplace. For others who smoke, the situation is even more grim because some employers simply refuse to hire smokers. Smokers complain that this treatment... 1993
Herbert N. Bernhardt AFFIRMATIVE ACTION IN EMPLOYMENT: CONSIDERING GROUP INTERESTS WHILE PROTECTING INDIVIDUAL RIGHTS 23 Stetson Law Review 11 (Fall, 1993) A good deal of the literature of affirmative action is devoted to the supposed conflict between individual rights and group interests. This author's experience with affirmative action in employment, however, is that a good affirmative action officer not only balances both objectives, but uses each goal to help achieve the other. On the one hand, a... 1993
Michael K. Braswell , Gary A. Moore , Stephen L. Poe AFFIRMATIVE ACTION: AN ASSESSMENT OF ITS CONTINUING ROLE IN EMPLOYMENT DISCRIMINATION POLICY 57 Albany Law Review 365 (1993) Affirmative action continues to be a source of controversy for many Americans. With the passage of the Civil Rights Act of 1991, Congress failed once again to address the problems associated with quotas and other forms of affirmative action under Title VII. Meanwhile, the current conservative majority of the U.S. Supreme Court appears to be on a... 1993
Marshall W. Grate BINDING ARBITRATION OF STATUTORY EMPLOYMENT DISCRIMINATION CLAIMS 70 University of Detroit Mercy Law Review 699 (Spring, 1993) A significant shift has occurred over the past two decades in labor and employment law. The importance of employees' collective rights, as enshrined in the National Labor Relations Act, once paramount, is no longer. Over the past two decades, the workplace has witnessed a steady ascendence of individual employment rights, and at least with the... 1993
Robert C. Cadle, Robert C. Cadle is a shareholder in the Boston firm of Fordham & Starrett, P.C. BURDENS OF PROOF: PRESUMPTION AND PRETEXT IN DISPARATE TREATMENT EMPLOYMENT DISCRIMINATION CASES 78 Massachusetts Law Review 122 (December, 1993) In an age where employers are becoming increasingly sophisticated in covering up discriminatory practices, available proof of discrimination in the workplace usually consists of circumstantial evidence. Direct evidence of unlawful discrimination (the smoking gun) is relatively unusual. McDonnell Douglas Corp. v. Green is the seminal case in which... 1993
Mark Berger CAN EMPLOYMENT LAW ARBITRATION WORK? 61 UMKC Law Review 693 (Summer, 1993) The workplace of the 1990's is a far more regulated environment than it was in the early part of the twentieth century. There are now a vast array of statutes and common law principles protecting workers from the point that they seek employment to their ultimate retirement, and at every stage in between. But each new legal right created for... 1993
James E. Rosenbaum , Nancy Fishman , Alison Brett , Patricia Meaden CAN THE KERNER COMMISSION'S HOUSING STRATEGY IMPROVE EMPLOYMENT, EDUCATION, AND SOCIAL INTEGRATION FOR LOW-INCOME BLACKS? 71 North Carolina Law Review 1519 (June, 1993) The Kerner Commission placed a heavy emphasis on racial integration, calling it the only course which explicitly seeks to achieve a single nation rather than accepting the present movement toward a dual society. And, as the introductory Essay to this Symposium indicates, only in the housing area did the Commission prescribe solutions tailored to... 1993
Ian Forbes , Geoffrey Mead COMPARATIVE RACIAL DISCRIMINATION LAW: MEASURES TO COMBAT RACIAL DISCRIMINATION IN EMPLOYMENT IN THE MEMBER STATES OF THE EUROPEAN COMMUNITY 14 Comparative Labor Law Journal 403 (Summer, 1993) This article provides an informed and critical overview of the law, policies, and practises relating to discrimination in employment on the basis of colour in the member countries of the European Community (EC or the Community). The country-by-country review of measures to combat racial discrimination is preceded by two examinations. The first... 1993
Rachel E. Lutner EMPLOYER LIABILITY FOR SEXUAL HARASSMENT: THE MORASS OF AGENCY PRINCIPLES AND RESPONDEAT SUPERIOR 1993 University of Illinois Law Review 589 (1993) In 1986, in Meritor Savings Bank v. Vinsoon, the Supreme Court directed lower courts to use agency principles when determining employer liability for sexual harassment. However, reliance on agency law has not established a clear standard, but has fostered justifications for numerous standards, ranging from strict employer liability to requiring... 1993
W. Wendell Hall , Philip J. Pfeiffer EMPLOYMENT AND LABOR LAW 46 SMU Law Review 1393 (Spring, 1993) During the last year of the Bush administration, the Americans with Disabilities Act of 1990 and the Civil Rights Act of 1991 became effective. These statutes, which have expanded both the scope of claims and the range of penalties for employment discrimination, have resulted in increased civil rights litigation in the federal courts. Under the... 1993
Marjorie A. Silver FAIRNESS AND FINALITY: THIRD-PARTY CHALLENGES TO EMPLOYMENT DISCRIMINATION CONSENT DECREES AFTER THE 1991 CIVIL RIGHTS ACT 62 Fordham Law Review 321 (November, 1993) In this Article, Professor Silver examines Section 108 of the Civil Rights Act of 1991, which limits challenges to employment practices taken pursuant to employment discrimination consent decrees. The Article traces the development of the impermissible collateral attack doctrine, that doctrine's demise in Martin v. Wilks, and Congress' response to... 1993
David T. Wilson FOREIGN OWNED SUBSIDIARIES AND NATIONAL ORIGIN DISCRIMINATION: CAN FEDERAL EMPLOYMENT DISCRIMINATION LAW AND EMPLOYER CHOICE PROVISIONS BE RECONCILED? 10 Arizona Journal of International & Comparative Law 507 (Fall, 1993) It is not impossible that there may be persons disposed to look with a jealous eye on the introduction of foreign capital as if it were an instrument to deprive our own citizens of the profits of their own industry. But perhaps there could never be more unreasonable jealousy. Alexander Hamilton, 1790 More and more foreign enterprises, particularly... 1993
Sheryl Rosensky Miller FROM THE INCEPTION TO THE AFTERMATH OF INTERNATIONAL UNION, UAW v. JOHNSON CONTROLS, INC.: ACHIEVING ITS POTENTIAL TO ADVANCE WOMEN'S EMPLOYMENT RIGHTS 43 Catholic University Law Review 227 (Fall, 1993) As women entered the work force in increasing numbers during the twentieth century, employers instituted policies limiting their participation in certain work-related activities on the basis of gender or reproductive capacity. Frequently, employers rationalized such policies by espousing the stereotype that women, as the weaker and more delicate... 1993
Tracy L. Bach GENDER STEREOTYPING IN EMPLOYMENT DISCRIMINATION: FINDING A BALANCE OF EVIDENCE AND CAUSATION UNDER TITLE VII 77 Minnesota Law Review 1251 (May, 1993) During a job interview, the potential employer asks the female applicant whether her husband approves of her seeking the job, when she will have her next child, and how she has arranged her child care. Although she is qualified for the position, the employer does not hire her. On learning that the company hired a man, she sues for employment... 1993
Reginald C. Govan HONORABLE COMPROMISES AND THE MORAL HIGH GROUND: THE CONFLICT BETWEEN THE RHETORIC AND THE CONTENT OF THE CIVIL RIGHTS ACT OF 1991 46 Rutgers Law Review 1 (Fall, 1993) I. Introduction II. Political History of Federal Civil Rights Legislation During the 1980s A. Strengthening Enforcement Mechanisms and Restoration of Original Intent B. Reticence to Address Equal Employment Issues C. Nomination Battles III. Civil Rights Decisions During the 1988-89 Term of the Supreme Court A. The June 1989 Decisions B.... 1993
Maria M. Carrillo HOSTILE ENVIRONMENT SEXUAL HARASSMENT BY A SUPERVISOR UNDER TITLE VII: REASSESSMENT OF EMPLOYER LIABILITY IN LIGHT OF THE CIVIL RIGHTS ACT OF 1991 24 Columbia Human Rights Law Review 41 (Winter, 1992/1993) The Civil Rights Act of 1991 put teeth into Title VII of the Civil Rights Act of 1964 by allowing victims of discrimination in the workplace to recover compensatory and punitive damages. Before this expansion of Title VII, victims of discrimination were eligible only for equitable remedies such as injunctions, backpay, and reinstatement. Cases... 1993
Evan J. Spelfogel LEGAL AND PRACTICAL IMPLICATIONS OF ADR AND ARBITRATION IN EMPLOYMENT DISPUTES 11 Hofstra Labor Law Journal 247 (Fall, 1993) A gross miscalculation by management, labor and employment lawyers thirty years ago has revealed itself in today's judicial backlog. During the debates leading up to enactment of Title VII of the Civil Rights Act of 1964 (Title VII), it was proposed that discrimination on account of race, sex, national origin and religion be added as unfair labor... 1993
Nancy E. Dowd LIBERTY vs. EQUALITY: IN DEFENSE OF PRIVILEGED WHITE MALES 34 William and Mary Law Review 429 (Winter, 1993) This book is disturbing in more ways than I can count. Grounded in libertarianism and law-and-economics, its thesis is that the principles of choice and freedom of association outweigh equality and justice, justifying the abolition of private employment discrimination law and the imposition of severe limitations on public employment discrimination... 1993
William S. Waldo , Rosemary A. Mahar, Paul, Hastings, Janofsky & Walker, Los Angeles, California, Paul, Hastings, Janofsky & Walker, Los Angeles, California LOST CAUSE AND FOUND DEFENSE: USING EVIDENCE DISCOVERED AFTER AN EMPLOYEE'S DISCHARGE TO BAR DISCRIMINATION CLAIMS 9 Labor Lawyer 31 (Winter, 1993) Every defense lawyer's dream is to be handed a discrimination lawsuit where the employer knows it has a rock-solid reason to fire the employee, possesses documentary and other evidence to support that reason, and confronts the employee with its evidence before the discharge. The dream does not often play out in real life. No termination is perfect.... 1993
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