Louise B. Moses CONSTITUTIONAL LAW-CIVIL RIGHTS-TITLE VII HELD NOT TO APPLY EXTRATERRITORIALLY TO PROTECT AMERICAN CITIZENS WORKING ABROAD FOR AMERICAN EMPLOYERS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ARABIAN AMERICAN OIL CO., 111 S.CT. 1227 (1991). 16 Suffolk Transnational Law Review 240 (Fall, 1992) Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from discriminating against any individual on the basis of race, color, religion, sex, or national origin. In Equal Employment Opportunity Commission v. Arabian American Oil Co., the United States Supreme Court considered whether Title VII applied extraterritorially to... 1992
Clyde Summers EFFECTIVE REMEDIES FOR EMPLOYMENT RIGHTS: PRELIMINARY GUIDELINES AND PROPOSALS 141 University of Pennsylvania Law Review 457 (December, 1992) Labor lawyers and scholars have become increasingly aware during the last dozen years of a broad, long-term trend toward greater legal protection of the individual employee in the employment relation. This awareness was triggered in part by the dramatic change in judicial attitudes toward employment at will. Led by courts in California,... 1992
Frank J. Cavico EMPLOYMENT AT WILL AND PUBLIC POLICY 25 Akron Law Review 497 (Winter/Spring, 1992) The most significant employment law development in the last two decades has been the erosion of the conventional employment at will doctrine and the concomitant creation of statutory and common law exceptions to its dictate. In recent years, United States' courts in particular have become increasingly dissatisfied with the absolutist formulation of... 1992
Joseph L. Gastwirth EMPLOYMENT DISCRIMINATION: A STATISTICIAN'S LOOK AT ANALYSIS OF DISPARATE IMPACT CLAIMS 11 Law & Inequality: A Journal of Theory and Practice 151 (December, 1992) Employment discrimination is an enduring problem in this country, preventing the employment or impeding the advancement of certain members of society. While Title VII has done much to eliminate practices which are openly discriminatory, many requirements for employment and promotion function with discriminatory effect. Disparate impact describes... 1992
Jill S. Bilanchone EMPLOYMENT DISCRIMINATION--FETAL PROTECTION POLICIES AFTER JOHNSON CONTROLS: A TRUE VICTORY FOR SEXUAL EQUALITY IN THE WORKPLACE? 27 Wake Forest Law Review 769 (Fall, 1992) Title VII rejects . . . romantic paternalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks. Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle. The... 1992
Steven C. Mannion EMPLOYMENT DISCRIMINATION-TITLE VII-SIGNIFICANT BASES REQUIRED TO SUPPORT BUSINESS JUSTIFICATION DEFENSE TO DISPARATE IMPACT OF RESIDENCY REQUIREMENT AND PRIMA FACIE CASE PROPERLY DETERMINED BY STATISTICAL REFERENCE TO RELEVANT LABOR MARKET-NEWARK BRANCH, 23 Seton Hall Law Review 323 (1992) Congress enacted Title VII of the Civil Rights Act (Act) in 1964 to prohibit employers from depriving any individual of employment opportunity on the basis of race, religion, gender, color or national origin. Initially, the Act's aim was to prohibit disparate treatment, but it was later interpreted to proscribe disparate impact as well.... 1992
Paul S. Zilberfein EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH: THE EROSION OF RELIGIOUS LIBERTY 12 Pace Law Review 403 (Spring, 1992) We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. Declaration of Independence (1776) The Religion then of every man must be left to the conviction and conscience of every man; and it is the... 1992
Robert A. Sedler EMPLOYMENT EQUALITY, AFFIRMATIVE ACTION, AND THE CONSTITUTIONAL POLITICAL CONSENSUS 90 Michigan Law Review 1315 (May, 1992) Equality Transformed: A Quarter-Century of Affirmative Action. By Herman Belz. New Brunswick, N.J.: Transaction Publishers. 1991. Pp. 313. Cloth, $32.95; paper, $19.95. A Conflict of Rights: The Supreme Court and Affirmative Action. By Melvin I. Urofsky. New York: Charles Scribner's Sons. 1991. Pp. xii, 270. $22.95. It has now been a quarter... 1992
Christopher Payne EMPLOYMENT LAW AND THE CIVIL RIGHTS ACT OF 1991 69 Denver University Law Review 939 (1992) A two-year legislative struggle to reform civil rights legislation ended last November 21st when President Bush signed the Civil Rights Act of 1991 (the Act) into law. Unfortunately, the Act's unanswered questions have moved the struggle from Congress to the federal judiciary. The next few years are likely to be highly charged in the area of... 1992
J. Hoult Verkerke [ ] FREE TO SEARCH 105 Harvard Law Review 2080 (June, 1992) Many readers of Richard Epstein's provocative new book, Forbidden Grounds: The Case Against Employment Discrimination Laws, undoubtedly will react as Ronald Reagan did to Jimmy Carter during one of their televised debates and say: There you go again. As in much of his prior scholarship, Epstein takes a position well outside the mainstream of... 1992
Mark A. Rothstein GENETIC DISCRIMINATION IN EMPLOYMENT AND THE AMERICANS WITH DISABILITIES ACT 29 Houston Law Review 23 (Spring, 1992) I. Introduction: The Human Genome Project and Genetic Discrimination in Employment. 24 II. Overview of the Americans with Disabilities Act. 34 III. The ADA and Genetic Conditions. 39 A. Already-Expressed Genetic Diseases. 39 B. Already-Expressed Minor Genetic Conditions. 41 C. Unexpressed Late-Onset Genetic Diseases. 43 D. Genetic... 1992
Lairold M. Street, Esq HELPING JAPANESE FIRMS COPE WITH EMPLOYEE BENEFITS AND U.S. LABOR AND EMPLOYMENT LAWS 35 Howard Law Journal 381 (Spring, 1992) Recent developments in transnational employment and labor law in the area of Friendship, Commerce, & Navigation Treaties (FCN) illustrate the growth of American and foreign companies worldwide. Countries are becoming aware of the implications of employment and legal issues that transcend national borders. Foreign companies operating in the United... 1992
Robert C. Lind , Alan D. Ullberg INSTITUTIONAL REGULATION OF EMPLOYEE EXPRESSION: WRITING AS A CONFLICT OF INTEREST WITHIN MUSEUMS AND RELATED NONPROFIT INSTITUTIONS 32 Santa Clara Law Review 427 (1992) A museum is an educational institution and a center for learning. In this environment writing and other creative pursuits should be fostered and encouraged. However, when writing is produced by an employee, a museum is faced with a number of concerns. These concerns differ, depending on the institution's status or role in relation to the issues... 1992
Tracy Karen Finkelstein JUDICIAL AND ADMINISTRATIVE INTERPRETATIONS OF THE BONA FIDE OCCUPATIONAL QUALIFICATION AS APPLIED TO THE AGE DISCRIMINATION IN EMPLOYMENT ACT 40 Cleveland State Law Review 217 (1992) I. INTRODUCTION. 217 II. THE AGE DISCRIMINATION EMPLOYMENT ACT. 221 A. History. 221 B. Application. 223 III. THE BONA FIDE OCCUPATIONAL QUALIFICATION. 225 A. Background. 225 B. The Legislature Intended that the ADEA be Interpreted Broadly and that the BFOQ be Interpreted Narrowly. 226 C. EEOC's Interpretation of the BFOQ Defense Under Title VII.... 1992
Mark Gould LAW AND SOCIOLOGY: SOME CONSEQUENCES FOR THE LAW OF EMPLOYMENT DISCRIMINATION DERIVING FROM THE SOCIOLOGICAL RECONSTRUCTION OF ECONOMIC THEORY 13 Cardozo Law Review 1517 (March, 1992) One of the more important developments in legal thinking over the past generation has been the law-and-economics movement. This broad-based school has attempted to introduce modes of analysis drawn from economic theory into an explanation for the emergence and development of common-law rulings and institutions and has attempted to apply these modes... 1992
Gregory S. Crespi MARKET MAGIC: CAN THE INVISIBLE HAND STRANGLE BIGOTRY? 72 Boston University Law Review 991 (November, 1992) My attitudes regarding racial and gender discrimination are probably typical for a white male of the baby-boom generation. I have long believed that American society is moving fitfully but inexorably toward full racial and gender equality. While I recognize that many pockets of personal and institutional bias persist, I regard them as anomalies of... 1992
Karl E. Klare POWER/DRESSING: REGULATION OF EMPLOYEE APPEARANCE 26 New England Law Review 1395 (Summer, 1992) I. Introduction II. A Doctrinal Survey of Employee Appearance Regulation A. Constitutional Law 1. The liberty interest 2. Fundamental rights B. Civil Rights Statutes 1. Race and religion 2. Gender a. Dress codes b. Attractiveness requirements C. Collective Bargaining Law III. Appearance Regulation Law and the Constitution of Social Life A.... 1992
Kimberly Anne Huffman SALT v. APPLIED ANALYTICAL, INC.: CLARIFYING THE CONFUSION IN NORTH CAROLINA'S EMPLOYMENT-AT-WILL DOCTRINE 70 North Carolina Law Review 2087 (September, 1992) Throughout the history of employment law in North Carolina, state courts have subscribed rigidly to the employment-at-will doctrine, which governs in both breach of employment contract and wrongful discharge tort actions. North Carolina courts consider the very relationship between employee and employer to be contractual in nature. Historically, ... 1992
Alfred W. Blumrosen SOCIETY IN TRANSITION III: JUSTICE O'CONNOR AND THE DESTABILIZATION OF THE GRIGGS PRINCIPLE OF EMPLOYMENT DISCRIMINATION 14 Women's Rights Law Reporter 315 (Spring-Fall, 1992) Preface I thank the Women's Rights Law Reporter for this honor and write this preface to make three points: 1. The Past--The depth and strength of the Women's Movement was just emerging when this publication began. The Reporter reflected the perceptive and persistent interests, personified at Rutgers Law School by Ruth Ginsburg, Annamay Sheppard,... 1992
Jeffrey A. Blevins , Gregory J. Schroedter THE CIVIL RIGHTS ACT OF 1991: CONGRESS REVAMPS EMPLOYMENT DISCRIMINATION LAW AND POLICY 80 Illinois Bar Journal 336 (July, 1992) On October 31, 1991, Congress passed Senate Bill 1745, the Civil Rights Act of 1991 (the 1991 Civil Rights Act, or the Act). On November 21, 1991, President Bush signed the bill into law, giving effect to Public Law 102-166. The Act makes sweeping and significant changes to federal employment discrimination law and policy, which until now had... 1992
John M. Husband, Jude Biggs THE CIVIL RIGHTS ACT OF 1991: EXPANDING REMEDIES IN EMPLOYMENT DISCRIMINATION CASES 21 Colorado Lawyer 881 (May, 1992) President Bush signed into law the Civil Rights Act of 1991 (Act) on November 21, 1991, ending a two-year struggle with Congress. The motivation for the 1991 legislation was to reverse five U.S. Supreme Court decisions handed down in 1989. The decisions were perceived by many as unfavorable to those seeking relief from employment bias. The... 1992
D. Marvin Jones THE DEATH OF THE EMPLOYER: IMAGE, TEXT, AND TITLE VII 45 Vanderbilt Law Review 349 (March, 1992) I. Introduction: Geneva Crenshaw's Complaint A. The Intent Model: A Problem of Law As Ideology and Legitimation B. The Hidden Discursive Barrier II. The Employer As Myth A. Every Event A Deed B. The Speaker In the Text III. The Employer As Metaphor A. Real Equality: The Historical Group Model of Discrimination B. Formal Equality: The Employer... 1992
William B. Gould IV THE EMPLOYMENT RELATIONSHIP UNDER SIEGE: A LOOK AT RECENT DEVELOPMENTS AND SUGGESTIONS FOR CHANGE 22 Stetson Law Review 15 (Fall, 1992) This Article will identify and address developments of the 1970s and 1980s that plague the employment relationship. These trends include the growing importance of the part-time worker, renewed racial tensions in the workplace, and, most importantly, the declining bargaining power of the organized workforce. In addition, this Article will offer some... 1992
Julie O. Allen , Ronald J. Allen , Mayer G. Freed A POSITIVE THEORY OF THE EMPLOYMENT DISCRIMINATION CASES 16 Journal of Corporation Law 173 (Winter, 1991) I. L2-3INTRODUCTION . 174 II. L2-3THE LOGIC OF THE CASES . 174 III. L2-3THE CASES . 179 A. Griggs v. Duke Power Co. 179 B. The McDonnell Douglas Line of Cases 181 C. General Electric Co. v. Gilbert 183 D. Nashville Gas Co. v. Satty 185 E. International Brotherhood of Teamsters v. United States 187 F. Hazelwood School District v. United States 188... 1991
Judith Lillian Dillon A PROPOSAL TO BAN SEXUAL ORIENTATION DISCRIMINATION IN PRIVATE EMPLOYMENT IN VERMONT 15 Vermont Law Review 435 (Winter, 1991) [T]he constitutional shelter afforded . . . relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships . . . therefore safeguards the ability independently to define one's identity that is central to any concept of liberty. Sexual orientation is... 1991
Bruce Comly French A ROAD MAP TO ACHIEVE ENHANCED CULTURAL DIVERSITY IN LEGAL EDUCATION EMPLOYMENT DECISIONS 19 North Carolina Central Law Journal 219 (1991) The premise of this article is simple: administrators and faculty in law schools should be committed to achieving enhanced cultural diversity on their faculty. This goal is an article of faith within the liberal community of legal education and is even embodied in rules governing the accreditation of law schools by the American Bar Association.... 1991
Paul J. Gudel BEYOND CAUSATION: THE INTERPRETATION OF ACTION AND THE MIXED MOTIVES PROBLEM IN EMPLOYMENT DISCRIMINATION LAW 70 Texas Law Review 17 (November, 1991) I. Introduction II. Discrimination and the Mixed Motives Problem A. Disparate Treatment and the Burdens of Proof B. Causation, Mixed Motives, and Burden Shifts 1. Causation and Mixed Motives in Title VII Law Before Price Waterhouse (a) Sole Cause and the But For Test (b) Shifting the Burden to the Defendant on the Issue of Liability (c) Shifting... 1991
Steven Mark Tapper BUILDING ON MACNAMARA v. KOREAN AIR LINES: EXTENDING TITLE VII DISPARATE IMPACT LIABILITY TO FOREIGN EMPLOYERS OPERATING UNDER TREATIES OF FRIENDSHIP, COMMERCE, AND NAVIGATION 24 Vanderbilt Journal of Transnational Law 757 (1991) This Note explores the possibility of applying Title VII's disparate impact liability theory against foreign companies operating under Treaties of Friendship, Commerce, and Navigation (FCN Treaties). The author questions the reasoning of MacNamara v. Korean Air Lines, which applied disparate treatment, but not disparate impact, against a Korean... 1991
Michael L. Marshall CAUSATION IN EMPLOYMENT DISCRIMINATION ANALYSIS: A PROPOSED MARRIAGE OF THE CROSON AND WARDS COVE RATIONALES 20 University of Baltimore Law Review 307 (Spring, 1991) I. INTRODUCTION. 308 II. TRADITIONAL ANALYSIS. 311 A. Adverse Treatment. 311 B. Adverse Impact. 315 1. General Standards of Review. 317 2. Establishing Adverse Impact. 321 3. Defenses and Shifting Burdens. 327 III. REMEDIES FOR EMPLOYMENT DISCRIMINATION. 332 A. Court-Ordered Relief in Contested Cases. 333 B. Consent Decrees. 336 C. Voluntary... 1991
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