Jason M. Weinstein NO HARM, NO FOUL?: THE USE OF AFTER-ACQUIRED EVIDENCE IN TITLE VII EMPLOYMENT-DISCRIMINATION CASES 62 George Washington Law Review 280 (January, 1993) Barbara Johnson, an African-American woman, is fired from a job with the New City National Bank after two years of service marked by consistently positive evaluations of her work. She files suit under Title VII of the Civil Rights Act of 1964 (Title VII), claiming disparate treatment on the basis of gender and race. During a deposition in... 1993
Patricia A. Moore PARTING IS SUCH SWEET SORROW: THE APPLICATION OF TITLE VII TO POST-EMPLOYMENT RETALIATION 62 Fordham Law Review 205 (October, 1993) Suppose that an employee charges her employer with racial discrimination. If the employer subsequently discharges that employee for making the charge, the employee has a remedy under the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. But suppose instead that an employee leaves her job and charges her former employer with... 1993
Martin H. Malin , Robert F. Ladenson PRIVATIZING JUSTICE: A JURISPRUDENTIAL PERSPECTIVE ON LABOR AND EMPLOYMENT ARBITRATION FROM THE STEELWORKERS TRILOGY TO GILMER 44 Hastings Law Journal 1187 (August, 1993) Labor arbitration has been hailed as one of the most successful innovations to result from collective bargaining. Arbitrating claims arising under a collective bargaining agreement is cheaper, faster, and less formal than litigating them in court. Furthermore, the parties control the arbitration procedure and can tailor it to meet their needs. The... 1993
Richard Hiers PUBLIC EMPLOYEES' FREE SPEECH: AN ENDANGERED SPECIES OF FIRST AMENDMENT RIGHTS IN SUPREME COURT AND ELEVENTH CIRCUIT JURISPRUDENCE 5 University of Florida Journal of Law and Public Policy 169 (Spring, 1993) I. INTRODUCTION. 171 II. BACKGROUND AND PRECEDENT: SUPREME COURT AND FIFTH AND ELEVENTH CIRCUIT DECISIONS PRIOR TO CONNICK. 173 A. Early Supreme Court Decisions: Keyishian, Pickering, and Perry. 174 1. Keyishian. 175 2. Pickering. 177 3. Perry v. Sanderman: Before and After in the Fifth Circuit. 183 B. Mt. Healthy, Givhan, and Fifth Circuit... 1993
George Rutherglen RECONSIDERING BURDENS OF PROOF: IDEOLOGY, EVIDENCE, AND INTENT IN INDIVIDUAL CLAIMS OF EMPLOYMENT DISCRIMINATION 1 Virginia Journal of Social Policy and the Law 43 (Spring, 1993) In McDonnell Douglas Corp. v. Green, the Supreme Court devised a test for individual claims of employment discrimination which has since become ubiquitous. The application of this test has become ever broader, as claims for employment discrimination have expanded to discrimination on the basis of age and disabilities, as jury trial has become more... 1993
Eileen M. Mullen ROTATING JAPANESE MANAGERS IN AMERICAN SUBSIDIARIES OF JAPANESE FIRMS: A CHALLENGE FOR AMERICAN EMPLOYMENT DISCRIMINATION LAW 45 Stanford Law Review 725 (February, 1993) I. Introduction. 726 II. Allegations of Discrimination in Favor of Japanese Managers. 731 A. Americans Excluded from Decisionmaking. 731 1. Japanese-only meetings. 731 2. Meetings conducted in Japanese. 732 3. Information isolation. 733 4. Business conducted during Japanese-only socializing. 734 B. Titles Without Authority. 734 C. Separate Career... 1993
Cheryl Krause Zemelman THE AFTER-ACQUIRED EVIDENCE DEFENSE TO EMPLOYMENT OF TITLE VII AND THE CONTOURS OF SOCIAL RESPONSIBILITY 46 Stanford Law Review 175 (November, 1993) The recently developed after-acquired evidence defense allows employers to escape liability or mitigate damages in Title VII claims by introducing evidence of an employee's wrongdoing that the employer discovered after its employment decision. Cheryl Krause Zemelman analyzes this controversial defense by placing its development within a larger... 1993
Howard Eglit THE AGE DISCRIMINATION IN EMPLOYMENT ACT, TITLE VII, AND THE CIVIL RIGHTS ACT OF 1991: THREE ACTS AND A DOG THAT DIDN'T BARK 39 Wayne Law Review 1093 (Spring, 1993) I. Introduction. 1096 II. CRA Provisions that Expressly or Impliedly Modify the ADEA. 1106 A. Express Changes Made to the ADEA. 1106 1. The Statute of Limitations for Private Litigation. 1106 2. The Statute of Limitations for EEOC Suits. 1110 B. Changes Expressly Linked to, but not Expressly Modifying, the ADEA. 1114 1. The Government Employee... 1993
Mark B. Schaffer THE IMPLICATIONS OF JAPANESE CULTURE ON EMPLOYMENT DISCRIMINATION LAWS IN THE UNITED STATES 16 Houston Journal of International Law 375 (Winter, 1993) C1-3TABLE OF CONTENTS I. INTRODUCTION. 375 II. STATE OF THE LAW. 378 A. The FCN Treaty and Title VII. 378 B. Lower Court Authority. 380 1. The Second Circuit. 380 2. The Fifth Circuit. 382 C. U.S. Supreme Court Authority. 383 III. JAPANESE CULTURE. 384 A. Foundation for Distrust: In-Group v. Out-Group. 384 B. Japanese Business Practices. 387 C.... 1993
Mark A. Schuman THE POLITICS OF PRESUMPTION:ST. MARY'S HONOR CENTER V. HICKS AND THE BURDENS OF PROOF IN EMPLOYMENT DISCRIMINATION CASES 9 Saint John's Journal of Legal Commentary 67 (Fall 1993) The Supreme Court's decision in St. Mary's Honor Center v. Hicks was one of the most controversial decisions the Court handed down in a largely low-key 1992-93 term. The decision determined the relative burdens of proof the plaintiff and defendant carry in a suit charging intentional employment discrimination (also know as disparate treatment)... 1993
Rebecca Hanner White , Robert D. Brussack THE PROPER ROLE OF AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT DISCRIMINATION LITIGATION 35 Boston College Law Review 49 (December, 1993) A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is after-acquired in the sense that the misconduct was... 1993
Joshua B. Levy THE SHIFTING BURDENS OF PROOF IN EMPLOYMENT DISCRIMINATION LAWS 66-DEC Wisconsin Lawyer 16 (December, 1993) On June 25, 1993, the U.S. Supreme Court issued its decision in St. Mary's Honor Center v. Hicks. The five-to-four Supreme Court decision delivered by Justice Scalia addressed the issue of whether, in an employment discrimination lawsuit alleging disparate treatment brought under Title VII of the Civil Rights Act of 1964, the trier of fact's... 1993
Robert J. Gregory , Equal Employment Opportunity Commission, Washington, D.C. THE USE OF AFTER-ACQUIRED EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES: SHOULD THE GUILTY EMPLOYER GO FREE? 9 Labor Lawyer 43 (Winter, 1993) An employee is fired from his job. The employee brings suit under Title VII of the Civil Rights Act of 1964, alleging race discrimination. In the course of defending against the action, the employer discovers that the employee had engaged in misconduct on the job prior to his discharge. The employer was not aware of the misconduct at the time it... 1993
Dawn Bennett-Alexander THE USE OF DISPARATE IMPACT ANALYSIS IN SUBJECTIVE CRITERIA EMPLOYMENT DISCRIMINATION CASES: ALL THAT GLITTERS ISN'T GOLD? 12 National Black Law Journal 189 (Winter, 1993) Employers can't use poorly conceived, basically lousy, thoughtless evaluation procedures to determine who they will hire. This is how one attorney characterized the holding in the U.S. Supreme Court's recent decision of Watson v. Fort Worth Bank and Trust. In a victory for employees, the Court held 8-0 that Title VII discrimination claims... 1993
Michael W. Roskiewicz TITLE VII REMEDIES: LIFTING THE STATUTORY CAPS FROM THE CIVIL RIGHTS ACT OF 1991 TO ACHIEVE EQUAL REMEDIES FOR EMPLOYMENT DISCRIMINATION 43 Washington University Journal of Urban and Contemporary Law 391 (Spring, 1993) Title VII of the Civil Rights Act of 1964 represents a landmark in employment discrimination legislation. Title VII protects against discrimination based on race, color, sex, or national origin in virtually every aspect of the employment relationship. The 1964 Act gave courts the authority to use equitable remedies to eradicate discrimination from... 1993
Alex Young K. Oh USING EMPLOYMENT TESTERS TO DETECT DISCRIMINATION: AN ETHICAL AND LEGAL ANALYSIS 7 Georgetown Journal of Legal Ethics 473 (Fall, 1993) I. Introduction A. Historical Background B. EEOC Policy Guide and the Fair Employment Council Litigation II. Ethical Considerations A. Challenges on Ethical Grounds 1. Misrepresentation 2. Manufacturing Litigation B. ABA Model Rules of Professional Conduct 1. Rules Against Misrepresentation 2. Rules Against Solicitation C. A More Flexible Approach... 1993
David D. Kadue, William J. Dritsas WHEN WHAT YOU DIDN'T KNOW CAN HELP YOU-EMPLOYERS' USE OF AFTER-ACQUIRED EVIDENCE OF EMPLOYEE MISCONDUCT TO DEFEND WRONGFUL DISCHARGE CLAIMS 27 Beverly Hills Bar Association Journal 117 (Summer, 1993) After the dismissal of an employee, facts sometimes emerge to suggest that the employee should have been fired even sooner, or never hired at all. Increasingly, employers cite after-acquired evidence of an employee's misconduct to defend lawsuits for breach of employment contract and for employment discrimination. Some cases relying upon this... 1993
Rosalio Castro , Lucia Corral WOMEN OF COLOR AND EMPLOYMENT DISCRIMINATION: RACE AND GENDER COMBINED IN TITLE VII CLAIMS 6 La Raza Law Journal 159 (1993) The American labor system has been shaped by historical White male domination that continues to subordinate people of color and women. The authors agree with theorists and scholars who argue that working women of color are more vulnerable to racist and sexist employment practices than either working White women or working men of color. This is true... 1993
Ruth C. Vance WORKERS' COMPENSATION AND SEXUAL HARASSMENT IN THE WORKPLACE: A REMEDY FOR EMPLOYEES, OR A SHIELD FOR EMPLOYERS? 11 Hofstra Labor Law Journal 141 (Fall, 1993) Because of the Anita Hill-Clarence Thomas hearings, the Tailhook incident, and the attention that the media devoted to them, the public is now familiar with the term sexual harassment. Despite familiarity with the term, many people remain uncertain about what sexual harassment is. Actually, this offensive workplace activity had no label until the... 1993
Lois L. Krieger "MISS SAIGON" AND MISSED OPPORTUNITY: ARTISTIC FREEDOM, EMPLOYMENT DISCRIMINATION, AND CASTING FOR CULTURAL IDENTITY IN THE THEATER 43 Syracuse Law Review 839 (1992) In August 1990, Actors Equity Association, a union representing stage actors, barred a white British actor from repeating his performance of a Eurasian character in the Broadway production of the hit London musical Miss Saigon because Asian actors had not been given a chance to audition for the role. The same year, Native American actors protested... 1992
George Rutherglen ABOLITION IN A DIFFERENT VOICE 78 Virginia Law Review 1463 (September, 1992) Forbidden Grounds, by Professor Richard Epstein, is the latest and perhaps the most controversial of his many works expounding a comprehensive libertarian critique of American law. Epstein has argued tirelessly, and often brilliantly, for a libertarian approach to an ever-expanding range of legal issues, from tort law to takings to legal theory. In... 1992
John J. Donohue III ADVOCACY VERSUS ANALYSIS IN ASSESSING EMPLOYMENT DISCRIMINATION LAW 44 Stanford Law Review 1583 (July, 1992) Prior to the passage of Title VII of the 1964 Civil Rights Act, individuals of substance argued with great force that an essential element of freedom included the right of private employers to discriminate against blacks. Over the succeeding quarter century, these voices have lapsed into silence as the principle of equal opportunity in employment... 1992
Stephen A. Plass BEDROCK PRINCIPLES, ELUSIVE CONSTRUCTION, AND THE FUTURE OF EQUAL EMPLOYMENT LAWS 21 Hofstra Law Review 313 (Winter, 1992) Introduction. 314 I. Title VIIOriginal Legislation and Construction. 318 A. Legislative Limitations of Title VII. 318 B. Recent Court-Imposed Limitations. 320 1. The Causation and Same Decision Test. 320 2. Facially Neutral Policies and the Statute of LimitationsThe Clairvoyant Employee Problem. 323 3. Tougher Disparate Impact Burdens. 326 4.... 1992
Patricia A. Sexton CIVIL RIGHTS LAW: THE PDA AND EMPLOYMENT LEAVES ARISING FROM PREGNANCY AND PREGNANCY-RELATED CONDITIONS-EMPLOYERS ENGAGING IN DISPARATE TREATMENT OF PREGNANT EMPLOYEES SUBJECT TO TITLE VII ATTACK [EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ACKERMAN, HOOD 32 Washburn Law Journal 133 (Fall, 1992) In Equal Employment Opportunity Commission v. Ackerman, Hood & McQueen, Inc., the United States Court of Appeals for the Tenth Circuit reiterates the comparison a court must make when determining whether employer actions discriminate against pregnant women under Title VII of the 1964 Civil Rights Act. The Tenth Circuit rejects the argument that a... 1992
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
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