Mark Shank, Greg McAllister SHOW ME THE MONEY: RECENT DEVELOPMENTS REGARDING EMPLOYMENT LAW DAMAGES 38 Corporate Counsel Review 79 (May, 2019) INTRODUCTION. 81 I. FEDERAL EMPLOYMENT LAWS. 81 A. Title VII and ADA. 81 1. Remedies for Lost Wages and Benefits. 81 a. Back Pay. 81 b. Front Pay. 84 2. Compensatory and Punitive Damages. 84 a. Compensatory Damages. 84 b. Punitive Damages. 85 3. Attorneys' Fees. 88 a. Prevailing Plaintiff. 88 b. Prevailing Defendant. 92 4. Paralegals' Fees. 92... 2019
Anastasia M. Boles VALUING THE "RACE CARD": TEACHING EMPLOYMENT DISCRIMINATION USING CULTURALLY PROFICIENT INSTRUCTION 44 Thurgood Marshall Law Review 25 (Fall, 2019) Imani approached me immediately after our Employment Discrimination class one afternoon. She was visibly upset, and I invited her up to my office. Imani, a Black woman with natural hair, expressed frustration at her perceived inability to engage in discussions related to race and gender during class. She felt unable to integrate her background and... 2019
Martin Childs IV WHO TOLD YOU YOUR HAIR WAS NAPPY?: A PROPOSAL FOR REPLACING AN INEFFECTIVE STANDARD FOR DETERMINING RACIALLY DISCRIMINATORY EMPLOYMENT PRACTICES 2019 Michigan State Law Review 287 (2019) Courts often hold that race-neutral grooming policies do not constitute the type of race-based discrimination that is prohibited under Title VII of the Civil Rights Act of 1964. In reaching this decision, courts rely on a narrow interpretation of Title VII, in which the statute only prohibits discrimination that is directed at an individual's... 2019
Kristen Southworth "YOU DON'T HAVE TO CALL ME DARLIN, DARLIN": HOW EVIDENTIARY PROOF MODELS HAVE CONFUSED COURTS IN EMPLOYMENT DISCRIMINATION CASES 42 Southern Illinois University Law Journal 539 (Spring, 2018) Henry Ortiz brought a discrimination suit against his employer, Werner Enterprises, after Werner terminated him for allegedly falsifying records. Ortiz argued that the practice was commonplace and the employer's real reason was racially motivated. To prove his claim, Ortiz cited rules placed on him but not on non-Hispanic workers, his stellar... 2018
David Cynamon, John Freedman A SURVEY OF THE LAWYERS' COMMITTEE WORK ON PRIVATE AND PUBLIC EMPLOYMENT DISCRIMINATION CASES: 1984-PRESENT 62 Howard Law Journal 1 (Fall, 2018) INTRODUCTION. 2 I. THE COMMITTEE'S EARLY YEARS: 1971-1983. 3 II. CASE SCREENING AND SELECTION. 5 III. PRIVATE SECTOR EMPLOYMENT CASES: 1984-PRESENT. 7 A. Tester Cases. 7 B. Ironworkers' Union Litigation. 10 C. Circuit City. 11 D. Railroads and Utilities. 16 E. LGBTQ Discrimination. 18 F. Wage Theft Cases. 19 G. Individual Cases. 21 1. Garcia... 2018
Jamillah Bowman Williams, J.D., Ph.D. ACCOUNTABILITY AS A DEBIASING STRATEGY: TESTING THE EFFECT OF RACIAL DIVERSITY IN EMPLOYMENT COMMITTEES 103 Iowa Law Review 1593 (May, 2018) Congress passed Title VII of the Civil Rights Act of 1964 with the primary goal of integrating the workforce and eliminating arbitrary bias against minorities and other groups who had been historically excluded. Yet substantial research reveals that racial bias persists and continues to limit opportunities and outcomes for racial... 2018
Tyler D. Lane ARE YOU READY FOR THE CHECK?: EMPLOYERS FACE TITLE VII DISPARATE IMPACT LIABILITY FOR DISCRIMINATORY TIPPING PRACTICES 44 University of Dayton Law Review 53 (Fall, 2018) 53 I. INTRODUCTION. 54 II. DISPARATE IMPACT. 56 A. Civil Rights Act of 1964. 57 B. Civil Rights Act of 1991. 59 C. Similar Statutory Provisions. 61 D. Burden-Shifting in a Disparate Impact Claim. 62 III. ELEMENTS OF DISPARATE IMPACT WAGE DISCRIMINATION. 63 A. Studies Demonstrating Racial Bias. 63 1. Implicit Bias. 63 2. Study on Taxi... 2018
Alex Reed ASSOCIATIONAL DISCRIMINATION THEORY & SEXUAL ORIENTATION-BASED EMPLOYMENT BIAS 20 University of Pennsylvania Journal of Business Law 731 (2018) Introduction. 731 I. Associational Sex Discrimination in the Academic Literature. 735 II. The EEOC and Associational Sex Discrimination. 738 III. Associational Sex Discrimination: An Imperfect Means of Redressing Sexual Orientation-Based Employment Bias. 742 A. Expanding Coverage Beyond Race. 743 B. Demonstrating Membership in a Protected Class.... 2018
Bill Ong Hing BEYOND DACA--DEFYING EMPLOYER SANCTIONS THROUGH CIVIL DISOBEDIENCE 52 U.C. Davis Law Review 299 (November, 2018) C1-2Table of Contents Introduction. 301 I. Deferred Action for Childhood Arrivals (DACA). 306 II. The Particularized Passionate Sentiment on Behalf of DACA Recipients. 310 III. A Call for Civil Disobedience. 313 IV. Civil Disobedience in the Corporate Context. 318 V. Potential Penalties. 319 A. Employer Sanctions Provisions. 320 1. Civil Fines... 2018
Shelle Shimizu BEYOND THE BOX: SAFEGUARDING EMPLOYMENT FOR ARRESTED EMPLOYEES 128 Yale Law Journal Forum 226 (October 20, 2018) Individuals across the country are often denied employment opportunities because of their criminal histories. Growing awareness and concern for this form of lingering punishment has engendered a proliferation of laws, colloquially known as ban-the-box or fair-chance laws. These laws aim to address the employment-related collateral... 2018
Crystal Powell BIAS, EMPLOYMENT DISCRIMINATION, AND BLACK WOMEN'S HAIR: ANOTHER WAY FORWARD 2018 Brigham Young University Law Review 933 (2018) C1-2Contents I. Introduction. 933 II. History of Black Hair, Implicit Bias, and Workplace Grooming Standards. 937 A. History of Black Hair Texture and Hairstyle: Centuries of Stereotyping. 938 B. Clean, Neat, and Kept Versus Extreme, Eye-Catching, and Unprofessional: Workplace Grooming Policies Reflect Racial Stereotypes. 943 III. Should Black... 2018
John Winn, JD, LLM , Kevin H. Govern, JD, LLM DUE DILIGENCE AND LEGAL OBLIGATIONS OF EMPLOYMENT SCREENING IN HEALTHCARE ORGANIZATIONS 87 University of Cincinnati Law Review 1 (2018) Few career fields are as dynamic as healthcare. Even non-clinical employees and volunteer staff may encounter risks or assume responsibilities unforeseeable in other career fields. Clinical workers in particular must respond to life and death workplace challenges with competence and compassion. Employee reliability is the single most important... 2018
Major Taren E. Wellman EMPLOYMENT DISCRIMINATION AGAINST MILITARY SPOUSES: A CASE FOR ILLEGALITY CONTRARY TO POPULAR BELIEF AND PRACTICE 79 Air Force Law Review 207 (2018) I. Introduction 209 A. Discrimination Against the Spouse is Discrimination Against the Member 215 B. How Big is the Problem? 217 II. State of Current Law 220 A. The Statutory Legal Framework 220 1. Title VII of the Civil Rights Act of 1964 220 2. Non-Title VII Antidiscrimination Sources of Protection 222 a. Equal Pay Act 222 b. Executive Order... 2018
Elizabeth Westrope EMPLOYMENT DISCRIMINATION ON THE BASIS OF CRIMINAL HISTORY: WHY AN ANTI-DISCRIMINATION STATUTE IS A NECESSARY REMEDY 108 Journal of Criminal Law and Criminology 367 (Spring, 2018) The harms of mass incarceration do not end when an individual is released from prison. Instead, criminal records haunt approximately 70 million people throughout the United States today. Criminal histories follow persons convicted of crimes for the rest of their lives, creating collateral consequences that make it difficult for these individuals to... 2018
Theanne Liu ETHNIC STUDIES AS ANTISUBORDINATION EDUCATION: A CRITICAL RACE THEORY APPROACH TO EMPLOYMENT DISCRIMINATION REMEDIES 11 Washington University Jurisprudence Review 165 (2018) This Note will use a critical race theory lens to argue that most trainings on equal employment opportunity (EEO), diversity, or implicit bias operate as a restrictive remedy to Title VII race discrimination violations, and that incorporating an ethnic studies framework into these trainings can further an expansive view of antidiscrimination law.... 2018
Margaux Joselow MAYHEW v. TOWN OF SMYRNA: THE SIXTH CIRCUIT FRUSTRATES PUBLIC EMPLOYEES' RIGHT TO A JURY TRIAL 59 Boston College Law Review E-Supplement 83 (March 19, 2018) On May 11, 2017, the U.S. Court of Appeals for the Sixth Circuit, in Mayhew v. Town of Smyrna, held that the protected status of a public employee's speech in a First Amendment retaliation claim remains one of law, rather than one of mixed law and fact. In so doing, the Sixth Circuit disallowed jury determinations on the fact-intensive... 2018
Vicki Schultz OPEN STATEMENT ON SEXUAL HARASSMENT FROM EMPLOYMENT DISCRIMINATION LAW SCHOLARS 71 Stanford Law Review Online 17 (June, 2018) For Law Professors Rachel Arnow-Richman, Ian Ayres, Susan Bisom-Rapp, Tristin Green, Rebecca Lee, Ann McGinley, Angela Onwuachi-Willig, Nicole Porter, Vicki Schultz, and Brian Soucek We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual... 2018
Michael Pego THE DELUSION OF AMATEURISM IN COLLEGE SPORTS: WHY SCHOLARSHIP STUDENT ATHLETES ARE DESTINED TO BE CONSIDERED "EMPLOYEES" UNDER THE NLRA 13 FIU Law Review 277 (Fall, 2018) I tend to be more worried about college players than NFL players in the sense that the NFL players have a union . and most of them are well-compensated for the violence they do to their bodies. You read some of these stories about college players who undergo some of these same problems with concussions and so forth and then have nothing to fall... 2018
Ruqaiijah Yearby THE IMPACT OF STRUCTURAL RACISM IN EMPLOYMENT AND WAGES ON MINORITY WOMEN'S HEALTH 43 Human Rights 21 (2018) In 2010, at the end of the great recession that disproportionately harmed racial minorities and women, the federal government recognized that health disparities are caused by the social determinants of health (SDOH) (Figure 1), which are outside an individual's control. (Sec'y's Advisory Comm, on Nat'l Health Promotion & Disease Prevention... 2018
Emily Gold Waldman THE PREFERRED PREFERENCES IN EMPLOYMENT DISCRIMINATION LAW 97 North Carolina Law Review 91 (December, 2018) In theory, customer preferences cannot justify discriminatory treatment by employers. The reality is more complicated. Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination. This Article explores when... 2018
Ryan H. Vann , Melissa A. Logan THE TENSION BETWEEN THE NLRA, THE EEOC, AND OTHER FEDERAL AND STATE EMPLOYMENT LAWS: THE MANAGEMENT PERSPECTIVE 33 ABA Journal of Labor & Employment Law 291 (Fall, 2018) Public opinion relating to workplace harassment has undergone a dramatic revolution in the past year. Rarely a day passes without news of a high-profile harassment allegation. Employers have responded to the demands of the public and their employees by erring on the side of assuring more reporting options, swifter and more thorough investigations,... 2018
Manuel Quinto-Pozos THE TENSION BETWEEN THE NLRA, THE EEOC, AND OTHER FEDERAL AND STATE EMPLOYMENT LAWS: THE UNION PERSPECTIVE 33 ABA Journal of Labor & Employment Law 277 (Fall, 2018) Many labor and employment lawyers have encountered circumstances presenting tensions between employees' National Labor Relations Act (NLRA or Act) Section 7 rights and another law. The other law often raises the specter of employer liability to additional employees, individuals, or entities. Here are some examples: While picketing outside the... 2018
Jeffrey Selbin, Justin McCrary, Joshua Epstein UNMARKED? CRIMINAL RECORD CLEARING AND EMPLOYMENT OUTCOMES 108 Journal of Criminal Law and Criminology 1 (Winter, 2018) An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data, and increased criminal background checks, these records act as a substantial barrier to gainful employment and... 2018
Dallan F. Flake WHEN SHOULD EMPLOYERS BE LIABLE FOR FACTORING BIASED CUSTOMER FEEDBACK INTO EMPLOYMENT DECISIONS? 102 Minnesota Law Review 2169 (May, 2018) Following a checkup at the local medical clinic, Mark stops by the reception desk to fill out an anonymous survey about his visit in exchange for ten dollars off his bill. Mark skims the questionnaire, rates his doctor, Melanie Flowers, mostly threes (out of five), and is on his way. When the clinic is forced to lay off one of its doctors two... 2018
Tyler Sherman ALL EMPLOYERS MUST WASH THEIR SPEECH BEFORE RETURNING TO WORK: THE FIRST AMENDMENT & COMPELLED USE OF EMPLOYEES' PREFERRED GENDER PRONOUNS 26 William & Mary Bill of Rights Journal 219 (October, 2017) Under an ordinary gloss, it is easy to limit the First Amendment's Free Speech Clause to its black-letter text. Taken purely at face value, the Free Speech Clause only prohibits the government from making laws abridging the freedom of speech. The text makes no other direct mention of speech rights, guarantees, or proscriptions. However, the First... 2017
Ariela Rutbeck-Goldman AN "UNFAIR AND CRUEL WEAPON": CONSEQUENCES OF MODERN-DAY POLYGRAPH USE IN FEDERAL PRE-EMPLOYMENT SCREENING 7 UC Irvine Law Review 715 (December, 2017) I. Doug Williams's Case and Its Precedents. 718 II. Background of Polygraph Technology and Its Use in Employment. 722 A. Polygraph Background and Basics. 722 B. Banning the Test for Employment Screening. 725 1. Background of the Ban: Unreliability. 725 2. The Federal Government's Exemption in the EPPA. 726 3. Specific Issues in Expansion to CBP.... 2017
Deborah Dinner BEYOND "BEST PRACTICES": EMPLOYMENT-DISCRIMINATION LAW IN THE NEOLIBERAL ERA 92 Indiana Law Journal 1059 (Summer, 2017) Why does U.S. legal culture tolerate unprecedented economic inequality even as it valorizes social equality along identity lines? This Article takes a significant step toward answering this question by examining the relationship between U.S. employment-discrimination law and neoliberalism. It shows that the rise of antidiscrimination ideals in the... 2017
Rebecca J. Wilson , Kiley M. Belliveau , Leigh Ellen Gray BUSTING THE BLACK BOX: BIG DATA, EMPLOYMENT AND PRIVACY 84 Defense Counsel Journal 1 (July, 2017) We live in an era of big data. Our increasing reliance on digital communication coupled with the technological ability to capture, collect, and analyze ever-growing volumes of data has led to the application of predictive analytics techniques to many of the most important facets of our lives, including healthcare, education, and employment. The... 2017
Andrew T. Williamson CLEARLY UNFAIR: MCCLEARY-EVANS AND THE PROBLEMS ASSOCIATED WITH PLEADING AN EMPLOYMENT DISCRIMINATION CASE 11 Charleston Law Review 270 (Winter, 2017) I. INTRODUCTION. 271 II. A SUMMARY OF THE CASE. 273 A. Factual Summary. 273 B. Procedural Summary. 274 III. THE EVOLUTION OF THE FEDERAL CIVIL PLEADING STANDARD. 276 A. The Birth of the Federal Rules of Civil Procedure--Common Law to Code Pleading. 276 B. The Era of Notice Pleading. 279 1. Conley v. Gibson: No Set of Facts. 279 2. McDonnell... 2017
Einat Albin CUSTOMER DOMINATION AT WORK: A NEW PARADIGM FOR THE SEXUAL HARASSMENT OF EMPLOYEES BY CUSTOMERS 24 Michigan Journal of Gender & Law 167 (2017) This Article introduces a novel legal paradigm--customer domination at work--to address the sexual harassment of employees by customers. This new approach challenges the prevailing paradigm, which focuses on the employer-employee binary relationship. I show how, under current Title VII law, the prevailing paradigm leads to a weaker form of employer... 2017
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