Judith Reed LIMITING THE RIGHT TO A BIAS-FREE WORKPLACE: A SURVEY OF THE EMPLOYMENT DISCRIMINATION DECISIONS OF THE 1988-89 TERM 18 New York University Review of Law and Social Change 93 (1990/1991) In its 1988-89 Term, the Supreme Court decided an extraordinary number of cases involving employment discrimination. That Term marked a shift in the Court's attention from affirmative action questions to other issues related to employment discrimination suits, such as procedural guidelines, attorney's fees and the availability of actions under the... 1991
Mary E. Becker NEEDED IN THE NINETIES: IMPROVED INDIVIDUAL AND STRUCTURAL REMEDIES FOR RACIAL AND SEXUAL DISADVANTAGES IN EMPLOYMENT 79 Georgetown Law Journal 1659 (August, 1991) As a result of many advantages, white men earn significantly more than women and minorities, especially minority women. Women with college educations earn less than men with high school educations. Comparisons of wages for full time white male workers and minority women are especially dramatic. For example, African-American women workers earned... 1991
Marc Rosenblum RACE-CONSCIOUS EMPLOYMENT PROGRAMS IN THE POST-BRENNAN ERA: AN END TO FALSELY REMEDIAL PREFERENCES? 28 Houston Law Review 993 (October, 1991) I. Introduction. 995 II. Preferential PracticesThe Factual Predicate and Competence. 1001 A. The Factual Predicate. 1002 1. Two formulations of the factual predicate requirement. 1003 2. The factual predicate in Weber. 1004 3. The factual predicate in Johnson. 1006 4. Resolving the factual predicate issue: Croson. 1007 5. The confusion created by... 1991
John E. Sanchez RELIGIOUS AFFIRMATIVE ACTION IN EMPLOYMENT: FEARFUL SYMMETRY 1991 Detroit College of Law Review 1019 (Fall, 1991) Population projections presage that with the next census, Protestants will comprise scarcely a numerical majority of the American population. Displacing traditional faiths are immigrants with new religions. Indeed, many religious authorities cite Islam as the fastest growing faith in the United States. Thanks in part to this diaspora, the ranks... 1991
Kermit Alfonso Welch, III THE CHANGING DISPARATE IMPACT THEORY OF EMPLOYMENT DISCRIMINATION 34 Howard Law Journal 331 (1991) Minorities and disadvantaged groups have always struggled to obtain civil rights in their countries; and the trend in the United States has been no exception. Recently, the clock has been turned back on civil rights in America. Minorities, who initially used the courts as a way of securing their rights, are now finding it increasingly more... 1991
John J. Donohue III , Peter Siegelman THE CHANGING NATURE OF EMPLOYMENT DISCRIMINATION LITIGATION 43 Stanford Law Review 983 (May, 1991) The future of America's policy towards civil rights in employment will be determined by the current battle between two opposing forces. One group sees the expansion of federal power to eliminate employment discrimination as the product of this country's growing commitment to racial and gender justice. Its champion is the United States Congress, and... 1991
Catherine J. Lanctot THE DEFENDANT LIES AND THE PLAINTIFF LOSES: THE FALLACY OF THE "PRETEXT-PLUS" RULE IN EMPLOYMENT DISCRIMINATION CASES 43 Hastings Law Journal 57 (November, 1991) I. Competing Rules Governing Proof of Intentional Discrimination at the Pretext Stage. 71 A. The Pretext-Only Rule. 71 B. The Pretext-Plus' Rule. 81 C. How Much Plus' Evidence Do the Pretext-Plus' Courts Require?. 91 II. The Fallacy of the Pretext-Plus' Rule. 100 A. Can the Defendant Rebut the Presumption of Discrimination with a Legitimate... 1991
Kurt Richard Mattson THE DEMISE OF DISPARATE IMPACT EMPLOYMENT DISCRIMINATION IN THE REHNQUIST COURT 67 North Dakota Law Review 39 (1991) The disparate impact theory has been in existence since 1971, when Title VII of the Civil Rights Act was applied by the Supreme Court to cases of discrimination where intent was missing or hard to prove, but yet was apparent. Confusion over its application has accompanied the analysis since that date. After much debate and discrepancy among the... 1991
Leroy D. Clark THE LAW AND ECONOMICS OF RACIAL DISCRIMINATION IN EMPLOYMENT BY DAVID A. STRAUSS 79 Georgetown Law Journal 1695 (August, 1991) Professor David Strauss's article is a thoughtful, carefully developed economic analysis of current prospects for efficient enforcement of the laws prohibiting racial discrimination in employment. After canvassing various theories of discrimination, Strauss concludes that severe limitations exist in applying to modern conditions legal concepts... 1991
David A. Strauss THE LAW AND ECONOMICS OF RACIAL DISCRIMINATION IN EMPLOYMENT: THE CASE FOR NUMERICAL STANDARDS 79 Georgetown Law Journal 1619 (August, 1991) The Civil Rights Act of 1964 marked, and surely contributed to, a dramatic change in the accepted view of racial discrimination. Within a decade after the Act was passed, the consensus in favor of some form of civil rights laws, and against racial discrimination, became virtually beyond challenge in mainstream political debate. In the mid-1950s... 1991
Robert L. Norton THE NEW DISPARATE IMPACT ANALYSIS IN EMPLOYMENT DISCRIMINATION: EMANUEL v. MARSH IN LIGHT OF WATSON, ATONIO, AND THE FAILED CIVIL RIGHTS ACT OF 1990 56 Missouri Law Review 333 (Spring, 1991) Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. Under Title VII, a determination of unlawful employment discrimination may be based on either disparate treatment analysis or disparate impact analysis. Disparate treatment theory requires a showing that the... 1991
Lewis M. Steel, Miriam F. Clark THE SECOND CIRCUIT'S EMPLOYMENT DISCRIMINATION CASES: AN UNCERTAIN WELCOME 65 Saint John's Law Review 839 (Summer, 1991) This Article will focus upon how the United States Court of Appeals for the Second Circuit has, over the past decade, addressed certain key issues in the area of employment discrimination. Critical cases will be reviewed through the prism of the authors' belief that, consistent with congressional intent and public policy, the federal courts of... 1991
Colonel Robert E. Sutemeier, USAF THEORIES OF DISCRIMINATION IN FEDERAL SECTOR EMPLOYEE LITIGATION 35 Air Force Law Review 19 (1991) Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate on the basis of race, color, religion, sex or national origin. When Congress enacted Title VII in 1964, it excluded the Federal Government from the definition of an employer in section 701(b). Although Federal employment discrimination clearly violated the... 1991
Lino A. Graglia TITLE VII OF THE CIVIL RIGHTS ACT OF 1964: FROM PROHIBITING TO REQUIRING RACIAL DISCRIMINATION IN EMPLOYMENT 14 Harvard Journal of Law & Public Policy 68 (Winter, 1991) The modern law of racial discrimination began with the Supreme Court's decision in Brown v. Board of Education of Topeka, which prohibited compulsory racial segregation in public schools. It soon became clear that Brown stood for the principle that all racial discrimination by government is unconstitutional. The principle that government should not... 1991
Sharon L. Tasman, Margaret A. Jacobsen V. EMPLOYMENT 50 Maryland Law Review 1153 (1991) In Morris v. Prince George's County, the Court of Appeals interpreted Maryland Code article 73B, section 32(a) and found that the legislative policy favoring pension benefit portability necessitates allowing transferees to carry actual years of service from their former retirement system to their new retirement system for the purpose of determining... 1991
Michael H. Gottesman WITHER GOEST LABOR LAW: LAW AND ECONOMICS IN THE WORKPLACE 100 Yale Law Journal 2767 (June, 1991) The long and steady decline in the percentage of private-sector employees represented by unions-a decline now in its fourth decade -preoccupies all thinking about American labor law today. One would not have learned of this decline from the writings of scholars and courts during the 1960's and 1970's; indeed, these sources espoused little but... 1991
Joel L. Selig AFFIRMATIVE ACTION IN EMPLOYMENT AFTER CROSON AND MARTIN: THE LEGACY REMAINS INTACT 63 Temple Law Review 1 (Spring, 1990) Two years ago I undertook a detailed review and evaluation of the United States Supreme Court's jurisprudence on affirmative action in employment. I concluded that the Court's 1986 and 1987 decisions on the subject had resolved most of the important questions in the area, and that what I called the Brennan-Powell majority had created a legacy on... 1990
Suzanne M. Boris AGE DISCRIMINATION 58 George Washington Law Review 877 (June, 1990) The Age Discrimination in Employment Act of 1967 (the ADEA) was enacted to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment. Because the ADEA was modeled after... 1990
Pamela L. Perry BALANCING EQUAL EMPLOYMENT OPPORTUNITIES WITH EMPLOYERS' LEGITIMATE DISCRETION: THE BUSINESS NECESSITY RESPONSE TO DISPARATE IMPACT DISCRIMINATION UNDER TITLE VII 12 Industrial Relations Law Journal 1 (1990) In this article, Professor Perry identifies the split among the Justices of the Supreme Court on the appropriate standard to be used for establishing the business necessity justification to disparate impact discrimination under Title VII. She proposes that the business necessity standard be modeled on the framework of the bona fide occupational... 1990
Charles A. Shanor , Samuel A. Marcosson BATTLEGROUND FOR A DIVIDED COURT: EMPLOYMENT DISCRIMINATION IN THE SUPREME COURT, 1988-89 6 Labor Lawyer 145 (Winter, 1990) The Supreme Court's 1988-89 Term may be best remembered for the abortion and flag-desecration decisions. But no field of the law was as widely considered by the Court as civil rights, particularly employment discrimination. The substance of these cases was remarkably varied, ranging from sexual stereotyping to racial harassment, disparate treatment... 1990
Clark Freshman BEYOND ATOMIZED DISCRIMINATION: USE OF ACTS OF DISCRIMINATION AGAINST "OTHER" MINORITIES TO PROVE DISCRIMINATORY MOTIVATION UNDER FEDERAL EMPLOYMENT LAW 43 Stanford Law Review 241 (November, 1990) Mike Ueda, a graduating MBA with a concentration in marketing, and whose grandparents happened to come from Japan, sends his resume to a well-known advertising firm and subsequently interviews on campus with one of the firm's account executives. The members of the firm recruiting committee, which includes no Asians or women, review Mike's resume... 1990
Robert Belton CAUSATION AND BURDEN-SHIFTING DOCTRINES IN EMPLOYMENT DISCRIMINATION LAW REVISITED: SOME THOUGHTS ON HOPKINS AND WARDS COVE 64 Tulane Law Review 1359 (June, 1990) I. Introduction II. Hopkins and Wards Cove A. Price Waterhouse v. Hopkins 1. Causation 2. Causation as a Liability-Determining Rule 3. Burden-Shifting Rules and the Same Decision Test 4. Unresolved Issues B. Wards Cove Packing Co. v. Atonio 1. Causation in Disparate-Impact Claims 2. Burden-Shifting Rules in Disparate-Impact Cases 3. The Quantum... 1990
Mack A. Player CITIZENSHIP, ALIENAGE, AND ETHNIC ORIGIN DISCRIMINATION IN EMPLOYMENT UNDER THE LAW OF THE UNITED STATES 20 Georgia Journal of International and Comparative Law 29 (Spring, 1990) The Lord spoke to Moses and said, . . . When an alien settles with you in your land, you shall not oppress him. He shall be treated as a native born among you, and you shall love him as a man like yourself . . . . Leviticus 19:33 (New English Bible) This paper will survey the federal law of discrimination in employment based on ethnic origin,... 1990
Michael A. Ross CIVIL RIGHTS * - -DISPARATE TREATMENT * - -UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, A PLAINTIFF WHO SHOWS THAT ILLEGITIMATE CONSIDERATIONS PLAYED A SUBSTANTIAL ROLE IN AN ADVERSE EMPLOYMENT DECISION MAY SHIFT THE BURDEN OF PERSUASION TO THE DEFEND 67 University of Detroit Law Review 487 (Spring, 1990) Hopkins was a candidate for partnership in Price Waterhouse's accounting firm. As part of the selection process, partners in the firm submitted written comments to the firm's Admissions Committee. These comments praised the plaintiff's performance in securing major contracts but criticized her interpersonal skills. Some of these comments indicated... 1990
Linda L. Holdeman CIVIL RIGHTS IN EMPLOYMENT: THE NEW GENERATION 67 Denver University Law Review 1 (1990) In July 1989, Title VII was twenty-five years old. It is generally assumed that the first twenty-five years have seen significant changes in the economic opportunities available to America's minorities and women. But with the rise to power of the Reagan appointees, the Supreme Court is clearly fashioning a new approach to issues of civil rights in... 1990
Michael T. Larkin CIVIL RIGHTS--CONSENT DECREES--NONPARTIES TO EMPLOYMENT DISCRIMINATION CONSENT DECREES MAY ATTACK, IN A COLLATERAL LAWSUIT, DECISIONS MADE PURSUANT TO THE DECREES 21 Saint Mary's Law Journal 1063 (1990) Martin v. Wilks, __ U.S. __, 109 S.Ct. 2180, 104 L. Ed. 2d 835 (1989). In 1984, Robert Wilks and six white employees of the Birmingham Fire Department sued the city of Birmingham, Alabama and the Jefferson County Personnel Board in a reverse discrimination lawsuit. Wilks alleged he was denied a promotion while less qualified blacks were promoted... 1990
Erik R. Sunde CIVIL RIGHTS--TITLE VII DISPARATE IMPACT THEORY--EMPLOYER'S BURDEN OF REBUTTING PRIMA FACIE CASE UNDER DISPARATE IMPACT THEORY IS ONE OF PRODUCTION WHILE ULTIMATE BURDEN OF PERSUASION REMAINS WITH COMPLAINANT 21 Saint Mary's Law Journal 1081 (1990) Wards Cove Packing Co. v. Atonio, __ U.S. __, 109 S.Ct. 2115, 104 L. Ed. 2d 733 (1989). Wards Cove Packing Co. (Wards Cove) operates a salmon packing cannery in a remote region of Alaska. Cannery jobs at Wards Cove, requiring little skill, are staffed predominantly by non-whites, while whites occupy skilled noncannery jobs. In 1974, a class of... 1990
Ronald Turner EMPLOYER LIABILITY UNDER TITLE VII FOR HOSTILE ENVIRONMENT SEXUAL HARASSMENT BY SUPERVISORY PERSONNEL: THE IMPACT AND AFTERMATH OF MERITOR SAVINGS BANK 33 Howard Law Journal 1 (1990) I. Title VII Theories of Sexual Harassment A. Recognized Variants of Sexual Harassment B. Required Proof in Sexual Harassment Actions 1. Order of Proof in Quid Pro Quo Cases 2. Order of Proof in Hostile Environment Cases II. Employer Liability for Supervisory and Hostile Environment Sexual Harassment: The State of the Law Before Meritor Savings... 1990
George M. Strickler, Jr. EMPLOYMENT DISCRIMINATION 21 Texas Tech Law Review 231 (1990) A. The Application of Title VII to the Employment Opportunities of Nonemployees B. Issue Preclusion and Claim Preclusion C. Proof of Causation and the Mixed Motive Case D. Extraterritorial Application A. Proof of Intentional Discrimination B. The Willfulness Standard C. The Bona Fide Occupational Qualification Defense With one exception, the... 1990
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