David L. Rose TWENTY-FIVE YEARS LATER: WHERE DO WE STAND ON EQUAL EMPLOYMENT OPPORTUNITY LAW ENFORCEMENT? 42 Vanderbilt Law Review 1121 (May, 1989) I. INTRODUCTION. 1122 II. HOPES AND ASPIRATIONS: THE HISTORICAL CONTEXT, LEGISLATIVE HISTORY, AND CONVENTIONAL WISDOM. 1124 A. The Situation in 1964. 1124 B. The Goals of the Civil Rights Act. 1128 C. Modest Expectations for Title VII in 1964. 1133 III. ENFORCEMENT OF FEDERAL EQUAL EMPLOYMENT OPPORTUNITY LAW. 1135 A. The Early Years (1965-1969).... 1989
Merrill D. Feldstein WATSON V. FORT WORTH BANK & TRUST: REALLOCATING THE BURDENS OF PROOF IN EMPLOYMENT DISCRIMINATION LITIGATION 38 American University Law Review 919 (April 1, 1989) Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. While Congress has set forth the basic principles against employment discrimination, the Supreme Court has developed the method by which such claims against employers are litigated and proved. Courts have... 1989
Thomas K. Bond, Todd J. Sanders WATSON v. FORT WORTH BANK & TRUST: THE SUPREME COURT AND EMPLOYMENT DISCRIMINATION: DISPARATE VIEWS ON DISPARATE IMPACT 40 Mercer Law Review 1025 (Spring, 1989) In Watson v. Fort Worth Bank & Trust the Supreme Court addressed a previously unresolved issue in the area of employment discrimination. Before Watson, courts usually applied the disparate impact analysis in cases involving such objective employment criteria as standardized tests or educational requirements, but the circuit courts disagreed on the... 1989
Arthur S. Leonard A NEW COMMON LAW OF EMPLOYMENT TERMINATION 66 North Carolina Law Review 631 (April, 1988) I. INTRODUCTION. 632 II. HOW THE CURRENT SITUATION AROSE. 640 A. From Adoption of the Common-Law Presumption to the Beginning of the Modern Turmoil. 640 B. The Common-Law Exceptions of Recent Years. 647 1. The Implied Contract Exceptions: Enforcing Assurances of Job Security. 649 2. The Implied Contract Exceptions: Good Faith and Fair Dealing. 653... 1988
Joel L. Selig AFFIRMATIVE ACTION IN EMPLOYMENT: THE LEGACY OF A SUPREME COURT MAJORITY 63 Indiana Law Journal 301 (Spring, 1987/1988) In the first fifteen years after the enactment of Title VII of the 1964 Civil Rights Act, the legality and the utility of remedial employment quotas were widely recognized by the lower federal courts. Numerical goals and timetables for the employment of minority groups appeared in various forms: they were included in court orders to remedy... 1988
Robert Belton CAUSATION IN EMPLOYMENT DISCRIMINATION LAW 34 Wayne Law Review 1235 (Spring, 1988) C1-3Table of Contents I. INTRODUCTION. 1236 II. CAUSATION IN LEGAL THEORY: A BRIEF OVERVIEW. 1244 III. DOCTRINAL DEVELOPMENTS: THE CONFLICT OF CAUSAL ANALYSIS IN EMPLOYMENT DISCRIMINATION LAW. 1252 A. Statutory and Analytic Schemes. 1252 B. Supreme Court Decisions on Causation. 1258 1. The But For Test. 1259 2. The Mt. Healthy Same Decision... 1988
Deborah Jane Clarke CONSTITUTIONAL LAW: EMPLOYMENT DISCRIMINATION-EMERGING JUDICIAL STANDARDS FOR CAREFUL CONSTRUCTION OF AFFIRMATIVE ACTION REMEDIES 41 Oklahoma Law Review 289 (Summer, 1988) One of the most pressing and controversial constitutional issues today involves the extent to which the equal protection clause of the fourteenth amendment and the due process clause of the fifth amendment allow government to use racial classifications to remedy past racial discrimination. There has been no single authoritative opinion on this... 1988
Anthony Sanchez DEFINING THE PROPER BOUNDS OF DISPARATE IMPACT ANALYSIS: BEYOND AN OBJECTIVE/SUBJECTIVE EMPLOYMENT CRITERIA DICHOTOMY 49 University of Pittsburgh Law Review 657 (Winter, 1988) Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Two theories, disparate treatment and disparate impact, may be utilized by litigants to demonstrate discrimination in hiring, promotion and termination employment practices under Title VII. To establish a... 1988
Regina Austin EMPLOYER ABUSE, WORKER RESISTANCE, AND THE TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 41 Stanford Law Review 1 (November, 1988) The conventional wisdom is that, in the workplace, abuse can be a legitimate instrument of worker control and an appropriate form of discipline. By abuse I mean treatment that is intentionally emotionally painful, offensive, or insulting. Rebukes and reprimands are the very sort of behavior that one would expect from a superior who is... 1988
JANET SELDEN Employer Liability For 'Hostile Environment' Sexual Harassment, Meritor Savings Bank, FSB v. Vinson 31 Howard Law Journal 51 (1988) For many women, the workplace is not a place conducive to professional growth or development, but is instead, a place of humiliation, intimidation and degradationa place laden with physical and verbal abuse. Females have ceased to be workers and have become sexual victims, while employers, through their supervisory personnel, have become the... 1988
Eleanor Holmes Norton EQUAL EMPLOYMENT LAW: CRISIS IN INTERPRETATION-SURVIVAL AGAINST THE ODDS 62 Tulane Law Review 681 (March, 1988) When the history of twentieth century statutory development is finally written, one of the most fascinating chapters will recount the unusual and almost totally unpredicted unfolding of Title VII of the 1964 Civil Rights Act. Born a statutory skeleton, the result of endless congressional compromises, the statute matured, providing strong protection... 1988
Lairold M. Street INTERNATIONAL COMMERCIAL AND LABOR MIGRATION REQUIREMENTS AS A BAR TO DISCRIMINATORY EMPLOYMENT PRACTICES 31 Howard Law Journal 497 (October 1, 1988) Over the years, numerous countries have ignored the importance of labor and employment issues regarding international commerce. Mr. Street considers this question while examining the changing world economy and the transforming international workplace. He examines how differing national customs, decrees, declarations, and traditions have affected... 1988
Sherrill D. Wolford LABOR LAW-EMPLOYMENT DISCRIMINATION-VOLUNTARY AFFIRMATIVE ACTION PLAN AUTHORIZING SEX BASED PREFERENCES IN PROMOTIONS FOR POSITIONS IN WHICH WOMEN ARE SIGNIFICANTLY UNDERREPRESENTED DOES NOT VIOLATE TITLE VII. JOHNSON v. TRANSPORTATION AGENCY, SANTA CLARA 65 University of Detroit Law Review 861 (Summer, 1988) In 1978, the Santa Clara County Transportation Agency adopted an affirmative action plan that authorized the agency to consider the sex or race of qualified applicants in making promotions to positions within traditionally segregated job classifications in which women and minorities had been significantly underrepresented. The plan was intended to... 1988
Patrick S. Bryant NYBRID EMPLOYEES: DEFINING AND PROTECTING EMPLOYEES EXCLUDED FROM THE COVERAGE OF THE NATIONAL LABOR RELATIONS ACT 41 Vanderbilt Law Review 601 (April, 1988) I. INTRODUCTION. 601 II. STATUTORY DEFINITION OF EMPLOYEE: WHO IS COVERED BY THE ACT?. 603 A. Background. 603 B. Statutes. 604 III. DEFINITION OF EMPLOYEE: CASE LAW. 605 A. Managerial Employees. 605 B. Confidential Employees. 608 C. Professional Employees Under the Yeshiva Rationale. 610 D. Implications of Yeshiva. 611 1. Limitation to the... 1988
Elyse Hilton PRIVATE CLUBS AND EMPLOYMENT DISCRIMINATION: DOES FEDERAL LAW APPLY? 16 Fordham Urban Law Journal 615 (1987/1988) From April 1977 to December 1977, Alfred A. Hudson worked as a maintenance man for the Charlotte Country Club. The day after he was fired from that job, he filed a complaint with the Equal Employment Opportunity Commission (the Commission). Hudson alleged that his termination was racially motivated and thus in violation of title VII of the Civil... 1988
Susan Murphy PROTECTING EMPLOYEES WITH AIDS: USING TITLE VII TO MEET AN URGENT NEED 7 Review of Litigation 357 (Summer, 1988) C1-3Table of Contents I. Introduction. 357 II. Title VII of the Civil Rights Act. 360 A. Private Cause of Action. 361 B. Title VII Jurisdiction. 361 III. Proposed Legal Theory Under Title VII. 362 IV. Efficacy of Theory Considering Case Precedent. 364 A. Disparate Treatment Cause of Action Under Title VII. 364 B. Disparate Impact Cause of Action... 1988
Lisa A. Blanchard SEXUAL HARASSMENT IN THE WORKPLACE: EMPLOYER LIABILITY FOR A SEXUALLY HOSTILE ENVIRONMENT 66 Washington University Law Quarterly 91 (1988) Sexual harassment is unsolicited nonreciprocal . . . [sexually based] behavior that asserts a [worker's] sex role over [his or] her function as a worker. Sexual harassment involves unwelcome advances, statements or conduct that unreasonably interfere with an individual's work performance and ability to pursue a career. Because sexual harassment... 1988
David L. Rose SUBJECTIVE EMPLOYMENT PRACTICES: DOES THE DISCRIMINATORY IMPACT ANALYSIS APPLY? 25 San Diego Law Review 63 (January/February, 1988) Is a system committing decisionmaking in hiring, promotion, or pay to the discretion or other subjective judgments of supervisors unlawful under federal equal employment opportunity law when it is not valid or necessary and has a discriminatory impact against minorities or women, or is it lawful in the absence of purposeful discrimination? In the... 1988
Stephen M. Fogel, Gerri L. Kornblut, Newton P. Porter SURVEY OF THE LAW ON EMPLOYEE DRUG TESTING 42 University of Miami Law Review 553 (January, 1988) I. INTRODUCTION. 554 II. THE MAGNITUDE OF THE DRUG PROBLEM AND DRUG TESTING AS A RESPONSE. 557 A. The Prevalence of Drug Testing. 559 B. The Methods of Drug Testing. 562 III. THE CONSTITUTION OF THE UNITED STATES. 567 A. State Action and Mandatory Drug Testing. 568 B. The Fourth Amendment. 572 1. DRUG TESTING AS A SEARCH. 572 2. ASSESSING THE... 1988
Max A. Bailey, Ed.D., J.D., Nancy W. Sindelar, Ph.D. TEACHER COMPETENCE AND EMPLOYER DISCRIMINATION 41 West's Education Law Reporter 1199 (1988) Teacher competency is a popular issue in this age of educational reform. Parents want their children to be taught by only the most competent teachers. School boards and management personnel spend hours discussing the philosophical issues and pragmatic concerns involved in employing only the most highly qualified teachers. State legislatures pass... 1988
Paul N. Cox THE FUTURE OF THE DISPARATE IMPACT THEORY OF EMPLOYMENT DISCRIMINATION AFTER WATSON v. FORT WORTH BANK 1988 Brigham Young University Law Review 753 (1988) In Watson v. Fort Worth Bank & Trust Co. the Supreme Court held that the disparate impact theory of employment discrimination under Title VII of the Civil Rights Act is applicable to subjective employment criteria. On this relatively narrow point, the Court, with the possible exception of Justice Kennedy who did not participate, was unanimous.... 1988
John V. Jansonius, Haynes and Boone Dallas, Texas THE ROLE OF SUMMARY JUDGMENT IN EMPLOYMENT DISCRIMINATION LITIGATION 4 Labor Lawyer 747 (Fall, 1988) Since passage of Title VII of the Civil Rights Act of 1964, employment discrimination claims have added increasingly to the federal court case load. Besides the sheer volume of employment discrimination cases, many of which have been complex and lengthy, case law applying employment discrimination statutes has been rapidly evolving, adding to the... 1988
John Edward Charland WILLFULNESS, GOOD FAITH, AND THE QUAGMIRE OF LIQUIDATED DAMAGES UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT 13 Journal of Corporation Law 573 (Winter, 1988) I. INTRODUCTION. 574 II. THE ADEAAN OVERVIEW. 576 A. The Vortex of the ADEA. 578 1. Judicial Decisions. 579 2. A Definitional Perspective. 581 3. Vicarious Knowledge of Section 8 Material. 581 B. The Nature of the Wilfulness Requirement: Punitive v. Compensatory. 583 1. Liquidated Damages. 584 2. Extension of the Statute of Limitations. 586 C. The... 1988
Lawrence Allen Katz , Robin M. Roberts A FRESH LOOK AT GETTING FRESH: EMPLOYER LIABILITY FOR A SEXUALLY OFFENSIVE WORK ENVIRONMENT 23-NOV Arizona Bar Journal 10 (October/November, 1987) By 1986, employers had been placed on notice: sexual harassment constitutes unlawful sex discrimination under Title VII of the Federal Civil Rights Act of 1964 and under the Arizona Civil Rights Act. Just what sexual harassment is, however, and the extent to which an employer may be held liable for its own transgressions and those of its agents,... 1987
Frances Bates McDonald ACCEPTABLE RACE-CONSCIOUS RELIEF IN EMPLOYMENT: THE SUPREME COURT STRUGGLES TOWARD A CONSENSUS 31 Saint Louis University Law Journal 1001 (October, 1987) Affirmative action is the subject of considerable debate based on recent statutory law, case law, and executive order. As a preferential and race-conscious remedy for racial discrimination in the work place, affirmative action is widely covered in the press and, recently, the demise of affirmative action has even appeared on the conservative agenda... 1987
Susan Melanie Jones APPLYING DISPARATE IMPACT THEORY TO SUBJECTIVE EMPLOYEE SELECTION PROCEDURES 20 Loyola of Los Angeles Law Review 375 (January, 1987) Congress rendered race, color, religion, sex and national origin invisible to employers in 1965, when Title VII of the Civil Rights Act of 1964 took effect. The central provisions of Title VII make it unlawful to base hiring or any subsequent employment decision on these protected characteristics. To enforce Title VII, Congress established the... 1987
Edward J. Littlejohn , Leonard S. Rubinowitz BLACK ENROLLMENT IN LAW SCHOOLS: FORWARD TO THE PAST? 12 Thurgood Marshall Law Review 415 (Summer, 1987) For a hundred years after the first Black student entered an American law school in 1868, Blacks were barely visible in law schools. Starting in the late 1960s, they made modest gains in enrollment. Black representation in law school peaked within a decade, and leveled off by the mid-1970s. This enrollment plateau continued until the mid-1980s,... 1987
Katherine J. Streicher CANCER-BASED EMPLOYMENT DISCRIMINATION: WHETHER THE PROPOSED AMENDMENT TO TITLE VII WILL PROVIDE AN EFFECTIVE ANTI-DISCRIMINATION REMEDY 62 Indiana Law Journal 827 (Summer, 1986/1987) More than 800,000 individuals in the United States are diagnosed annually as having cancer, and of this number approximately 400,000 will be cured. Yet employer ignorance concerning a cancer patient's ability to perform a job, or an employer's belief that employees with a cancer history will lead to higher insurance premiums, results in... 1987
Marianne Malouf CIVIL RIGHTS-TITLE VII-PUBLIC EMPLOYER MAY CONSIDER GENDER TO PROMOTe EMPLOYEE WITHOUT VIOLATING TITLE VII OF CIVIL RIGHTS ACT OF 1964 WHEN ENFORCING A VALID AFFIRMATIVE ACTION PLAN 19 Saint Mary's Law Journal 455 (1987) Paul Johnson and Diane Joyce, employees of the Santa Clara Transportation Agency (Agency), sought promotion to the position of road dispatcher in 1979. Both Johnson and Joyce were qualified candidates as they had more than the requisite work experience and both scored above the minimum interview points required for selection. Although Mr. Johnson... 1987
Kathleen E. Saxton CONSTITUTIONAL LAW: QUOTA VERSUS GOAL IN AFFIRMATIVE ACTION-LOCAL 28 OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 106A S. CT. 3019 (INTERM ED. 1986) 12 University of Dayton Law Review 641 (Spring, 1987) Since the passage of the Civil Rights Act of 1964, the United States Supreme Court has continually attempted to define employment discrimination under Title VII. For example, the Supreme Court has held that an employer's use of written tests and high school diploma criteria for hiring employees does not have discriminatory purpose but does have... 1987
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