Lee Modjeska EMPLOYMENT DISCRIMINATION AND THE RECONSIDERATION OF RUNYON 78 Kentucky Law Journal 377 (1989/1990) The Supreme Court sent shock waves through the civil rights community last term when it ordered reargument in Patterson v. McLean Credit Union (Patterson I) of the following question: Whether or not the interpretation of 42 U.S.C. ยง 1981 adopted by this Court in Runyon v. McCrary, 427 U.S. 160 (1976), should be reconsidered? The Court indicated... 1990
Josef Rohlik EMPLOYMENT DISCRIMINATION IN THE UNITED STATES IN 1989: REVISIONS OR A PAUSE 20 Georgia Journal of International and Comparative Law 57 (Spring, 1990) This is the second time I have participated in the Roundtable on Employment Law organized by Professor Vogel-Polsky at the Institute. Needless to say, I am very honored by your kind invitation, and very pleased to be here. Since everybody here is well acquainted with the law of employment discrimination in the United States, I will limit my... 1990
Melissa M. McGrath EMPLOYMENT DISCRIMINATION: ARE TITLE VII PROTECTIONS UNDER A DISPARATE IMPACT ANALYSIS DRASTICALLY DIMINISHED? 15 Southern Illinois University Law Journal 187 (Fall, 1990) Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989) Wards Cove Packing Co. v. Atonio was initiated in 1974 by a class of nonwhite cannery workers seeking protection from alleged discriminatory employment practices. Their employers were several Alaska salmon processing companies which operated canneries that employed cannery and noncannery... 1990
Jean Calhoun Brooks EMPLOYMENT DISCRIMINATION-THE SUPREME COURT LIBERATES TITLE VII MIXED-MOTIVE CASES FROM THE PROCRUSTEAN BED OF THE MCDONNELL DOUGLAS/BURDINE PRETEXT MODEL-PRICE WATERHOUSE v. HOPKINS 25 Wake Forest Law Review 345 (1990) Decision making is a complex and multifaceted process. Seldom does a single factor or consideration motivate a decisionmaker. Acknowledging the fundamental complexity of decision making during the epic legislative struggle surrounding the passage of title VII of the Civil Rights Act of 1964, Senator Case commented: If anyone ever had an action... 1990
Gary Minda EMPLOYMENT LAW 41 Syracuse Law Review 265 (1990) It is customary for authors of this Survey to comment exclusively on the labor relations decisions of the New York courts. However, in the last decade or so, the confines of labor law have been broadened to include general employment law subjects such as employment discrimination, drug testing, employee privacy, employment at-will, and others... 1990
Mark T. Conlon EMPLOYMENT LAW--ARBITRATION NOT A PREREQUISITE TO A FEDERAL COURT PROCEEDING ON A TITLE VII CLAIM--UTLEY v. GOLDMAN SACHS & CO., 883 F.2D 184 (1ST CIR. 1989), CERT. DENIED, 110 S. CT. 842 (1990) 24 Suffolk University Law Review 271 (Spring, 1990) The Federal Arbitration Act (Arbitration Act) established a liberal policy in favor of private agreements to arbitrate contractual disputes. In Utley v. Goldman Sachs & Co., the United States Court of Appeals for the First Circuit considered whether an employee is required to arbitrate a claim for a violation of Title VII of the Civil Rights Act... 1990
Gilda Vinzulis Boyer EMPLOYMENT LAW--REDEFINING THE EVIDENTIARY BURDENS IN TITLE VII DISPARATE IMPACT EMPLOYMENT DISCRIMINATION CASES: WARDS COVE PACKING COMPANY v. ATONIO 15 Journal of Corporation Law 573 (Spring, 1990) Title VII of the Civil Rights Act of 1964 prohibits employer practices which deprive individuals of potential employment opportunities due to race, color, religion, sex, or national origin. The right of employees to challenge employer practices that are fair in form but discriminatory in operation was first recognized by the Supreme Court in... 1990
Linda W. Filardi EMPLOYMENT LAW--TITLE VII--ONCE PLAINTIFF DEMONSTRATES ILLEGITIMATE FACTOR MOTIVATED EMPLOYMENT DECISION, DEFENDANT MUST SHOW THAT SAME DECISION WOULD HAVE BEEN MADE ABSENT THE UNLAWFUL FACTOR TO AVOID LIABILITY--PRICE WATERHOUSE v. HOPKINS, 109 S.CT. 177 20 Seton Hall Law Review 860 (1990) Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from discriminating against individuals on the basis of race, color, sex, religion, or national origin. The statute is sweeping in its language. Title VII includes neither a definition of discrimination, nor a standard for determining liability. In effect, the language of... 1990
Emilie M. Meyer EMPLOYMENT LAW--TITLE VII--UNITED STATES SUPREME COURT CLARIFIES STANDARDS FOR STATISTICAL EVIDENCE AND BURDENS OF PROOF IN PRIVATE LITIGATION UNDER THE DISPARATE IMPACT THEORY--WARDS COVE PACKING CO. v. ANTONIO, 109 S.CT. 2115 (1989) 20 Seton Hall Law Review 831 (1990) Title VII of the Civil Rights Act of 1964 (Act) prohibits an employer from discriminating against individuals on the basis of race, gender, religion, color, or national origin. The United States Supreme Court has interpreted Title VII to forbid both intentional discrimination and the use of facially neutral employment practices that adversely... 1990
Frank B. Harty , Thomas W. Foley EMPLOYMENT TORTS: EMERGING AREAS OF EMPLOYER LIABILITY 39 Drake Law Review 3 (1989-1990) C1-3Table of Contents I. Introduction. 4 A. The Changing Employment Environment. 4 B. The New Employment Torts. 5 II. Employment Torts. 6 A. Negligent Hiring. 6 1. The Scope of the Problem. 6 2. The Elements of the Tort of Negligent Hiring. 7 3. The Advantages of the Negligent Hiring Cause of Action. 12 4. The Law of Negligent Hiring in Iowa. 14 B.... 1990
Katherine Brokaw GENETIC SCREENING IN THE WORKPLACE AND EMPLOYERS' LIABILITY 23 Columbia Journal of Law and Social Problems 317 (1990) Imagine yourself, a few years in the future, applying for a job as a skilled worker in an industrial plant. You have been very healthy during your whole life. You don't smoke, drink, or use drugs. You are experienced and qualified for the job. You are about to be hired. Then, as a mere formality, you are asked by your soon-to-be employer to undergo... 1990
Joseph Beckham, J.D., Ph.D. HARMONIZING ALTERNATIVE THEORIES OF EMPLOYMENT DISCRIMINATION: IMPLICATIONS FOR SCHOOL DISTRICT EMPLOYERS 58 West's Education Law Reporter 883 (1990) Congress enacted Title VII of the Civil Rights Act of 1964 with the goal of eliminating employment discrimination. The statute forbids discrimination in employment 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 employment... 1990
Harvey L. Cohen IN THE WAKE OF PATTERSON v. MCLEAN CREDIT UNION: THE TREACHEROUS AND SHIFTING SHOALS OF EMPLOYMENT DISCRIMINATION LAW 67 Denver University Law Review 557 (1990) Perhaps no circuit better exemplifies the current chaos that reigns among the lower federal courts in the interpretation of Patterson v. McLean Credit Union than Colorado's Tenth Circuit. In the wake of Patterson, judges within the same Colorado district have issued contradictory rulings on discriminatory firings, while another Colorado judge has... 1990
by David A. Strauss John S. Lytle 1989-90 Preview of United States Supreme Court Cases 169 (January 26, 1990) Federal laws forbidding racial discrimination were enacted shortly after the Civil War, but they generally lay dormant and unenforced until the courts revived them during the 1950s, '60s and '70s--at roughly the same time the modern civil rights laws were passed. Often a person complaining of racial discrimination can invoke both the... 1990
Amy Weinstein MUST EMPLOYERS BE COLORBLIND? TITLE VII BARS INTRA-RACIAL EMPLOYMENT DISCRIMINATION, WALKER v. SECRETARY OF TREASURY, I.R.S., 713 F. SUPP. 403 (N.D. GA. 1989) 68 Washington University Law Quarterly 213 (Spring, 1990) In Walker v. Secretary of Treasury, I.R.S., the United States District Court for the Northern District of Georgia expanded the coverage of Title VII of the Civil Rights Act of 1964 (Title VII) to allow a light-skinned black person to sue her dark-skinned black supervisor for employment discrimination on the basis of color. The Walker decision... 1990
Woody W. Lay PATTERSON v. MCLEAN CREDIT UNION: A NARROWING OF REMEDIES FOR THE EMPLOYMENT DISCRIMINATION PLAINTIFF 47 Washington and Lee Law Review 995 (Fall, 1990) Section 1981 of the United States Code provides that all persons have the same right as white citizens to make and enforce a contract; to sue, be parties, and give evidence; to full and equal benefit of the laws; and to similar punishment, penalties, and taxes. The language of section 1981 first appeared in section one of the Civil Rights Act of... 1990
Sherry L. Evans PRICE WATERHOUSE v. HOPKINS: BALANCING EMPLOYEES' RIGHTS AND EMPLOYERS' PREROGATIVES: ALLOCATION OF THE BURDENS OF PROOF IN A TITLE VII MIXED-MOTIVE CASE 43 Southwestern Law Journal 1149 (May, 1990) In August of 1982, Ann Hopkins, a senior manager in the Washington D.C. office of Price Waterhouse, was nominated for partnership in the firm. As part of its formal partnership admissions process, Price Waterhouse invited all partners in the firm to submit written evaluations on each proposed candidate and to recommend whether the candidate should... 1990
Beth L. Singletary PRICE WATERHOUSE v. HOPKINS: CLARIFICATION OF THE STANDARD OF CAUSATION, BURDEN OF PROOF, AND LIABILITY IN TITLE VII EMPLOYMENT DISCRIMINATION CASES 41 Mercer Law Review 1097 (Spring, 1990) In Price Waterhouse v. Hopkins the Supreme Court attempted to resolve the conflict among the circuits concerning the requisite burdens of proof in cases filed under Title VII of the Civil Rights Act of 1964. In his plurality opinion, Justice Brennan argued that when an employer makes an employment decision by considering gender as well as... 1990
Barbara L. Kramer RUNYON RECONSIDERED: THE FUTURE OF SECTION 1981 AS A BASIS FOR EMPLOYMENT DISCRIMINATION CLAIMS 38 Cleveland State Law Review 251 (1990) I. Introduction. 251 II. Section 1981: The Civil Rights Act of 1866. 252 A. Historical Background. 252 B. Scope and Coverage. 254 1. Type of Employer. 254 a. Private Employers. 254 b. Public Employers. 255 2. Bases of Discrimination. 255 a. Race. 255 b. Gender. 256 c. Religion. 257 d. Alienage and National Origin. 257 e. Other Bases. 258 C.... 1990
Alfred W. Blumrosen SOCIETY IN TRANSITION II: PRICE WATERHOUSE AND THE INDIVIDUAL EMPLOYMENT DISCRIMINATION CASE 42 Rutgers Law Review 1023 (Summer1990) And thus the native hue of resolution Is sicklied o'er with the pale cast of thought, And enterprises of great pitch and moment With this regard their currents turn awry, And lose the name of action. . . . William Shakespeare, Hamlet, Act III, Sc. 1. In the 1960's, the pervasive subordination of minorities and women was finally addressed by a... 1990
David C. Gardiner, Jr. STEERING AWAY FROM THE ARBITRATION PROCESS: RECOGNIZING STATE LAW TORT ACTIONS FOR UNIONIZED EMPLOYEES 24 University of Richmond Law Review 233 (Winter, 1990) When an employer and a labor union negotiate over an employment contract, their agreements are usually set forth in a collective bargaining agreement. The collective bargaining agreement defines the relationship between the employer and the unionized employees and addresses such matters as wages, hours, and other conditions of employment.... 1990
Amy R. Tabor THE CHANGING LANDSCAPE OF EMPLOYMENT DISCRIMINATION LAW: 1988-1989 AND BEYOND 39-OCT Rhode Island Bar Journal 13 (October, 1990) The United States Supreme Court, during its 1989 term, issued a series of decisions which have significantly changed the ground rules governing the law of employment discrimination. In these decisions, the new, more conservative majority of the Court has made it more difficult for minorities and women to challenge discriminatory employment... 1990
Julius G. Getman THE CHANGING ROLE OF COURTS AND THE POTENTIAL ROLE OF UNIONS IN OVERCOMING EMPLOYMENT DISCRIMINATION 64 Tulane Law Review 1477 (June, 1990) During the late 1960s and early 1970s the federal courts led by the Fifth Circuit Court of Appeals mounted an attack on racism and sexism in employment. The major focus of the attack was hiring policies under which minorities and women either were denied employment or were forced into the least desirable jobs. Although the task was formidable, the... 1990
Brad V. Driscoll THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988: A BALANCE OF INTERESTS 75 Iowa Law Review 539 (January, 1990) On June 27, 1988, Congress enacted the Employee Polygraph Protection Act to regulate the use of lie detector devices in the workplace. The Act represents a strong effort by Congress to eliminate the multitude of workers' rights violations occurring each year in conjunction with lie detector use. The Act sets forth employee-testing guidelines and... 1990
Kathleen E. Moriarty THE PRECLUSIVE EFFECT OF UNREVIEWED STATE AGENCY FACTUAL FINDINGS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT 84 Northwestern University Law Review 774 (Winter, 1990) With the stated purposes of promoting employment of older persons on the basis of their abilities, prohibiting arbitrary age discrimination in employment, and helping workers and employers develop solutions to problems arising from the impact of age on employment, Congress in 1967 enacted the Age Discrimination in Employment Act (ADEA). To enforce... 1990
Dawn D. Bennett-Alexander THE STATE OF AFFIRMATIVE ACTION IN EMPLOYMENT: A POST-STOTTS RETROSPECTIVE 27 American Business Law Journal 565 (Winter, 1990) In 1984, the U.S. Supreme Court rendered a decision that galvanized those concerned about civil rights issues in the work place. The decision, Firefighters Local Union No. 1784 v. Stotts, probably received more press, interpretation, and scrutiny than any other recent case in the civil rights or employment law areas. Stotts held that a bona fide... 1990
William B. Gould, IV THE SUPREME COURT AND EMPLOYMENT DISCRIMINATION LAW IN 1989: JUDICIAL RETREAT AND CONGRESSIONAL RESPONSE 64 Tulane Law Review 1485 (June, 1990) Amidst rising expectations of social and economic reform throughout Eastern Europe and South Africa, in 1989 the United States Supreme Court sought to retard, if not emasculate, both judicial and legislative initiatives undertaken in this country during the race relations revolution of the post-World War II era. True, the Court has not turned back... 1990
Timothy N. Tack THE SUPREME COURT'S REVENUE OF VOLUNTARY AFFIRMATIVE ACTION BY PUBLIC EMPLOYERS: APPLYING DIFFERENT STANDARDS UNDER TITLE VII AND THE CONSTITUTION 26 Willamette Law Review 957 (Fall, 1990) Equal employment opportunity has been our national policy since Congress passed the Civil Rights Act of 1964. Under Title VII of the Act, employers are prohibited from discriminating against individuals on the basis of race, color, religion, sex, or national origin .... Nonetheless, such distinctions frequently are made when an employer engages... 1990
Mitchell H. Rubinstein THE USE OF PREDISCHARGE MISCONDUCT DISCOVERED AFTER AN EMPLOYEES' TERMINATION AS A DEFENSE IN EMPLOYMENT LITIGATION 24 Suffolk University Law Review 1 (Spring, 1990) I. Introduction II. The After the Fact Defense A. The After the Fact Defense Under the National Labor Relations Act B. The Application of NLRB Law to Other Areas of Employment Law C. The Use of the After the Fact Defense Under a Fraud Theory D. The After the Fact Defense and the Prima Facie Case of Discrimination E. The After the Fact Defense Under... 1990
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