Category Archives: Discrimination

Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?

Source: Kevin M. Clermont & Stewart J. Schwab, Harvard Law & Policy Review, Vol. 3 no 1, Winter 2009

This article uses data from the Administrative Office of the United States Courts to convey the realities of federal employment discrimination litigation. Litigants in these “jobs” cases appeal more often than other litigants, with the defendants doing far better on appeal than the plaintiffs. These troublesome facts might help explain why today many fewer plaintiffs are undertaking the frustrating route into federal district court, where, relatively often, plaintiffs must pursue their claims all the way through trial, and where, at both pretrial and trial, these plaintiffs lose more often than other federal plaintiffs.

Discrimination, Complexity, and the Public/Private Sector Question

Source: Reginald A. Byron, Work and Occupations, Vol. 37 no. 4, November 2010
(subscription required)

From the abstract:
Does employment discrimination vary in degree or character across public and private labor market sectors? Prior research cannot fully address this question because it typically relies on one dimension of discrimination–estimates of wage gaps. This study extends the literature by analyzing 11,528 legally verified cases of race and sex discrimination from the Ohio Civil Rights Commission (1986-2003). Quantitative analyses demonstrate that aggregate rates of verified discrimination vary little by sector, yet there are elevated rates of public sector promotion discrimination and elevated rates of private sector firing discrimination. In-depth qualitative analyses show that specific sectoral processes contribute to these aggregate patterns. In the public sector, limited accountability for promotion decisions allows managers to devalue seniority, augment “soft skills,” and sabotage multiple stages of formalized proceedings. Moreover, the very devices intended to curb discriminatory promotion may inadvertently multiply the stages for bias to enter decisions. In the private sector, managers exploit the latitude afforded by the employment-at-will doctrine to differentially terminate workers, sometimes justifying their actions as cost saving in a competitive market. The author argues that these processes are in line with statistical discrimination and social closure theories and concludes by discussing their implications for understandings of workplace inequality.

Family Responsibilities Discrimination: Litigation Update 2010

Source: Cynthia Thomas Calvert, The Center for WorkLife Law, 2010

This report provides data for employers, employees, their lawyers, and policymakers about current trends in family responsibilities discrimination litigation.

Highlights include:
• Lawsuits fled by employees with family caregiving obligations have increased almost 400% in the past decade, a time during which the overall number of employment discrimination cases filed decreased.
• Employees prevail in almost half of the cases, far more frequently than in other types of employment cases.
• Verdicts and settlements in family responsibilities discrimination cases average over $500,000.
• Cases have arisen in every state, in every industry, and at every level in organizations.
• Employers of all sizes have been sued, from small start-up companies to large multi-national corporations.

Ricci v. DeStefano: New Opportunities for Employers to Correct Disparate Impact Using Croson Studies (Part One of a Two Part Series)

Source: Richard E. Biddle and Daniel A. Biddle, Labor Law Journal, Vol. 61 no. 2, Summer 2010
(subscription required)

On June 29, 2009, the United States Supreme Court handed down the first Title VII ruling answering the difficult question: “Under what circumstances can an employer subject to Title VII implement otherwise prohibited disparate-treatment discrimination to avoid disparate impact liability?” Ricci v. DeStefano answered this difficult question and, in so doing, presented some additional layers to the Title VII framework relevant to both disparate impact and disparate treatment cases that must be applied in the future by federal courts. This article discusses these implications. The Supreme Court in Ricci adopted a “strong-basis-in-evidence standard” as a matter of statutory construction for courts to use as a means of resolving conflicts between Title VII’s disparate-treatment and disparate-impact provisions – “allowing violations of one in the name of compliance with the other only in certain, narrow circumstances.” This article introduces the concept of a “Croson Study,” for 20 years limited in its application to contracting issues in the public sector, for employment issues to assist employers meet the Ricci-set “strong-basis-in-evidence standard.” The second part of this article, appearing in the next issue, will provide some specific applications of Croson Studies.

Damned If You Do and Damned If You Don’t: Title VII and Public Employee Promotion Disparate Treatment and Disparate Impact Litigation

Source: Robert N. Roberts, Public Administration Review, Volume 70, Issue 4, July/August 2010
(subscription required)

From the abstract:
What has been the impact of the U.S. Supreme Court’s 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a disparate impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must “have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to the take the race-conscious discriminatory action.” This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.

Sexuality and Gender Law: Assessing the Field, Envisioning the Future

Source: UCLA Law Review, Volume 57 no. 5, June 2010

Articles include:
<a href="Introduction to the Symposium Issue – Sexuality and Gender Law: The Difference a Field Makes
by Nan D. Hunter
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Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality
by Kathryn Abrams
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The Sex Discount

by Kim Shayo Buchanan
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What Feminists Have to Lose in Same-Sex Marriage Litigation
by Mary Anne Case
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Lawyering for Marriage Equality
by Scott L. Cummings and Douglas NeJaime
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Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive
by William Eskridge
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Sticky Intuitions and the Future of Sexual Orientation Discrimination

by Suzanne B. Goldberg
See also: abstract

Workers Alleging Bias Against Caregivers

Source: Jennifer Ludden, National Public Radio – All Things Considered, June 10, 2010

“There’s no federal law that bans workplace discrimination against parents or people who care for elderly or disabled family members, but that hasn’t stopped a surge of lawsuits by such workers alleging unfair treatment by their employers. In the past 10 years, the number of such suits has quadrupled and many have been successful, according to the Center for WorkLife Law.

Pliable Precedents, Plausible Policies, and Lilly Ledbetter’s Loss

Source: Ronald Turner, Berkeley Journal of Employment and Labor Law, Vol. 30 no. 1, 2009
(subscription required)

From the Lexis Nexis summary:
With this analytical move, Justice Alito set the stage for the Court’s rejection of Ledbetter’s arguments that Goodyear violated Title VII when the company issued paychecks to her during the 180 days preceding the filing of her March 25, 1998 EEOC questionnaire (that period began to run on September 26, 1997), and when she was denied a salary increase in 1998. … In Justice Ginsburg’s view Ledbetter’s claim, “resting not on one particular paycheck, but on the cumulative effect of individual acts,” resembled and had “a closer kinship to hostile work environment claims than to charges of a single episode of discrimination.” … Once the Court distinguished Bazemore and gave it no precedential power relative to Ledbetter’s pay discrimination claim, her case turned on the Court’s view of the reasonableness of her proposed construction of Title VII which would commence a new charge-filing limitations period upon the issuance of each paycheck reflecting the current and continuing effects of a discriminatory act occurring several or many years ago. … Valuing the protection of the employee’s right to sue, Justice Ginsburg’s analysis is consistent with her reading of Title VII’s text and Court precedent, with her determination that employers may invoke the laches defense against unreasonably delayed EEOC charges, and with her focus on the realities and dynamics of pay discrimination (more on this below). … By contrast Justice Ginsburg argued that pay decisions and disparities in compensation are “often hidden from sight,” and that applying Title VII without taking into account the “realities of wage discrimination” deprives employees of the protections, and strips away the remedial objectives, of the statute.

Documenting Discrimination on the Basis of Sexual Orientation and Gender Identity in State Employment

Source: Brad Sears, Nan Hunter, Christy Mallory, Williams Institute for Sexual Orientation Law & Public Policy, 2009

This report addresses whether there has been a widespread and persistent pattern of unconstitutional discrimination by state governments on the basis of sexual orientation and gender identity.

This report is the result of research conducted during 2008 and 2009 by the Williams Institute. In addition, ten different law firms assisted with the project, with offices and attorneys from across the country. Also making contributions were scholars and experts from a number of academic disciplines, including history, political science, economics, sociology, and demography. The research resulted in a set of reports on employment law and discrimination on the basis of sexual orientation and gender identity for each of the fifty states, which are included as Appendices to this report. Based on these fifty state reports, plus additional studies conducted by the William Institute, literature reviews, and research projects conducted by the firms, we drafted and reviewed the following papers, presented here as a series of chapters summarizing the research findings. Based on this analysis, we conclude that:

– There is a widespread and persistent pattern of unconstitutional discrimination on the basis of sexual orientation and gender identity against state government employees;

– There is no meaningful difference in the pattern and scope of employment discrimination against LGBT people by state governments compared to the private sector and other public sector employers; and

– The list of documented examples that we have compiled far under-represents the actual prevalence of employment discrimination against LGBT people by state and local governments.