Category Archives: Discrimination

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
See also: abstract

Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality
by Kathryn Abrams
See also: abstract

The Sex Discount

by Kim Shayo Buchanan
See also: abstract

What Feminists Have to Lose in Same-Sex Marriage Litigation
by Mary Anne Case
See also: abstract

Lawyering for Marriage Equality
by Scott L. Cummings and Douglas NeJaime
See also: abstract

Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive
by William Eskridge
See also: abstract

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.

In Federal Employment Discrimination Claims, Race And Sex Of Judges Matter (A Lot)

Source: David Yamada, Minding the Workplace Blog, February 12, 2010

Edward Adams, writing for the ABA Journal (membership magazine of the American Bar Association), reports on two studies documenting powerful correlations between the race and sex of judges and the results of federal employment discrimination claims. The studies formed the focus of a program at the ABA’s recent mid-year meeting in Orlando.

Demographics, Fiscal Health, and School Quality: Shedding Light on School Closure Decisions

Source: Sherrilyn M. Billger, IZA Discussion Paper No. 4739, February 2010

In our current challenging budgetary environment, school closures remain a potentially attractive choice. With a large panel of Illinois schools from 1991 to 2005, I investigate which factor contribute to school closures. Among elementary schools, declining enrollments and rural locations coincide with closures. However, schools with higher per-pupil spending are ceteris paribus less likely to close. Furthermore, better test scores also yield lower probabilities. High expenditures contribute to junior high closure, but the most significant predictors are the proportions of black and low income students. Administrators may claim that low enrollments and high spending motivate school closures, but in Illinois, that is not the whole story.

Diversifying The American Workplace

Source: NPR, 2010

Stories include:
Diversity Efforts Uneven In U.S. Companies
The Promise Of Diversity Is Yet To Be Fulfilled
Introspection After Allegations Of Discrimination
In-House Resource Groups Can Help And Harm
Defining Diversity: Beyond Race And Gender
Gay In The Office: The Last Frontier Of Workplace Equality
‘Mad Men’ Haven’t Changed Much Since The 1960s
Should ‘The Office’ Be Used In HR Training?

Major U.S. Cities and Counties Adopt Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records

Source: National Employment Law Project, January 10, 2010

Urban areas across the United States (including Austin, Baltimore, Boston, Chicago, Minneapolis, San Francisco, and St. Paul) have limited discrimination in city and county jobs against people with criminal records. As Mayor Richard Daley explained when he announced Chicago’s new hiring policy, “Implementing this new policy won’t be easy, but it’s the right thing to do. . . . We cannot ask private employers to consider hiring former prisoners unless the City practices what it preaches.”