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Michael Selmi - One of the best experts on this subject based on the ideXlab platform.

  • Theorizing Systemic Disparate Treatment Law
    2011
    Co-Authors: Michael Selmi
    Abstract:

    The pattern or practice cause of action is the most potent, but least understood, of the causes of action recognized by Title VII. The massive sex Discrimination case filed against Wal-Mart has renewed scrutiny on the nature of the pattern or practice claim, and this essay seeks to explain under what circumstances statistics can prove Intentional Discrimination. This essay first explores the history of the pattern or practice claim, noting that the primary case law is now three decades old and was developed around issues of overt race Discrimination. Claims of gender Discrimination are more complicated because the regression analyses that are at the core of the case do not create as strong an inference of Discrimination as occurs in the context of race Discrimination. The essay, however, rejects the notion that the pattern or practice claim is merely an aggregation of individual claims, and instead suggests that the statistics prove a more subtle form of Discrimination that would not be evident if one focused solely on individual claims. The paper also critiques the presentation of the sex Discrimination claim in the Wal-Mart litigation for its generic quality, and suggests that plaintiffs must provide a narrative that explains the statistical story with a focus on the particular employer.

  • was the disparate impact theory a mistake
    2006
    Co-Authors: Michael Selmi
    Abstract:

    The disparate impact theory has long been viewed as one of the most important and controversial developments in antiDiscrimination law. In this article, Professor Selmi assesses the theory's legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past Discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis and concludes that the theory has had a strikingly limited impact outside of the context of written employment tests and is, in fact, an extremely difficult theory on which to succeed. In the final section, Professor Selmi contends that whatever gains the disparate impact theory has produced could likely have been obtained through other means, particularly in large urban cities, and that the theory may have had the unintended effect of limiting our conception of Intentional Discrimination. Disparate impact theory has always been seen as beginning where Intentional Discrimination ends, and by pushing an expansive theory of impact we were left with a truncated theory of Intentional Discrimination, one that continues to turn on animus and motive. Rather than a new legal theory of Discrimination, what was needed, Professor Selmi concludes, was a greater societal commitment to remedying inequities and the ultimate mistake behind the theory was a belief that legal theory could do the work that politics could not.

  • Sex Discrimination in the Nineties, Seventies Style: Case Studies in the Preservation of Male Workplace Norms
    SSRN Electronic Journal, 2003
    Co-Authors: Michael Selmi
    Abstract:

    The prevailing sentiment today is that overt Intentional sex Discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural Discrimination often tied to women's family commitments. This article challenges that consensus by exploring the rise of class action sex Discrimination cases that have uncovered what ought to be defined as overt Intentional Discrimination with a design to preserve existing male norms in the workplace. The article analyzes cases that have arisen in the securities and grocery industries, as well as a spate of class action sexual harassment cases, all of which reveal entrenched patterns of institutional Discrimination.

Derek W. Black - One of the best experts on this subject based on the ideXlab platform.

  • Fisher v. Texas and the Irrelevance of Function in Race Cases
    2014
    Co-Authors: Derek W. Black
    Abstract:

    This symposium paper analyzes Fisher v. Texas in the context of the Supreme Court's overall race jurisprudence, demonstrating that the Court's decisions are driven by the form that considerations of race take rather than how those considerations actually operate. The University of Texas admissions plan, when compared to the admissions plan approved at the University of Michigan Law School in Grutter v. Bollinger, is very narrowly tailored. The University of Texas considered race in a smaller portion of admissions decisions and in a more limited way, even when race was considered. The Supreme Court, however, expressed serious skepticism of the plan, ignoring these functional distinctions. The paper also emphasizes that the Court's formalistic approach to racial considerations works to the disadvantage of minorities in non-affirmative action cases, particularly those cases in which minorities must demonstrate Intentional Discrimination to challenge racial inequalities.

  • The Mysteriously Reappearing Cause of Action: The Court’s Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs
    Maryland Law Review, 2011
    Co-Authors: Derek W. Black
    Abstract:

    This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that aresubject to these statutes. The Court has held that the only cause of action that exists under these statutes is for Intentional Discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of Intentional Discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of Intentional Discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts continue to assume that Intentional Discrimination includes only actions that are motivated by animus or the inappropriate consideration of gender or race. A thorough analysis of Supreme Court precedent, however, provides a different answer. Specifically, in regard to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments, the Court has also recognized that Intentional Discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate Discrimination and inequity in federally funded programs. More specifically, the Court’s decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of Intentional Discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant’s choice is a cause of the continuance of the activity or condition. However, to permit plaintiffs to establish that any circumstances beyond those in the Court’s recent decisions are inconsistent with congressional objectives, federal agencies must provide regulations and guidance that specifically identify those circumstances.

  • the mysteriously reappearing cause of action the court s expanded concept of Intentional gender and race Discrimination in federally funded programs
    2011
    Co-Authors: Derek W. Black
    Abstract:

    This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that aresubject to these statutes. The Court has held that the only cause of action that exists under these statutes is for Intentional Discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of Intentional Discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of Intentional Discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts continue to assume that Intentional Discrimination includes only actions that are motivated by animus or the inappropriate consideration of gender or race. A thorough analysis of Supreme Court precedent, however, provides a different answer. Specifically, in regard to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments, the Court has also recognized that Intentional Discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate Discrimination and inequity in federally funded programs. More specifically, the Court’s decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of Intentional Discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant’s choice is a cause of the continuance of the activity or condition. However, to permit plaintiffs to establish that any circumstances beyond those in the Court’s recent decisions are inconsistent with congressional objectives, federal agencies must provide regulations and guidance that specifically identify those circumstances.

  • A Framework for the Next Civil Rights Act: What Tort Concepts Reveal About Goals, Results, and Standards
    2011
    Co-Authors: Derek W. Black
    Abstract:

    This article anticipates that the next president and the current Congress will likely pursue civil rights legislation for the first time since 1991. Their most significant and difficult task will be determining whether to retain the Supreme Court’s Intentional Discrimination standard. Because this issue has so often led to polemic debates and court decisions in the past, this article attempts to provide a neutral framework for that discussion. Relying on tort concepts and their longstanding connection to constitutional torts, it demonstrates that the attempt to create a standard to prohibit immoral or “wrongful” conduct is both misguided and will prove fruitless. In fact, fault is not a normative concept and has no inherent meaning. Rather, being at fault simply means that one has transgressed some standard that a legislature or court has adopted. These standards are adopted to produce and pursue societal goals, not identify or punish wrongful conduct. A review of Supreme Court decisions on equal protection and antiDiscrimination, however, reveals that the Court has tried to articulate much of its precedent in terms of fault, while at the same time pursuing a set of implicit societal goals. This approach has led to distractions with a normative concept of fault and an imprecise consideration of the goals of antiDiscrimination and the standards that can produce them. The article clarifies this confusion by simply querying whether the Intentional Discrimination standard produces the Court’s desired results. However, the article emphasizes that the goals of antiDiscrimination law must be those of Congress and the country, not the Supreme Court. Thus, in the upcoming legislative debate, the article calls for a serious discussion of the appropriate goals of civil rights, whether they be addressing racial inequities or maintaining current practices and patterns. Once those goals are settled through an open democratic process, the task of adopting a standard will become one of mere mechanics. The article assists legislators in that process by evaluating the various imputations of the intent and other standards to determine what results they can consistently and efficiently produce.Body]

  • the mysteriously reappearing cause of action the court s expanded concept of Intentional gender and race Discrimination in federally funded programs
    Maryland Law Review, 2008
    Co-Authors: Derek W. Black
    Abstract:

    This Article addresses whether a cause of action exists under federal statutes to challenge gender and racial inequity in federally funded programs. The question has widespread ramifications because Congress appropriates funds to millions of programs that are subject to these statutes. The Court has held that the only cause of action that exists under these statutes is for Intentional Discrimination, but in a series of recent cases the Court has developed a framework that broadens the concept of Intentional Discrimination. Unfortunately, lower courts have focused on older and narrower interpretations of Intentional Discrimination without accounting for the more complex nuances in recent cases. Thus, lower courts continue to assume that Intentional Discrimination includes only actions that are motivated by animus or the inappropriate consideration of gender or race. A thorough analysis of Supreme Court precedent, however, provides a different answer. Specifically, in regard to Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments, the Court has also recognized that Intentional Discrimination occurs when a funding recipient makes a conscious choice that frustrates the congressional objective to eliminate Discrimination and inequity in federally funded programs. More specifically, the Court’s decisions reveal three factors that are consistently present when the Court has imposed liability under this broader notion of Intentional Discrimination: whether the defendant made a value choice in regard to the challenged activity or conditions, whether permitting the activity or conditions within a federally funded program would be inconsistent with congressional objectives, and whether the defendant’s choice is a cause of the continuance of Copyright  2008 by Derek W. Black. * Assistant Professor of Law, Howard University School of Law. I would like to thank Howard University School of Law and its faculty for its support, particularly Dean Kurt Schmoke for research stipends and assistance. I would also like to thank Nina Frant and Marissa Gunn for their research assistance. Last, I would like to thank those civil rights advocates and civil servants at federal agencies who struggle each day to make sense of precedent in a way that improves the lives and education of our children. I hope that this Article may be of some small assistance to them.

Daniel B. Gazan - One of the best experts on this subject based on the ideXlab platform.

  • Who says it's sexual harassment? The effects of gender and likelihood to sexually harass on legal judgments of sexual harassment
    Journal of Applied Social Psychology, 2005
    Co-Authors: Linda M. Isbell, Kristin Swedish, Daniel B. Gazan
    Abstract:

    The effects of participants’ gender and propensity to sexually harass were examined in a sexual harassment case in which the gender of the harassers and victim were manipulated systematically. Male and female participants scoring either high or low on the Likelihood to Sexually Harass (LSH) scale (Pryor, 1987) reviewed an ostensibly real hostile work environment case and made judgments about the case. When participants were the same gender as the victim, individual differences in LSH failed to influence their judgments. When the participants’ gender was the opposite of the victim’s, those low in LSH perceived the behaviors as more likely to be sexual harassment than those high in LSH. These results are discussed and their implications considered. Title VII of the Civil Rights Act of 1964, amended in 1991, prohibits employers from engaging in “Intentional Discrimination and unlawful harassment in the workplace” (Civil Rights Act, 1991) on the basis of race, color, religion, gender, or national origin. The prohibition of gender Discrimination has been applied to outlaw two legally recognized types of sexual harassment that have been distinguished by the U.S. Supreme Court (Meritor Savings Bank v. V?nsan, 1986). Quidpro quo sexual harassment occurs when sexual behavior becomes a term or condition of employment or advancement (Henson v. City of Dundee, 1982;

Bradford C. Mank - One of the best experts on this subject based on the ideXlab platform.

  • Are Anti-Retaliation Regulations in Title VI or Title IX Enforceable in a Private Right of Action: Does Sandoval or Sullivan Control This Question?
    The Seton Hall Law Review, 2005
    Co-Authors: Bradford C. Mank
    Abstract:

    Recently, the federal circuit courts of appeal have divided in addressing to what extent either Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972 protects those who complain about racial or gender Discrimination from retaliation by their employers or schools. Neither Title VI nor Title IX explicitly prohibits retaliation by recipients. However, various federal agencies have issued specific Title VI or IX regulations that explicitly prohibit retaliation by recipients. Title IX "was modeled after Title VI . . ., which is parallel to Title IX except that it prohibits race Discrimination, not sex Discrimination, and applies in all programs receiving federal funds, not only in education programs." Because of the similarities between these two statutes, federal courts have often examined them together when interpreting the meaning of each. In 2003, in Peters v. Jenney, the Fourth Circuit held that Title VI's prohibition against racial Discrimination includes a right of action against "retaliation." In light of the Supreme Court's holding in Alexander v. Sandoval that Congress intended Title VI to prohibit only Intentional Discrimination, the Peters decision recognized a private cause of action only for those who allege that a recipient retaliated against them for complaining about Intentional Discrimination. Any person who is the victim of retaliation may file suit, not just minorities who are the victims of Discrimination. By contrast, in Jackson v. Birmingham Board of Educ., the Eleventh Circuit in 2002 rejected any private right of action against retaliation because the text of Section 901 of Title IX does not explicitly provide for such a private cause of action for retaliation. Assuming arguendo that a private right of action existed to sue recipients for retaliation, the Eleventh Circuit observed that it would limit any such right to plaintiffs who are the victims of gender Discrimination and would not allow those who merely allege that others have suffered gender Discrimination, such as the male plaintiff in that case, to pursue a retaliation claim. The Jackson court followed dicta in Sandoval suggesting that only express statutory language may establish a private right of action. However, to the extent that the Sandoval decision suggested in dicta that rights of action must be express, its reasoning is contrary to the Court's prior precedent and its own reasoning. The Sandoval decision itself acknowledged that "regulations applying Section 601's ban on Intentional Discrimination are covered by the cause of action to enforce that section." The Supreme Court granted certiorari in Jackson and the case was argued before the Court on November 30, 2004. This Article argues that both Title VI and Title IX implicitly authorize plaintiffs to file retaliation claims against recipients of federal funds. Since its 1969 decision in Sullivan v. Little Hunting Park, Inc., the Supreme Court has consistently recognized retaliation claims as vindicating the central anti-Discrimination principles of comparable civil rights statutes, and, therefore, such suits are permissible even after Sandoval. Retaliation claims are rooted in both Title VI and Title IX's central purpose of prohibiting Intentional Discrimination. Additionally, following the Chevron doctrine, the Fourth Circuit in Peters appropriately deferred to agency regulations interpreting Title VI and Title IX to prohibit retaliation. Although holding that Title VI regulations could not authorize a private right of action to enforce regulations prohibiting disparate impacts, the Sandoval Court recognized that these agency regulations were effective to the extent they vindicated Title VI's core prohibition against Intentional Discrimination. Thus, courts may conclude that Title VI and IX implicitly allow plaintiffs to bring retaliation claims if their employer or school retaliates against them for complaining about Intentional racial or gender Discrimination because such suits are strongly consistent with the statutes's primary purpose of prohibiting recipients from engaging in Intentional Discrimination.

Loretta F. Harper - One of the best experts on this subject based on the ideXlab platform.

  • Conflict Management Strategies for the Equal Opportunity Difficult Person in the Sexually Harassing Workplace
    Public Personnel Management, 1994
    Co-Authors: Lawrence J. Rifkind, Loretta F. Harper
    Abstract:

    On a warm Saturday evening in September 1991, hundreds of military aviators, fresh from their victory in the Persian Gulf War, were celebrating at the Las Vegas Hilton. It was the 35th annual convention of the Tailhook Association, a private group of retired and active-duty naval aviators whose parties are well know for their raucous behavior. The Navy paid more than $190,000 to fly 1,500 officers to the Nevada city aboard military aircraft.(1) The events that occurred on the subsequent three nights were to become the hear of the military's biggest sexual harassment scandal. The sordid events have com to symbolize the "Top Gun" mentality that not only engages in such lewdness, bu even condones it as nothing extraordinary. These activities are particularly ironic since they took place just weeks prior to the Senate Judiciary Committee hearings on the sexual harassment allegations Professor Anita Hill lodged against Supreme Court nominee Clarence Thomas. In both instances, it has become evident that sexual harassment situations are fraught with pitfalls and that the truth can be elusive as claims and counterclaims compete for credibility. Employers must elicit details, attempt t verify them through corroborating witnesses and documentation, assess the facts and credibility of those involved, and make decisions on how best to resolve these most difficult conflict situations. The conflict that occurs as a result of sexual harassment allegations is particularly hazardous to manage in our litigious society since everyone involved has fights and frequently these right conflict with each other.(2) Sexual Harassment During the late 1960's, the alliance of liberal politics and tolerant sexual attitudes began to weaken. Major writers of the women's movement began to argue that sex, which the sexual revolution had presented as an activity to be enjoye by men and women alike, was more often an arena in which dramas of oppression against women--from harassment to spouse abuse--were played out.(3) Feminists developed the label "sexual harassment" to describe certain behaviors of men toward women and the consequences of that behavior. The consequences are that women both as individuals and as groups are humiliated by being treated as objects often, but not always as sexual objects, but always as objects for the use of men. Furthermore, stereotypical expectations that women are passive and unable to defend themselves may lead some men to think that they, as Georgie Porgie in the nursery rhyme, can sexually harass women as long as there are no other men around to stop them.(4) According to EEOC guidelines, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: * Submission to such conduct is made either explicitly or implicitly as a condition of an individual's employment; * Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that person; * Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance, or creating an intimidating, hostile, or offensive working environment. Although this definition is gender neutral, the victim of sexual harassment is far more likely to be female than male. For example, a survey of charges filed with the Illinois EEOC found that ninety-four percent of those filing sexual harassment charges were women.(5) The Civil Rights Act of 1991 made sexual harassment a matter of federal law. Th legislation provided additional remedies for Intentional Discrimination and unlawful harassment in the workplace by permitting the complaining party to recover both compensatory and punitive damages (in addition to any relief permitted by the Civil Rights Act of 1964) from a respondent who has engaged in unlawful Intentional Discrimination. Compensatory damages range from $50,000 pe complaining party to $300,000 per complaining party depending upon the number o employees in the organization. …