Discrimination Claims Research Articles

Disparate Discrimination

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination. The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court’s decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless. Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court’s new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group’s economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court’s odd assessments of various groups’ power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law.

Wrong Line: Proposing a New Test for Discrimination Under the National Labor Relations Act

There has long been a consensus among scholars and union-side practitioners that the National Labor Relations Act (NLRA) is under-enforced. As a result, employers often treat violations of the NLRA as a cost of doing business rather than a serious violation of a federal statute. Calls for reform have historically tended to propose legislative amendments to the NLRA to constrain employer conduct and impose greater consequences for discrimination violations. However, little attention has been given to improving the flawed legal test by which such discrimination is analyzed, Wright Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In this article, we propose a new causation test that better addresses how adjudicators should weigh the evidence that Congress and jurists have deemed relevant for evaluating discrimination claims. Our test lightens the initial burden to establish a showing of discrimination, formalizes the employer’s defense burden, and then provides a rebuttal burden for the discriminatee. This is no radical departure from historical precedent. Rather, we argue that the original Wright Line decision itself contained hints of our test, but that adjudicators and practitioners alike have whittled Wright Line to an oversimplified shell at best and an ambiguous, complex inquiry at worst. Our test better fulfills the NLRA’s objective of promoting collective bargaining in the private sector by encouraging a deeper inquiry in NLRA cases’ pre-litigation investigative stage.

Bostock: A Clean Cut into the Gordian Knot of Causation

Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support. Judges and practitioners must take note of Bostock v. Clayton County, a stunning Supreme Court case that lays a new foundation to clear this causal confusion. In this Article, I argue that Bostock creates a new mixed-motive paradigm that, if correctly applied, should transform individual discrimination law in this country by allowing juries to hear more cases. Bostock explicitly recognizes what the social sciences have long known: decision-making in the workplace is often complex, and both discriminatory and innocent reasons may be “but-for” causes of an employer’s adverse action against an employee. Tort law labels these “multiple sufficient cause” cases. In the first work of its kind, I apply the causation standards in Bostock to create a taxonomy of causation scenarios that should guide lower courts in their analysis of individual discrimination cases at pre-trial stages. As Bostock borrows its causation standards from tort law, this Article examines the nuances of that discipline to determine the legitimacy of Bostock’s causation discussion. I conclude that while Bostock conforms to tort law, the riddle of causation persists in that and almost every discipline. Still, Bostock’s causation logic is sufficient to guide courts into the future on firm ground. In the first comprehensive work of its kind, this Article assists courts by applying Bostock at each stage of litigation through jury trials. Bostock can help revive the ideal of equal opportunity in employment. I conclude the paper with tandem principled suggestions. First, I posit that the Court or Congress could create a burden-shifting scheme in multiple sufficient cause cases. Second, such a burden shifting of proof would pave the way for an allocation of fault scheme, similar to that found in tort law, whereby the plaintiff would recover those damages that correlate to the employer’s percentage of discriminatory causation.

“We Do Not Live Single-Issue Lives”: Bostock v. Clayton County Mainstreaming Title VII Intersectional Discrimination Claims

“We Do Not Live Single-Issue Lives”: Bostock v. Clayton County Mainstreaming Title VII Intersectional Discrimination Claims

Fairly and Justly? Are Employment Tribunals Able to Even Out Whistleblowing Power Imbalances?

In Britain, Employment Tribunals (ET) adjudicate on whistleblowing legislation. They do so with the overriding aim to adjudicate cases fairly and justly, by hearing parties on an equal footing. This paper presents research questioning this rule-of-law assumption vis-a-vis power imbalances that relate to whistleblowing. Using multinomial logistic regression analysis, we analyse all cases at ET in England and Wales between 2015 and 2018, that included a whistleblowing claim and that went to preliminary hearing or beyond. We find that several variables have an effect on the relative representational strength (RRS) at ET, but not on the outcome of the whistleblowing claim. However, whistleblowing claims brought in combination of discrimination claims (41%) have lower RRS and less favourable outcomes for the whistleblowing claim.

Judge rules against former employee in gender discrimination claim

Title VII

Digitalization of Intangible Cultural Heritage (ICH) Archives As Legal Protection of Intellectual Property Rights

Digitizing (ICH) archives is an important thing in the digital era. These archives are national cultures that must be protected and preserved and could not be claimed by foreign parties. This study aims to find out the importance of ICH archives as legal protection for IPR. The design of this research is a literature review. The data sources were scientific journal articles, books, and documents from trusted organizations. To analyze the data, the researcher uses the content analysis method to analyze the text objectively and validly. The results of this study answer four important issues, namely (1) digitization archive can be done by referring to IFLA policies; (2) ICH archives can be used for IPR submission in the communal ownership field; (3) digitizing ICH archives have an important role in efforts to maintain the national culture, legal protection, security, providing public access, make the archive re-saving process more manageable, and saving maintenance costs; (4) legal protection of ICH can be achieved in four ways, namely through customary law, registered as IPR, recording, and stipulation of ICH by the Ministry of Education and Culture of the Republic of Indonesia, the stipulation of UNESCO ICH as a representation of world recognition. Those whole processes are a preventive measure to prevent discrimination and unilateral claims to achieve prosperity and legal justice.

2021/37 Employer loses discrimination claim after trying to reduce gender pay gap (UK)

2021/37 Employer loses discrimination claim after trying to reduce gender pay gap (UK)

Compared to What? Menstruation, Pregnancy, and the Complexities of Comparison


 
 
 This piece explores the complexities of the comparative model as applied to sex discrimination claims that are connected to female biology. On the one hand, comparisons can be a useful and precise way to pinpoint discrimination. The notion that bandages and adult diapers are tax-exempt, while tampons and pads are not, brings the unfairness of the tampon tax into sharp relief: Why are those products for absorbing bodily fluids tax-free, when menstrual products are not? The same is true for a pregnant employee who can show that her request for a light-duty accommodation was denied while the identical light-duty request by another similarly-situated, non-pregnant employee was granted.
 But the model also contains two traps. First, almost no comparison is perfect. There is often some potential for distinguishing and line-drawing, some way to argue that the comparison does not fully hold up. Second, the comparative model is itself inherently limiting. The biological processes of menstruation and pregnancy (along with menopause and breastfeeding, which this piece does not address) are closely intertwined with female sex and have no obvious analogues. Indeed, these processes impose specific challenges and needs that are not borne equally across the sexes. Yet the comparative model reductively suggests that if no products receive tax-exempt status, or if no employees receive accommodations for their inability to work, there is no sex discrimination issue at all. Although advocates cannot escape the current comparative framework within which they must work—and indeed should use it to their advantage when possible—we should all remain mindful of the framework’s ultimate limitations.
 
 
 
 The piece begins by analyzing Young v. United Parcel Service, Inc., the 2015 Supreme Court case that grappled with how to apply the PDA’s comparison-based standard. I discuss how Young illustrates the complexities of comparison and unpack the compromise approach that emerged. I then consider the potential usefulness of the Young approach to the tampon tax cases, while acknowledging that they arise under the Equal Protection Clause rather than Title VII. I conclude with some broader reflections.
 
 
 
 
 

When Religion Speaks: Denmark’s Face Covering Ban and European Human Rights Law

ABSTRACT This article argues that although the challenges brought against banning face coverings in public spaces have so far been ineffective before the ECtHR, the particular situation obtaining in Denmark, the evolving case law regarding ECHR's Article 14 freedom from discrimination, and a re-examination of the distinction between protection of religious manifestation under Article 9 and expression under Article 10 could suggest a different outcome in future. This is because the ECtHR's jurisprudence regarding face covering bans does not consider the context of those bans or the possibility of non-religious claims. Specifically, this article examines two important contextual distinctions that suggest that challenges to face covering bans in countries other than France might find a different outcome: (1) the historical context of the political and constitutional debates (or lack thereof) surrounding the ban in specific countries and contemporaneous legislation and policy regarding Muslims and minorities and (2) the missing legal context that the Court could, and we argue should, use to inform the claims of veil wearers, namely, vulnerability and indirect discrimination stemming from Article 14 jurisprudence and the separate expression rights under Article 10.

Litigating Racial Profiling: The Use of Statistical Data

The use of statistical data to prove racial discrimination by police in individual cases is relatively novel in Australia. Based on a survey of international strategies, this article argues that statistical and social science data can play three critical evidential roles in litigation. Firstly, it can form part of the social context evidence used to influence the inferences that can be drawn from other evidence led in a case. Secondly it can influence the cogency of the evidence required for claimants to meet the standard of proof, and thirdly, it can be used to shift the burden of proof. Using these evidential methods, evidence of institutional racism can be used to assist in making findings of discrimination in individual cases. This article speculates on the role that statistics could have played in the Haile-Michael race discrimination claim that settled in 2013, and in the 2019 inquest into the death of Tanya Day.

OUR ANTI-KOREMATSU

OUR ANTI-<i>KOREMATSU</i>

Working 9 to Non-Stop: The Fair Housing Act's Sexual Harassment Protections for Domestic, Agricultural, and Other Live-In Workers

Live-in workers, for whom their bosses are typically also their landlords, are often trapped in sexually harassing situations that feel as though they have no practical or legal redress, especially when the worker’s harasser can both fire and evict them in one fell swoop. This Note explores the novel possibility of using fair housing law, including the Fair Housing Act (“FHA”) and state/local fair housing statutes, as a tool to provide legal protections to workers with employer-provided housing (“live-in workers”) who experience sexual harassment or violence in the workplace. There is currently very little case law in which live-in workers have brought fair housing and employment discrimination claims simultaneously, and functionally no case law in which attorneys have brought both claims for live-in worker sexual harassment cases. This Note argues that, under existing fair housing law, many live-in workers should be eligible to bring claims under the FHA and equivalent state laws that prohibit discrimination in housing. As a result, the FHA and equivalent state claims can provide sexual harassment and assault protections for workers, including domestic workers and farmworkers, who may not receive protections under federal or state employment discrimination law. Furthermore, this Note argues that the FHA can provide supplemental or stronger protections from sexual harassment for live-in workers than traditional Title VII or employment discrimination claims. It accordingly suggests that plaintiffs facing harassment or sexual assault in live-in industries should pursue fair housing claims in addition to or in place of Title VII and employment discrimination claims, in order to achieve maximum protection and relief.

System Justification or Social Dominance? A Multilevel Test of the Ideological Motivators of Perceived Discrimination.

Although system-justifying beliefs often mitigate perceptions of discrimination, status-based asymmetries in the ideological motivators of perceived discrimination are unknown. Because the content and societal implications of discrimination claims are status-dependant, social dominance orientation (SDO) should motivate perceptions of (reverse) discrimination among members of high-status groups, whereas system justification should motivate the minimization of perceived discrimination among the disadvantaged. We tested these hypotheses using multilevel regressions among a nationwide random sample of New Zealand Europeans (n = 29,169) and ethnic minorities (n = 5,118). As hypothesized, group-based dominance correlated positively with perceived (reverse) discrimination among ethnic-majority group members, whereas system justification correlated negatively with perceived discrimination among the disadvantaged. Furthermore, the proportion of minorities within the region strengthened the victimizing effects of SDO-Dominance, but not SDO-Egalitarianism, among the advantaged. Together, these results reveal status-based asymmetries in the motives underlying perceptions of discrimination and identify a key contextual moderator of this association.

Has Religious Discrimination Been Eradicated From the Work Environment or Has It Merely Taken on Another Form?

This research was conducted to determine if religious discrimination had been eliminated in US organizations. Research and Hypotheses were posed based on the literature on this subject over time. Data was analyzed from the Equal Employment Opportunity Commission from 1992 through 2019. No data was available from 1964 to 1992. Results indicate that claims of religious discrimination have continued at the same levels over the period from 1992-2019. Suggestions for reduction and elimination of claims of religious discrimination are offered.

Bodily Rights in Personal Ventilators?

ABSTRACTThis article asks whether personal ventilators should be redistributed to maximize lives saved in emergency condition, like the COVID‐19 pandemic. It begins by examining extant claims that items like ventilators are literally parts of their user's bodies. Arguments in favor of incorporation for ventilators fail to show that they meet valid sufficient conditions to be body parts, but arguments against incorporation also fail to show that they fail to meet clearly valid necessary conditions. Further progress on this issue awaits clarification of difficult normative, conceptual, and metaphysical questions about the possible boundaries of a person's body. Rather than relying solely on incorporation arguments, we propose an argument against reallocation from widely accepted anti‐discrimination principles. Possession of a personal ventilator is an obvious marker of disability identity; thus, reallocating ventilators from those that already possess them discriminates on the basis of a stigmatized trait – a paradigm case of presumptively wrongful discrimination. This discrimination claim, taken together with uncertainty about the bodily status of ventilators, yields a strong presumption against personal ventilator reallocation.

Trailblazer women in the Supreme Court of Canada

ABSTRACT How do judges decide issues of equality? While prior scholarship demonstrates that judicial attributes such as partisan identification, gender, race, age, and career backgrounds help elucidate judicial decision-making, considerably less attention has been devoted to how judicial empathy may influence or condition judicial decision-making. Such scholarly attention is especially lacking in the study of courts outside of the United States. To bridge this critical gap, we examine how judicial empathy affects decision-making behavior by analyzing data from the Supreme Court of Canada from 1982 to 2015. We find compelling evidence that trailblazer women’s unique personal experiences exert a strong influence on judicial behavior within the Canadian Supreme Court. In fact, our findings demonstrate that the effects of judicial empathy extend across a broader array of discrimination cases in Canada compared to previous findings on the American courts. We find that trailblazer women have a greater propensity to vote in favor of discrimination claimants compared to their male peers. Normatively, these effects manifest as judicial empathy in discrimination cases where trailblazers themselves likely faced upward mobility challenges.

Heed lessons learned from sex discrimination claims

The U.S. Court of Appeals for the Eighth Circuit issued a decision reinstating the sex discrimination claims brought by former members of the University of Minnesota's football team. The football players had filed suit alleging sex discrimination in violation of Title IX, race discrimination, and other claims related to an investigation into their participation in an alleged sexual assault and resulting discipline by the university for those actions. The District Court had dismissed all of the claims after the case was initially filed, but the Court of Appeals reversed the decision on the Title IX claims and remanded the case for further proceedings at the District Court level.

Did judge dismiss coach's age discrimination claim?

Indiana University at South Bend's athletics department began searching for a full‐time baseball coach. They desired a coach who would prioritize successful recruiting, student‐ athlete success off the field, and follow university policy.

Does the treatment of minority doctors by the UK regulator demonstrate Institutional Racism?

In June 2021, an Employment Tribunal accepted the claim from the complainant that the UK regulator, the General Medical Council may have discriminated against a doctor based on his race, ethnicity or religion in their processes and outcomes. [1] This is perhaps the first time that such a claim of discrimination based on race, ethnicity or religion has been passed in the UK, hence this is hailed as a ‘landmark judgement’. It is not the first time that doctors have claimed that GMC and its processes demonstrate institutional racism. [2] The Kline report described the existence of ‘In groups and out groups’ determined by qualifications (including by country and within the UK by medical school) and ethnicity (including within BME populations). They found that members of ingroups can receive favourable treatment and those in out-groups are at risk of bias and stereotyping.[3] Amitabha Banerjee, wrote in the BMJ, that overt and covert racism within the medical profession is rarely talked about but existed then, and still, unfortunately, exists now, albeit to a lesser extent, to this day.[4] The case of Hadiza Bawa-Garba, a Paediatric trainee who was struck off the register by the GMC on negligence and then subsequently restored demonstrated discrimination in the processes, as the duty White consultant did not face any disciplinary process. Complaints are more likely to be against BAME doctors, and when they proceed to the regulator or the law courts, they are more likely to lead to more serious punitive measures and guilty verdicts. [5–7]&#x0D; The debate on whether GMC’s processes were unfair, discriminatory and racist started in 1996.[8] However, even in 2003, the GMC council has debated the issues of institutional racism and expressed its commitment to fairness [9] but little progress has been made even 2 decades later. In its submission to William’s review in 2018, BAPIO had recommended that the review must advise the GMC and the NHS to acknowledge the existence and impact of racial discrimination and make concerted efforts to improve this image nationally and abroad. [10] About the differential outcomes for doctors from minority ethnic backgrounds in examinations, assessments, and recruitment, the GMC is committed to ensuring that medical education and training pathways are valid, fair and justified. [11]&#x0D; &#x0D; The world including the NHS is changing. The Care Quality Commission (CQC) has issued an open statement, together with the NHS Race and Health Observatory, Nursing and Midwifery Council (NMC) and the GMC, calling on healthcare leaders to ensure that health and care staff across the country are protected from racism or any other form of discrimination. The statement demonstrates a collective commitment to work together to tackle racism, bias and inequalities within the healthcare system, calling on healthcare leaders to ensure that policies and processes are fair, inclusive and in line with the Equality Act 2010.&#x0D; The GMC sets “ambitious” targets to address specific areas within medical the profession to address entrenched bias and racial discrimination, which it believes requires “sustained focus and for healthcare regulators to be aligned on this commitment”. Dame Clare Marx, the chairperson of the GMC UK, reiterated her commitment to creating robust processes which were fair, transparent and just in dealing with all doctors, offer speedy resolutions/ outcomes of cases, offer sensitivity and support to doctors under investigation. She committed the GMC to facilitate change across the system. [12] The NHS has been working to close this gap by adopting national targets in formal disciplinary investigations between White and BAME staff.[13] There is more visibility of the work of overseas doctors and issues of racism are being more openly debated. There has been progress, but if we want to attract the best doctors in the world to the NHS, we have to create an environment where those doctors will be treated fairly and without discrimination. In his Blog following a recent meeting with the GMC in Scotland on equality, diversity and inclusion, Professor Zamvar explores the feedback he has received from his colleagues and issues a wake-up call to the profession.