Discrimination Statutes Research Articles

Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia

Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia

Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia by Alice Taylor

Interpreting Discrimination Law Creatively: Statutory Discrimination Law in the UK, Canada and Australia by Alice Taylor

Equal Risks: Workplace Discrimination, Toxic Exposure, and the Environmental Politics of Reproduction, 1976–91

Abstract This article describes a period when environmental organizations actively worked to achieve equal rights for women in the 1970s and 1980s. Using archival records from the Environmental Defense Fund and from women’s occupational health activists, I argue that a significant, if under-recognized, catalyst for environmentalists’ engagement with feminist politics was the emergence of workplace exclusion policies. Pushed to hire women by newly enforced sex discrimination statutes in the 1970s, industrial employers categorically excluded women from jobs with hazardous toxic substances. Environmentalists joined a coalition of labor and women’s rights advocates that together challenged exclusion policies in the courts and regulatory agencies. The coalition devised a litigation strategy that they hoped would raise environmental standards and end sex discrimination, issues that they saw as intrinsically related. They forwarded an equal protection approach to environmental hazards as part of a broader campaign to expand how regulators assessed toxic risks. They sought gender-neutral protection, and they challenged the gender biases in scientific research priorities and regulatory standards. Their litigation culminated in the US Supreme Court’s decision in United Automobile Workers v. Johnson Controls (1991), which prohibited sex-based exclusion policies. In the realms of women’s employment law and abortion rights, the case was a success. It was not, however, a milestone for environmental protection. It failed to achieve key coalition objectives since it did not raise environmental standards or require companies to remediate toxic workplaces. Ultimately, the ruling preserved equal risks in toxic jobs rather than asserting equal rights to environmental protection.

Compare This: How Employers Use Comparator Evidence to Defeat Employment Discrimination Claims

Employment discrimination statutes prohibit employers from discriminating against individuals on the basis of certain protected characteristics, such as race or sex. For intentional discrimination claims, plaintiffs often attempt to prove an employer’s discriminatory intent with comparator evidence attempting to show that the plaintiff was treated differently than a similarly situated individual outside the plaintiff’s protected class. Although plaintiffs often invoke comparator evidence to prove discriminatory intent, comparator evidence may also be helpful in disproving that alleged intent. This Article identifies the four primary ways employers use comparator evidence to defeat employment discrimination claims, and shows how courts have analyzed those defenses with a particular emphasis on recent decisions of the United States Courts of Appeal. From there, this Article presents a unique framework for defendants to employ in creating a defense to an employment discrimination claim involving comparator proof, one modeled from the theory of stasis from classical Greek and Roman rhetoric.

Making Too Much of Too Little?: Why 'Motivating Factor' Liability Did Not Revolutionize Title VII

Although the correct causation standard for various employment discrimination statutes continues to be much debated, the most generous standard for plaintiffs – Title VII’s “motivating factor” rule for status discrimination claims – has not had much effect on the ground. In theory, and without much hyperbole, “motivating factor” seems to require finding a violation when even a smidgeon of bias is implicated in an adverse employment decision. Such a finding will not necessarily entitle the plaintiff to full remedies since the employer remains able to limit her recovery by proving that it would have made the same decision in any event; however, the defendant will be adjudicated a violator and be subject to meaningful sanctions. Given this extraordinarily favorable causation structure and substantial evidence that bias continues to manifest in persistent ways in this country, one would expect plaintiffs to be enjoying great success in bringing Title VII status discrimination claims. Perhaps needless to say, that is not the reality. This Article attempts to explain the failure of the motivating factor revolution. It offers three interacting possibilities. First, “motivating factor” is such a dramatic departure from traditional causation analysis that courts understandably have a hard time implementing the concept. Second, and blending into the first, is judicial resistance to such wholesale intrusion into employment decisionmaking, a hostility manifested in a number of ways but most notably in the broader formulations of the “stray-remark” doctrine that have dramatically limited the potential impact of motivating factor liability. Third, plaintiffs’ attorneys have shied away from robustly framing their claims in terms of motivating factor liability because that litigation structure subjects their clients to an employer’s remedy-limiting affirmative defense of “same decision anyway.” Not only does that structure create a tactical problem for many plaintiffs but it also inevitably generates a conflict of interest between attorney and client: The liability/same decision structure allow juries to reach compromise verdicts and, when they do, deny the plaintiff monetary recovery other than fee awards that typically go to their attorney.

Caught by the Cat's Paw

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the “cat’s paw,” formally recognized by the Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat’s paw has taken ground quickly, discussed in hundreds of cases. This Article argues that the cat’s paw doctrine is a mistake, and the courts should abolish it. Before the Supreme Court recognized it as a separate doctrine, the Supreme Court decided numerous cases with facts that could now be called “cat’s paw” cases. The Supreme Court did not need or even mention the need for a new doctrine to adjudicate those cases. Strangely, the Supreme Court does not cite to any of these cases in Staub. Indeed, these Supreme Court cases are going to cause a judicial headache as lower courts try to reconcile pre-Staub jurisprudence with the court-created cat’s paw doctrine. The current cat’s paw doctrine muddles rather than elucidates complex concepts of intent, causation, and agency liability. Before cat’s paw doctrine becomes further entrenched, this Article provides a new and more complete history of the doctrine. This new history shows that courts did not need the cat’s paw doctrine prior to its creation. Even the Seventh Circuit decision that coined the phrase “cat’s paw” did not rely on cat’s paw to resolve the case. Importantly, there is only one way to reconcile Staub with several other canonical Supreme Court cases — to read it as simply recognizing one set of facts under which a plaintiff could prevail under federal discrimination law. Some lower courts are interpreting Staub to place significant limits on the scope of discrimination law. However, using cat’s paw to limit the scope is inconsistent with numerous Supreme Court cases, as well as the text and purposes of the discrimination statutes. Cat’s paw doctrine should be abolished while it is in its infancy because it is not needed and will likely lead to decades of confusion in employment discrimination jurisprudence.

欺瞞の地方公務員法・地方自治法改正（下）～官製ワーキングプアの法定化

欺瞞の地方公務員法・地方自治法改正（下）～官製ワーキングプアの法定化

欺瞞の地方公務員法・地方自治法改正（上） ～総務省「地方公務員の臨時・非常勤職員及び任期付職員の任用等の在り方に関する研究会報告書」（平成28年12月27日）読解～

欺瞞の地方公務員法・地方自治法改正（上） ～総務省「地方公務員の臨時・非常勤職員及び任期付職員の任用等の在り方に関する研究会報告書」（平成28年12月27日）読解～

H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers

This article analyzes the exploitation of immigrant workers under the H-1B visa program. It analyzes pure H-1B workers that work directly for the company that sponsor the visa; outsourced H-1B workers that work on a visa sponsored by an outsourcing vendor; and body shop workers who work on a visa sponsored by a labor contractor that operates outside the legal boundaries of the law. The article provides a comprehensive survey of lawsuits brought under the visa laws for prevailing wage violations, wage theft, benching, and liquidated damages. It also discusses lawsuits brought as independent causes of action under state tort and contract law; the TVPA; RICO; and employment discrimination statutes. The article argues that even perfect enforcement of existing law will not eliminate H-1B worker exploitation because the program includes systemic inequalities and subordinating structures that are modern manifestations of involuntary servitude, debt bondage and unfree labor. The unfree system of labor created by the guest worker program is based in the ways in which threats of deportation and liquidated damages prevent workers from complaining or quitting; the way in which the visa sponsor's control of the guest worker's labor parallels antebellum slave codes; the commodification of immigrant workers as part of the human supply chain; and the lack of citizenship rights guaranteed to these guest workers.

Inter-Ethnic Marriages, 'Indigeneship,' Women's Rights and National Integration in Nigeria Since 1979

This paper investigates gender inequalities relating to indigene-ship in Nigeria. The growing population of mixed ethnic marriages in Nigeria has created challenges relating to indigene-ship especially with regards to women who have married into ethnic groups other than theirs. The growing population of women who are not living in their states of origin due to inter-ethnic marriages encounter discrimination that is both gender and ethnic bound. These forms of discriminations are mostly enshrined in customary laws which need to change in order to initiate a bottom up approach to dismantling the system. The study uses the federal character principle as a frame of reference for analysing the extent of discrimination against women beginning from the federal level to the local council levels. It argues that the principle should be interpreted as an instrument of affirmative action for women and a provision should be made for redefining the indigene-ship of women in inter-ethnic marriages. From federal statutory discrimination, the paper narrows its discourse to how this form of discrimination impacts on rural women especially those in inter-ethnic marriages. Land is central to indigene-ship, however most communal societies in Nigeria uphold customary laws that do not encourage land ownership by women in inter-ethnic marriages and women in general. This will invariably affect both ethnic and economic integration of women who are the bulwark of food security. While utilising the historical methodology, the study also incorporates surveys conducted by other researchers. A critical review of the federal character principle and gender biased customary laws is suggested. This recommendation is largely based on findings that point to the fact that although a good amount of advocacy regarding the gender component of the federal constitution has been on for some time, no concrete actions have been advanced by government to solve the problem.

Let the Grand Experiment Begin: Pyett Authorizes Arbitration of Unionized Employees' Statutory Discrimination Claims

In Pyett v. 14 Penn Plaza, the Supreme Court affirmed the ability of unions and employers to negotiate arbitration clauses that require unionized employees to arbitrate statutory claims. The academic response to this case will likely be that it is wrongly decided because arbitration, especially labor arbitration, is a poor substitute for litigation and unions' willingness to bargain away minority members' rights to the judicial forum is but one more sign of union bias against women and minorities. This paper contends that this response may be wrong on both counts. It is likely that litigants will achieve better results in labor arbitration than in traditional litigation because unionized arbitration involves repeat players on both sides and offers parties substantial opportunity to negotiate an arbitral process that best suits them. In addition, the presence of repeat players on both sides of the dispute offers protection against arbitrary decision-making. The process should also be cheaper for the employee than traditional litigation because the employee does not have to pay for a representative.The presumption that unions are biased against women and minorities may also be in error. Although this was true in the past, unions, to ensure their survival, have become staunch advocates of traditionally underrepresented groups as they recognize that it is members of those groups who form a large percentage of their newest and most supportive members.Pyett creates an opportunity for unionized employees and their advocates to take advantage of the arbitration process to resolve their discrimination claims more quickly and cheaply with results similar to or better than litigation. As unions search for a role in the twenty-first century workplace and employees face increasingly poor odds of success in litigating statutory discrimination claims, labor arbitration may be the best response to an increasingly dire landscape for unionized employees’ statutory discrimination claims in the federal courts.

Trans] Boy Meets Worldd: A Comparison of State Anti-discrimination Laws and First Amendment Protections for Gender Identity and Expression

In accepting the Arthur Ashe Courage Award at the 2015 EPSYS, Caitlyn Jenner described her personal transition and experience learning about transgender issues as “eye-opening, inspiring [and] frightening.” In her television series, I Am Cait, Jenner strives to educate the public about transgender problems. Jenner is one of many who have taken on this Herculean feat to bring light to the discrimination transgender people face. For scholars, however, questions about trans-individuals’ legal rights and protections remain. Uncertainty regarding protections to combat inequality and discrimination against transgender individuals arises because the federal government has left a void. In an effort to fill some of those gaps, states have enacted laws pertaining to transgender issues, but state approaches vary considerably. Some state anti-discrimination disability statutes only apply to people suffering from gender dysphoria. Conversely, other states explicitly exclude coverage for gender dysphoria from their disability discrimination statutes. This Note explores how the First Amendment may protect one’s gender expression and how states have approached transgender rights through legislation. Subsequently, this Note lays out the basic tenants of First Amendment jurisprudence and the intersection of gender expression. This Note also compares three states’ approaches to the rights of transgender individuals in public schools and employment settings. Specifically, it describes transgender discrimination protections, or lack thereof, in three states: Rhode Island, New Hampshire, and Indiana. Additionally, this section of the Note comments on each state’s policies first for transgender employees and then for transgender students in public schools.This Note ends with recommendations for other states considering how best to protect their transgender residents. The recommendations briefly consider where the case studies succeeded, where they failed, and how they need to continue. Moreover, the final portion of this Note calls for federal protections, at least for transgender employees who are discriminated against because of their real or perceived gender identity. By incorporating First Amendment jurisprudence generally, and specifically as applied to transgender (as well as lesbian, gay, and bisexual) individuals, this Note sheds light on legal avenues transgender people can utilize against discrimination based on their gender expression.

'Make Whole': The Need for Gross-Ups in Employment Discrimination Cases

A primary purpose of federal anti-discrimination remedies is to place the victim in the same economic position she would have occupied had no discrimination occurred. However, a lump sum award for lost pay will be taxed in the year it is received, exposing the plaintiff to increased marginal tax rates. In order neutralize the often harsh tax consequences of lump-sum wage awards, many courts have begun “grossing-up” the plaintiff’s award, relying on the “make whole” remedial purpose of anti-discrimination statutes. However, some courts still force plaintiffs to bear this additional tax burden, even though it was caused by the defendant’s discriminatory conduct. This Article provides an overview of federal discrimination statutes and the available relief; explains the adverse tax consequences of a lump-sum award in employment cases; and reviews case law and statutes supporting gross-ups, outlining the differing jurisdictional treatments and arguing for wider adoption based on the “make whole” doctrine.

First Do No Harm: Protecting Patients Through Immunizing Health Care Workers

To protect vulnerable patients, hospitals increasingly adopt policies requiring health care workers to be vaccinated against influenza. More than twenty states have also enacted statutes or regulations on the topic. A small minority of health care workers oppose the requirement, and several have appealed to our courts of justice. This article examines the legal issues surrounding influenza mandates for health care workers, including the constitutional framework, federal employment discrimination statutes, and the effect of collective bargaining. It argues that requiring vaccination for health care workers is both ethical and appropriate. While better done via state statute, hospitals have the authority to require vaccination from their workers -- and are not, arguably, required to exempt any workers that do not have medical barriers to vaccination.

Discrimination Statutes, the Common Law, and Proximate Cause

The Supreme Court recently interpreted causal language in the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include the common-law concept of proximate cause. This Article anticipates that courts will incorporate proximate cause more broadly into the primary federal discrimination statutes and argues that courts should not interpret the statutes in this way. The Article demonstrates the theoretical and practical difficulties of importing proximate cause principles into employment discrimination law. The Article demonstrates how only weak textual, intent, or purpose-based arguments support courts’ use of proximate cause in Title VII. Many of these arguments are premised on the idea that the federal discrimination statutes are torts. This Article challenges this assumption and argues that describing a cause of action as a tort does not provide any meaningful guidance about whether to import proximate cause. Proximate cause is a notoriously flexible and theoretically inconsistent concept. Proximate cause has no independent descriptive power and is highly dependent on the underlying tort to which it is attached. Employment discrimination claims do not fit within any traditional tort and therefore do not align well with traditional articulations of proximate cause. When courts import proximate cause, they are not simply importing a concept from the common law, but rather are engaging in an unguided policy choice—a choice that will allow courts to further limit the reach of federal discrimination law. Importantly, the federal discrimination statutes already contain express limits on liability that

Is It “A” or Is It “The”?

The recent Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar has brought exposure to a prevalent problem in employment discrimination and retaliation cases: there is great discrepancy in how plaintiffs have to prove and courts have to assess these claims. Depending on whether the case is based on discrimination or retaliation pursuant to the ADA, ADEA, or Title VII, the standard that needs to be met might be that the plaintiff must prove that discrimination was “the” motivating-factor for the adverse employment action or that it was “a” motivating-factor for the action. Adding even greater confusion is the fact that, if an employee argues that they are the victim of discrimination (such as on the basis of national origin) and retaliation, the employee might have to prove that their national origin was “a” motivating-factor in the discrimination case and “the” motivating-factor in the retaliation aspect of the case. If this sounds confusing to scholars and attorneys, imagine how confusing these various standards within one case can be for potential litigants, judges unfamiliar with employment law, and a member of the jury! This Article delves into these muddy waters and attempts to highlight the issues, spotlight the statutes, and ultimately formulate a working motivating-factor standard that can be infused into all of the various employment discrimination statutes and thus result in a consistency in interpretation and application.

The Tort Label

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities. While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes created large exceptions to common law ideas of at-will employment, and strong textual arguments militate against prioritizing tort law as source of meaning. The tort label not only exaggerates the affinity between tort law and employment discrimination, it also overestimates the work that tort law can adequately perform in statutory interpretation. Tort law generally does not have independent descriptive power. It does not cohere around a narrow enough set of theoretical or doctrinal concepts to provide an answer or even a small subset of answers to many statutory questions. Over time, tort law responds to changing factual and legal landscapes, often while outwardly maintaining the same language.To date, courts have failed to appreciate the complexity of tort law. Courts use cursory descriptions of tort law that characterize tort doctrine as narrower, more stable, and more consistent than it actually is. They have not considered whether tort concepts can and should be unmoored from the common law tradition, which anticipates that concepts can subtly change over time to fit new situations.The federal courts view tort law as possessing narrow conceptions of causation and harm. Using this narrow tort frame leads to discrimination law that is primarily concerned with individual remedies, rather than a broader response to societal discrimination. The move to tort law is thus part of a broader story about the privatization of discrimination law that can be seen in the greater acceptance of private arbitration and the move away from systemic discrimination claims.The primary problem of the tort label is its effect on discourse about fundamental questions regarding employment discrimination law. The prioritizing of a narrow view of tort law removes textually supportable options from statutory analysis without meaningful discussion about why the courts narrowed the potential statutory landscape. The courts never consider whether their narrow notions of tort causation and harm are reflected in the discrimination statutes’ text, intent or purpose. The primary aim of this Article is to urge courts to respect the complexity of the judgments at issue by resisting the simple, but also simplistic, allure of the reflexive use of tort law.

Is Cooperation with the EEOC an Implied Requirement for Exhaustion of Administrative Remedies?

Prior to filing a lawsuit against an employer for discrimination, a complainant must first file a complaint with the EEOC in order to exhaust all available administrative remedies. Federal employment discrimination statutes do not explicitly require complainants to cooperate with EEOC investigations prior to filing suit in federal court; rather, the plain language of the statutes provides that so long as the complainant files a complaint with the EEOC and subsequently receives a right-to-sue letter from the EEOC, she may proceed to file suit. The circuits are split as to whether a cooperation requirement should be read into the statutes. This Note advocates that future decisions should follow the Seventh Circuit's reasoning and not require that complainants cooperate with the EEOC in order to establish federal subject-matter jurisdiction. Although counter- intuitive at first glance, allowing noncooperation better serves the primary purpose of the federal anti-discrimination statutes—eliminating discrimination in employment, while affording claimants fair notice of their responsibilities when pursuing claims.

Tortifying Employment Discrimination

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons. First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening the notion of discriminatory intent, which Staub at first blush seems to do, the opinion actually adds another layer to the plaintiff’s burden – for liability, the decision-maker must now both have the requisite wrongful motivation and either desire a resulting “adverse employment action” or believe that such an action is substantially certain to occur. Second, and perhaps more important, Staub for the first time imported the concept of proximate cause into the antidiscrimination context from its usual home in negligence law. Such a transplant is especially remarkable because proximate cause was unnecessary for resolving the case before the Court. The only purpose of adding a proximate cause requirement is to limit liability short of the full reach of but-for causation, and limiting employer liability tracks what the Court has done in other areas of federal statutory law. In those areas, the Court has not only applied proximate cause to intentional conduct (a phenomenon largely foreign to tort law from which the Court is theoretically borrowing) but has also adopted a more rigorous view of what proximate cause requires. Rather than looking only to the foreseeability of the plaintiff or the harm, which is the majority approach in the negligence arena, the Court has articulated a policy-driven perspective that allows it to restrict liability in the name of applying traditional tort doctrine. After exploring these issues, the Article argues that Staub’s deployment of proximate cause in the discrimination area may have been intended to set the stage for a later effort to narrow the reach of Title VII and the other discrimination statutes by finding that “cognitive bias” does not proximately cause a resulting adverse employment action. While there is a spirited debate about whether Title VII bars adverse employment actions resulting from such bias, Staub may have set the stage for resolving that controversy by marking the path for a holding that only conscious bias can proximately cause an adverse employment action.

The Aftermath of the Cash Balance Controversy: Defining Age Discrimination for Traditional Defined Benefit Pensions

The appellate decisions upholding cash balance pensions against the claim of age discrimination are unconvincing. Nevertheless, these decisions reach the proper result as a matter of pension policy. These decisions read the statutory term accrual as meaning employer contributions for purposes of measuring for age-based pension discrimination in the defined benefit context. However unpersuasive this reading may be as a textual matter, it reaches a sound outcome in terms of pension policy. In particular, this reading of the pension age discrimination statutes enables employers sponsoring traditional, annuity-paying defined benefit pensions to control their costs by decreasing the annual growth of the accrued benefits earned by older employees. This ability to subdue costs will encourage employers to remain with their traditional defined benefit plans rather than move to the cash balance format or 401(k). On the other hand, controlling costs by reducing the rates at which older workers accrue additional benefits will disappoint the reasonable pension expectations of some, perhaps many, of those older workers.