Employment Discrimination Cases Research Articles

미국 노동분쟁의 ADR 절차와 시사점

In South Korea, specific work procedures have not been established to activate the alternative dispute resolution before and after labor disputes in the relief procedure. In particular, there is no special law that can uniformly and consistently apply the alternative solutions to labor disputes, and the subjects, procedures, and contents of the application are scattered in the Trade Union and Labor Relations Adjustment Act or the Labor Relations Commission Act. Nevertheless, the Labor Relations Commission actively participates from the collective bargaining stage, or the local labor commission leads the cooperation from the local governments to deploy the experts of alternative dispute resolution from the community. Therefore, in order for South Korea to actively introduce and revitalize the methods of alternative dispute resolution in labor cases, it is firstly necessary to establish the legal bases, procedures, and contents for the alternative dispute resolution.
 Therefore, this paper aims to derive implications after examining the ADR procedure in the case of unfair labor practices and employment discrimination in the United States. Firstly, the ADR procedure in the United States provides the legal basis in accordance with the Administrative Dispute Resolution Act of 1996, a federal law. Specifically, the ADR procedures and contents of unfair labor practices and employment discrimination cases can be found through the Federal Code of Regulations. Secondly, the agency conducts the ADR procedures according to the work in charge of each agency. In other words, it means that the division of labor by agency is possible depending on the task in charge. Thirdly, the timing of the commencement for the ADR procedure is possible even before applications for unfair labor practices and employment discrimination relief are received. In other words, the ADR procedure may proceed at any stage before and after the issuing for relief. Fourthly, the ADR procedures are based on spontaneity, neutrality, confidentiality, and enforceability. Therefore, either party may withdraw the ADR at any time, and is left at the sole discretion of the party, without incurring any charges or expenses. Fifthly, the National Labor Relations Board has signed the agreement with the Equal Employment Opportunity Commission to provide mediators, while the Equal Employment Opportunity Commission uses not only internal mediators but also external contract mediators. Sixthly, the Employment Equality Opportunity Commission enters into the universal mediation agreement with employers. In other words, the Employment Equality Opportunity Commission encourages employers to enter into the universal mediation agreement to utilize the mediation at the regional, local, or national level. Seventhly, the National Labor Relations Board's ADR reconciliation and withdrawal rate and the Equal Employment Opportunity Commission's adjustment resolution rate exceed 70%, so its effectiveness is excellent.

The growing role of mediation in resolving labour disputes

In the article, the author has emphasized that mediation is faster and easier than litigation, and also brings monetary and non-monetary savings. Monetary savings include the reduction of costs associated with the involvement of lawyers, and the implementation of various procedural and procedural actions. An example of non-monetary savings is the reduction in the amount of stress and anxiety that typically occurs during litigation. And so having a neutral person who can make judicious use of confidential meetings greatly improves the negotiation process. For example, a mediator can provide a necessary reality check by helping the parties assess their strengths and weaknesses.In the article, it has been proved the gradual and decisive increase in the importance of mediation in the resolution of labour disputes, as well as the significant importance of mediation in the USA is given as an example. In the United States, the use of alternative dispute resolution (ADR) by the federal government has increased largely due to the adoption of special laws that direct or encourage the use of this method of labour dispute resolution. Mediation in labour disputes in the US has also become widespread in the private sector.Basic statutes in the US encourage the use of ADR in employment discrimination cases. The National Labour Dispute Resolution Act of 2001 (NEDRA) required, among other things, all federal agencies, courts, and other companies that receive $200,000 or more in federal funds to establish internal labour dispute resolution programs or systems that would provide for voluntary the option of employee access to external certified third parties – mediators for consideration of complaints in labour law matters.The author has concluded that mediation is aimed at solving problems: fixing things for the future replaces focusing on whom to blame for past events. Mediation maximizes autonomy by allowing the parties to maintain confidentiality – to develop an agreement that «tailors» to settle all aspects, guided by the position of each party, and that includes terms that go beyond what a court could decide. Such an agreement can be considered fairer than one imposed by a third party. Mediation thus offers the possibility of an integrative, «win-win» solution that meets the interests and needs of both parties. Mediation often provides an opportunity for emotional catharsis, helps maintain or restore relationships between parties, and provides greater awareness of conflict management

Compensatory and Punitive Damages for a Personal Injury: To Tax or Not to Tax?

Since the adoption in 1919 of the Revenue Act of 1918, damages received on account of personal injuries or sickness have been excluded by statute from gross income. This exclusion, which does not apply to reimbursements for medical expenses for which the taxpayer was previously allowed a tax deduction, is presently set forth in section 104(a)(2). One might expect that a provision having recently attained the ripe age of 75 years without change in its basic language would have a settled meaning. However, recent litigation under section 104(a)(2) bristles with unsettled issues. Does the exclusion apply to punitive damages? To prejudgment interest included in a personal injury recovery? To recoveries under various antidiscrimination statutes?The Supreme Court entered the fray in 1992 with its decision in United States v. Burke, dealing with the application of section 104(a)(2) to recoveries in employment discrimination cases. The Court followed a regulation stating that the exclusion applies only to amounts received, through suit or settlement, "based upon tort or tort-type rights," and held that a claim is tort or tort-type only if it can be redressed by a broad range of damages, such as those traditionally allowed in tort cases. Specifically, the Court found that a recovery under Title VII of the Civil Rights Act of 1984 was not within the section 104(a)(2) exclusion because Title VII, as it existed when the facts of the case arose, allowed only equitable relief and recoveries of backpay.

How Rhetoric Reveals Judicial Motives in Employment Discrimination Cases

How Rhetoric Reveals Judicial Motives in Employment Discrimination Cases

“So, Sue Me:” Medical Professionals Should Support Title VI Civil Rights Law Improvements as Part of their Anti-racism Work

“So, Sue Me:” Medical Professionals Should Support Title VI Civil Rights Law Improvements as Part of their Anti-racism Work

The Coming Causation Revolution in Employment Discrimination Litigation

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pre-trial, all too often based on a failure of causation. A key reason traces back to loose and misleading language — centered on a single word — in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” but-for cause. This language incorrectly implies that the discriminatory motive must be the sole cause — “the” cause — of the employer’s action, and though that standard is demonstrably wrong, many courts nevertheless have required a sole-cause showing. In 2020, the Supreme Court held in Bostock that gay and transgender workers are protected from employment discrimination. But it did more than that. The Court discussed but-for causation in broad terms, making it clear that but-for cause does not require proof of sole causation. That discussion will likely change how causation impacts not only gay and transgender workers but in employment discrimination litigation generally. This article explains why. It studies the root of the causation problem and shows its real-world consequences with extensive case law analysis. Then, it analyzes how Bostock’s broad causation language, properly interpreted, should apply to most employment discrimination claims and details why Bostock should remedy each of the identified causation issues. Based on its study of the post-Bostock litigation outcomes and the promise of Bostock’s broad application, the article predicts a revolution in employment discrimination litigation.

Policies Sanctioning Discrimination Against Transgender Patients Flout Scientific Evidence and Threaten Health and Safety.

Policies Sanctioning Discrimination Against Transgender Patients Flout Scientific Evidence and Threaten Health and Safety.

Is there transgender bias in the courtroom?

PurposeThis study examines whether various judicial demographic and political characteristics have an influence on case outcomes in transgender employment discrimination cases. Specifically, it assesses whether the race, sex or political party of federal judges result in significantly different employment case outcomes for transgender employees in the US district courts.Design/methodology/approachUtilizing a legal database of all federal employment discrimination cases over the past five decades, the study ultimately identified 97 cases with transgender plaintiffs. Chi-square and frequency analyses were employed to test the hypotheses regarding the effect of race, sex and political party of federal judges on transgender employment case outcomes.FindingsThe results intimate that both the political party and sex of the judge have an effect on case outcomes. Specifically, the transgender plaintiffs in employment discrimination cases have a greater chance for success when such cases are presided before Democratic and female judges.Practical implicationsThe study's findings of significant differences in case outcomes suggest that characteristics of judges should be taken into account by potential plaintiffs and defendants, as they consider if/how to proceed with their cases.Social implicationsSuch research focuses more attention on the fair and equal treatment principle of the American judicial system due to the significant differences found in case outcomes as a result of judges' characteristics.Originality/valueNo research till date has examined the outcomes of transgender employment discrimination cases in the US despite national surveys indicating the pervasiveness and severity of such discrimination.

HOW ECONOMISTS ENTERED THE ‘NUMBERS GAME’: MEASURING DISCRIMINATION IN THE US COURTROOMS, 1971–1989

The paper explores why and how economists entered the courtrooms as expert witnesses in employment discrimination cases in the US. The main sources are published legal decisions. I analyze the courts’ and economists’ discourses on the use of a specific method: multiple regression analysis in relation to litigation history, academic debates, and the institutional settings of expertise within the courts. I first show how the early reception of the method in the late 1970s did not involve systematic rejection from the courts but rather a large amount of skepticism. I then illustrate how economic theory underlying the method was progressively introduced in the “judicial tool kit” and how the debates in the courtrooms relate to the debates in academia in the 1980s. By 1989, practical and ethical questions regarding the institutional settings of experts’ testimony took center stage, reflecting the increasing professionalization of forensic economics.

A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation

This article presents data from a novel survey of 1,256 employment plaintiff attorneys to test whether employee rights and remedies are affected by mandatory employment arbitration. By surveying attorneys directly about their most recent employment discrimination cases taken to verdict in arbitration and civil litigation, the author presents a systematic empirical comparison of outcomes between civil courts and arbitration with robust controls. The ability to control for the legal basis of the claim, defendant size, use of summary judgment, and attorney and plaintiff characteristics significantly improves on previous empirical research studies. Consistent with previous research, employee win rates in arbitration are lower than those found in state and federal court. In addition, monetary award amounts and percentage of claim amount awarded to employees who prevail in their cases are significantly lower in arbitration compared to outcomes in state and federal jury trials.

Texas Supreme Court Tells Bar and Bench to Follow the Lodestar: Post-Opinion Amicus Brief in Rohrmoos v. UTSW, No.16-0006 (Tex. 2019)

FROM ARTHUR ANDERSEN TO ROHRMOOS: SCOTX GOES FEDERAL ON FEE-SHIFTING In April 2019, the Texas Supreme Court handed down what is destined to become the new leading case for the manner in which the prevailing party proves up its attorney’s fees in cases where either a contract or a statute authorizes the shifting of fees to the opponent as an exception to the American Rule. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No. 16-0006, 2019 WL 1873428 (April 26, 2019). The Texas High Court said it was clarifying its prior jurisprudence on the matter, rather than overruling it, but Rohrmoos nevertheless marks a major step toward making the determination of reasonable and necessary fee awards more transparent, and more predictable, because it requires more detailed evidence on work-effort compared to what was previously routinely deemed sufficient under the Arthur Andersen fee factors as conventionally applied by trial courts and intermediate courts of appeals. See Arthur Andersen v. Perry Equipment Corporation, 945 S.W. 2d 812 (Tex. 1997). Rohrmoos sets a new precedent because it essentially adopts the federal Lodestar approach for universal application in Texas state court, which was previously viewed as an optional method to present a fee claim (testimony on an attorney’s hourly rate and actual hours spent on discrete tasks was required when an attorney elected to use the Lodestar method to substantiate a fee claim), or limited to certain contexts, such as employment discrimination cases, where the relevant Texas statute that permits fee recovery (the TCHRA) is an analogue of the federal civil rights act, under which federal court grant fee applications based on the Lodestar method. See El Apple I, Ltd. v. Olivas, 370 S.W. 3d 757 (Tex. 2012). Under Rohrmoos, specifics on what legal work was actually performed, and by whom, will be required in all fee-shifting cases. Generalities will no longer do. And since there is always an element of uncertainty in predicting how an appellate court will rule, attorneys will do well to err on the side of providing more detail, rather than the minimal amount, and will have every reason to support their fee testimony with contemporaneous time-keeping records. A motion for rehearing is forthcoming in Rohrmoos in June 2019. This post-opinion amicus curiae letter brief urges the Texas Supreme Court to additionally address whether, and to what extent, Rohrmoos applies outside the fee shifting context, such as in cases where Texas attorneys sue former clients for unpaid fees, and whether the Lodestar should be used by attorneys and lower courts when the legal theory for fee recovery is not a valid contract, but an alternative theory, such as quantum meruit or common-law suit on account (open account, sworn account under Rule 185 of the Texas Rules of Civil Procedure, or account-stated).

A Comparative Analysis of Employment Discrimination Case Outcomes

The EEOC (Equal Employment Opportunity Commission) processes tens of thousands of charges annually. Every year, the outcome of those charges are tabulated and presented for public inspection. Yet, very little known as to how effectively the EEOC processes these charges. To that end, this article seeks to analyze the processing of EEOC complaints in comparison with case outcomes as adjudicated in Federal Court. This comparison is premised on Congressional passage of the Civil Rights Act (42 U.S.C § 2000e-4 Sec. 705 et seq.) which bars cases from litigation until all administrative remedies are exhausted. Using the EEOC’s publicly facing statistics webpage and the Federal Judicial Center (FJC) database, an institutional comparative is applied. Upon analysis, the results demonstrate that aggrieved parties are best served in Federal Court. For every comparative outcome measured, parties overwhelmingly fared better in Federal Court than they did with the EEOC. The divergence in outcomes appears to be rooted in procedural and structural defects present in the EEOC’s handling of charges. Many of these defects have been addressed in past scholarship (Selmi 1996; Modesitt 2010; Engstrom 2013) but remain largely intact. In the absence of any reform, the EEOC is largely an ineffectual agency that leaves millions of Americans vulnerable to the scourge of employment discrimination.

MR. CRIME AND PUNISHMENT AND WAR AND PEACE

1 0 3 R M R . C R I M E A N D P U N I S H M E N T A N D W A R A N D P E A C E G I S H J E N Roger Rabid, we called him. Jabbertalky. Evermore. But mostly we called him Gunner – Gunner Summers. And it wasn’t just the Asian Americans. It was pretty much all his fellow 1-Ls – the immigrants from Azerbaijan and Poland and Brazil. The students who were born here but who had been brought up to be respectful of others – kids of cops, farmers, teachers. We analyzed Gunner en masse: It was his upbringing. His genes. His ego. It was his insecurity – related, perhaps, to the fact that this was not exactly Harvard Law School we were attending. I was not of the persuasion that it was Gunner’s looks, too, that gave him the idea that he was entitled to more air time than other human beings, but others maintained there was a chart somewhere showing correlation if not causation: rugby build plus blond locks put you at risk, especially if you played tennis, sailed, and had really wanted to take Swahili but in the end had been forced to admit it wasn’t as useful as French. In truth, there weren’t a lot of people like Gunner in our ranks – people born with silver spoons in their mouths and their hands in the air. This was a fourth-tier school. But he inspired an expansion of our vocabularies anyway. By the end of the first month, everyone in our section could not only define but spell 1 0 4 J E N Y logorrheic. Pleonastic. Periphrastic. Indeed, you might have been forgiven for thinking we were strangely supersized contestants, preparing for the Scripps Spelling Bee. As for the sesquipedalian adjectives, those were courtesy of Arabella Lee, of course – Arabella who was born in China but who had grown up here and who everyone knew was smarter than Gunner, and more prepared, too. For example, in Property Law, when Professor Meister asked for examples of disabilities protected by the Americans with Disabilities Act, Gunner immediately supplied that significant myopia constituted ‘‘a physical or mental impairment that substantially limits one or more major life activities.’’ And such was the spell of his utter self-confidence that even normally perspicacious Professor Meister agreed until Arabella lifted her elegant hand. ‘‘What about Sutton v. United Airlines, 1999?’’ she asked. ‘‘Yes?’’ said Meister. ‘‘This was an employment discrimination case involving two myopic individuals who had applied to be airplane pilots, were rejected for failing the eyesight requirement, and then sued United Airlines, alleging discrimination on the basis of disability.’’ ‘‘And?’’ said Meister. ‘‘And they were found by the Supreme Court not to be disabled for purposes of the law,’’ said Arabella. ‘‘Ah. Well. That is indeed relevant.’’ Meister flushed so pink that were it not for his white hair and love of ‘‘screw-the-syllabus-let’sreally -talk’’ moments he could have been a grad student. ‘‘What a great example of how critical it can be to look up the leading interpretations of the statute,’’ he went on. ‘‘Especially those by the Supreme Court. Thank you.’’ Gunner scowled. But would Arabella ever wield the oomph she really should in society? Or out in the real world would the Gunners somehow always triumph? She was, to begin with, most impressively unimposing . When the Red Cross came through asking for blood donations , she couldn’t give; she didn’t weigh enough. Rumor had it she was a size 0. Worse, she not only thought before she talked, she never seemed to forget that there were forty of us in the section, so that if everyone talked for five minutes straight, the way Gunner M R . C R I M E A N D P U N I S H M E N T A N D W A R A N D P E A C E 1 0 5 R did, classes would be two hundred minutes long. Did this not spell defeat? Of course, it bugged a...

Distinguishing Diversity from Inclusion in the Workplace: Legal Necessity or Common Sense Conclusion?

This article examines the intertwined development of voluntary “diversity” and “inclusion” practices in business from their origins in mandated affirmative action legislation and provides separate and distinct definitions for both concepts. Through analysis of a series of reverse employment discrimination cases concerning non-inclusive “diversity” policies, and empirical workplace studies, this article argues that a transition away from “diversity” practices toward “inclusion” strategies is not necessarily a legal requirement but instead a business imperative in a perpetually changing society. The article concludes by providing guidance on creating and implementing effective “inclusion” practices.

Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making

Although the influence of gender ideology on lay decision-making has been established, it is not known to what extent expertise may mitigate gendered biases and improve decision-making quality. In a set of controlled experiments, trial court judges and laypeople evaluated a hypothetical child custody case and a hypothetical employment discrimination case. The role of expertise was tested in two ways: by comparing judges’ and laypeople’s decision-making and by examining relative differences in expertise among judges. Judges were no less influenced by litigant gender and by their own gender ideology than the lay sample. Judges with greater subject-matter expertise were also no less influenced by gender ideology than other judges. In some cases, expertise was associated with greater, not less, bias. The results of this study suggest that expertise does not attenuate gendered biases in legal decision-making.

When Courts Run Amuck: A Book Review of Unequal

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason for the courts’ frequent dismissal of these claims. Instead, the book seeks to expose how these seemingly erroneous dismissals occur and suggest avenues for reforming these legal standards. This Review begins by describing the book’s main arguments. Throughout this description, the Review supports and at times challenges some of the authors’ positions. In particular, this Review examines arguments regarding the role politics play in the courts’ decisionmaking in employment discrimination cases. It also explores the ironic result that the courts’ approaches to these cases actually may lead to more discrimination in the workplace and therefore more cases. Finally, this Review describes the authors’ suggestions for reform and proposes that changes in this area of the law are best accomplished by the entities that created the problems—the courts.

Brief of Professor Suja A. Thomas As Amicus Curiae in Support of Plaintiff-Appellant Jerberee Jefferson and Reversal of District Court

This amicus brief to the Eleventh Circuit, filed in an employment discrimination case, argues that the issue of whether summary judgment is unconstitutional has not been decided, argues summary judgment is unconstitutional under the Seventh Amendment, and argues that the reasonable jury standard underlying summary judgment is unconstitutional.

Against "Academic Deference": How Recent Developments in Employment Discrimination Law Undercut an Already Dubious Doctrine

When the defendant in an employment case is a college or other institution of higher education, the plaintiff usually will face an argument. Citing the importance of their freedom, defendants and sympathetic courts have asserted that courts should decline to invade higher education with federal court supervision. Whether or not courts cite the doctrine expressly, they certainly have proven hostile to professors' claims of discrimination, dismissing as a matter of law claims that seemed quite strong, or at least solid enough to allow a factfinder to rule either way. Indeed, empirical evidence shows that faculty plaintiffs rarely prevail in civil rights cases. The bulk of the precedents are gender discrimination cases, which illustrates the extent to which the doctrine has been a significant barrier to the use of Title VII to redress the gender segregation that has proven so persistent in academia and various professions. This Article argues that courts should reject the entire idea of a special deference to employment decisions challenged as discriminatory. The legislative history shows that Congress did not intend any special deference for academia, and there is no need for it, because courts can and do look for discrimination in other similar fields of employment. In many ways, there is less justification for deferring to academic than other employers, both for policy reasons (because of the importance of diversity in education) and doctrinal reasons (because of academic employers' tendency to defend denials of tenure with little evidence other than self-interested testimony as to entirely subjective reasons). Courts' frequent refusals to scrutinize academic employment decisions for discrimination risks leaving continued gender segregation and inequality in a large and important sector of both the labor market and our educational system. This risk of unredressed inequities is particularly troubling because academia is the sort of labor market in which social norms are unlikely to be effective at preventing discrimination. Social norms can be powerful protectors of fairness in other contexts, sometimes obviating the need for formal, legal protections. Yet academia has many characteristics making it the sort of labor markets in which social norms are likely to be weaker, unable to prevent misdeeds such as discriminatory employment decisions. While the doctrine has drawn criticism for quite some time, this Article adds an additional voice to the chorus by analyzing various unrelated strands of employment discrimination case law, mostly of recent vintage, that severely undercut the doctrine as a basis for granting employers summary judgment or judgment as a matter of law (JMOL) - the procedural devices that doom most academic plaintiffs' claims. Specifically, courts have stressed that, under the leading recent Supreme Court precedent on proof of employment discrimination, summary judgment and JMOL are inappropriate where employers' defenses are vague and subjective or where employers' defenses rely too heavily on the testimony of interested parties. Thus, even if the notion of academic deference once had merit, it is in increasing tension with other, more firmly grounded employment discrimination principles. This Article also argues that even to the extent that courts accept the doctrine of academic deference, the rationale for such deference is limited to the context of promotion-to-tenure. Accordingly, courts applying the doctrine to failure-to-hire cases are applying precedent sloppily, extending a doctrine beyond its original rationale. In short, the penchant of many courts to dismiss employment discrimination claims based on is misguided in a host of ways. It threatens to leave academia an island of civil rights lawlessness, essentially exempt from Title VII - a dangerous outcome for a society in which there is such gender inequity in academia and such a consensus that equal educational opportunity is the path to social progress and personal success.

Differences in the nature of employment discrimination litigation between private sector organizations and public sector organizations

This study reports on the results of a content analysis of federal court cases examining employment discrimination litigation in private, federal, and state/local sector organizations. One objective was to determine whether there are differences in the types of employment discrimination claims (e.g. race, sex, age, and disability) across the different sectors. A second objective was to determine whether there are differences in the outcomes (whether the case outcome or ruling was for the plaintiff or the defendant) of the different types of employment discrimination cases across the different sectors. The results of this study indicate that there are substantial differences in both the types of discrimination charges and the outcomes of those discrimination charges across the different sectors. The implications of the most significant findings are discussed, and recommendations are offered to organizations interested in reducing the occurrence of employment discrimination and the costs associated with employment discrimination litigation.

Selected Salient Evidentiary Issues in Employment Discrimination Cases

This short paper was prepared as a handout for a presentation given for the ALI-ABA and Georgetown CLS, at Georgetown University Law Center. The major sections of the paper are as follows: Significant Relevance for a Nonhearsay Purpose Avoids the Exclusionary Hearsay Rule; “Me, Too,” “He‟s Done It Before,” “Not Me”: Evidence of Character and of Other Acts; Chart: Character Evidence Rules Road Map; Other Sexual Conduct of Plaintiff; Rulings as to Waiver of Attorney-Client Privilege.