Missing the Forest for the Trees: Gender Pay Discrimination in Academia

Women in virtually every job category still make less than men. Academia is no exception. This Article will explore some of the structural explanations for this continued disparity and the continued resistance to seriously confronting those structural barriers to equality. Using the still-unfolding story of a charge of discrimination filed against a university, this Article examines the script that has become all-too-familiar in discussions about the gender pay gap, whether in academia or elsewhere. The basic storyline in pay discrimination litigation is this: Evidence is presented about the existence of a gap between men\u27s earnings and women\u27s earnings. The response is that the numbers cannot be looked at as a group because there are individual explanations for each pay decision. With this move, the focus of attention is shifted from an evaluation of the troubling structural picture to an evaluation of an individual employee. Until we are willing to resist that shift, it will be nearly impossible to address the root causes of continued pay inequity

From Wards Cove to Ricci: Struggling Against the Built-In Headwinds of a Skeptical Court

When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability. Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the Court\u27s jurisprudence, considering how the Supreme Court, Congress, lower courts and employers all interact in the application and enforcement of the principles of equality underlying Title VII

Business-Like: The Supreme Court\u27s 2009-2010 Labor and Employment Decisions

The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of the decisions divided the Court sharply. And, as has been true throughout Chief Justice John Roberts’ tenure, the decisions overall reflect a powerful deference to business interests

Retaliatory Litigation Tactics: The Chilling Effects of After-Acquired Evidence

Even a victim of the most egregious discrimination may recover little monetary relief if the defendant discovers, after firing the employee, that she committed some firable offense. Yet the case in which the Supreme Court so held, McKennon v. Nashville Banner Publishing Co., was widely viewed as a victory rather than a defeat for plaintiffs. This surprising perception flowed from the Court\u27s holding that such after-acquired evidence of misconduct merely limited remedies but did not completely eliminate plaintiffs\u27 rights to sue for discrimination. Given that McKennon could be portrayed either as a victory for plaintiffs or an unjust denial of relief for plaintiffs, it is surprising that there has been little academic inquiry into the actual effects of McKennon on discrimination claims. This Article documents how the after-acquired evidence doctrine of McKennon plays a troubling role in civil rights litigation: It shifts the focus of the discussion off the employer\u27s illegal acts and onto the worthiness of the plaintiff and it chills full enforcement of discrimination laws. Using both an empirical analysis of judicial decisions and a series of interviews with attorneys, this Article uncovers new evidence that employers most often seek to limit a plaintiff\u27s remedies based on evidence of relatively minor transgressions, most commonly resume fraud, that would not likely have been discovered had the plaintiff not sued to challenge employment discrimination. Further, both the data from judicial opinions and the evidence from practicing attorneys suggest that the potential for disclosure of negative personal and professional information dissuades plaintiffs from pursuing even meritorious claims of discrimination. From its inception, the after-acquired evidence defense has prompted concern from a small number of critical voices that it carried potential as a tool for abuse of employees seeking to vindicate their rights. The evidence offered in this Article substantiates these concerns, which raise serious doubts about the continued existence of the doctrine. Acknowledging how unlikely the defense is to be abolished, this Article concludes that these concerns should alternatively prompt litigants and courts to recognize claims of illegal retaliation when employers misuse the after-acquired evidence doctrine by asserting the defense frivolously to deter plaintiffs from pursuing discrimination claims

Skepticism and Expertise: The Supreme Court and the EEOC

The Supreme Court regularly denies deference to the Equal Employment Opportunity Commission\u27s interpretations of the federal antidiscrimination laws which that agency is charged with enforcing and interpreting. The Court\u27s lack of deference for EEOC interpretation is in part a function of the analytical framework that the Court has created for assessing the deference due to different types of administrative interpretation. But this essay argues that the Court\u27s lack of deference cannot be entirely explained with reference to these neutral analytical criteria. The Court\u27s attitude toward the EEOC may also be explained as a consequence both of judicial reluctance to view discrimination as a subject of agency expertise and of skepticism about the political agenda of an agency empowered to enforce antidiscrimination requirements