A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth

The author of this article examines and dispels the frequently cited account that the provisions against sex discrimination in Title VII of the Civil Rights Act of 1964 were created as a Congressman\u27s joke or as an attempt to defeat the bill. He analyzes the background of the Smith and Bennett amendments, focusing on the congressional debates as they appear in the Congressional Record. He concludes that the Members of Congress were serious about sex discrimination, and that this seriousness has important implications for the interpretation of Title VII

A Philosophical Basis for Judicial Restraint

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases

Some Recent Developments in Federal and State Labor and Employment Law

SomeRecentDevelopmentsinFederal.pdf: 1006 downloads, before Oct. 1, 2020

Towards a Unified Theory of the Law of Employment Discrimination

TowardsaUnifiedTheoryoftheLawEmployment.pdf: 988 downloads, before Oct. 1, 2020

Disparate Impact Under the Age Discrimination in Employment Act of 1967

DisparateImpactUndertheAgeDiscrimination.pdf: 5205 downloads, before Oct. 1, 2020

An Introduction to Labor Law

[Excerpt] The purpose of this book is to introduce the reader to the federal law of unions and employers. This law is composed of two major elements. The first element is the National Labor Relations Act and the amendments to it. The second element is the decisions of the National Labor Relations Board and of the federal courts; these decisions interpret and apply the statutes. The statutes are long and complex, and the decisions of the Labor Board and of the courts number in the hundreds of thousands. As a result, this book cannot cover all of the law. Only the most important areas of the law are discussed, and the discussion of these areas is purposefully simplified. Although all of the following statements about the law are accurate, many are incomplete. Much more could be said about every topic addressed in this book

Employment Discrimination and the Assumption of Equality

The assumption of equality undergirds the American law of employment discrimination. The assumption is that racial and sexual classes are equally qualified for jobs. Although it has sometimes been ignored, and can be rebutted in a specific case, the assumption of equality is fundamental to the law of nondiscrimination. Proof of discrimination in a class action, whether based on disparate treatment or disparate impact, requires the assumption. The assumption is so strong in this context that when the Supreme Court weakened it recently, Congress promptly reinforced it. The assumption of equality is also a crucial element of the law of affirmative action and reverse discrimination. The former is consistent with the assumption and is legal; the latter is inconsistent with the assumption and is illegal. By prohibiting race norming, which violates the assumption, Congress has reaffirmed its commitment to the assumption

Levels of Abstraction in Legal Thinking

[Excerpt] This article applies the concept of levels of abstraction to legal thinking. Perhaps the most important use of the concept is to constrain judicial lawmaking in a principled way. Level of abstraction refers to: the numbers of persons and transactions that generate an issue, the numbers of persons and transactions of which a piece of evidence is true, the numbers of persons and transactions to which an argument applies, and the numbers of persons and transactions that are affected by the resolution of an issue. In general, the more persons and transactions to which an issue and its resolution apply, the higher the level of abstraction of the issue and resolution; and the more persons and transactions of which a piece of evidence is true, or to which an argument applies, the higher the level of abstraction of the evidence

Disparate Impact Is Not Unconstitutional

[Excerpt] In Ricci v. DeStefano, the New Haven Firefighters case, whitefirefighters and one Hispanic firefighter sued the city of New Haven, Connecticut and city officials under Title VII. The plaintiffs claimed the city had committed intentional discrimination or disparate treatment against them when the city disregarded the results of promotion examinations that had an adverse effect on black and Hispanic applicants. The Supreme Court sustained the claim. In his concurring opinion, Justice Scalia invited attorneys in subsequent cases to consider arguing that the disparate impact theory of employment discrimination is unconstitutional. He reasoned as follows: • The Constitution prohibits the government from committing disparate treatment. • Therefore, the government may not enact laws that requirean employer to commit disparate treatment. • An employer who abandons a practice that has a disparate impact commits disparate treatment against the persons whom the practice favors because the employer seeks to increase the percentage of black applicants whom the practice favors. • An employer who abandons a practice that has a disparate impact in order to avoid being sued by members of the class which the practice disfavors has been required by the government to commit disparate treatment. Disparate impact is thus unconstitutional in Justice Scalia\u27s view, but his reasoning reflects a misunderstanding of the theory of disparate impact and how it proves discrimination. When disparate impact is understood correctly, no constitutional issue arises

The Similarity of Congressional and Judicial Lawmaking Under Title VII of the Civil Rights Act of 1964

Following a brief statement of the legislative history of Title VII, this Article describes how, and then explains why, four important issues were treated as they were by Congress and the courts. The evidence reveals that both institutions of government were influenced by the competing interests, and that the conclusion is drawn that the process of lawmaking is similar in this important way in both courts and the legislature