The Improper Dismissal of Title VII Claims on Jurisdictional Exhaustion Grounds: How Federal Courts Require That Allegations Be Presented to an Agency Without the Resources to Consider Them

Title VII of the Civil Rights Act of 1964 represents a watershed moment in American history. With Title VII\u27s passage, Congress acknowledged the need to “back” the civil rights movement with “federal legislative power.” Title VII was meant to eliminate practices that inhibit employment opportunity equality. Beyond eliminating those practices, Title VII was also designed to assure equality of employment opportunities and to eliminate conduct that “fostered racially stratified job environments to the disadvantage of minority citizens.” This Title renders unlawful the refusal or failure to hire or “otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\u27s race, color, religion, sex, or national origin, or to limit, segregate or classify any employee” for the same improper reasons. A prima facie Title VII violation may be established through policies or practices that are neutral on their face but have a discriminatory effect. Recent appointees to the federal bench are skeptical of civil rights cases in general, and employment discrimination cases in particular, and they are not alone. There are many who still think that employment discrimination plaintiffs are “whiners.” However, the public\u27s perception of employment discrimination plaintiffs may be evolving faster than the judiciary\u27s. Anita Hill\u27s experiences are telling. In 1991, following Hill\u27s testimony in the Clarence Thomas confirmation hearings, she received letters from men who thought that sexual harassment was no more than “the fantastic, vengeful invention of disgruntled employees or spurned lovers.” However, sixteen years later, after a former New York Knicks employee won an $11.6 million jury award in a sexual harassment case, Ms. Hill received very different letters. Over half of the people who wrote were men, who, “through their own observations or the stories told them by their mothers, sisters, wives, and daughters understand the problem [of sexual harassment at work] and its harm.” Perhaps the best example of how the tide has turned on employment discrimination is the public reaction to Ledbetter v. The Goodyear Tire & Rubber Co. A wave of immediate public outrage followed the Supreme Court\u27s decision that Lilly Ledbetter\u27s equal pay claim was time-barred. In fact, the decision was so disliked that the Lilly Ledbetter Fair Pay Restoration Act was quickly passed to overturn its holding, and President Obama selected it as the first bill he signed into law. The reaction was even more surprising given that the public was reacting to the impact of a procedural rule: the statute of limitations, “a technical legal topic.” Yet outrage over using procedure to defeat civil rights claims is justified by Title VII\u27s history. Title VII was meant “to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.”’ Title VII was meant to open, not shut, courthouse doors. Thus, a plaintiff should have no trouble establishing that a federal court has jurisdiction over a claim for employment discrimination brought pursuant to Title VII of the Civil Rights Act of 1964. Title VII is a law of the United States. Correspondingly, jurisdiction should vest as a result of 28 U.S.C. § 1331. Yet some federal courts require much more than straightforward federal question jurisdiction to establish subject matter jurisdiction in Title VII cases. To establish subject matter jurisdiction for a Title VII claim in the District of Hawaii, “(1) the plaintiff must timely file his claim with the EEOC; and (2) the plaintiff must timely institute his action after receipt of a right-to-sue notice.” Other courts have further held that subject matter jurisdiction*216 in Title VII cases only extends over allegations of discrimination “‘like or reasonably related’ to the allegations” alleged in the initial charge filed with the Equal Employment Opportunity Commission (EEOC). If these three “jurisdictional” requirements -- that a timely claim be filed with the EEOC, that the EEOC issue a right-to-sue notice, and that the allegations in the federal complaint track those made in the original EEOC claim (presentment) -- are satisfied, a plaintiff has administratively exhausted his or her claim. Requiring exhaustion makes little sense given the current understaffing of the already overburdened EEOC and the procedures followed by that agency to pursue the initial filed charge; yet the circuits agree that administrative exhaustion in Title VII cases is required. However, there is substantial disagreement over whether the presentment requirement, which requires that the scope of the allegations presented in federal court mimics the scope of the allegations in the EEOC claim, is a requirement that may be excused under certain circumstances. Why would any federal court add to the “procedural minefield” a Title VII plaintiff must overcome to take her claim to trial by requiring compliance with administrative procedures before an agency that lacks the ability to enforce Title VII? This Article attempts to answer that question

The Danger of Nonrandom Case Assignment: How the S.D.N.Y\u27s \u27Related Cases\u27 Rule Has Shaped the Evolution of Stop-and-Frisk Law

The Southern District of New York’s local rules are clear: [A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time. Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s related cases local rule, which allows judges to accept a new case related to an earlier-filed case already on their docket. Unlike past stop-and-frisk scholarship, this article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of oversight. The article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of hot-spot policing. The article turns to the stop-and-frisk litigation before Judge Scheindlin, using it to examine the serious — and substantive — consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. The article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, and advocates for the publication of assignment decisions as well as for motion practice challenging the assignments. Finally, it warns of the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment. Yet because her interpretation is so broad, her decisions may be reversed, and the rights at stake narrowed

Adversarial No More: How Sua Sponte Assertion of Affirmative Defenses to Habeas Wreaks Havoc on the Rules of Civil Procedure

In every federal civil case, a defendant must raise its affirmative defenses in the pleading that responds to a plaintiff\u27s complaint. According to Federal Rule of Civil Procedure 8(c), failure to properly plead, for example, a statute of limitations defense, waives the defense for good. Rule 8(c) does not exempt any category of affirmative defense, nor does it forgive unintentional omissions of certain defenses. It also does not prefer governmental defendants to others. Yet in habeas corpus cases, the most significant affirmative defenses to habeas petitions need not comply with Rule 8(c). Instead, federal courts may raise the affirmative defenses of statute of limitations, exhaustion of state remedies, procedural default and nonretroactivity sua sponte even if the defense would otherwise be waived pursuant to Rule 8(c). This Article contends that habeas litigation is the worst place to grant State respondents any sort of procedural favor. Habeas cases implicate criminal convictions that are fundamentally unfair. And habeas petitioners need all the help they can get--since the passage of *179 the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), the odds of winning habeas relief are akin to the odds of winning the lottery. After examining the history of affirmative defenses, the Article next describes the purpose behind Rule 8(c) and argues that the rule was meant to be strictly applied. It next explains how federal courts\u27 willingness to take sua sponte action on behalf of habeas respondents violates both the spirit and the letter of Rule 8(c). It further argues that the Supreme Court\u27s reliance on comity and other policy-based justifications do not suffice to overcome the Federal Rules of Civil Procedure, which apply without regard to what sort of case is being heard. In light of the curtailed substantive paths to habeas relief, it also contends that habeas cases are the worst candidates for aggressive sua sponte advocacy that revives affirmative defenses at the expense of those imprisoned unfairly. With respect to Rule 8(c), habeas respondents should be treated similarly to, not differently from, every other civil defendant. The Article concludes that assisting respondents with sua sponte action in habeas cases conflicts with the purpose of an adversarial system by giving an unfair advantage to defendants who need it the least

The New Jim Crow’s Equal Protection Potential

In 1954, the Supreme Court’s Brown v. Board of Education opinion relied on social science research to overturn Plessy v. Ferguson’s separate but equal doctrine. Since Brown, social science research has been considered by the Court in cases involving equal protection challenges to grand jury selection, death penalty sentences, and affirmative action. In 2016, Justice Sotomayor cited an influential piece of social science research, Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, in her powerful Utah v. Strieff dissent. Sotomayor contended that the Court’s holding overlooked the unequal racial impact of suspicionless stops. Though the defendant in Strieff was white, Sotomayor emphasized that “it is no secret that people of color are disproportionate victims of this type of scrutiny,” and mentioned The New Jim Crow in support of her conclusions about the role race plays in suspicionless stops. The New Jim Crow, published in 2010, has sold over 750,000 copies. It describes how the criminal justice system disproportionately targets and incarcerates black men. The book has inspired a popular movement to end mass incarceration and the racial caste system mass incarceration has created. In addition to its appearance in Strieff, The New Jim Crow was cited in United States v. Nesbeth, a well-publicized 2016 sentencing order in which the court imposed probation instead of the incarceration recommended by the federal sentencing guidelines. The New Jim Crow has also been cited to explain the unfair collateral consequences faced by those convicted of drug crimes, as well as convictions’ disproportionate racial impact. This Article is the first to study The New Jim Crow’s equal protection potential. The New Jim Crow’s presence in federal decisions is reminiscent of the Supreme Court’s citation to social science research in Brown v. Board of Education. This Article considers whether The New Jim Crow sits alongside canonical works of social science research considered by the Supreme Court in cases like Brown. It examines how The New Jim Crow is sometimes cited by the federal courts in passing, as a nod to a work that has infiltrated popular culture, but not always as evidence that influences case outcomes. Noting its appearance in Judge Scheindlin’s orders finding that the New York Police Department’s (NYPD) use of stop-and-frisk encouraged unconstitutional racial profiling, it questions whether The New Jim Crow could successfully support equal protection claims. It concludes that citations to The New Jim Crow represent soft law, albeit soft law with hard law potential

The Drawing Book. A survey of drawing: the primary means of expression

‘The Drawing Book’ was conceived and edited by Kovats. Other invited authors included Kate Macfarlane and Katherine Stout (The Drawing Room, London), and Charles Darwent (art historian and writer). The publication sought to survey drawing as the primary means of expression. The book explored whether it was possible to employ a renaissance model, the commonplace book, which is primarily a text-based model, visually. Drawings were gathered together to explore certain themes that then form a visual narrative rather than a text-based one. The book was also an exploration of the subjective nature of visual memory, a journey into the imagination of an individual, in itself a model of the form of drawing, as a personal and subjective cosmology of drawing. The vast collection of drawings span the history of art and design, including the rich dynamic state of contemporary drawing today. This book examines the relationship between drawing and thinking, and looks at what drawings do, as well as how they look. It is organized into thematic chapters based on the form of a commonplace book. The selected drawings trace the continuous line flowing through detailing how artists, scientists, architects, designers, philosophers understand our world and our experience in it. Originally printed as a hardback copy (January 2006), the book has subsequently been reprinted in paperback (June 2007). The book has been reviewed in Blueprint (Andrew Ross, No. 242, May 2006) and Varoom Magazine - The Journal of Illustration and Made Images (Ian Massey, Issue 2, November 2006)

Tutors’ Perceptions on the Pedagogical Validity of Teaching ‘Taboo’ Topics in the Second Language Learning Sector

The purpose of this study is to establish teachers’ perceptions of the pedagogical value of introducing taboo or controversial topics into an L2 classroom. In order to achieve the aims of this study a semi-structured interview was designed and conducted with five experienced ESOL tutors. A focus group of trainee tutors were also interviewed for purposes of comparison and triangulation. Overall, participants agreed that the introduction of taboo/controversial topics did have some pedagogical relevance. Specifically from a language learning point of view taboo/controversial topics were seen to be technique that could prompt previously unknown vocabulary and linguistic structures. Others recognised the potential for such issues as a method to widen the learners understanding of the attitudes and values the target culture has. In conclusion, the personal perceptions of the tutors indicate that many understood that there was an efficacy to using taboo/controversial issues as a learning tool, ranging from basic language skills to promoting cultural enrichment, and potentially promoting a higher level of societal engagement. Yet, the primary concern of maintaining the welfare of the learners was the dominating factor as to whether tutors would introduce taboo/controversial issues into the class. Lastly, there are indications that the influence of L2 tutors on possible changes to the current method of avoidance of taboo/controversial topics is much greater than realised

Disability Without Documentation

Disability exists regardless of whether a doctor has confirmed its existence. Yet in the American workplace, employees are not disabled, or entitled to reasonable accommodations, until a doctor says so. This Article challenges the assumption that requests for reasonable accommodations must be supported by medical proof of disability. It proposes an accommodation process that accepts individuals’ assessments of their disabilities and defers to their accommodation preferences. A documentation-free model is not alien to employment law. In evaluating religious accommodations, employers—and courts—take a hands-off approach to employees’ representations that their religious beliefs are sincere. Disability deserves the same deference. This Article also contributes a novel analysis of agency guidance by exploring how its support of medical documentation requirements conflicts with legislative intent and the Americans with Disabilities Act’s rejection of the medical model of disability. Documenting disability has its price. It requires access to affordable health care and a relationship with a health care provider who is willing to confirm a disability’s existence. Documentation requirements may delay an urgently needed accommodation—one that would, for example, permit an employee to work from home. Until documentation requirements are relaxed—if not eliminated—disabled employees may be forced to work in dangerous conditions, or not work at all