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Abstract:
The effects of globalization on employment justify augmenting the fundamental principles articulated in the ILO's 1998 Declaration by including a global goal of decent work with a living wage. Adding the principle of decent work with a living wage can help keep labor law relevant because it can be the organizing principle for an array of unions and other groups interested in worker welfare to push for its implementation as a matter of international, regional and national law. The goal of decent work with a living wage can be a rallying cry to help overcome the prevailing neoliberal assumption that the present set of very limited regulations of the market is a natural law. Regaining the intellectual high ground for claims of worker rights to decent work with a living wage can be the product for, but also the cause of, organized action by those who share values in fair treatment at a global level. Unions, but also other NGOs, need to see that it is in their long term interest as well as the long term interest of the workers it claims to represent to reach across borders to work together to achieve this goal. Conflicting strategic interests and different legal and organizational cultures make this a daunting goal, but one worth pursuing.

Decent work, living wage, ILO Declaration, unionization, global economics, neoliberalism, transnational organization, NGOs

Abstract:
There are three elements in a plaintiff's prima facie case of individual disparate treatment discrimination. (1) Plaintiff suffered an adverse employment action, (2) that action was linked to the defendant, and (3) the defendant's action was motivated by a protected characteristic of the plaintiff.

The third element - defendant's intent to discriminate - is the most challenging and is the focus of most individual disparate treatment discrimination cases. Part of the difficulty is that the second question - the level of linkage of plaintiff's harm to defendant's action - has been tied up in the discussion of the intent issue. After the Supreme Court decisions in Reeves and Desert Palace, however, it is possible to clarify both the question of the level of linkage and the array of different kinds of claims that can be used to prove discriminatory intent. It is becoming clear that either the but-for or "determinative influence" standard based on the "because of" language of §703(a) of Title VII or the "a motivating factor" standard found in §703(m) can be used to analyze any claim that the defendant acted with discriminatory intent.

Direct, direct-lite, or circumstantial evidence (or any combination of the three) can be used to prove individual disparate treatment discrimination.

The variety of claims of what can be used to prove discriminatory motivation or intent include straightforward claims of unequal treatment, defendant's admissions that it discriminated, actions based on stereotypes, and the McDonnell Douglas approach whether it is characterized as proof that defendant lied in its assertion of a legitimate, nondiscriminatory reason for its action, as proof that completely knocks out defendant's explanation, or as proof by a process of elimination of the likely nondiscriminatory reasons. This is not a complete list of such claims as different evidence and therefore different claims of what can be the basis for drawing the inference of discrimination will no doubt will appear as litigation continues to develop.

employment, discrimination, individual disparate treatment, equal treatment, stereotypes, admissions of discrimination, McDonnell Douglas, Reeves v Sandford, Desert Palace, Costa, Title VII, 703(a), 703(m)

Abstract:
In Ricci v. DeStefano, the Supreme Court in an opinion by Justice Kennedy ruled that, as a matter of law, the City of New Haven had committed intentional disparate treatment discrimination that violated Title VII by deciding not to use the results of a test given to promote firefighters to openings as lieutenants and captains. The decision has already drawn significant and interesting commentary. This article will principally focus on the threshold issue of disparate treatment law, on which the Court spent little time, rather than on the disparate impact issues on which the Court spent most of its opinion. The thesis of this article is that it is possible that a conservative majority of the Supreme Court inadvertently may have opened new possibilities for civil rights advocates representing women and minority group men, the groups for whose protection antidiscrimination statutes were enacted in the first place. The obvious and powerful empathy the majority felt for the Ricci plaintiffs may have caused a majority of the Court to leap to the finding of discrimination that the result transforms disparate treatment law to now make it easier for all plaintiffs to prove their cases. In short, the Court appears to have established essentially a “color-blind” standard of disparate treatment liability for Title VII. This new standard allows a civil rights plaintiff to prove her disparate treatment case by proof that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision in light of that knowledge which made the decision “because of race” and (3) the plaintiff suffered an adverse employment action. Accepting that the City’s motivation for its action was to avoid disparate impact liability to minority group test takers, the fact that the City acted benevolently as to some of the members of all three racial groups affected was irrelevant to liability to one group, the Ricci plaintiffs, who were adversely affected by the decision even though the decision was in spite of their race, not because of it. Justice Kennedy recognized an exception to the Ricci “color-blind” theory when an employer takes into account the potential racial effect of an employment practice while that practice is in the design phase, before it is finalized for use.

intentional disparate treatment discrimination, employment discrimination, Title VII Civil Rights Act

Abstract:
In its three years, the Roberts Supreme Court has decided three employee retaliation cases. In all three, the employee won. So, the question is whether the Supreme Court is pro-employee, at least in retaliation cases. My answer is yes, but not in the sense of "liberal" or "conservative" in the conventional political sense that Democrats tend to be liberal and Republicans conservative. This should be no surprise since seven of the Justices were appointed by Republican Presidents. My thesis is that these decisions are a product primarily of a pragmatic approach to judicial decision making. To support that answer, I will first discuss all three decisions. Then I will analyze the positions of the Justices who spoke to the issue of retaliation in these cases to see if they support my thesis that a pragmatic approach governed, leading to plaintiffs winning. The final section will attempt to place these Justices on a spectrum from pragmatist to formalist.

Employer retaliation, statutory interpretation, judicial decisionmaking, employment discrimination, Supreme Court

Abstract:
In Desert Palace, Inc. v. Costa, the Court for the first time interpreted section 703(m) which was added to Title VII in the Civil Rights Act of 1991 and which provides that plaintiff establishes defendants liability by proving that race or sex "was a motivating factor for any employment practice, even though other factors also motivated the practice." Applying a plain meaning approach, the unanimous Court decided that, "In order to obtain an instruction under [section 703(m)], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Rejecting literally hundreds of lower court decisions, the Court concluded that "direct evidence of discrimination is not required in mixed-motive cases."

This article works out the implications for individual discrimination law of Desert Palace. The major conclusion is that section 703(m)'s "a motivating factor" applies in all contested individual discrimination cases. Price Waterhouse v. Hopkins has lost any significance beyond its validation of using evidence of stereotypical thinking to support a finding of discrimination. As a method of analysis separate from section 703(m), McDonnell Douglas' "determinative influence" standard applies as a matter of law only in those rare situations where plaintiff has a "barebones" prima facie case and nothing more and defendant decides not to assert a nondiscriminatory reason to rebut the prima facie case. While plaintiff and defendant may agree that McDonnell Douglas applies in any particular case, if they do not agree the "a motivating factor" test established in section 703(m) applies to all individual disparate treatment cases. But for that very small subset of cases where the McDonnell Douglas analysis applies, defendant will be liable if race, color, religion, sex, or national origin was "a motivating factor" for the action plaintiff attacks. If an impermissible factor was a motivating factor, the defendant has the opportunity provided by section 706(g)(2)(B) to prove as an affirmative defense to full remedies that it would have made the same decision even if it had not considered that impermissible factor.

Abstract:
In Desert Palace, Inc. v. Costa, the Court for the first time interpreted section 703(m), which was added to Title VII in the Civil Rights Act of 1991 and which provides that plaintiff establishes defendants liability by proving that race or sex "was a motivating factor for any employment practice, even though other factors also motivated the practice." Apply a plain meaning approach, the unanimous Court decided that, "In order to obtain an instruction under [section 703(m)], a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of evidence, that 'race, color, religion, sex, or national origin was a motivating factor for any employment practice." Rejecting literally hundreds of lower court decisions, the Court concluded that "direct evidence of discrimination is not required in mixed-motive cases."

This article works out the implications for individual discrimination law of Desert Palace. The major conclusion is that section 703(m)'s "a motivating factor" applies in all contested individual discrimination cases. Price Waterhouse v. Hopkins has lost any significance beyond its validation of using evidence of stereotypical thinking to support a finding of discrimination. As a method of analysis separate from section 703(m), McDonnell Douglas' "determinative influence" standard applies as a matter of law only in those rare situations where plaintiff has a "barebones" prima facie case and nothing more and defendant decides not to assert a nondiscriminatory reason to rebut the prima facie case. While plaintiff and defendant may agree that McDonnell Douglas applies in any particular case, if they do not agree the "a motivating factor" test established in section 703(m) applies to all individual disparate treatment cases. But for that very small subset of cases where the McDonnell Douglas analysis applies, defendant will be liable if race, color, religion, sex, or national origin was "a motivating factor" for the action plaintiff attacks. If an impermissible factor was a motivating factor, the defendant has the opportunity provided by section 706(g)(2)(B) to prove as an affirmative defense to full remedies that it would have made the same decision even if it had not considered that impermissible factor.

Abstract:
With increased economic globalization since the 1980s has come increased economic inequality and a decline in union density in most countries of the world, with one notable exception being the Peoples Republic of China. The decline in unionism contributes to increased inequality. This paper will try to begin to answer the question whether a revived unionism operating transnationally can do to help reduce inequality as it did during the industrial era following World War II. To do that, this paper will compare and contrast the union movements in China, Mexico and the U.S. Part I will set out the contours of the problems the union movement faces because many employers have been able to organize themselves to escape national labor laws and national labor unions. Unions, in these three countries as well as elsewhere, have not escaped the trap set up by the Westphalian-based system of sovereign nation states which use national law to regulate national economies. Part II will sketch out some of the ways the union movement might attempt to respond to the present situation, as well as some of the obstacles such action will need to overcome if the union movement is to escape the Westphalian trap. Part III concludes.

Labor unions, international labor unions, unions in China, comparative law - labor and employment

Abstract:
While labour and employment law involves facets of both international and comparative law that are interesting and valuable, the best way to organize an advanced course for US law schools is to study both: Understanding of either is dependent on understanding both.The study of international labour and employment law at the level of the International Labour Organization (ILO) and regional international organizations such as the EU and the North American Free Trade Association (NAFTA) labour side accord take on real meaning and significance by showing their relationship with the national labour and employment laws of the major countries of the world.A unified international and comparative labour law course is an ideal way to develop and deepen the understanding that law students need to practice law in an ethical and professionally responsible way

teaching international law, teaching comparative law, international labor and employment law

Abstract:
When the American Law Institute’s Council announced that the Institute would begin work on a Restatement of Employment Law, it, like all other projects since I have been an ALI member, sprang forth with no input from the general membership about undertaking the project in a particular area, what type of project it should be and who should be its Reporters and its Advisory group. I suppose the best that can be said about how this happened is that the principle of never doing anything the first time appeared to rule: The ALI is an institution with very strong traditions and they were followed. Although I had no input in how the project was framed or staffed and disagreed with the decision to start work in the labor and employment area with a Restatement, I thought it was my duty as a member to get involved and so I joined the only role available to the general membership before participation at the annual meeting and that was to join the Consultative Members Group. It is open to all members. As the project has progressed, I am only further convinced that a Restatement of the common law was the wrong place for the ALI to start work in the labor and employment law area.

Labor Law, Employment Law, Restatements, American Law Institute, ALI, Common Law

Abstract:
This article discusses the decision of the Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., which may be an even more important individual disparate treatment case than the Supreme Court's 1993 decisions in Hazen Paper and St. Mary's Honor Center v. Hicks. After Hicks, the court had not yet seemed to set the prima facie case thresh hold high enough to permit the proven prima facie case to support a sufficiently strong inference of discrimination to mandate judgment for the plaintiff when combined only with disbelief of the employer's stated justification. The Court has still not resolved that question. The evidence supporting the prima facie case plus evidence that defendant's reason is false does support a fact finder drawing the inference of intent to discriminate. Further, in reviewing that evidence for the purpose of deciding motions for summary judgment and judgment as a matter of law, the Court indicated that every inference must be drawn in favor of the non moving party, typically the plaintiff. Still, judgment for the plaintiff is not mandated. Alternatively, Reeves may be important, but more limited, overturning the pretext plus rule further narrowed in Hazen Paper and Hicks, but leaving intact the common practice of courts in slicing and dicing the evidence supporting a plaintiff's case in order to grant motions for summary judgment and judgment as a matter of law.

individual disparate treatment discrimination, employment discrimination, summary judgment

Abstract:
The complicated structure of the law of individual disparate treatment discrimination as sketched by the decisions of the Supreme Court is the result of the failure of Justice Brennan to command a majority on his approach in Price Waterhouse, which approach would have largely supplanted the earlier McDonnell Douglas approach. Justice O'Connor's concurrence is the basis, therefore, of the development of two separate methodologies to analyze individual disparate treatment cases. That bifurcated approach is beginning to break apart into a number of new and different approaches at the court of appeals level. Some courts are construing the two main methodologies, Price Waterhouse and McDonnell Douglas, in ways that create enormous obstacles to a jury getting to try individual disparate treatment discrimination claims. Other courts are using several different interpretations of these two steams of authority to create a unitary approach to individual disparate treatment cases. It may well be that in the long run the approach initially advocated by Justice Brennan in his plurality opinion in Price Waterhouse may ultimately prevail.

Disparate treatment, employment discrimination, individual disparate treatment discrimination

Abstract:
This article postulates that the Civil Rights Act of 1991 (the "Act"), along with some recent Supreme Court decisions, may have begun the development of a new, uniform structure for disparate treatment discrimination which will eliminate much of the complexity and confusion presently existing. To test this thesis, Part I of the Article traces the approach the Supreme Court has historically taken. Part II then describes the emerging uniform model of disparate treatment discrimination, with reference to the Act, two 1993 Supreme Court decisions, and several lower court decisions. Part III addresses the scope of the emerging model, and considers its applicability to all Title VII disparate treatment cases. Part IV fleshes out how the model might operate. Finally Part V addresses the application of this uniform structure to other antidiscrimination statues, such as the ADEA and 42 U.S.C. section 1981.

Employment discrimination, disparate treatment, individual disparate treatment discrimination

Abstract:
The thrust of this article is to help courts develop a more empathetic attitude toward the victims of discrimination. Starting with the grim history of the lack of sympathy of the courts towards workers' rights generally and then describing how the sympathy of the courts towards the victims of discrimination declined after the era of the Civil Rights Movement ended, the article calls for judges to adopt the perspective of the victims of discrimination when deciding discrimination cases. In light of the Supreme Court decision in Reeves v. Sandford Plumbing Products, Inc., the courts should be more open to hear evidence and to draw inferences that support at least a more sympathetic viewpoint toward the victims of discrimination. Recent data further supports the fact that discrimination persists at a high level, particularly among a considerable number of "hard core" discriminators. Calling for more systemic discrimination cases to be brought - a new mini-Civil Rights Movement in the courts - the article also shows how this data can be used to educate the judiciary toward a more sympathetic, or even empathetic, perspective toward the victims of discrimination.