Monday, October 20, 2014

The Fundamental Nature of Title VII

Professor Maria Linda Ontiveros of the University of San Francisco School of Law has just posted a new article, The Fundamental Nature of Title VII, on SSRN.  In the article, Professor Ontiveros models the relevance of human rights law to domestic legal analysis, arguing that the treatment of employment discrimination under human rights law should be a factor informing the understanding and construction of the "fundamental nature" of Title VII.  The article is slated for publication in the Ohio State Law Journal.  Here is the Abstract:

Abstract:     

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.

https://lawprofessors.typepad.com/human_rights/2014/10/the-fundamental-nature-of-title-vii.html

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