Saturday, March 9, 2013
Jon Harkavy (Patterson Harkavy) has just posted on SSRN his article Title VII, 'Invented Tradition' and Cary Franklin's Revelation. Here's the abstract:
This article examines several facets of employment law history with the intention of fortifying Professor Cary Franklin's thesis in her April 2012 article in the Harvard Law Review that courts have inappropriately confined Title VII's reach, in derogation of women's interests, by reference to an anticlassificationist metric. Examination of these additional items of employment law history demonstrates more fully that the Supreme Court's reliance on the so-called "traditional concept" of sex discrimination is simply a canard. This article thus offers a "friendly amendment" to Professor Franklin's scholarship in hopes of elevating the prohibition against sex discrimination from second-tier status to its rightful place in our legal system.