Sunday, March 9, 2014

Hot Topics: Employment Discrimination

FlameAfter a long hiatus, I finally get to teach Employment Discrimination again! I'm excited, but also a bit out of the loop, since I haven't been teaching or researching in this area for awhile.

I'm looking for "hot topics" to recommend to my students for research projects. Circuit splits are welcome. If you have suggestions, please post a comment or email me directly.


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How about claims under Title VII for religious discrimination/accommodation in the enforcement of forced-unionism schemes?

Posted by: James Young | Mar 9, 2014 9:21:24 AM

Has there ever been a successful claim under these theories? I would've thought that Sec. 19 of the NLRA would eliminate such claims, especially the already weak Title VII accommodation claim.

Posted by: Jeff Hirsch | Mar 9, 2014 10:47:15 AM

I believe the answer is a resounding "Yes," Jeff, though I am not the expert, and I find it disturbing that you would so casually dismiss them as "the already weak Title VII accommodation claim." Just because the dominant labor law professoriate does not like such claims for ideological reasons does not mean that they either don't exist or are "weak."

Posted by: James Young | Mar 9, 2014 5:45:22 PM

James, I didn't say that I thought the religious accommodation claim under Title VII SHOULD be weak. Rather, I said that it is weak, which is something so blatantly obvious that I'm surprised you're offended (i.e., under SCT precedent, any non-de minimis cost to the employer is enough to preclude a religious accommodation claim). I've never seen anyone of any political stripe challenge that description before.

FWIW, I disagree with the SCT on this and think the de minimis rule is not protective enough of employees' religious needs. But that isn't relevant to my earlier comment.

Posted by: Jeff Hirsch | Mar 10, 2014 5:42:45 AM

Fantastic circuit split on whether the EEOC's conciliation efforts are subject to judicial review and failure to conciliate is an affirmative defense for employers.

Posted by: Jocelyn Larkin | Mar 12, 2014 1:21:25 PM

In preparing for class this week, I was re-reading Vance, and focused on this passage:

As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth.

It seems to me that the notion of "effectively delegated" might be an interesting topic for a student paper.


Posted by: CAS | Mar 23, 2014 4:46:35 AM

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