LSN: Theories of Discrimination (Disparate Treatment最新文献

{"title":"The Invisible Ban: Negligent Disparate Impact","authors":"K. R. Davis","doi":"10.2139/ssrn.3849456","DOIUrl":"https://doi.org/10.2139/ssrn.3849456","url":null,"abstract":"The murder of George Floyd ignited a resurgence of civil rights activism. Spearheaded by Black Lives Matter, this movement has sparked a new dialogue to address racial inequities. In this current atmosphere of heightened awareness, Title VII of the Civil Rights Act of 1964 provides a unique opportunity to advance the cause of civil rights by expanding job opportunities for African Americans. As currently interpreted, Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate-impact law imposes strict liability on employers that use facially neutral employment practices that have a disproportionately adverse effect on a protected class. This Article suggests following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The means of rectifying this deficiency is clear. The very language of Title VII suggests the duty, causation, and injury elements of a claim of negligent disparate impact. Following the tort analogy, negligent disparate-impact claims would provide a more expansive array of remedies than those that are available under the current theory of disparate impact. Specifically, compensatory damages and a broad spectrum of equitable remedies would be available to victims of negligent disparate impact. In keeping with the negligence model, this Article then suggests how to adapt the business-necessity defense and the less discriminatory alternative doctrine to negligent disparate-impact theory. This Article concludes by pointing out the benefits of recognizing this claim. First, victims would be entitled to remedies that fit the level of wrongdoing, and enhanced remedies would incentivize victims to seek redress. The risk of such liability would spur employers to cleanse their workplaces of practices that might result in discriminatory outcomes. Negligent disparate-impact theory would therefore deter employment discrimination. Equally important, recognition of a claim for negligent disparate impact would reaffirm federal law’s dedication to achieving equal opportunity in the workplace.","PeriodicalId":277475,"journal":{"name":"LSN: Theories of Discrimination (Disparate Treatment","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126259339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Causation in Civil Rights Legislation","authors":"Hillel J. Bavli","doi":"10.2139/ssrn.3784038","DOIUrl":"https://doi.org/10.2139/ssrn.3784038","url":null,"abstract":"Employees are often left unprotected from discrimination because they are unable to satisfy the requirement of causation. Courts have made clear that to obtain legal redress for discrimination, it is generally insufficient to show that a protected characteristic such as race or sex was a “motivating factor” of an adverse employment decision. Rather, under Supreme Court precedent—including the Court’s Comcast and Babb decisions in the 2020 term—the antidiscrimination statutes generally require a showing of “but-for” causation. This means that employees can rarely prevail because it is often easy for an employer to rebut allegations of discrimination by asserting a legitimate purpose—true or not—for the adverse decision. Therefore, although there is good reason to reject the motivating-factor test, the but-for requirement undermines the objectives of antidiscrimination law. \u0000 \u0000In this article, I draw on notions of cause and effect in the sciences and in tort law to propose a new standard of causation for antidiscrimination law. In particular, I formulate a simple test—which I call the “fortified NESS” test, or “FNESS”—for courts and legislatures to apply as a uniform and effective standard of causation in all disparate-treatment cases. I then employ this formulation to propose concrete amendments to the civil rights statutes, and I demonstrate why these amendments are necessary and how they allow courts to uphold the critical aims of antidiscrimination law.","PeriodicalId":277475,"journal":{"name":"LSN: Theories of Discrimination (Disparate Treatment","volume":"179 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123397481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}