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Stetson
University College of Law
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THE LAW OF
EMPLOYMENT DISCRIMINATION |
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This
Course Page is intended to supplement classroom materials in my foundations course on the subject of
Employment Discrimination Law, and serve as a resource for teachers and
students interested in the subject. It is not intended to serve as a "latest
case" service for practitioners, and it will not generally contain references to
lower court cases outside the casebook.
This
page is dedicated to educational use and is not intended to provide
legal advice. Although I appreciate interest in the course page
from all persons interested in the subject, I do not respond to
inquiries from persons who are pursuing cases in which they are a
party, nor do I make referrals to law firms.
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| Specific Assignments for Class Sessions
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The coverage of assignments will vary depending upon whether the course meets two or three times per week; coverage will be discussed in class
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| Federal and State Enforcement Process |
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Required Texts:
R. Belton, D. Avery, M. Ontiveros, and R. Corrada
 EMPLOYMENT DISCRIMINATION LAW, Seventh Edition
(American Casebook Series, Thompson - West, 2004), and Statutory
Supplement
(ISBN 0-314-14709-8)
John J. Donohue III
Foundations of Employment Discrimination Law, Second Edition
(Foundation Press, 2003), ISBN 1-58778-096-9 (I view the essays compiled and edited by Professor Donohue as essential reading for any attorney in the field)
Introductory Reflections
"My knowledge of [my
father's] years in China and Taiwan is like a collection of souvenirs, but of souvenirs
that don't belong to me…In our archetype of the immigrant experience, it is the first
generation that remains wedded to the ways of the Old Country, and the second generation
that forsakes them. This, we learn, is the tragedy of assimilation: the inevitable
estrangement between the immigrant father who imagines himself still in exile and the
American son who strains to prove his belonging…I never asked to be white. I am not
literally white. That is, I do not have white skin or white ancestors. I have yellow skin
and yellow ancestors, hundreds of generations of them. But like so many other Asian
Americans of the second generation, I find myself now the bearer of a strange new status:
white by acclamation…"
Eric Liu, The
Accidental Asian, (Random House Books, 1998) [The third chapter of Mr.
Liu's book is an excellent essay on the various themes associated with ethnic
identity in post modern America.]
"The lawyer is either a social engineer, or he is a parasite on society."
Charles H. Houston
Harvard Law, 1923
Editor, Harvard Law Review
Former Dean, Howard University Law School
Framer of the Legal Campaign Against Segregation
"The goal of racial equality is, while
comforting to many whites, more illusory than real for blacks. For too long, we have
worked for substantive reform, then settled for weakly worded and poorly enforced
legislation, indeterminate judicial decisions, token government positions, even
holidays…If we are to seek new goals for our struggles, we must first reassess the
worth of the racial assumptions on which, without careful thought, we have presumed too
much and relied on too long."
* * *
Racism is more than a group of bad white
folks whose discriminatory predilections can be controlled by well-formed laws, vigorously
enforced. Traditional civil rights laws tend to be ineffective because they are built on a
law enforcement model. They assume that most citizens will obey the law; and when law
breakers are held liable, a strong warning goes out that will discourage violators and
encourage compliance. But the law enforcement model for civil rights breaks down when a
great number of whites are willing - because of convenience, habit, distaste, fear, or
simple preference - to violate the law. It then becomes almost impossible to enforce
because so many whites…identify more easily with [those who are willing to disregard
the law] than with their victims."
Derrick Bell, Faces at
the Bottom of the Well, (Harper Collins, 1992)
"An individual has not started living
until he can rise above the narrow confines of his individualistic concerns to the broader
concerns of all humanity."
Martin Luther King, Jr.
Course Description:
This course will begin with a consideration of excerpts from originative essays on the subject of race in America, and a facilitated discussion of the organized social action campaign that influenced the passage of the Civil Rights Act of 1964 and the 1965 Voting Rights Act. This history is more fully developed in the course on Constitutional Law and the Civil Rights Movement - a course which fully examines the foundation of civil rights in the Thirteenth, Fourteenth, and Fifteenth Amendments, and the judicial and social history of civil rights from Reconstruction through the late-1960's. Following this introductory segment, the course will devote substantial time to the study of the legislative history of Title VII of the Civil Rights Act of 1964, and judicial decisions interpreting Title VII, and subsequent federal legislation prohibiting discrimination in employment because of race, sex, national origin, color, religion, age, or disability. As Professors Friedman and Strickler observe, the course is attractive to students because it subsumes "issues steeped in social policy considerations."
The specific goals of the course are: to expose students to a brief history of race and discrimination, and then to focus upon the substantive remedial federal law; to discuss the public policy of laws prohibiting employment discrimination; and to examine how the federal courts function in this special field. Students are expected to refer often to the Foundations essays, and the Statutory Supplement, to better understand the context of the law, its reflection of social policy, and the parameters of statutory protections against discrimination in employment based upon race, sex, national origin, color, age or disability.
The cases we will study illustrate the
observations of professor Henry J. Steiner, in his 1987 essay, "Moral Argument and
Social Vision in the Courts." Although professor Steiner's work is essentially a
study of tort accident law, and not civil rights law, his view of the categories of legal
argument and analysis is well-suited to our exploration of the employment discrimination
cases. Professor Steiner observes that the opinions of judges in tort cases describe three
categories within legal argument or analysis: legal doctrine, moral justification and
social vision.
"* * * Doctrine refers to the formal,
conventional expression of law through rules and standards. It is captured in the
Restatements' black letter. * * * Argument based primarily on doctrine may proceed in a
formal and even mechanical way, perhaps by the extrapolation of rules from precedents and
the application of those rules to the present case through deductive logic. Doctrinal
argument may proceed more complexly, as courts support their conclusions by drawing
analogies to prior decisions.
By justification I mean the moral argument
supporting a decision. Justificatory argument seeks to demonstrate why one rule or
standard is to be preferred to another, why doctrine is what it ought to be or why it
ought to be changed. It means to ground an opinion in reason, to put a rational face on
it. * * *
What relation then does moral justification
bear to doctrine? In one sense, justifications are distinct from legal norms. They confirm
or criticize or develop such norms from moral vantage points extrinsic to law. We can
develop many policies or principles of moral thought independently of the formal structure
of a legal system and the opinions of courts. The ideals in judicial justifications -- an
ideal of mutual respect or distributive justice or material growth -- can then be said to
originate "outside" law, in social existence and the broad domain of moral and
political thought.
Social vision, a more amorphous category,
constitutes the pivotal and unifying concept within this portrait of common-law
adjudication and change. * * * It embraces empirical statements, observations about
social actors, evaluative characterizations of social life, and understandings of older
and prevailing ideologies. Relative to justification, it has a less abstract and more
contextual and graphic character. It enters opinions less as reasoned argument than as
fragments of description, evaluation, or insight. * * *
[Like] different justifications, social
visions of radically different character may coexist in competition with each other. But
it is the fusion of some vision of society with some ideal of right or fairness or welfare
that enables us to describe in any detail any one justificatory theory. * * *
The social context or goals which a judge
may describe will be differently depicted by other observers, including other judges. A
radical portrait would emphasize facts, social mechanisms, and ideology that would escape
a more conventional one. It would tell a different story, reveal a different society.
Either portrait will influence the way others -- lawyers, judges, social actors --
understand and act within the world. Through the changing visions of society that they
express, courts help to make and remake the world that they appear to be describing. * * *
More than merely ornamenting or influencing
doctrine, justification and social vision form and inform it. They give it life and
meaning. These two elements of argument are as much a part of doctrine as distinct from
it. They are themselves mutually dependent, reciprocally influential categories of thought
and imagination, complementing and indeed shaping each other even as both shape
doctrine."
| Steiner, Moral Argument and Social
Vision in the Courts: A Study of Tort Accident Law (University of Wisconsin Press,
1987), pp. 4-9, 35, 93, 99. |
Race and Political Philosophy:
Our
truncated public discussions of race suppress the best of who and what we are as a people
because they fail to confront the complexity of the issue in a candid and critical manner.
The predictable pitting of liberals against conservatives, Great Society Democrats against
self-help Republicans, reinforces intellectual parochialism and political paralysis.
Cornel West, Race Matters (Vintage Books, 1993), p. 4. This is a "must read" book. Dr. West's commentary is important because it encourages students to deal openly with the politics of race and the political bias which may affect how we approach the principle of nondiscrimination.
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Class Preparation:
This course has a reputation for outstanding preparation by students, and has attracted many serious students of the subject. It is assumed that each student will be well prepared for class discussion. Each student may expect to be asked at any time to discuss a case, or text material, and to respond to questions from the professor or another student.
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EXAMINATIONS AND COMPETENCIES |
Beginning in the Fall, 2006 term, and based on the significant increase in enrollment in the course, students will be graded based on their performance on an anonymously graded comprehensive "take-home" final examination, drawing upon the assigned materials from the Belton and Donohue books, and additional assigned materials. The assigned readings include a discussion of the history and foundations of the principle of nondiscrimination, and the policy, theory and analytical framework of federal employment discrimination laws.
The instructor will assist in the class discussion of the subject, but students are expected to generally contribute to the discussion of all assigned materials. Grades will, of necessity, be governed by the College's current grading policies, including any required grade normalization policy.
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Attendance:
Students are expected to attend all classes, except when prevented
from doing so by illness, family emergency, religious holy day, or
conflicting responsibility to the college. (In keeping with the college's
attendance policy, students are permitted six absences if the class
meets three times per week, or four absences if the class meets twice
per week). I reserve the right to require attendance at certain classes,
when guest lectures are held, or group projects are discussed. The student's
failure to observe these policies may negatively affect the student's
grade [I am aware of the efforts required of students to secure employment;
however, it is expected that job interviews will not be scheduled in conflict
with class times or responsibilities.]
Individual Appointments:
Students are expected to interact regularly in class as to the
subject of discussion, and individual questions about the subject
should be shared in class. Individual students who have need of
private consultation should schedule an appointment or come by my
office in Room 133 of the Law Library. If I am with someone, please
knock and let me know that you wish to see me. Please also feel
free to leave me voice mail messages, or e-mail me at bickel@law.stetson.edu My direct number is (727) 562 7854.
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 DEDICATION:
This course is dedicated to the memory of Arthur Kinoy, a friend, attorney and teacher whose words of encouragement inspired this course, and to Dr. Martin Luther King, Jr., Medgar Evers, Robert Kennedy, Harry T. Moore and other civil rights leaders who were taken from us before their work was completed, and Denise McNair, Cynthia Wesley, Addie Mae Collins, Carol Robertson, James Earl Chaney, Michael Schwerner, Andrew Goodman, Viola Gregg Liuzzo, and countless unnamed others who gave their lives during the struggle for equality and civil rights. They are the real heroes in the fight for equal educational and employment opportunity, and voting rights. Those of us who practice law, whether for workers or employers, must never forget that these people who fought for the laws we administer were killed in an attempt to prevent the enactment of fundamental civil rights laws that many of us now take for granted. We owe them our promise that, in advising our clients - whether they be complainants, or employers - we will never take for granted or abuse the laws for which we are the gatekeepers - and that our ultimate work will be dedicated to the advancement of civil rights.
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We welcome your comments.
Please e-mail us at bickel@law.stetson.edu.
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