Employment discrimination: procedures for handling complaints--Equal Employment Opportunity Commission. Proposed rule

This proposed rule sets forth procedures for the handling of complaints of employment discrimination which are filed with Federal fund granting agencies under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and other provisions of Federal law which prohibit discrimination on grounds of race, color, religion, age, sex or national origin in programs or activities receiving Federal financial assistance. The regulations allow the fund granting agency to refer complaints to the Equal Employment Opportunity Commission (EEOC). For complaints covered both by Title VII of the Civil Rights Act of 1964, as amended, or other statutes within EEOC's jurisdiction and by Title VI of the Civil Rights Act or Title IX, the regulations contemplate that most complaints of individual acts of discrimination will be referred to EEOC for investigation and conciliation, while most complaints of systemic discrimination will be retained by the fund granting agency. Employment discrimination complaints which are not covered by Title VI or Title IX will be transferred to EEOC. This proposed rule is not a "major rule" as defined by Section 1(b) of Executive Order 12291.     

“Because of … Sex”: the Historical Development of Workplace Sexual Harassment Law in the USA

The current article tracks the historical development of the law of workplace sexual harassment. It begins with a discussion of the implementation of the law that serves as the basis for most sexual harassment cases in the federal courts, Title VII of the Civil Rights Act of 1964. The article then discusses the developments that permitted sexual harassment to come within the purview of the antidiscrimination language of Title VII. Then, the major federal legal cases that have defined the contours of sexual harassment law are discussed. Finally, the current procedures to file sexual harassment claims in the Equal Employment Opportunity Commission, state agencies, and federal and state court are described.     

Rights by Fortune or Fight? Reexamining the Addition of Sex to Title VII of the Civil Rights Act

It is widely believed that the extension of protection against employment discrimination to women through Title VII of the Civil Rights Act (CRA) was a fluke, the product of an attempted “killer amendment” by civil rights opponents gone awry. My analysis challenges this conventional wisdom, showing that the coalition of Republicans and southern Democrats in support of the sex amendment to Title VII was consistent with broader patterns of support for the Equal Rights Amendment (ERA) in the early to mid‐20th century. In other words, support appears to have been sincere, not sophisticated—proponents preferred a CRA with the sex amendment to one without. I proceed to show that concern about the direct impact on women, and not simply the instrumental impact on labor, played an important role in motivating this support. But, I also find reason for caution in interpreting support for workplace rights as evidence of broad support for women's rights at this time.     

National origin harassment in the work place: recent guideline developments from the EEOC

In December 1980 the EEOC published its revised "Guidelines on Discrimination Because of National Origin." The revised guidelines expand the definition of national origin harassment and declare it a violation of Title Vii. According to the EEOC, the guidelines reaffirm the position the Commission has taken in earlier decisions. In the following article, the authors examine the EEOC's position on national origin harassment. Using the guidelines as a frame of reference, they look at both EEOC decisions issued prior to the guidelines and court decisions that may offer employers guidance regarding impermissible conduct and liability in this area.     

Collective Litigation and the Constitutional Challenges to Decriminalizing Homosexuality in Singapore

This article examines collective legal mobilization through the courts, or collective litigation, in a non‐liberal regime. It analyses the emergence and development of collective litigation to challenge the constitutionality of section 377A of the Penal Code, the law that criminalizes same‐sex sexual conduct in Singapore. The analysis focuses on the relational dynamics of collective litigation and legal subjectivities of the social actors involved, highlighting how social positions and strategic interests shaped their interactions and decisions on litigation. While gay rights activists emphasized their movement's collective interests when choosing the appropriate case and lawyers, a movement outsider pursued individual interests on behalf of a client. Due to their divergent social positions and strategic interests, the two teams competed with each other as they initiated two separate constitutional challenges. Tension between the teams led to conflict with constituents of the gay rights movement and influenced their relational dynamics with other parties.     

Legal Order,Legal Pluralism,Fundamental Principles. Europe and Its Law in Three Concepts

The essay analyses the way in which the concepts of legal order, legal pluralism and fundamental rights have been used to describe (and decide) what European integration is (and what it ought to be) from the perspective of the law. The essay does not provide a legal theory but limits itself to investigating how certain concepts have been employed to justify legal decisions and to construct legal theories. The juridical discourse on Europe is examined to identify some trends in contemporary legal culture: the decline of a tradition of legal thought, ‘legal dogmatics,’ the vanishing of the distinction between internal and external law (between domestic law and international law, and between positive law and morality), the growing importance of fundamental rights discourse, the centrality of balancing test, the widespread criticism of legal science's claim to neutrality and the consequent normative turn affecting legal scholarship.     

Judicial scrutiny of gender-based employment practices in the criminal justice system

Purpose

This article examines employment practices of criminal justice agencies within state and federal court decisions that have interpreted sex discrimination claims under Title VII of the 1964 Civil Rights Act.

Methods

After collecting and analyzing appellate court cases through the LEXIS-NEXIS and WESTLAW databases, the article examines lower state and federal court decisions that have been applied by the U.S. Supreme Court to criminal justice workplaces.

Results

The findings show that employment practices are valid if the employer can demonstrate: first, the disputed discriminatory action is based on considerations not solely dependent on the plaintiff's gender; and second, such considerations are more than mere pretext, making them justifiable under the circumstances.

Conclusions

Courts have considered a wide range of employer practices in both law enforcement and corrections agencies at various stages of the employment process, such as hiring, assignment of duties, promotion, discipline, and termination. Title VII is violated when the employers’ adverse employment action is motivated by discriminatory intent and is based on gender stereotypes. Even so, employment actions are legal when employers prove their employment actions are not based on sex stereotypes, but are either business-related or justified by “legitimate,” “important,” or “compelling” interests.     

Communication law as a rhetorical practice: A case study of the Masses decision

This article discusses the ways in which rhetorical theory and critical practice can inform our understanding of communication law. By looking at some of the culturetypal and countercultural myths that went into the construction of America's free speech doctrines during and after World War I, critics can gain an appreciation of the polysemic nature of law. Using the commentaries surrounding Learned Hand's decision in the Masses case as a point of departure, the article illustrates how legal decisions can be viewed as discursive fragments that are a part of the broader rhetorical culture.     

The Signaling Effect of Pro se Status

When claimants press their claims without counsel, they fail at virtually every stage of civil litigation and overwhelmingly fail to obtain meaningful access to justice. This research program harnesses psychological science to experimentally test a novel hypothesis: mainly, a claimant's pro se status itself sends a signal that biases decision making about the claimant and her claim. We conducted social psychological experiments with the public (N = 157), law students (N = 198), and employment discrimination lawyers (N = 39), holding the quality and merit of a Title VII sex discrimination case constant. In so doing, we examined whether a claimant's pro se status itself shapes stereotypes held about the claimant and biases decision making about settlement awards. These experiments reveal that pro se status influences stereotypes of claimants and settlement awards received. Moreover, the signaling effect of pro se status is exacerbated by socialization in the legal profession. Among law‐trained individuals (i.e., law students and lawyers), a claimant's pro se status generates negative stereotypes about the claimant and these negative stereotypes explain the adverse effect of pro se status on decision making about settlement awards.     

Victorious Transsexuals in the Courtroom: A Challenge for Feminist Legal Theory

Transsexual and transgendered people, despite their exclusion from most civil rights laws, nonetheless occasionally prevail as plaintiffs in litigation. What should feminist legal theorists make of these victories? The theory one uses to win has implications for future conceptions of gender and sexuality in the law as well as for understanding contemporary conflicts and alliances among sex and gender theorists, lawyers, and activists. Conflicting theories of how to ground law's liberation claims abound, however. Evidence suggests that transsexuals secure legal victories only through a disheartening process of medicalization, normalization, and demonstration of traditional sex and gender role adherence. Recent cases, however, reveal some interesting destabilizations in law's account of the transsexual, and they provide critical legal scholars with a new perspective on rights‐claiming as a liberation strategy. Attention to the diversity of transsexual and transgendered priorities as well as to the properties of the legal process shows feminist legal theorists how to navigate the problems of identity construction and legal protection raised here sympathetically but unromantically.     

A Multidimensional View of Legal Cynicism: Perceptions of the Police Among Anti‐harassment Teams in Egypt

In Egypt in 2012, several anti‐harassment groups were established to respond to an increase in sexual violence in public spaces and to the failure of the state to tackle the issue. Anti‐harassment groups organized patrol‐type intervention teams that operated during demonstrations or public celebrations to stop sexual assaults. This article examines how activists perceived the police in five anti‐harassment groups between 2012 and 2014, and the role these perceptions played in groups' decisions about cooperating with the police, and on‐the‐ground strategies of action. I argue for a multidimensional view of legal cynicism that conceptualizes legal cynicism as composed of three dimensions: legitimacy (a sense that law enforcement agencies are not entitled to be deferred to and obeyed), protection (a perception that the law fails to protect rights and provide public safety), and threat (a perception that the law represents a threat). This approach helps uncover the various meanings that legal cynicism takes for different actors in different contexts, and how actors justify their strategies of action based on their specific perceptions of the police's legitimacy, protective role, and threat.     

Subjects with agency? Children’s participation in family law proceedings

Galvanised by the UN Convention on the Rights of the Child, many jurisdictions now recognise children’s rights to participate in decisions that affect them. While such legal rights have increased, research on family law proceedings shows how children’s views can still be undermined, ignored or not even sought in decisions about them. This article uses the academic resources of childhood studies, to consider dominant and alternative narratives of children’s participation within Scottish family law. Drawing upon reported case law and empirical research, the article concludes that children’s participation gains protection by being institutionalised but children’s participation is attenuated because it is not recognised as relational and contextual. As rationality, consistency and autonomy are privileged, the weight given to children’s views is lessened by concerns about children being manipulated or distressed. Courts and their decisions may be child-focused, centring on children’s welfare, but they are not child-inclusive, involving children in decision-making.     

Law Sidelined

This article discusses how the rule of law is understood in present-day Russia, highlighting the distinction between rule of law and rule by law. It highlights how both international and Russian legal norms were subverted in the Russian Constitutional Court's ruling on the legitimacy of the treaty that authorized Russia's annexation of Crimea.

On the question of the rule of law in the context of Russian foreign policy, or why, according to the law of the Russian Federation, Crimea is nonetheless not altogether ours.     

Voices heard and unheard – A Scandinavian perspective

Children's rights to participate in legal processes concerning them have been a key policy issue for the Scandinavian legislators during recent decades. From the 1980s, there have been frequent amendments to the law to secure the position of the child. Despite numerous provisions stating the right of the child to express his or her views and for these to be considered before decisions are taken, there are continuing obstacles to full recognition of children as legal subjects. Too often children's voices are not heard or not heeded. This article explores the reasons for this and argues that the ambition to promote equal parenthood is one reason for the failure to give the child's views real impact on decision-making in matters concerning children.     

Recent Supreme Court of Canada rulings on criminal defendants' right to counsel

The Supreme Court of Canada recently issued a trilogy of decisions pertaining to suspects' right to legal representation. These rulings further a major difference between the US and Canadian law: Canadian criminal suspects have far less access to legal counsel than suspects in the USA. This paper summarizes these decisions and draws comparisons between Canadian and the US criminal procedure with respect to a suspect's rights to legal representation. We present preliminary data on Canadian citizens' misunderstanding of criminal suspects' right to counsel and also Canadian legal professionals' opinions about the right to counsel. We recommend empirical investigation of the hypothesis that Canadian suspects are more likely than the US suspects to make false confessions.     

Propertisation and Commercialisation: On Controlling the Uses of Human Biomaterials

Third parties, such as researchers and biotech companies, can and do legally acquire property rights in biomaterials. They are protected by the law of property in their use of these. Recent legal decisions have seen a move towards the tentative explicit recognition of some property rights in biomaterials vesting in the source of the materials. However, this recognition has not included income rights. This article discusses the interests that parties have in controlling the uses of biomaterials and the commercial interests that stem from those uses. The article argues that concerns regarding the allocation of property rights to the source generally elide property rights in biomaterials with the right to derive income from the transfer of those materials. Propertisation does not analytically entail commercialisation. It is therefore questionable whether it is reasonable to protect third parties' income rights, while excluding the source of the biomaterials from such protection.     

Prisoners' Families and the Regulation of Contact

This article explores HM Prison Service policy and the impact of case law on the rights of prisoners to family contact. First, state provision and policy for prisoner-family contact is reviewed and the constraints imposed on contact over the past decade are explored. A number of legal challenges to these constraints have been made recently and, drawing on domestic case law and challenges in the European Court of Human Rights we explore the nature of prisoners' rights of contact in prison. This analysis shows that while fathers' rights for indirect contact are upheld, their rights are not respected as much as those of mothers in cases of direct contact and also that men unable to establish family life have their rights further eroded. Drawing upon empirical research findings as well as case law, the relationship between the Prison Act 1952 and the Children Act 1989 is considered and policy recommendations are put forward.     

Parenting without Protection: How Legal Status Ambiguity Affects Lesbian and Gay Parenthood

Through the lens of lesbian and gay parenthood we ask how individuals who experience “legal status ambiguity”—that which emerges when legal fluctuations combine with divided attitudes, ignorance of the law, and autonomous institutional gatekeepers—exercise their legal rights and responsibilities. The results from thirty‐one interviews with lesbian and gay parents in Oregon and their six adult children suggest that the state's fluctuating legal and social climates for lesbian and gay parenting between 1985 and 2013 presented significant challenges for two generations of same‐sex parents. Although both cohorts created and utilized a range of legal and social mechanisms to assert their legal rights, they found these rights to be controlled as much by gatekeeper perspectives as by legal force. After the 2015 Obergefell ruling on marriage equality, lesbian and gay parenting status remains a site of ongoing legal and social contestation, providing insight into the risks and challenges of legal status ambiguity.     

Covering Legal Mobilization: A Bottom‐Up Analysis of Wards Cove v. Atonio

We develop a political history of Wards Cove v. Atonio (1989) to show how Robert Cover's concepts of jurisgenesis and jurispathy can enrich the legal mobilization framework for understanding law and social change. We illustrate the value of the hybrid theory by recovering the Wards Cove workers’ own understanding of the role of litigation in their struggle for workplace rights. The cannery worker plaintiffs exemplified Cover's dual logic by articulating aspirational narratives of social justice and by critically rebuking the Supreme Court's ruling as the “death throe” for progressive minority workers’ rights advocacy. The cannery workers’ story also highlights the importance of integrating legal mobilization scholars’ focus on extrajudicial political engagement into Cover's judge‐centered analysis. Our aim is to forge a theoretical bridge between Cover's provocative arguments about law and the analytical tradition of social science scholarship on the politics of legal mobilization.     

Islamic Law in Action: A Historical Discussion

This review essay engages Kristen Stilt's recent book, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (2011), in a fashion that highlights its contributions to the study of Islamic law. In particular, it underlines the methodological arguments made in the book that might help us think about Islamic legal practice in sophisticated and historically grounded ways. As elaborated in the article, these arguments have important implications for modern as well historical settings. Specifically, Stilt's discussion of “Islamic law in action” reveals the inherent flexibility of Islamic legal practice to accommodate political change. The article also discusses how further research on the topic could benefit from specific approaches and orientations.