Suchergebnisse

Supreme Court decisions establish two separate lines of analysis concerning whether arbitration agreements should pre-empt judicial remedies for parties already covered by employment and labor legislation. First, in cases like Gilmer v. Interstate/Johnson Corp., the Supreme Court espouses a procedural analysis: the Court considers the extent to which the arbitration procedures reflect judicial processes. In Alexander v. Gardner-Denver and its successors, on the other hand, the Court examines whether the applicable statutes explicitly pre-empt the arbitration agreement. This article argues that neither approach is helpful. Rather, 'courts should consider whether the relevant statute applies standards derived essentially from "inside" the institutions the statutes regulate or from "outside" those institutions. Arbitration, Professor Gudridge argues, is plainly appropriate under statutes which reveal an "inside" orientation, and not appropriate under statutes with an "outside" orientation. The author uses the 1991 Civil Rights Act to reach conclusions concerning the applicability of arbitration agreements in the Title VII context. This amendment added a right to injunctive relief in the "mixed motive" Title VII action. The author uses a constitutional analysis of the 1991 amendment as a starting point for thinking about arbitration within Title VII generally. Professor Gudridge argues that this analysis reveals the focus of Title VII actions has shifted to an "outside" orientation. Title VII actions, therefore, are best solved through litigative, rather than arbitral procedures.

Title VII of the 1964 Civil Rights Act, which forbids religious discrimination in employment, raises in microcosm some extremely thorny questions about religious liberty; questions more familiar to most of us in constitutional settings. In focusing on these questions in their Title VII context, I am more interested in fundamental conceptual issues than in the precise details of what that law should be taken to provide. Among the questions are: What is discrimination because of religion? How should religion be "defined"? How far should employers accommodate the religious exercise of workers? Under the First Amendment, how much accommodation can the federal government require of private employers? What are an employer's rights to religious exercise? Has an employer any greater, or lesser, right to engage in religious speech than other speech? What amounts to harassment on religious grounds? How far do workers' rights of religious speech and other speech affect what should count as religious harassment?

Federal employment law designed to assure equal employment opportunity for faculty has only been applicable to higher education since 1972. Prior to 1972, the higher education world, moreover, was immune from the most comprehensive federal employment law, Title VII of the Civil Rights Act of 1964. However, Title VII was amended in 1972 to include education institutions. Ever since the protection of the civil rights law was extended to higher education, faculty employment discrimination litigation has increased. The reality of this phenomenal growth in litigation is clear, the potential for judicial intervention in academic decision making is undeniable, and reliance on the judicial process is increasingly becoming common. Thus, no institution of higher education may consider itself immune from the possibilities of litigation, nor immune from the decisions handed down by the courts. The main focus of this study was a legal one, which necessitated a heavy concentration upon the historical and current state of employment discrimination law, specifically, Title VII of the Civil Rights Act of 1964. The study was conducted by using a combination of legislative analysis and legal research methods. The legal research methods used in this study included the same problem-solving processes as other traditional research methods: (1) collecting data; (2) analysis; and (3) interpretation. The main purpose of this study was to examine, analyze, and summarize legislative history and case law relevant to Title VII, and sex discrimination in higher education. In summary, although Title VII prohibits discrimination on the basis of race, color, religion, sex and national origin, the issues surrounding women faculty and sex discrimination is probably the fastest growing area of litigation for administrators on the university campus. Therefore, this study was an attempt to examine the employment discrimination issues and developments pertaining to sex discrimination only. College and university administrators may find this study useful for: (1) examining Title VII, and its amendments; (2) examining sex discrimination case law; and (3) utilizing the research for developing procedures, policies and guidelines to minimize potential lawsuits. ; Ed. D.