Employee Rights and Employment Policy Journal

Proceedings of the 1999 Annual Meeting, Association of American Law Schools Section on Employment Discrimination Law: Is There a Disconnect Between EEO Law and the Workplace?

By
Douglas D. Scherer, James C. Sharf, Ph.D., Richard T. Seymour, Maria O'Brien Hylton and Paulette Caldwell

Abstract

This part of Volume 3, Issue 1, includes an edited transcript of the proceedings of the Section on Employment Discrimination Law, of the Association of American Law Schools, from the January 9, 1999 Annual Meeting of the Association held in New Orleans, Louisiana.

The program was moderated by Professor Douglas D. Scherer, Chair-Elect of the Section and Program Chair for the meeting. Four speakers made presentations concerning the extent to which existing EEO laws achieve statutory goals, and the extent to which these laws connect to the forms of discrimination that actually occur in the workplace.

Dr. Jim Sharf, an industrial psychologist, management consultant, and former special assistant to the Chair of the U. S. Equal Employment Opportunity Commission, discusses EEOC case processing and employment litigation trends and results for different categories of cases. He also provides very useful and interesting statistical data. 

Attorney Rick Seymour, Director of the Employment Discrimination Project of the Lawyers' Committee for Civil Rights Under Law, focuses on the disconnect between legal contraints on the use of race and gender, and employers' need to use these criteria for remedial purposes and to obtain the best possible workforce. He also discusses Supreme Court trends, mandatory arbitration, the dramatic increase in the number of employment discrimination cases, and the federal court summary judgment response to this increase.

Professor Maria O'Brien Hylton discusses the connections between employee benefits law and employment discrimination law. She focuses on the anti-discrimination and retaliation provision of the Employee Retirement Income Security Act (ERISA), challenges to worker classifications under this statute, and health insurance rights of terminated employees under the Consolidated Budget Reconciliation Act of 1985 (COBRA). 

Professor Paulette Caldwell discusses intersecting employment discrimination claims involving multiple protected categories and multiple statutes. She notes, for example, that an older African-American woman may face a form of discrimination based upon race and age in combination, even though women in general and African-Americans in general are not subject to discrimination by the employer in question. Professor Caldwell discusses limitations on theories of violation caused by court focus on single categories and single statutes, despite the increasing number of multiple-category and multiple-statute claims. She argues for increased acceptance by courts of legal theories that recognize and remedy intersectional claims.