Category Archives: Discrimination

Natalie Sheard, ‘Employment Discrimination by Algorithm: Can Anyone be Held Accountable?’

ABSTRACT The use by employers of algorithmic systems to automate or assist with recruitment decisions (Algorithmic Hiring Systems (‘AHSs’)) is on the rise internationally and in Australia. High levels of unemployment and reduced job vacancies provide conditions for these systems to proliferate, particularly in retail and other low wage positions. While promising to remove subjectivity […]

Villaronga, Poulsen, Søraa and Custers, ‘Gendering algorithms in social media’

ABSTRACT Social media platforms employ inferential analytics methods to guess user preferences and may include sensitive attributes such as race, gender, sexual orientation, and political opinions. These methods are often opaque, but they can have significant effects such as predicting behaviors for marketing purposes, influencing behavior for profit, serving attention economics, and reinforcing existing biases […]

Deborah Widiss, ‘Proving Discrimination by the Text’

ABSTRACT Employment discrimination laws make the ‘simple but momentous’ declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, […]

‘The Supreme Court’s Job Is Not to Provide Clarity’

Joanna Grossman and Gillian Thomas, ‘Making Sure Pregnancy Works: Accommodation Claims After Young v United Parcel Service, Inc’, 14 Harvard Law and Policy Review 319 (2020). Professors Grossman and Thomas have written a wonderful article that describes how courts have applied Young v United Parcel Service, 575 US 206 (2015), in which the Court considered […]

Leslie Francis, ‘On (not) deserving disadvantage’

ABSTRACT The Americans with Disabilities Act (ADA) is a civil rights statute, giving rights to everyone, but is structured to require people claiming its protections to have a characteristic, ‘disability’. This structure presents an apparent paradox: how can a statute accord both civil rights to all and special rights to some? This contribution argues that […]

‘Filling the Gaps in IIED’

Alex B Long, ‘Using the IIED Tort to Address Discrimination and Retaliation in the Workplace’, (March 31, 2021) University of Illinois Law Review (forthcoming), available on SSRN. The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the […]

Alex Long, ‘Using the IIED Tort to Address Discrimination and Retaliation in the Workplace’

ABSTRACT Citing the need to preserve managerial discretion, courts frequently espouse the need to adopt an ‘especially strict approach’ in cases of intentional infliction of emotional distress (IIED) in the workplace. As a result, the IIED tort currently has a limited role to play in the fight against workplace discrimination and harassment. At the same […]

Bethany Berger, ‘Property to Race / Race to Property’

ABSTRACT In the United States, property and race shape each other. This has been true since colonization and is equally true today. First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and […]

‘Call for Submissions: Confronting Systemic Racism and Sexism in Legal Academia’

“By now, many of us have stumbled headfirst into the sewage of the Sewell Report. For those who missed it, the British government released a report on racial disparities that denies the structural character of racism in British society. In fact, the authors went further, proclaiming the UK as an exemplar of racial equality that […]

Maytal Gilboa, ‘The Color of Pain: Racial Bias in Pain and Suffering Damages’

ABSTRACT For more than half a century, our legal system has formally eschewed race-based discrimination, and nearly every field of law has evolved to increase protections for minority groups historically burdened by racial prejudice. Yet, even today, juries in tort actions routinely consider a plaintiff’s race when calculating compensatory tort damages, and they do so […]