Course Info
The various sources of law, mostly federal, which prohibit discrimination in
employment. Major emphasis on the Title VII of the 1964 Civil Rights Act, which
prohibits discrimination on the basis of race, sex, religion and national origin; the Age
Discrimination in Employment Act; and the Americans with Disabilities Act.
What will you learn?
- Why some classifications are protected (e.g., race and sex) and others (e.g., ability to dunk a basketball) are not.
- The complex legal frameworks (disparate treatment, disparate impact, mixed motive, harassment) for proving discrimination claims.
- The unique features of certain types of discrimination claims, such as harassment and disability.
- Procedural requirements for bringing discrimination claims.
- Course name/number: 22115 Employment Discrimination
- Prerequisites: Successful completion of L1.
- Credit hours: 3
- General education tags: None
- Description: The various sources of law, mostly federal, which prohibit discrimination in employment. Major emphasis on the Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion and national origin; the Age Discrimination in Employment Act; and the Americans with Disabilities Act
- Name: Rick Bales
- Contact information: mobile 859-442-8837; r-bales@onu.edu
- Office hours: Before or after class I’m fair game; come by any time and I’ll see you if I can; email me if you’d like a more formal appointment.
- Required: Joseph A. Seiner, Employment Discrimination: Procedure, Principles, and Practice (2d ed. 2019, ISBN # 9781543800920).
- Course goals: Since its inception in 1964, employment discrimination law has become one of the most dynamic, public, and socially significant fields in legal studies. This class examines the basic doctrines designed to protect individuals from employment decisions that affect them unfairly because of an immutable (yet socially-created) status apparently unrelated to their productivity as employees. The principal focus is on Title VII; which forbids discrimination on the basis of race, color, sex, religion, or national origin; but significant attention also is devoted to the Americans with Disabilities Act and the Age Discrimination in Employment Act. The purpose of this class is twofold: first, to examine and learn the substantive law of employment discrimination; and second, to consider the policy conflicts underlying the legal and social issues raised by the cases.
- Outcomes and assessment: Employment discrimination is a doctrinally complex area of law fraught with opportunities to commit malpractice. Students should be able to demonstrate mastery of the legal doctrine by, in a three-sequential-hour open-book individually taken essay exam, identifying the legal issues in a novel fact pattern and using written legal analysis to predict how a court would resolve those issues in light of the applicable law. The final grade will be calculated:
- 80% final exam, final project, or research article
- 20% class attendance, preparedness, participation
I cannot imagine anything you would rather be doing more than attending Employment Discrimination class. Nonetheless, I realize that there are rare, unforeseen circumstances (pestilence, famine, death, etc.) that may interfere with your Herculean efforts to attend. For this reason, you may miss up to five classes without penalty. After that, I will consider you to have dropped the course. When you miss a class, you are responsible for everything discussed or distributed in class, and for getting notes, handouts, etc. from a trusted fellow student.
ONU is dedicated to providing an equitable educational experience for all enrolled students. Universal course policies applicable to all courses can be found at the following link: https://my.onu.edu/registrars_office/policies. This website includes:
- Academic Dishonesty Policy
- Academic Accommodations Policy
- Health and Safety Policy
- Title IX Policy
- Diversity, Equity, and Inclusion Statement
Using electronic devices in the classroom is fine so long as you are respectful of other students (no shopping, cute puppy videos, porn, etc.).
The ABA Section of Labor and Employment Law Annual Conference will be in D.C. November 8-11. Registration is free for students who are ABA members, and student membership is free. This is the national conference for LEL lawyers every year – it draws about 1000 lawyers, covers all areas of LEL practice, and is a fantastic networking opportunity. Please let me know if you would like to attend this.
The Ohio State Bar Association Midwest Labor and Employment Conference will be October 12-13 in Columbus.
The 2023 Arbitrator and Advocate Symposium will be on October 26-27 in Columbus. This conference focuses more on traditional labor (collective bargaining) law than discrimination law, though discrimination issues are always a significant topic of discussion. It is sponsored by the Federal Mediation and Conciliation Service, National Academy of Arbitrators and the Labor and Employment Relations Association. I will attend. Scholarships to cover tuition for the Symposium are available to law students interested in the field of Labor Relations. I will send you more information on these scholarships as soon as I receive them.
If we do not cover all the material in a given class, then for the next class please review the material we did not get to in the prior class and read the entire assignment for the next class. We will cover the assigned material in the assigned order, even if the dates may change.
The assignments below are necessarily tentative. We will discuss on the first day of class a creative way for us to do make-ups.
28 Ø What is discrimination?
29 Ø The common law governing the employment relationship.
31 Ø Research paper / final project workshop. Design a
discrimination/harassment training program? Bridget Buckley will discuss researching employment discrimination topics.
September
4 Labor Day
5 27-40 Coverage.
7 Ø Joshua Onyemachi, of Clemans Nelson, will guest speak.
11 40-60 Pleading, discovery, summary judgment (just skim Iqbal).
12 80-95 Circumstantial evidence cases.
14 96-113 Circumstantial & direct evidence.
18 114-20, 123-24Mixed motive cases.
19 145-57 Retaliation.
21 157-67 More retaliation.
25 169-90 Disparate impact (Yom Kippur).
26 190-205 More disparate impact.
28 207-24 Harassment.
October
2 224-45 Harassment.
3 245-68 Harassment.
5 279-301 Race & color.
9 Fall break
10 Fall break
12 301-17 Reverse discrimination; affirmative action.
16 319-36 Sex discrimination.
17 336-38 + Bostock: Sexual orientation.
19 355-71 BFOQ
23 371-90 Grooming, appearance, equal pay.
24 399-420 National origin.
26 Arbitration-Advocates Symposium in Columbus.
30 420-43 National origin
31 445-60 Religion.
November
2 460-75 Religion
6 475-93 Religion.
7 507-20 Disability.
9 534-53 Disability
13 560-77 Age.
14 577-90 Age.
16 Tent. no class
20 599-617 Remedies.
21 TBA – last day of classes.
23 Thanksgiving
29 Exam (8:30 a.m., room 129)
Deadlines (all are 5:00p; please submit everything by email to r-bales@onu.edu):
- 9/7/22: Topics due.
- 9/21/23: One-paragraph abstract and brief (< 1 page) outline due.
- 10/19/23: First draft due.
- 11/2/23: Second draft due.
- 11/29/23: Final article due.
The following criteria will be used in determining this part of the grade: structure, depth of analysis, research, grammar, bluebooking proficiency (perfection is not required but you should at least be in the ballpark), and density of writing. These criteria are not necessarily directly proportional: if your grammar is so poor that I cannot understand analysis, do not expect a high grade.
The article should be roughly 7500 words, but do not pad your word count. See “density of writing” in the previous paragraph; see also papers.ssrn.com/abstract_id=907143.
You may choose your topics on a first-come, first-reserved basis, beginning immediately, by e-mailing me. You may choose from a topic on the attached list, or you may choose your own. On the email reserving your topic, please provide me with your name, your topic, and the topic number if your topic is from the attached list. If your topic is not from the attached list, please include a one-paragraph description of your topic. Choose a novel legal topic – one that allows you to argue for a position that has not yet been advanced in a law review article. You are not ineluctably tied to your topic selection. If subsequent research pulls you toward a tangential issue, just let me know and obtain my approval. (I require approval not because I want to limit your ability to choose topics, but because I want to make sure that your topic is not overly broad. You could write multiple volumes on “sex discrimination”, so that would not be a good topic.)
For general guidance on choosing a topic, structuring your argument, writing your article, etc., see Eugene Volokh’s Academic Legal Writing (any edition; our library has several copies). You should at least glance through this book before you start working on your article (or on your Note, if you are on Law Review).
I will not, under any circumstances, accept any late articles. Plan to have your article prepared early in case an emergency requires your absence on or near the due date. I need the articles in on time so I can timely submit final grades.
We all learn better writing techniques from having someone critique our written work. If you do not turn in drafts, you will learn little from the writing experience. Please submit drafts to me by email in Microsoft Word so I can make comments using Track Changes. I will be happy (I really mean this – do not feel like you are imposing on me by sending me a third or fourth draft) to review additional drafts throughout the semester as long as you submit them to me at least ten days before the final due date. When I receive a draft, I will reply to you quickly to confirm that I received it; if you do not receive a quick reply please contact me to ensure I received it. I try to get my comments back to you within a week; if you have not heard from me in that time, please email me to make sure I still have it.
I review drafts in the order I receive them. If you submit a draft a few days before a deadline, you’re likely to get a much quicker turn-around than if you submit it at 5:00p on the due date.
This is the last significant writing experience that many of you will have in law school before you graduate and begin practice. It is my responsibility to ensure that when you leave this course, you have the research and writing skills necessary to practice successfully. I take this responsibility very seriously. (I have a personal interest in the issue; if an ONUL graduate is a poor writer, the legal community will think poorly not only of that graduate, but also of ONUL as an educational institution – and therefore of me.) If you are unwilling to do the work it takes to ensure that your article is grammatical, understandable, and demonstrates a basic familiarity with the Bluebook and with employment discrimination law, then I suggest writing the exam or taking a different course.
I have higher expectations than you probably are accustomed to for student-written articles. You likely will work harder on this article than you have ever worked on a paper before. Your doing so will enable me to give a glowing recommendation to your prospective employers on your research/writing/analysis skills – the skills most in demand by legal employers. Also, if you look at my resume (available online), you’ll note a long list of co-authored articles. Most of those articles were written by students in one of my courses. Those articles give you a pretty good idea of what I am looking for in your article.
Potential Paper Topics
- Should an employer be required to show that diversity training actually works before that training can be used as a defense in a discrimination or harassment case? See This is an intervention, The Economist, August 27, 2022 p. 73; F. Dobbin & A. Kalev, Getting to Diversity, Harv. U. Press 2022.
