This Article addresses the circuit split over whether Title VII prohibits discrimination based on... more This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer’s misperception of an employee’s religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States experiences unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual’s actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer’s intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory text is ambiguous, but the legislative history, EEOC guidance, and broader consideration of the federal antidiscrimination regime all support recognition of misperception-based religious discrimination claims under Title VII. The Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc. further confirms the validity of such claims, as the Court held that Title VII liability is premised on an employer’s discriminatory motive, not its actual knowledge of an individual’s religious practices. Thus, if an employer’s motive is the touchstone for liability, it matters not whether an employer accurately perceives an employee’s religion, so long as religion motivates the adverse employment decision.
For the 65 million Americans with a criminal record, it is cruelly ironic that perhaps the most i... more For the 65 million Americans with a criminal record, it is cruelly ironic that perhaps the most important resource for turning their lives around — employment — is also often the most elusive. Shut out from legitimate job opportunities, many ex-offenders resort to illegal means of survival that hasten their return to prison. Recidivism has devastating consequences not only for the individual offender, but also the family, the community, and society at large. This Article proposes three amendments to Title VII of the Civil Rights Act of 1964 that seek to balance ex-offenders’ need for employment with employers’ safety concerns. First, employers should be prohibited from discriminating against an ex-offender whose criminal record is not directly related to the job in question or who does not pose an unreasonable threat to property or to the safety of others. Second, employer inquiries about an applicant’s criminal record should be delayed until after at least one job interview. Third, a negligent hiring provision should be added to Title VII that creates a rebuttable presumption against negligence and that caps damages in certain cases. These measures represent a sensible, middle-of-the-road approach that promotes the employment of ex-offenders in appropriate cases, while ensuring that neither employers nor the public is unduly burdened as a result.
This Article addresses the conflict that arises when accommodating an employee’s religious belief... more This Article addresses the conflict that arises when accommodating an employee’s religious beliefs threatens coworker morale. Research overwhelmingly shows morale is crucial to both individual and organizational performance. Because perceptions of equity and fairness greatly influence morale, an accommodation that affords an employee preferential treatment can cause resentment, jealousy, and anger among coworkers — particularly if the accommodation negatively impacts the working conditions of other employees. Despite the unequivocal importance of coworker morale, some courts are hesitant to acknowledge it as a legitimate basis for denying a religious accommodation. Consequently, the case law is uneven and confusing. To ensure courts give coworker morale the protection it warrants, I argue courts should: (1) distinguish between valid and invalid reasons why an accommodation threatens morale; (2) accept harm to employee morale as a sufficient basis to deny an accommodation without requiring further proof of how lowered morale hurts an employer’s business; and (3) allow an employer to establish undue hardship based on the reasonable likelihood an accommodation would harm morale. These changes will help strike the appropriate balance between an individual’s freedom of religious expression, an employer’s right to maintain a high-morale workplace, and coworkers’ expectations of performing their jobs without undue interference.
There is growing tension in the law between an employee’s right to religious expression in the wo... more There is growing tension in the law between an employee’s right to religious expression in the workplace and an employer’s countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers and employees faced with this conflict. Not only do outcomes vary from court to court, but the analysis and reasoning underlying these decisions are often inconsistent, and sometimes contradictory. I argue that because a company’s image is one of its most valuable assets, courts should more closely scrutinize religious accommodation claims that interfere with a company’s ability to control its image. Such enhanced scrutiny does not require a break from Supreme Court precedent; rather, it requires stricter adherence thereto. I offer three recommendations for how courts can recalibrate their analyses of religious accommodation cases involving
corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while providing employers and employees greater clarity in navigating this sensitive and complex issue.
This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship betwe... more This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship between familial characteristics and the likelihood of experiencing domestic violence in Colombia, the Dominican Republic, Haiti, Nicaragua, and Peru. Logistic regression techniques are used to measure relationships between marital status, family size, partner alcohol use, socioeconomic status (SES), decision-making power, and education homogamy and the likelihood of experiencing partner violence. Cohabitation, female-dominant decision making, and partner alcohol are positively associated with domestic violence across datasets. Family size, SES, and education homogamy emerged as statistically significant in some, but not all of the datasets. This study helps clarify the profile of the abused Latina and also tests the applicability of current abuse research to a non-Western setting.
Drawing on the family process literature, child health models, and recent studies of macro-level ... more Drawing on the family process literature, child health models, and recent studies of macro-level effects on health, we examine the effects of household structure, resources, care-giving, reproduction, and communication on child nutritional status and infant mortality. Using Demographic and Health Surveys, we analyze the influence of these factors across 42 countries in Latin America, Africa, and Asia. We also consider country-level including nontraditional family structure, level of economic development and expenditures on health care. Our results underscore the importance of family resources, decision-making, and health and feeding practices on child well-being in less developed countries. Although there is cross-national variability, the size of the variability was small relative to the overall effect. The country-level measures had modest effects on infant mortality and child nutritional status.
A recent ideological revolution promoting women’s status has raised questions concerning determin... more A recent ideological revolution promoting women’s status has raised questions concerning determinants of autonomy and their implications for policy formation. This study seeks to identify objective indicators determinant of autonomy, and then examine their relationship in light of women’s subjective experiences of autonomy. Potential determinants include education, literacy, household size, age at marriage, employment, and socioeconomic status. Analyses are based on these data sets: the 2000 Bolivia Family Interaction and Children’s Well-Being (FICW) Survey, the 2000 Peru Demographic Health Survey and the 1997/1998 Nicaraguan Demographic and Health Survey. Our findings indicate that autonomy is multidimensional. Utilizing Structural equation modeling, we identify two major domains autonomy: decision-making autonomy and personal autonomy in Bolivia, and family autonomy and public autonomy in Nicaragua and Peru. This study shows that each of our specified determinants has some influence on autonomy, with education and socioeconomic status being the most important. We conclude that policies designed to change educational, economic, and familial characteristics of women will only have a modest impact on women’s overall sense of autonomy.
This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship betwe... more This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship between familial characteristics and the likelihood of experiencing domestic violence in Colombia, the Dominican Republic, Haiti, Nicaragua, and Peru. Logistic regression techniques are used to measure relationships between marital status, family size, partner alcohol use, socioeconomic status (SES), decision-making power, and education homogamy and the likelihood of experiencing partner violence. Cohabitation, female-dominant decision making, and partner alcohol are positively associated with domestic violence across datasets. Family size, SES, and education homogamy emerged as statistically significant in some, but not all of the datasets. This study helps clarify the profile of the abused Latina and also tests the applicability of current abuse research to a non-Western setting.
Drawing on the family process literature, child health models, and recent studies of macro-level ... more Drawing on the family process literature, child health models, and recent studies of macro-level effects on health, we examine the effects of household structure, resources, care-giving, reproduction, and communication on child nutritional status and infant mortality. Using Demographic and Health Surveys, we analyze the influence of these factors across 42 countries in Latin America, Africa, and Asia. We also consider country-level including nontraditional family structure, level of economic development and expenditures on health care. Our results underscore the importance of family resources, decision-making, and health and feeding practices on child well-being in less developed countries. Although there is cross-national variability, the size of the variability was small relative to the overall effect. The country-level measures had modest effects on infant mortality and child nutritional status.
A recent ideological revolution promoting women’s status has raised questions concerning determin... more A recent ideological revolution promoting women’s status has raised questions concerning determinants of autonomy and their implications for policy formation. This study seeks to identify objective indicators determinant of autonomy, and then examine their relationship in light of women’s subjective experiences of autonomy. Potential determinants include education, literacy, household size, age at marriage, employment, and socioeconomic status. Analyses are based on these data sets: the 2000 Bolivia Family Interaction and Children’s Well-Being (FICW) Survey, the 2000 Peru Demographic Health Survey and the 1997/1998 Nicaraguan Demographic and Health Survey. Our findings indicate that autonomy is multidimensional. Utilizing Structural equation modeling, we identify two major domains autonomy: decision-making autonomy and personal autonomy in Bolivia, and family autonomy and public autonomy in Nicaragua and Peru. This study shows that each of our specified determinants has some influence on autonomy, with education and socioeconomic status being the most important. We conclude that policies designed to change educational, economic, and familial characteristics of women will only have a modest impact on women’s overall sense of autonomy.
This study draws on an ecological framework in testing relationships between individual, family, ... more This study draws on an ecological framework in testing relationships between individual, family, and community characteristics and the likelihood of women experiencing domestic violence in Peru. The sample of 15,991 women was taken from the 2000 Peru Demographic and Health Survey. Logistic regression models revealed that at the individual level, low educational attainment, early union formation, and a violent family background increase a woman's likelihood of abuse. Family-level risk markers include cohabitation, large family size, partner alcohol consumption, employment, and a woman's having higher status than her husband. At the community level, living in a noncoastal area and having an urban residence increase the likelihood of abuse.
This Article addresses the circuit split over whether Title VII prohibits discrimination based on... more This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer’s misperception of an employee’s religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States experiences unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual’s actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer’s intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory text is ambiguous, but the legislative history, EEOC guidance, and broader consideration of the federal antidiscrimination regime all support recognition of misperception-based religious discrimination claims under Title VII. The Supreme Court’s recent decision in EEOC v. Abercrombie & Fitch Stores, Inc. further confirms the validity of such claims, as the Court held that Title VII liability is premised on an employer’s discriminatory motive, not its actual knowledge of an individual’s religious practices. Thus, if an employer’s motive is the touchstone for liability, it matters not whether an employer accurately perceives an employee’s religion, so long as religion motivates the adverse employment decision.
For the 65 million Americans with a criminal record, it is cruelly ironic that perhaps the most i... more For the 65 million Americans with a criminal record, it is cruelly ironic that perhaps the most important resource for turning their lives around — employment — is also often the most elusive. Shut out from legitimate job opportunities, many ex-offenders resort to illegal means of survival that hasten their return to prison. Recidivism has devastating consequences not only for the individual offender, but also the family, the community, and society at large. This Article proposes three amendments to Title VII of the Civil Rights Act of 1964 that seek to balance ex-offenders’ need for employment with employers’ safety concerns. First, employers should be prohibited from discriminating against an ex-offender whose criminal record is not directly related to the job in question or who does not pose an unreasonable threat to property or to the safety of others. Second, employer inquiries about an applicant’s criminal record should be delayed until after at least one job interview. Third, a negligent hiring provision should be added to Title VII that creates a rebuttable presumption against negligence and that caps damages in certain cases. These measures represent a sensible, middle-of-the-road approach that promotes the employment of ex-offenders in appropriate cases, while ensuring that neither employers nor the public is unduly burdened as a result.
This Article addresses the conflict that arises when accommodating an employee’s religious belief... more This Article addresses the conflict that arises when accommodating an employee’s religious beliefs threatens coworker morale. Research overwhelmingly shows morale is crucial to both individual and organizational performance. Because perceptions of equity and fairness greatly influence morale, an accommodation that affords an employee preferential treatment can cause resentment, jealousy, and anger among coworkers — particularly if the accommodation negatively impacts the working conditions of other employees. Despite the unequivocal importance of coworker morale, some courts are hesitant to acknowledge it as a legitimate basis for denying a religious accommodation. Consequently, the case law is uneven and confusing. To ensure courts give coworker morale the protection it warrants, I argue courts should: (1) distinguish between valid and invalid reasons why an accommodation threatens morale; (2) accept harm to employee morale as a sufficient basis to deny an accommodation without requiring further proof of how lowered morale hurts an employer’s business; and (3) allow an employer to establish undue hardship based on the reasonable likelihood an accommodation would harm morale. These changes will help strike the appropriate balance between an individual’s freedom of religious expression, an employer’s right to maintain a high-morale workplace, and coworkers’ expectations of performing their jobs without undue interference.
There is growing tension in the law between an employee’s right to religious expression in the wo... more There is growing tension in the law between an employee’s right to religious expression in the workplace and an employer’s countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers and employees faced with this conflict. Not only do outcomes vary from court to court, but the analysis and reasoning underlying these decisions are often inconsistent, and sometimes contradictory. I argue that because a company’s image is one of its most valuable assets, courts should more closely scrutinize religious accommodation claims that interfere with a company’s ability to control its image. Such enhanced scrutiny does not require a break from Supreme Court precedent; rather, it requires stricter adherence thereto. I offer three recommendations for how courts can recalibrate their analyses of religious accommodation cases involving
corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while providing employers and employees greater clarity in navigating this sensitive and complex issue.
This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship betwe... more This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship between familial characteristics and the likelihood of experiencing domestic violence in Colombia, the Dominican Republic, Haiti, Nicaragua, and Peru. Logistic regression techniques are used to measure relationships between marital status, family size, partner alcohol use, socioeconomic status (SES), decision-making power, and education homogamy and the likelihood of experiencing partner violence. Cohabitation, female-dominant decision making, and partner alcohol are positively associated with domestic violence across datasets. Family size, SES, and education homogamy emerged as statistically significant in some, but not all of the datasets. This study helps clarify the profile of the abused Latina and also tests the applicability of current abuse research to a non-Western setting.
Drawing on the family process literature, child health models, and recent studies of macro-level ... more Drawing on the family process literature, child health models, and recent studies of macro-level effects on health, we examine the effects of household structure, resources, care-giving, reproduction, and communication on child nutritional status and infant mortality. Using Demographic and Health Surveys, we analyze the influence of these factors across 42 countries in Latin America, Africa, and Asia. We also consider country-level including nontraditional family structure, level of economic development and expenditures on health care. Our results underscore the importance of family resources, decision-making, and health and feeding practices on child well-being in less developed countries. Although there is cross-national variability, the size of the variability was small relative to the overall effect. The country-level measures had modest effects on infant mortality and child nutritional status.
A recent ideological revolution promoting women’s status has raised questions concerning determin... more A recent ideological revolution promoting women’s status has raised questions concerning determinants of autonomy and their implications for policy formation. This study seeks to identify objective indicators determinant of autonomy, and then examine their relationship in light of women’s subjective experiences of autonomy. Potential determinants include education, literacy, household size, age at marriage, employment, and socioeconomic status. Analyses are based on these data sets: the 2000 Bolivia Family Interaction and Children’s Well-Being (FICW) Survey, the 2000 Peru Demographic Health Survey and the 1997/1998 Nicaraguan Demographic and Health Survey. Our findings indicate that autonomy is multidimensional. Utilizing Structural equation modeling, we identify two major domains autonomy: decision-making autonomy and personal autonomy in Bolivia, and family autonomy and public autonomy in Nicaragua and Peru. This study shows that each of our specified determinants has some influence on autonomy, with education and socioeconomic status being the most important. We conclude that policies designed to change educational, economic, and familial characteristics of women will only have a modest impact on women’s overall sense of autonomy.
This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship betwe... more This study uses data from Demographic and Health Surveys (DHSs) to examine the relationship between familial characteristics and the likelihood of experiencing domestic violence in Colombia, the Dominican Republic, Haiti, Nicaragua, and Peru. Logistic regression techniques are used to measure relationships between marital status, family size, partner alcohol use, socioeconomic status (SES), decision-making power, and education homogamy and the likelihood of experiencing partner violence. Cohabitation, female-dominant decision making, and partner alcohol are positively associated with domestic violence across datasets. Family size, SES, and education homogamy emerged as statistically significant in some, but not all of the datasets. This study helps clarify the profile of the abused Latina and also tests the applicability of current abuse research to a non-Western setting.
Drawing on the family process literature, child health models, and recent studies of macro-level ... more Drawing on the family process literature, child health models, and recent studies of macro-level effects on health, we examine the effects of household structure, resources, care-giving, reproduction, and communication on child nutritional status and infant mortality. Using Demographic and Health Surveys, we analyze the influence of these factors across 42 countries in Latin America, Africa, and Asia. We also consider country-level including nontraditional family structure, level of economic development and expenditures on health care. Our results underscore the importance of family resources, decision-making, and health and feeding practices on child well-being in less developed countries. Although there is cross-national variability, the size of the variability was small relative to the overall effect. The country-level measures had modest effects on infant mortality and child nutritional status.
A recent ideological revolution promoting women’s status has raised questions concerning determin... more A recent ideological revolution promoting women’s status has raised questions concerning determinants of autonomy and their implications for policy formation. This study seeks to identify objective indicators determinant of autonomy, and then examine their relationship in light of women’s subjective experiences of autonomy. Potential determinants include education, literacy, household size, age at marriage, employment, and socioeconomic status. Analyses are based on these data sets: the 2000 Bolivia Family Interaction and Children’s Well-Being (FICW) Survey, the 2000 Peru Demographic Health Survey and the 1997/1998 Nicaraguan Demographic and Health Survey. Our findings indicate that autonomy is multidimensional. Utilizing Structural equation modeling, we identify two major domains autonomy: decision-making autonomy and personal autonomy in Bolivia, and family autonomy and public autonomy in Nicaragua and Peru. This study shows that each of our specified determinants has some influence on autonomy, with education and socioeconomic status being the most important. We conclude that policies designed to change educational, economic, and familial characteristics of women will only have a modest impact on women’s overall sense of autonomy.
This study draws on an ecological framework in testing relationships between individual, family, ... more This study draws on an ecological framework in testing relationships between individual, family, and community characteristics and the likelihood of women experiencing domestic violence in Peru. The sample of 15,991 women was taken from the 2000 Peru Demographic and Health Survey. Logistic regression models revealed that at the individual level, low educational attainment, early union formation, and a violent family background increase a woman's likelihood of abuse. Family-level risk markers include cohabitation, large family size, partner alcohol consumption, employment, and a woman's having higher status than her husband. At the community level, living in a noncoastal area and having an urban residence increase the likelihood of abuse.
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Papers by Dallan Flake
corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while providing employers and employees greater clarity in navigating this sensitive and complex issue.
corporate image concerns. These recommendations should help produce a more balanced case law that better harmonizes with Supreme Court precedent, while providing employers and employees greater clarity in navigating this sensitive and complex issue.