Cover: Forbidden Grounds in PAPERBACK

Forbidden Grounds

The Case against Employment Discrimination Laws

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Product Details


$47.00 • £37.95 • €42.50

ISBN 9780674308091

Publication Date: 03/19/1995


6-1/4 x 9-1/4 inches


  • Preface
  • Introduction: Consensus and Its Perils
  • I. Analytical Foundations
    • 1. Human Nature, Social Theory, and the Common Law
      • Controlling Coercion
      • The Determination of Ownership
      • Freedom of Contract and the Antidiscrimination Laws
    • 2. Force, Discrimination, and Free Entry
      • Victims of Force and Victims of Discrimination
      • To the Urn
      • Natural Limits on Discrimination
      • Some Empirical Evidence
    • 3. Rational Discrimination in Competitive Markets
      • Relational Contracts and Governance Costs
      • Expanding Employment Opportunities
      • Is Title VII Efficient?
    • 4. When Entry Is Restricted: The Case of Monopoly
      • From Many to One
      • Monopoly and Price Discrimination
      • Employment Situations
  • II. History
    • 5. Race and the Police Power: 1890 to 1937
      • A Morality Play
      • Who Governs?
      • The Police Power
      • Unconstitutional Conditions
      • Constitutional Counterattack and Retreat
    • 6. From the 1937 Revolution to the 1964 Civil Rights Act
      • The Changing Regulatory Environment from Carolene Products to Brown
      • Post–New Deal Protection of Employment Discrimination
      • Public Accommodation and the Barriers to Entry
    • 7. Constitutional Challenges to the 1964 Civil Rights Act
      • The Civil War Amendments
      • The Commerce Power
      • Unconstitutional Interference
  • III. Race Discrimination
    • 8. The Contract at Will
      • Revealed Preferences in the Marketplace
      • Functional Advantages of the Contract at Will
      • Arguments against the Contract at Will
    • 9. Disparate Treatment
      • Title VII: A “Moderate” Interference with the Market
      • Two Conceptions of Merit
      • The Problems of Disparate Treatment
      • Disparate Treatment as a Practical Compromise
    • 10. From Disparate Treatment to Disparate Impact
      • A Critical Transition
      • Statutory Construction of the 1964 Statute
      • Legislative History
      • Griggs v. Duke Power
      • The Equal Opportunity Employment Act of 1972
    • 11. Disparate Impact
      • Dismantling the House of Cards
      • The Business Necessity Defense
      • Type I and Type II Errors
      • Beyond Griggs
      • Testing after Griggs
    • 12. The Effects of Title VII
      • Title VII as Deregulation
      • Relative Wage Levels
      • Redistributive Effects of the Antidiscrimination Laws
  • IV. Sex Discrimination
    • 13. Separate but Equal
      • Race and Sex Discrimination: A Misleading Parallel
      • Responding to Sex Differences in Practice
      • Sex Differences and Title VII
    • 14. Bona Fide Occupational Qualifications
      • Statutory Framework
      • Legitimate Cost Differentials
      • Customer Preferences and Forgone Benefits
      • Safety Concerns as a Justification for Disparate Treatment
    • 15. Pensions
      • What Counts as Discrimination?
      • The Basic Economics of Sex-Linked Annuities
    • 16. Pregnancy
      • Constitutional and Historical Preliminaries
      • Title VII Analysis
    • 17. Sexual Harassment
      • A Tort in Disguise?
      • Common Law Action for Sexual Harassment
      • The Title VII Alternative
      • Common Law and Title VII: Does Detail Matter?
    • 18. Empirical Evidence of Disparate Impact
      • Finding Disparate Impact
      • Disparate Impact in Action: Sears
  • V. Affirmative Action
    • 19. Protected Groups under Title VII
      • The Two-Pronged Attack
      • Does Title VII Allow Affirmative Action?
      • Affirmative Remedial Action
    • 20. First Principles
      • A Fresh Start
      • The Private Sphere: Affirmative Action for All
      • Discrimination in the Public Sphere
      • The Upshot
  • VI. Newer Forbidden Grounds
    • 21. Age Discrimination
      • A Statutory Reprise
      • Why?
      • Relational Labor Contracts and the ADEA
      • Buyouts
    • 22. Disability Discrimination
      • A Problem for People of Two Minds
      • The Statutory Scheme of Reasonable Accommodation
      • The Grant Alternative
  • Conclusion: Symbols and Substance
  • Appendix of Statutory Excerpts
  • Table of Cases
  • Author Index
  • General Index

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