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Never Equals: Slavery, White Masculinities, And The Legacy Of Law In Today’S Workplace, Ann C. Mcginley

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This essay discusses two themes of Race Unequals: (1) the role of law in creating and reinforcing gendered, classed, and raced identities on plantations in the Antebellum South; and (2) the existence of slavery's legacy today in workplaces and the law's frequent failure to remedy its damaging tentacles. Part II describes masculinities studies from the social sciences and Multidimensional Masculinities Theory in law and applies the theory to analyze the first theme. Part III considers slavery's legacy in today's workplaces and analyzes employment discrimination law's shortcomings in eliminating racism in workplaces. The essay concludes that White masculinities, established in the …

Pandémie Et Travail De Plateforme: Réglementation Du « Lieu De Travail » Après Le Covid-19 Aux Usa [The Gig And The Platform: Regulating The “Workplace” After The Pandemic], Ruben J. Garcia

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No abstract provided.

Racial Pay Equity In “White” Collar Workplaces, Nantiya Ruan

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Part I outlines the many ways that corporate employers fail in racial equity efforts and the barriers that have been put into place to keep BIPOC workers from succeeding. Drawing from industrial organizational psychology and sociology, I identify six distinct challenges that must be remedied or ameliorated in order for BIPOC to achieve pay equity in the corporate climate. Part II identifies and analyzes the decades of litigation and class action settlements that have tried and failed to address the persistent lack of BIPOC representation in the financial industry. I categorize these cases into three waves of litigation intended to …

Work Hierarchies And Social Control Of Laborers, Nantiya Ruan

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Some labor dynamics transcend place and time: workers provide the labor; management oversees the work; owners capitalize on the fruits of that labor. This hierarchy repeats across nations, industries, and eras. The actors in these stories have set roles and a particular stage to act upon. We are familiar with a narrative wherein the worker is forced to toil under extreme conditions, the manager motivates the worker to produce faster and more, and the owner reaps the rewards. And we usually know where our sympathies lie.

Professor McMurtry-Chubb's latest book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of …

Work Hierarchies And The Social Control Of Workers, Nantiya Ruan

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Creighton Law Review Symposium on Professor Teri A. McMurtry-Chubb’s book, Race Unequals: Overseer Contracts, White Masculinities, and the Formation of Managerial Identity in the Plantation Economy.

Attorney Competence In The Algorithm Age, Nantiya Ruan

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No abstract provided.

Time’S Up: Against Shortening Statutes Of Limitation By Employment Contract, Meredith R. Miller

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Employers are increasingly adding clauses to contracts with employees that purport to shorten the statutes of limitation for employees to pursue claims against their employers (“SOL Clauses”). SOL Clauses are being imposed on employees in various stages of the contracting process. They have turned up in job applications, offer letters, arbitration clauses, employment agreements and employee handbooks. Where they have been enforced by the courts, the justification has been a prioritization of “freedom of contract” over any other policy concerns. This Article argues that, in the employment context, “freedom of contract” should not be prioritized over other competing concerns, which …

Transcript Of Video File: Panel 4 - Severe Or Pervasive: Towards Empowering Workers, Ann C. Mcginley, Allegra Fishel, Alexis Ronickher, Joseph M. Sellers, Bernice Yeung

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This is a video transcript of a panel session in the Enhancing Anti-Discrimination Laws in Education and Employment symposium.

Bostock: A Clean Cut Into The Gordian Knot Of Causation, Melissa Essary

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Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.

Judges …

Optimizing Whistleblowing, Usha Rodrigues

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Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence.

This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies …

Looking South: Toward Principled Protection Of U.S. Workers, Ann C. Mcginley

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No abstract provided.

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

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This Article analyzes the substantive and procedural problems created by the federal judiciary in Title VII hostile work environment law that concurrently drains federal anti-harassment law of its meaning. The premise is that, at least for the near future, relying on federal courts and/or the U.S. Congress to protect employees' civil rights is likely fruitless. Instead, we should encourage state legislatures that seek to improve civil rights in employment in their own jurisdictions and state supreme courts to interpret their own state laws to recognize employees' civil rights to the fullest extent possible. Part II analyzes how federal courts decide …

Challenging Gender Discrimination In Closely Held Firms: The Hope And Hazards Of Corporate Oppression Doctrine, Meredith R. Miller

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The #MeToo Movement has ushered sexual harassment out of the shadows and thrown a spotlight on the gender pay gap in the workplace. Harassment and unfair treatment have, however, been difficult to extinguish. This has been true for all workers, including partners – those women who are owners in their firms and claim that they have suffered harassment or unfair treatment based on gender. That is because a partner’s lawsuit for discrimination often will suffer an insurmountable hurdle: plaintiff’s status as a partner in the firm means that they may not be considered an “employee” under the relevant employment discrimination …

The Human Right To Workplace Safety In A Pandemic, Ruben J. Garcia

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The COVID-19 pandemic has presented unique challenges for immigrant workers many of whom occupy jobs most at risk in the pandemic: heath care, janitorial services, and mass transit. This Article encourages the extension of human rights instruments protecting health and safety in the workplace to all workers, particularly immigrant workers. Garcia analyzes the options available for workers who confront unsafe working conditions under existing law. Expanding the language of “human right” will allow for greater scrutiny of actions taken by the government and employers. Garcia encourages statutory changes to OSHA and the NRLA, test cases, filing complaints under trade agreements, …

Feminist Perspectives On Bostock V. Clay County, Georgia, Ann C. Mcginley, Nicole Porter, Danielle Weatherby, Ryan Nelson, Pamela Wilkins, Catherine Archibald

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This jointly-authored essay is a conversation about the Supreme Court’s recent and groundbreaking decision (Bostock v. Clayton County) that held that discrimination based on sexual orientation or gender identity is discrimination based on sex, and therefore prohibited by Title VII of the Civil Rights Act of 1964. While many scholars are writing about this case, we are doing something unique. We are analyzing this decision from feminist perspectives. We are the editors and four of the authors of a book recently published by Cambridge University Press: Feminist Judgments: Rewritten Employment Discrimination Opinions. This book contains fifteen Supreme Court and Courts …

Papercuts: Hierarchical Microaggressions In Law Schools, Nantiya Ruan

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The Article investigates law schools as locations of workplace fairness by examining its hierarchical structure and the power dynamics at work. Others have researched and written on the myriad ways in which “legal skills faculty” are treated unfairly as compared to those that primarily teach non-skills (or doctrinal classes) because of the subject matter that they teach and the assumptions that are made about their credentials and ability to contribute to the law school mission. Likewise, other scholars have critically examined the discrimination experienced by law school faculty members based on race, gender, sexual orientation, and other identities. What has …

Retaliation: 462 Clark County School District V. Breeden, 532 U.S. 268 (2001), Rebecca White

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Clark County School District v. Breeden, to my mind, has always been a sleeper case. A per curiam opinion, it takes up no more than five pages in the US reports, yet when I taught this case to my employment discrimination students, we often would spend a full class period – and sometimes more – on it. Why? Because it presents virtually every issue that can crop up under section 704 of Title VII of the Civil Rights Act of 1964, the statute’s antiretaliation provision.

Aging On Air: Sex, Age, And Television News, Rebecca H. White

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The best piece of advice I received when I began teaching law was to adopt Charlie Sullivan's and Mike Zimmer's casebook for my Employment Discrimination class. Before I became a law professor, I had no clue how important choosing the right textbook is, not only for the students but for the teacher. I also was unaware of how much I had to learn about a subject I thought I knew well. I had been litigating employment discrimination cases for several years, but when I began teaching, I quickly learned how much I did not know. Charlie's and Mike's casebook, through …

Foreword: The Labor Constitution In 2020, Ruben J. Garcia

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No abstract provided.

Building Worker Collective Action Through Technology, Ruben J. Garcia

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The COVID-19 pandemic has exacerbated the inequality between workers and their employers, and decreased worker power over their terms and conditions of employment. At the same time, the workers are more dispersed than ever, with more employers disestablishing the traditional office in favor of a hybrid model that further atomizes workers and makes collective action harder. At the same time, the ability for workers to organize themselves on social media and on company e-mail systems has been limited by recent decisions of the National Labor Relations Board (NLRB), and are always subject to possible employer discovery and retaliation. New technologies …

Politically Engaged Unionism: The Culinary Workers Union In Las Vegas, Ruben J. Garcia

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This chapter introduces the reader to "politically engaged unionism" as demonstrated by the bargaining successes of The Culinary Workers Union Local 226 in Las Vegas, Nevada. Professor Ruben J. Garcia provides a brief background of the union and its member demographics, arguing it can serve as a model for unions across the country.

Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight

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Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social …

The Masculinity Motivation, Ann C. Mcginley

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In this essay, Professor Ann McGinley explores a phenomenon she coins the Masculinity Motivation. Society and courts ignore that harassing behaviors and the motives behind them are nearly identical in schools and workplaces. Moreover, the motives driving same-sex harassment are often the same as those causing sex-based harassment of women and girls. These motives include proving the perpetrators' and their group's masculinity, punishing those who do not adhere to gender expectations, and upholding conventional gender norms. Professor McGinley advocates for courts to broadly define "because of sex" under Titles VII and IX by clarifying that harassment motivated to denigrate the …

Tournament Of Managers: Lessons From The Academic Leadership Market, Usha Rodrigues

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Why do firms usually make, not buy, their chief executive officers (CEOs)? Public corporations hire their CEOs from within the firm 78% of the time. They do so although earlier studies have found no clear evidence that internal hires perform better than external ones. So why do firms prefer them? Few scholars have focused on this simple question.

The reason why firms favor internal candidates matters not only in its own right, but also for an overlooked reason: it informs the controversial question of executive compensation. Currently board-compensation committees look to peer benchmarks to set executive pay. But, taking cues …

Title Vii And The #Metoo Movement, Rebecca White

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The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. These include the requirements of severity or pervasiveness, the issue of unwelcomeness, the availability of an affirmative defense for hostile work environment claims, and the time limits within which claims must be brought. Additionally, those making claims of sexual harassment fare poorly when they suffer retaliation for stepping forward. Internal complaints …

Center-Left Politics And Corporate Governance: What Is The 'Progressive' Agenda?, Christopher Bruner

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For as long as corporations have existed, debates have persisted among scholars, judges, and policymakers regarding how best to describe their form and function as a positive matter, and how best to organize relations among their various stakeholders as a normative matter. This is hardly surprising given the economic and political stakes involved with control over vast and growing "corporate" resources, and it has become commonplace to speak of various approaches to corporate law in decidedly political terms. In particular, on the fundamental normative issue of the aims to which corporate decision-making ought to be directed, shareholder-centric conceptions of the …

Religious Freedom, Human Rights, And Peaceful Coexistence, Leslie C. Griffin

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At the Second Vatican Council, Fr. John Courtney Murray, S.J., persuaded the Catholic Church to abandon its long, and absolute, opposition to the separation of church and state. He brought a new concept of religious freedom to the Catholic Church. In honor of Murray, this essay looks at several current ways “religious freedom” harms individual rights.

The article describes the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. It studies women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal …

Is There A Future For Work?, Wendi S. Lazar, Nantiya Ruan

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No abstract provided.

Five Myths About Public Sector Labor Law In Nevada, Ruben J. Garcia

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The forces of collective bargaining reform in the 78th Nevada Legislative Session primarily set about to: (1) make it easier for employees not to pay anything to the unions that are required to represent them in negotiations and grievance handling and (2) eliminate the kinds of agreements and practices that purportedly have caused financial turmoil to the state as it emerges from the depths of the Great Recession. Unfortunately, many of these “reforms” were based on misconceptions about the role and effects of public sector collective bargaining in Nevada and in American society generally. In this article, I describe five …

Public Policy And Workers’ Rights: Wrongful Discharge Discipline Actions And Reasonable Good Faith Beliefs, Ann C. Mcginley, Nicole Buonocore Porter

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In this paper, Professor Ann McGinley responds to Chapter 5 of the ALI's Restatement of the Law: Employment Law ("Restatement of Employment Law"), concerning "The Tort of Wrongful Discharge in Violation of Public Policy."' It proceeds in five parts. Following an introduction in Part I, Part II summarizes generally the provisions of Chapter 5, the Working Group's objections to the earlier version and recommendations for changes, and explains (when appropriate) where the final version deviated from the prior version. Part III argues that this chapter should have kept the prior version's protection against wrongful discipline instead of protecting only against …