Law Commons^™

The Times They Are A-Changin’?: #Metoo And Our Movement Forward, Terry Morehead Dworkin, Cindy A. Schipani

University of Michigan Journal of Law Reform

Social movements like #MeToo have gained public traction like never before. In this Article, we place those developments within their historical context and chart a path forward. First, we provide a history of the prior unsuccessful attempts to ratify an Equal Rights Amendment, and we discuss that effort’s current legal status and prospects. Then, we briefly review the history of sexual harassment law. Having outlined this historical context, we move to contemporary developments. We describe actions that state legislatures and local municipalities have taken to address the concerns raised by the #MeToo movement. Finally, we discuss how inflection points can …

Liability For Toxic Workplace Cultures, Dana Florczak

University of Michigan Journal of Law Reform

Title VII is meant to protect employees from discrimination and has historically been a crucial tool for creating social change in the workplace. But when considering modern-day workplace discrimination wrought by “toxic workplace cultures” defined herein, Title VII’s frameworks for confronting systemic discrimination prove outdated and ineffective. This Note proposes the codification of a new theory of discrimination under Title VII targeting toxic workplace cultures, with substantive and procedural elements working in tandem to better enable plaintiffs to collectively bring actions to hold employers accountable for fostering discriminatory environments. Part I defines toxic workplace cultures and walks through case studies …

Wrong Line: Proposing A New Test For Discrimination Under The National Labor Relations Act, Joshua D. Rosenberg Daneri, Paul A. Thomas

University of Michigan Journal of Law Reform

There has long been a consensus among scholars and union-side practitioners that the National Labor Relations Act (NLRA) is under-enforced. As a result, employers often treat violations of the NLRA as a cost of doing business rather than a serious violation of a federal statute. Calls for reform have historically tended to propose legislative amendments to the NLRA to constrain employer conduct and impose greater consequences for discrimination violations. However, little attention has been given to improving the flawed legal test by which such discrimination is analyzed, Wright Line, 251 N.L.R.B. 1083 (1980), enforced 662 F.2d 899 (1st Cir. 1981), …

Sexual Orientation, Gender Identity, And Homelessness Post-Bostock, Alaina Richert

University of Michigan Journal of Law Reform

Housing discrimination on the basis of sexual orientation and gender identity is a critical problem facing LGBTQ+ people in the United States. In addition, LGBTQ+ people, particularly transgender people, disproportionately suffer from homelessness and face discrimination by homeless shelters on the basis of sexual orientation and gender identity. This homelessness and discrimination both disproportionately affect transgender people of color. This Note makes two contributions that would enable courts to grant meaningful relief in these contexts. First, it argues that “sex” in the Fair Housing Act includes sexual orientation and gender identity after the holding in Bostock v. Clayton County. Second, …

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

Michigan Law Review

Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District …

Lawyering The Indian Child Welfare Act, Matthew L.M. Fletcher, Wenona T. Singel

Michigan Law Review

This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the constitutional validity of the law. The primary goal of this Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important Indian Child Welfare Act (ICWA) case …

Civil Rights In Times Of Uncertainty (The Anthropocene), Jeffrey Omari

Michigan Law Review

Although there have been significant civil rights gains made in recent decades, the United States is now experiencing a resurgence of many of the societal ills that have plagued the country for decades. From an insurrection that was seemingly inspired by white supremacist ideology to ongoing examples of police brutality against Black people, anti-Asian violence, anti-LGBTQ violence, and recurring islamophobia, the country sits at an apparent crossroads. There is an urgent need to advance a civil rights agenda that addresses the impact of these societal ills on the affected communities. At the same time, however, we are confronting these ills …

Enduring Exclusion, Daiquiri J. Steele

Michigan Law Review

Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health. Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards …

Title Ix And The Alleged Victimization Of Men: Applying Twombly To Federal Title Ix Lawsuits Brought By Men Accused Of Sexual Assault, Zoë Seaman-Grant

Michigan Journal of Gender & Law

This Note provides a survey of the current state of Title IX law as applied to anti-male bias lawsuits and suggests how courts should apply Twombly’s plausibility standard to anti-male bias claims going forward. Part I of this Note provides an overview of sexual violence on college campuses and the history of Title IX regulations and jurisprudence. Part II offers a brief history of Title IX anti-male bias lawsuits, examines the structure of anti-male bias lawsuits, and analyzes the various pleading standards applied by courts. Part III lays out the types of facts pled by Title IX anti-male bias …

Bigotry, Civil Rights, And Lgbtq Child Welfare, Jordan Blair Woods

Michigan Law Review

A Review of Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law. By Linda C. McClain.

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for …