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Articles 1 - 30 of 30
Full-Text Articles in Law
California’S 2023 Legislative Cycle: Governor Newsom Provides Victories And Losses For The Labor Movement, Victoria Chan
California’S 2023 Legislative Cycle: Governor Newsom Provides Victories And Losses For The Labor Movement, Victoria Chan
GGU Law Review Blog
During the 2023 legislative cycle, the California Legislature sent more than 900 bills to Governor Gavin Newsom’s desk for his review. Of the 900 bills, thirteen bills were sponsored by the California Labor Federation (CLF) in support of major labor initiatives. The CLF is a coalition of 1,200 unions dedicated to protecting workers. The CLF indicated that this past legislative year was a “fantastic year for organized labor in the [California] State Legislature,” specifically, thirteen of its sponsored bills passed the California Legislature and arrived at the Governor’s desk for his review.
Below is a preview of two workers’ rights …
Coworker Retaliation In The #Metoo Era, Deborah Brake
Coworker Retaliation In The #Metoo Era, Deborah Brake
Articles
The national firestorm sparked by #MeToo has galvanized feminist legal scholars to reconsider the Title VII framework governing workplace sexual harassment and the potential for #MeToo to transform workplace culture in a way that Title VII, to date, has not. In the analysis of #MeToo’s prospects for change, less attention has been paid to how Title VII’s protection from retaliation intersects with the movement. One particular aspect of retaliation law – coworker retaliation – has thus far escaped the attention of legal scholars. Already underdeveloped as a species of retaliation law, coworker retaliation holds particular resonance for the #MeToo movement …
Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky
Rwu First Amendment Blog: Dean Yelnosky's Blog: Ruling Could Destroy Labor Unions As We Know Them 2-26-2018, Michael J. Yelnosky
Law School Blogs
No abstract provided.
Title Vii And The #Metoo Movement, Rebecca White
Title Vii And The #Metoo Movement, Rebecca White
Scholarly Works
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 …
Heffernan V. City Of Paterson: Watering Down The First Amendment Retaliation Doctrine To Create A Perception Of Protection For Public Employees, Peter J. Artese
Heffernan V. City Of Paterson: Watering Down The First Amendment Retaliation Doctrine To Create A Perception Of Protection For Public Employees, Peter J. Artese
Maryland Law Review Online
No abstract provided.
Causation In Whistleblowing Claims, Nancy M. Modesitt
Causation In Whistleblowing Claims, Nancy M. Modesitt
All Faculty Scholarship
Whistleblowing cases have continued to increase in number in recent years as state and federal legislatures have added protections for employees who disclose illegal or wrongful activity by their employers. But even as the number of cases continues to climb, cohesive and coherent doctrines applicable in whistleblowing litigation have failed to emerge. A significant reason for this is that much of whistleblower protection is statutory in nature, and federal statutes vary greatly from state statutes, even as state statutes differ. A second reason is that courts have drawn upon doctrines developed under Title VII of the Civil Rights Act of …
Retaliation And The Reasonable Person, Sandra F. Sperino
Retaliation And The Reasonable Person, Sandra F. Sperino
Faculty Articles and Other Publications
When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.
Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …
Petition For A Writ Of Certiorari. Debord V. Mercy Health System Of Kansas, Inc., 134 S. Ct. 2664 (2014) (No. 13-1118), 2014 U.S. S. Ct. Briefs Lexis 1120, Eric Schnapper, Mark A. Buchanan
Petition For A Writ Of Certiorari. Debord V. Mercy Health System Of Kansas, Inc., 134 S. Ct. 2664 (2014) (No. 13-1118), 2014 U.S. S. Ct. Briefs Lexis 1120, Eric Schnapper, Mark A. Buchanan
Court Briefs
QUESTION PRESENTED
Section 704(a) of Title VII of the Civil Rights Act of 1964 forbids an employer to retaliate against any employee because that worker "opposed" unlawful discrimination.
The question presented is:
Does section 704(a) prohibit retaliation against a worker because of the worker's statements:
(1) only when the statements are made to the worker's own employer or to federal or state anti-discrimination agencies (the rule in the Tenth and Fourth Circuits), or (2) also when the worker's statements are made to any other person (the rule in the First, Second, Third, Fifth, Sixth and Ninth Circuits)?
Fakers And Floodgates, Sandra F. Sperino
Fakers And Floodgates, Sandra F. Sperino
Faculty Articles and Other Publications
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information …
Retaliation In An Eeo World,, Deborah L. Brake
Retaliation In An Eeo World,, Deborah L. Brake
Articles
This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies …
Retaliation In The Eeo Office, Deborah L. Brake
Retaliation In The Eeo Office, Deborah L. Brake
Articles
This Article examines a new and as-yet unexplored development in retaliation law under Title VII and other anti-discrimination statutes: the denial of protection from retaliation to the class of employees charged with enforcing their employers’ internal anti-discrimination policies and complaint procedures. Through distinctive applications of traditional retaliation doctrine and newer rules formulated specifically for this class of employees, these workers are increasingly vulnerable to unchecked retaliation by their employers. This troubling trend has important implications for workplace retaliation law and for employment discrimination law more broadly. This Article makes two contributions to legal scholarship. First, it traces the legal doctrines …
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Articles
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation …
Dellinger V. Science Applications International Corporation: Missing An Opportunity To Expand The Meaning Of "Employee" Under The Fair Labor Standards Act, Ashley Sharif
Proxy
No abstract provided.
Labor And Employment Law, Eric Wallace
Labor And Employment Law, Eric Wallace
Law Student Publications
During the past two years, there have been several significant developments in labor and employment law, both on the state and federal levels. Because developments in both state and federal law likely will have a profound impact on employers and employees throughout Virginia, they warrant significant discussion in this survey. In addition to examining notable decisions from the Supreme Court of the United States, the United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Eastern District and Western District of Virginia, this survey also discusses decisions of the Supreme Court of Virginia …
Petition For A Writ Of Certiorari. Brush V. Sears Holding Corp., 568 U.S. 1143 (2013) (No. 12-268), 2013 U.S. Lexis 925, Eric W. Scharf, Wayne R. Atkins, Eric Schnapper, Brian D. Buckstein
Petition For A Writ Of Certiorari. Brush V. Sears Holding Corp., 568 U.S. 1143 (2013) (No. 12-268), 2013 U.S. Lexis 925, Eric W. Scharf, Wayne R. Atkins, Eric Schnapper, Brian D. Buckstein
Court Briefs
QUESTION PRESENTED
Section 704(a) of Title VII prohibits an employer from retaliating against an employee because he or she opposed discrimination forbidden by Title VII. The lower courts are divided as to how such anti-retaliation provisions apply to management officials, such as personnel or EEO officials, whose duties include assuring compliance with Title VII or implementing an employer’s anti-discrimination policy.
The question presented is: Are management officials: (1) subject to exclusion from protection under section 704(a) if their actions are within the scope of their official duties (the rule in the Fifth, Eighth, Tenth and Eleventh Circuits),
(2) protected under …
Petition For A Writ Of Certiorari. Dellinger V. Science Applications International Corp. (No. 11-598), 2011 U.S. S. Ct. Briefs Lexis 2153, Eric Schnapper, Zachary A. Kitts, John J. Rigby
Petition For A Writ Of Certiorari. Dellinger V. Science Applications International Corp. (No. 11-598), 2011 U.S. S. Ct. Briefs Lexis 2153, Eric Schnapper, Zachary A. Kitts, John J. Rigby
Court Briefs
QUESTIONS PRESENTED (1) Does the anti-retaliation provision in section 15(a)(3) of the Fair Labor Standards Act apply to retaliation by an employer against a job applicant? (2) Is the private cause action provided by section 16(b) of the FLSA available to a job applicant who is retaliated against by an employer?
The Risk Of Complaining- Retaliation, Ivan E. Bodensteiner
The Risk Of Complaining- Retaliation, Ivan E. Bodensteiner
Law Faculty Publications
No abstract provided.
Brief For Petitioner, Thompson V. North American Stainless, Lp, 562 U.S. 170 (2011) (No. 09-291), 2010 Wl 3501186, Eric Schnapper, David O'Brien Suetholz, Lisa S. Blatt
Brief For Petitioner, Thompson V. North American Stainless, Lp, 562 U.S. 170 (2011) (No. 09-291), 2010 Wl 3501186, Eric Schnapper, David O'Brien Suetholz, Lisa S. Blatt
Court Briefs
QUESTIONS PRESENTED
Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:
(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiance, who is closely associated with the employee who engaged in such protected activity?
(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?
Sidelined: Title Ix Retaliation Cases And Women's Leadership In College Athletics, Erin E. Buzuvis
Sidelined: Title Ix Retaliation Cases And Women's Leadership In College Athletics, Erin E. Buzuvis
Faculty Scholarship
Discrimination against women seeking or serving in leadership positions in sport is worthy of analysis, not only for the sake of individual women who desire to self-actualize as a head coach or athletic administrator, but because the unique role of sport in society gives underrepresentation of women in leadership positions additional significance. Due to its high visibility and widespread appeal—its veritable iconic status—sport is a salient site of cultural production. That is, sport operates on a symbolic level, reflecting and transmitting shared cultural values. Among these values, sport helps define the attributes associated with leadership, and thus, derivatively, power. By …
The Supreme Court's Anti-Retaliation Principle, Richard E. Moberly
The Supreme Court's Anti-Retaliation Principle, Richard E. Moberly
Nebraska College of Law: Faculty Publications
In five cases issued during the last five years, the Supreme Court interpreted statutory anti-retaliation provisions broadly to protect employees who report illegal employer conduct. These decisions conflict with the typical understanding of this Court as pro-employer and judicially conservative. In a sixth retaliation decision during this time, however, the Court interpreted constitutional anti-retaliation protection narrowly, which fits with the Court’s pro-employer image but diverges from the anti-retaliation stance it appeared to take in the other five retaliation cases. This Article explains these seemingly anomalous results by examining the last fifty years of the Supreme Court’s retaliation jurisprudence. In doing …
Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.
Express Yourself: Striking A Balance Between Silence And Active, Purposive Opposition Under Title Vii's Anti-Retaliation Provision, Matthew W. Green Jr.
Law Faculty Articles and Essays
In short, although the article determines that while Crawford should not open the door to silent opposition, the active, purposive requirement that Justice Alito championed and that some courts pre- and post-Crawford have adopted goes too far the other way. There is a swath of opposition conduct that stands between silence and the standard that Justice Alito and some courts advocate. This article explores where that line should be drawn.
The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino
The Disappearing Dilemma: Why Agency Principles Should Now Take Center Stage In Retaliation Cases, Sandra F. Sperino
Faculty Articles and Other Publications
In Burlington Northern Santa Fe Railroad v. White, the Supreme Court soundly rejected the idea that the plaintiff must establish that conduct rose to the level of an adverse employment action to constitute retaliation under Title VII. This Article posits that, in an effort to square Burlington with other Title VII agency jurisprudence, the courts will be required to re-import the concept of tangible employment action into decisions regarding whether an employer is vicariously liable for actions committed by supervisors.
While the lower courts appear to recognize that agency issues come into play when retaliation is conducted by co-workers, …
Shibboleths And Ceballos: Eroding Constitutional Rights Through Pseudocommunication, Susan Stuart
Shibboleths And Ceballos: Eroding Constitutional Rights Through Pseudocommunication, Susan Stuart
Law Faculty Publications
Recently, the Supreme Court rendered an inexplicable First Amendment decision that has far-reaching effects on the way government is held accountable to the public. In Garcetti v. Ceballos, the Court determined that a government employer can retaliate against an employee for doing his job correctly, notwithstanding the Constitution, so long as the employer targets speech that was part of the employee’s official duties. Inasmuch as government employees are often responsible for reporting government misconduct and other matters of public concern, this opinion essentially leaves the public unprotected from the unbridled discretion of government supervisors. The possible motivations for this …
Ask, Don’T Tell: Ethical Issues Surrounding Undocumented Workers’ Status In Employment Litigation, Christine N. Cimini
Ask, Don’T Tell: Ethical Issues Surrounding Undocumented Workers’ Status In Employment Litigation, Christine N. Cimini
Articles
The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status. This article explores lawyers' increasingly complex ethical obligations with regard to a client's immigration status in the context …
The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman
The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman
Faculty Journal Articles and Book Chapters
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …
The Failure Of Title Vii As A Rights-Claiming System, Deborah Brake, Joanna L. Grossman
The Failure Of Title Vii As A Rights-Claiming System, Deborah Brake, Joanna L. Grossman
Articles
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …
Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss
Fighting Discrimination While Fighting Litigation: A Tale Of Two Supreme Courts, Scott A. Moss
Publications
The U.S. Supreme Court has issued an odd mix of pro-plaintiff and pro-defendant employment law rulings. It has disallowed harassment lawsuits against employers even with failed antiharassment efforts, construed statutes of limitations narrowly to bar suits about ongoing promotion and pay discrimination, and denied protection to public employee internal complaints. Yet the same Court has issued significant unanimous rulings easing discrimination plaintiffs' burdens of proof.
This jurisprudence is often miscast in simple pro-plaintiff or pro-defendant terms. The Court's duality traces to its inconsistent and unaware adoption of competing policy arguments:
Policy 1: Employees must try internal dispute resolution before suing--or …
Retaliation, Deborah Brake
Retaliation, Deborah Brake
Articles
This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …
Parsing The Meaning Of "Adverse Employment Action" In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson
Parsing The Meaning Of "Adverse Employment Action" In Title Vii Disparate Treatment, Sexual Harassment, And Retaliation Claims: What Should Be Actionable Wrongdoing?, Rosalie Berger Levinson
Law Faculty Publications
No abstract provided.
The Creeping Eruption Of Mt. Healthy, Morell E. Mullins Sr.
The Creeping Eruption Of Mt. Healthy, Morell E. Mullins Sr.
Faculty Scholarship
No abstract provided.