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Labor and Employment Law

Employment discrimination

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Full-Text Articles in Law

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman Apr 2020

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Pace Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal ...


Explorations With Charlie Sullivan: Theorizing A Different Universe Of Employment Discrimination, William Corbett Jan 2020

Explorations With Charlie Sullivan: Theorizing A Different Universe Of Employment Discrimination, William Corbett

All Scholarship

No abstract provided.


Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg Jan 2020

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal ...


Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino Sep 2019

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court ...


Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello Jan 2019

Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello

Faculty Publications

(Excerpt)

Legal Writing professors, like myself, face the same challenge each new semester: how can I effectively and efficiently help students learn one of the most important skills for a practicing lawyer? And one large hurdle in this quest to make our students good legal writers is creating a trial motion or appellate brief problem that helps them develop the particular skills required for persuasive legal writing. The act of creating the problem is sometimes like tightrope walking̶ finding just the right balance of facts and law to challenge students and help develop and enhance vital research, analytical, organizational, writing ...


Dignity Transacted, Lu-In Wang, Zachary W. Brewster Jan 2019

Dignity Transacted, Lu-In Wang, Zachary W. Brewster

Articles

In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers, by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on ...


Radical Reconstruction: (Re) Embracing Affirmative Action In Private Employment, Hina B. Shah Jan 2019

Radical Reconstruction: (Re) Embracing Affirmative Action In Private Employment, Hina B. Shah

Publications

The history of employment in this country is the history of racism. Using public and private mechanisms as well as violence to devise and enforce segregation and preferential treatment, the white male institutionalized an unprecedented advantage in the labor market. Yet this is rarely acknowledged as a factor in the current widening economic disparity between whites and blacks. Today, many white Americans, cloaked in the myth of colorblindness and meritocracy, refuse to see the persistence of racial prejudice, disadvantage and discrimination in the labor market.

This article is a call for a radical reconstruction of the private labor market through ...


When Should Employers Be Liable For Factoring Biased Customer Feedback Into Employment Decisions?, Dallan F. Flake Jan 2018

When Should Employers Be Liable For Factoring Biased Customer Feedback Into Employment Decisions?, Dallan F. Flake

Law Faculty Scholarship

In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor customer feedback into a host of decisions, including employment-related decisions such as who to hire, promote, and fire; how much to pay employees; and what tasks to assign them. Increasingly, researchers are discovering that customer feedback is often biased against certain populations, such as women and racial minorities. Sometimes customers explicitly declare their biases, but more often their prejudices are harder to detect — either because they intentionally hide their biases in their ratings or because the customers do not realize their own biases ...


Criminal Employment Law, Benjamin Levin Jan 2018

Criminal Employment Law, Benjamin Levin

Articles

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with ...


The Preferred Preferences In Employment Discrimination Law, Emily Gold Waldman Jan 2018

The Preferred Preferences In Employment Discrimination Law, Emily Gold Waldman

Pace Law Faculty Publications

In theory, customer preferences cannot justify discriminatory treatment by employers. The reality is more complicated. Built into the structure of federal employment discrimination law are several openings for customer preferences to provide employer defenses to what would otherwise likely be actionable discrimination.

This Article explores when and which customer preferences can enter those openings. It focuses on what I deem the “preferred preferences”: the customer preferences that have formed the basis of successful employer defenses to discrimination claims. This Article identifies and evaluates six such preferences: (1) aesthetic appeal; (2) physical privacy from employees of the opposite sex; (3) psychological ...


Gay Judge Nixes Anonymity For Genderqueer Plaintiff, Arthur S. Leonard Jan 2018

Gay Judge Nixes Anonymity For Genderqueer Plaintiff, Arthur S. Leonard

Other Publications

No abstract provided.


Employer Liability For Non-Employee Discrimination, Dallan F. Flake Jan 2017

Employer Liability For Non-Employee Discrimination, Dallan F. Flake

Law Faculty Scholarship

No abstract provided.


Coaches In Court: Legal Challenges To Sex Discrimination In College Athletics, Erin E. Buzuvis Jan 2017

Coaches In Court: Legal Challenges To Sex Discrimination In College Athletics, Erin E. Buzuvis

Faculty Scholarship

Sex discrimination continues to operate in the working environment of college athletics. Female coaches experience bias both because of their sex and the intersections of gender stereotypes with stereotypes about women of color, lesbians, and aging. The law continues to be a leverage to challenge barriers to women’s leadership in college sports. This Article provides an overview of the relevant legal protections in three cases brought by coaches Beth Burns, Tracey Griesbaum, and Shannon Miller. Their cases expose discrimination and the double standard related to the value of female coaches’ success.


The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux Jan 2017

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Articles

No abstract provided.


Transsexual, Transgender, Trans: Reading Judicial Nomenclature In Title Vii Cases, Kris Franklin, Sarah Chinn Jan 2017

Transsexual, Transgender, Trans: Reading Judicial Nomenclature In Title Vii Cases, Kris Franklin, Sarah Chinn

Articles & Chapters

No abstract provided.


People Analytics And Invisible Labor, Miriam A. Cherry Jan 2017

People Analytics And Invisible Labor, Miriam A. Cherry

All Faculty Scholarship

This article explores two trends in labor and employment law: people analytics and invisible labor. People analytics includes the practice of employers using quantitative data to make objective decisions regarding employees. Invisible labor includes work that is unrecognized because it involves emotional work, or that is hidden due to the intermediation of technology. The article then discusses the paradox of the two trends. As people analytics relies on data for decision-making, how can employers use data analytics if there are increasingly invisible components to work? The article considers solutions: should people analytics include components of hidden labor, explicitly recognize and ...


Something To Talk About, Joni Hersch, Jennifer Bennett Shinall Jan 2016

Something To Talk About, Joni Hersch, Jennifer Bennett Shinall

Vanderbilt Law School Faculty Publications

To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conduct an original experimental study fielded on more than 3,000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided information, regardless of content. Any ...


Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss Jan 2016

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Articles

No abstract provided.


Subsidized Egg Freezing In Employment: Autonomy, Coercion, Or Discrimination?, Ann C. Mcginley Jan 2016

Subsidized Egg Freezing In Employment: Autonomy, Coercion, Or Discrimination?, Ann C. Mcginley

Scholarly Works

In 2014, Apple and Facebook announced that they would provide up to $20,000 for female employees to freeze their eggs as an employment benefit. These announcements raised mixed reviews. Some applauded the decision because they believe that egg freezing may offer to women more control over their reproductive choices. Others argued that the new benefit sends the wrong message to women and that encouraging good parenting by giving better parental leave and child care policies would be more beneficial to families. Others were concerned that this “benefit” applies only to professional or managerial-class women, but may not be helpful ...


When The Customer Is King: Employment Discrimination As Customer Service, Lu-In Wang Jan 2016

When The Customer Is King: Employment Discrimination As Customer Service, Lu-In Wang

Articles

Employers profit from giving customers opportunities to discriminate against service workers. Employment discrimination law should not, but in many ways does, allow them to get away with it. Employers are driven by self-interest to please customers, whose satisfaction is critical to business success and survival. Pleasing customers often involves cultivating and catering to their discriminatory expectations with respect to customer service — including facilitating customers’ direct discrimination against workers.

Current doctrine allows employers to escape responsibility for customers’ discrimination against workers because it takes an overly narrow view of the employment relationship. The doctrine focuses on the formal lines of authority ...


The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser Jan 2016

The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference.

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the ...


In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson Oct 2015

In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson

Faculty Publications

The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court's disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court's Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress's intent.


Against Immutability, Jessica A. Clarke Jan 2015

Against Immutability, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy ...


Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia L. Narine Jan 2015

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia L. Narine

Articles

No abstract provided.


My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White Jan 2015

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

Articles

No abstract provided.


Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley Jan 2015

Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley

Scholarly Works

No abstract provided.


On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake Jan 2015

On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake

Articles

This article, published in the B.U. Law Review Symposium issue, “The Civil Rights Act of 1964 at 50: Past, Present and Future,” reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want ...


Introduction To Amici Curiae Brief In Young V. United Parcel Service, Inc., Joanna L. Grossman, Deborah L. Brake Jan 2015

Introduction To Amici Curiae Brief In Young V. United Parcel Service, Inc., Joanna L. Grossman, Deborah L. Brake

Faculty Scholarship

On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief ...


Griggs At Midlife, Deborah A. Widiss Jan 2015

Griggs At Midlife, Deborah A. Widiss

Articles by Maurer Faculty

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in ...


Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein Oct 2014

Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein

UF Law Faculty Publications

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, compels a ...