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Labor and Employment Law

Employment discrimination

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

People Analytics And Invisible Labor, Miriam A. Cherry

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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 ...


Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick Jan 2013

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

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In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly ...


Avoiding Harm Otherwise: Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret E. Johnson Jan 2007

Avoiding Harm Otherwise: Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret E. Johnson

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This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law's interest in employee's harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an ...


That Pernicious Pop-Up, The Prima Facie Case, Michael Hayes Jan 2006

That Pernicious Pop-Up, The Prima Facie Case, Michael Hayes

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This article first explains the role the prima facie case has played in discrimination cases, from its creation in McDonnell Douglas through the Supreme Court's decisions in Aikens and Reeves, up to the application of Reeves by lower courts in the past several years. Next, this article focuses on Reeve's identification of "strength of the prima facie case" as a factor to be considered on summary judgment, and discusses why it would be unwise and unworkable to interpret the words "prima facie case" in that factor as having the same meaning as the "prima facie case" proved in ...


Has Wright Line Gone Wrong? Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act,, Michael Hayes Oct 2000

Has Wright Line Gone Wrong? Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act,, Michael Hayes

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Every year in the United States, thousands of employees are illegally fired for joining or supporting unions. These employees must bring their claims to the National Labor Relations Board (the “Board”), which applies its famous Wright Line standard to decide thousands of discrimination cases each year.

Probably the most common issue in labor discrimination cases is “pretext.” In virtually every case, an employer claims that it fired an employee not for an illegal anti-union motive, but for a legitimate business reason. The pretext issue arises when the evidence shows that the legitimate reason asserted by the employer was most likely ...