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Full-Text Articles in Law

When Rules Are Made To Be Broken: The Case Of Sexual Harassment Law, David S. Sherwyn, Nicholas F. Menillo, Zev J. Eigen Jan 2017

When Rules Are Made To Be Broken: The Case Of Sexual Harassment Law, David S. Sherwyn, Nicholas F. Menillo, Zev J. Eigen

Center for Hospitality Research Publications

Judicial holdings regarding sexual harassment actions have put judges who want to ensure what they view as a just outcome in the awkward position of having to choose between following precedent or “breaking the rules.” This article presents a theoretical assessment and empirical analysis of judicial rule-breaking with regard to two rules relating to sexual harassment. The first such rule, established in the Oncale decision, opened the door to the “equal-opportunity harasser” who treats everyone badly and thus escapes the prohibition on harassment “due to sex.” The other rule, set forth in the Ellerth and Faragher decisions, establishes a two-prong ...


Experimental Evidence That Retaliation Claims Are Unlike Other Employment Discrimination Claims, David S. Sherwyn, Zev J. Eigen Aug 2016

Experimental Evidence That Retaliation Claims Are Unlike Other Employment Discrimination Claims, David S. Sherwyn, Zev J. Eigen

Center for Hospitality Research Publications

The type of discrimination claim that strikes fear in the hearts of all employers is the dreaded retaliation claim. While employers contend, and plaintiffs admit, that retaliation is different from other discrimination complaints, employee advocates have put forth legislation that would equalize retaliation with the other types of discrimination. This bill, Protecting Older Workers against Discrimination Act (POWADA), would expand the so-called mixed-motive jury instruction to age, and disability, as well as retaliation. Moreover, it would allow plaintiffs, not judges, to decide which types of instruction the jury would receive. In this article, the authors argue that retaliation claims should ...


The United States Supreme Court Rules In Favor Of Employees In The Young And Abercrombie Cases: What Do They Really Hold?, David S. Sherwyn, David B. Ritter Nov 2015

The United States Supreme Court Rules In Favor Of Employees In The Young And Abercrombie Cases: What Do They Really Hold?, David S. Sherwyn, David B. Ritter

Center for Innovative Hospitality Labor and Employment Relations Reports

Two recent decisions by the U.S Supreme Court have been characterized as “losses” for employers, and “wins” for employees who wish to have workplace accommodations due to their particular situations. Those perceptions are demonstrated in the popular press reports regarding the decisions, shown in the sidebar on the next page. While the employee indeed prevailed in both of those Supreme Court holdings, neither one indicates that the sky is falling for employers nor that nirvana has been reached for employees. Instead, the Young and Abercrombie decisions are so narrow that it is nearly impossible to determine what they really ...


Retaliation: The Fastest-Growing Discrimination Claim, David Sherwyn, Zev Eigen, Gregg Gilman Nov 2006

Retaliation: The Fastest-Growing Discrimination Claim, David Sherwyn, Zev Eigen, Gregg Gilman

Articles and Chapters

Many employers were shocked and alarmed when the U.S. Supreme Court in June 2006 unanimously established a relatively broad standard regarding employees’ complaints of retaliation by employers when employees have made discrimination complaints. An examination of case law as well as comments made by those attending the 2006 Labor and Employment Law Roundtable at the Cornell University School of Hotel Administration allow us to conclude that although employees who make complaints need to be treated carefully, employers need not panic. Instead, they must thoroughly document any personnel actions and base them on actual performance, making sure that any termination ...


You (Don’T) Look Marvelous: Considerations For Employers Regulating Employee Appearance, G. Roger King, Jeffrey D. Winchester, David Sherwyn Nov 2006

You (Don’T) Look Marvelous: Considerations For Employers Regulating Employee Appearance, G. Roger King, Jeffrey D. Winchester, David Sherwyn

Articles and Chapters

Under federal law, employers are generally allowed to set policies regulating employees’ appearance, provided that those policies do not impinge on groups specifically protected under federal statute. State and local laws, however, may preclude employers from implementing such dress and appearance policies. Employers whose workers are unionized must consider the provisions of the bargaining agreement. One trend in connection with regulations relating to employees’ appearance and dress is that creative lawyers have stretched the law to cover certain workers.


Because It Takes Two: Why Post-Dispute Voluntary Arbitration Programs Will Fail To Fix The Problems Associated With Employment Discrimination Law Adjudication, David S. Sherwyn Jan 2003

Because It Takes Two: Why Post-Dispute Voluntary Arbitration Programs Will Fail To Fix The Problems Associated With Employment Discrimination Law Adjudication, David S. Sherwyn

Articles and Chapters

For more than a decade, the employment law community, including the plaintiffs’ bar, the defense bar, and a cavalcade of academicians, has fiercely debated the use (or misuse, as some argue) of arbitration for the adjudication of federal and state employment law cases. The majority of the cases at issue in the debate are wrongful termination cases. In most wrongful termination cases, ex-employees allege that their ex-employers, or their employer’s alleged agents, harassed or otherwise discriminated against them, which resulted in their termination (or other adverse action). Resolution of such cases, whether via litigation, arbitration, or any other alternative ...


In Defense Of Mandatory Arbitration Of Employment Disputes: Saving The Baby, Tossing Out The Bath Water, And Constructing A New Sink In The Process, David S. Sherwyn, J. Bruce Tracey, Zev J. Eigen Jan 1999

In Defense Of Mandatory Arbitration Of Employment Disputes: Saving The Baby, Tossing Out The Bath Water, And Constructing A New Sink In The Process, David S. Sherwyn, J. Bruce Tracey, Zev J. Eigen

Articles and Chapters

[Excerpt] In its 1991 Gilmer v. Interstate/Johnson Lane Corp.decision, the Supreme Court held that employers could require as a condition of employment that employees agree to arbitrate their Age Discrimination in Employment Act ("ADEA") claims unless the employees could prove that Congress had "evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Subsequently, lower courts extended Gilmer to cover other discrimination claims, including those arising under Title VII of the Civil Rights Act of 1964("Title VII") and the Americans with Disabilities Act("ADA"). In its 1998 Duffield v. Robertson Stephens ...