Law Commons^™

The Uncertain State Of Employee Nonsolicitation Clauses In California, Elena K. Kouvabina

Elena K Kouvabina

Employee nonsolicitation clauses continue to be a common feature of employment agreements in California. While Section 16600 of the California Business and Professions Code prohibits contractual restraints on the practice of a lawful profession, trade or business, in 1985, the California Court of Appeal held that employee nonsolicitation clauses do not violate Section 16600 because they do not significantly affect employees’ ability to engage in a lawful profession, trade or business. In a recent decision, however, the California Supreme Court pronounced that Section 16600 is violated even if a covenant does not completely preclude one from engaging in a lawful …

Statistical Evidence On The Gender Gap In Law Firm Partner Compensation, Marina Angel, Eun Young Whang, Rajiv Banker, Joseph F. Lopez

Marina Angel

Our study compiled the largest research sample on the gender gap in compensation at the 200 largest law firms by combining two large databases to examine why women partners are compensated less: because they are less productive than men partners or because they are women. The AmLaw 100 and 200 studies include gross revenue, profits, number of equity and non-equity partners, and the total number of lawyers at each firm. The Vault/MCCA Law Firm Diversity Programs study (Vault/MCCA) includes the gender ratios at each AmLaw 200 firm. Our study covers the years 2002 to 2007.

The ratio of women equity …

Lowering The Threshold: Establishing Mental Disability Employment Discrimination Claims After The Ada Amendments Act (Updated 9/22/10), Susan Z. Dunn

Susan Z Dunn

2010 marks the 20th anniversary of the passage of The Americans with Disabilities Act. Created to protect the interests of all disabled, physical and mental, the ADA was the first comprehensive civil rights legislation of its kind. This article will review the ADA’s original employment provisions, focusing on the threshold question of what is a disability. Further, it will discuss the U.S. Supreme Court cases that, in fact, raised the statutory threshold – making it more difficult for a mentally disabled claimant to qualify as “disabled.” Finally, the article will examine the recent changes to the law brought forth by …

Private Ordering Of Employee Privacy: Protecting Employees’ Expectations Of Privacy With Implied-In-Fact Contract Rights, Lindsay Noyce

Lindsay Noyce

With the growth of technology in the workplace, employee privacy is an increasingly significant legal issue. Employees, perhaps irrationally, often overestimate the amount of privacy they should expect in technological communication. A decision issued by the United States Supreme Court in June 2010, City of Ontario v. Quon, highlights the importance of privacy in the workplace and employees’ expectations of privacy. Employee privacy is protected by various constitutional, tort, and statutory causes of action; however, each of these theories has limitations, failing to protect some reasonable expectations of privacy. The implied-in-fact contract is a theory that has been recognized by …

The Underwhelming Impact Of The Americans With Disabilities Act Amendments, Stacy A. Hickox

Stacy A. Hickox

The 2008 amendments to the Americans with Disabilities Act (ADA) were intended to expand the protection against discrimination for persons with disabilities beyond the Supreme Court’s narrow interpretation of who is “disabled.” While the amendments and the proposed Equal Employment Opportunity Commission regulations address some of the Court’s narrow interpretations of the ADA, lower courts may still be able to limit coverage of persons with disabilities who are still able to perform tasks which utilize the major life activity which is limited by their impairment, and persons who have impairments with temporary or intermittent effects. Claimants may also be excluded …

Neoformalism And The Reemergence Of The Rights/Privilege Distinction In Public Employment Law, Paul Secunda

Paul M. Secunda

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although …

Workplace Bullying As An Occupational Safety And Health Matter: A Comparative Analysis, Susan Harthill

Susan Harthill

Workers who are bullied at work suffer physically and mentally, and can even be driven to suicide. There ought to be a law against workplace bullying, and in some countries, there is. Despite a growing body of inter-disciplinary work highlighting the prevalence and costs of workplace bullying in the United States, there are currently no U.S. state or federal laws expressly addressing the issue, despite the ground breaking work and legislative efforts of workplace bullying pioneers, David Yamada and Drs. Ruth and Gary Namie. The dismal fact for American workers is that the United States lags behind many other countries …

Stopping A Vicious Cycle: The Problems With Credit Checks In Employment And Strategies To Limit Their Use, Sharon Goott Nissim

Sharon Goott Nissim

This paper explores a new and increasingly common phenomenon: the use of credit checks by employers to evaluate potential and current employees. This practice has profound implications in this current weak economy, as those who most need jobs often are the ones turned away due to bad credit. The use of credit checks also has a disproportionate effect on racial minorities as statistically they tend to have worse credit than non-minorities. Employers often assert that credit checks are necessary, despite the lack of hard data proving a link between poor credit and poor job performance.

This paper examines two ways …

Teaching In A Democracy: Why The Garcetti Rule Should Apply To Teaching In Public Schools, Paul Forster

Paul Forster

This article examines an important yet unsettled First Amendment issue—whether the rule of Garcetti v. Ceballos should extend to teaching in public schools. In Garcetti, the Supreme Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Yet the Court expressly declined to decide whether this principle should extend to “scholarship or teaching,” leaving lower courts to decide the issue for now. Despite the large number of publicly employed teachers and professors, lower courts have yet …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines, from a theoretical standpoint, the possibility of expanding the definition of "sexual orientation" in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of "sexual orientation" is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered …

The Causal Relationship Of Sex, Pregnancy, Lactation, And Breastfeeding And The Meaning Of "Because Of . . . Sex" Under Title Vii, L. Camille Hebert

L. Camille Hebert

This article explains the decisions of a number of courts that have found that lactating and breastfeeding women are not entitled to the protections of Title VII and explains why those decisions are wrong. The article then explains how these issues should be treated under the normal application of Iitle VII principles, including the scope of protected groups generally and principles of sexual stereotyping, and discusses how the theories of disparate treatment and dipsrate impact would be applied to claims of discrimination against lactating women. Finally, the article explores why the recent enactment of a provision in the Health Care …

Translation Services Not Required: The Civil Rights Act Of 1964 Does Not Require Special Accommodations For Limited English Proficiency Individuals, Carrie L. Flores

Carrie L. Flores

Is an employer or health care provider required to provide special accommodations to applicants or patients unable to speak English proficiently? If so, to what extent must they accommodate them? Must they provide free translation services? This scenario sets forth a hotly contested issue: whether Limited English Proficiency (LEP) individuals are entitled to receive special accommodations.

The Civil Rights Act (“CRA”) prohibits discrimination based on national origin. However, the CRA does not clearly answer whether an LEP individual is entitled to receive special accommodations because of his LEP status. Notwithstanding this, President Clinton issued an executive order requiring recipients of …

Plausibly Pleading Employment Discrimination, Charles A. Sullivan

Charles A. Sullivan

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. Further, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been understood while the latter …

The Need For A Revitalized Regulatory Scheme To Address Workplace Bullying In The United States: Harnessing The Federal Occupational Safety And Health Act., Susan Harthill

Susan Harthill

This paper explores the potential for harnessing the OSH Act and the OSHA regulatory apparatus to tackle the widespread problem of workplace bullying. Workplace bullying is a phenomenon that has attracted a considerable amount of domestic and international inter-disciplinary attention. It can be described as psychological or emotional abuse occurring regularly, repeatedly, and over a period of time. Common types of overt behavior include constant criticism, shouting and verbal abuse, persistently picking on the victim, and repeatedly assigning unreasonable or impossible targets or deadlines. In an earlier article, I explained how the experience of the United Kingdom in combating workplace …

"Polyamory As A Sexual Orientation", Ann E. Tweedy

Ann E. Tweedy

This article examines the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. It first looks at the fact that the current definition of “sexual orientation” is very narrow, being limited to orientations based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and …

Guest Worker Programs Are No Fix For Our Broken Immigration System: Evidence From The Northern Mariana Islands, Dorothy E. Hill Professor

Dorothy E. Hill Professor

The creation of a large-scale unskilled guest worker program has been a prominent element of comprehensive immigration reform proposals in recent years. This year it was featured as one of the “four pillars” of a reform framework endorsed by the Obama Administration. The principal ills that are cited as justifying immigration reform include the deterioration of border security, the violence associated with human smuggling, and the widespread mistreatment of unauthorized immigrants. Many believe that a large-scale guest worker program will help to resolve these problems by providing a lawful channel to divert the flow of unauthorized workers. This article argues …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is …

Creating A Workable Legal Standard For Defining An Independent Contractor, Elizabeth Milito

Elizabeth Milito

The attached Article proposes a workable legal standard for defining an independent contractor. Determining whether a particular worker should be classified as an employee or an independent contractor currently depends upon fact-specific circumstances of the working relationship. Although current legal approaches are meant to be flexible, the open-endedness of the current tests means that many business owners struggle with fitting their employees into the proper categories. Furthermore, inconsistent standards among both state and federal agencies increase the legal uncertainty that business owners face. As the number of businesses using non-traditional work arrangements increases, the problem is likely to become more …

Passing The Buck In Tenure Decisions: The Increasing Risk Of Judicial Intervention Under The Equal Protection Clause, Roger W. Reinsch, Mathew K. Titus, Amy B. Hietapelto

Roger W. Reinsch

This article concerns a common practice of having varying research requirements for tenure among the departments in a college of business. It is argued that such variations could created a legal issue under the Equal Protection Clause.

Hotness Discrimination: Appearance Discrimination As A Mirror For Reflecting On The Body Of Employment Discrimination Law, William R. Corbett

William R. Corbett

Abstract for Hotness Discrimination: Appearance Discrimination as a Mirror for Reflecting on the Body of Employment Discrimination Law William R. Corbett This essay considers the topic of appearance-based employment discrimination. The essay introduces the topic by juxtaposing the “hot” story of the summer, the bank employee who claims that she was fired for “being too hot,” with Professor Deborah Rhode’s recently published book, The Beauty Bias: The Injustice of Appearance in Life and Law. In the essay, I argue that although appearance discrimination is one of the most common forms of discrimination in employment and other areas of life and …

Review Of 'Understanding Labor And Employment Law In China' By Ronald C. Brown, Nicholas C. Howson

Law & Economics Working Papers

Review of Ronald C. Brown's UNDERSTANDING LABOR AND EMPLOYMENT LAW IN CHINA (Cambridge University Press, 2010) which review describes an alternative way of describing and analyzing law and legal institutions in contemporary China generally, and labor law specifically.

Marginal Whiteness, Camille Gear Rich

Camille Gear Rich

How are whites injured by minority-targeted racism? For years, American antidiscrimination scholars and judges have not looked beyond the familiar answers provided by Civil Rights Era norms. According to these norms, the primary injuries whites suffer due to minority targeted discrimination are denial of the enjoyment of a colorblind workplace or frustration of their interest in diversity, including the opportunity to associate with minorities. Consistent with this view, Title VII interracial association doctrine — the vehicle that permits whites to sue for minority targeted discrimination in the workplace — only recognizes these two narrow categories of injury. However, review of …

Ricci V. Destefano And Disparate Treatment: How The Case Makes Title Vii And The Equal Protection Clause Unworkable, Allen R. Kamp

Allen R. Kamp

ABSTRACT

Ricci v. DeStefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important. The majority and concurring opinions make proving disparate treatment much easier than under prior law, in a way that may utterly defeat that cause.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII, “anti-subordination” and “anti-classification.” The …

Adhd And The New Americans With Disabilities Act: Expanded Legal Recognition For Cognitive Disorders, John P. Heekin

John P. Heekin

The author assesses the likely impact of the recent amendments to the Americans with Disabilities Act of 1990, broadening the definition of a “disability,” upon the legal treatment of discrimination claims from individuals with cognitive disorders, such as Attention-Deficit Hyperactivity Disorder (ADHD). The paper begins with a review of the symptoms, diagnosis and treatments of ADHD, noting that remedies for the disorder fail to fully “normalize” its effects, leaving individuals impaired in relation to their peers. The author then presents the original ADA and its administrative interpretation issued in the Equal Employment Opportunity Commission’s Compliance Manual. From there, the paper …

Civil Rights Claims & Unaffordable Arbitration: Lack Of Employee Access To Arbitration, Christopher C. Cooper Dr.

Christopher C. Cooper Dr.

The decision by the New York Court of Appeals in Brady v. The Williams Capital Group, L.P., 2010 WL 1068163 (N.Y. Mar. 25, 2010) should cause us to note that some employer mandated arbitration agreements not only take away an employee’s right to sue the employer in court, but as well, impose arbitration costs\expenses on the employee. The employee who lacks funds is unable to make use of the arbitration process. An arbitration provision is not rendered inherently unconscionable because some of the arbitration costs will be imposed on the claimant. See Zobrist v. Verizon Wireless, 354 Ill. App. 3d …

The Frontier Of Affirmative Action: Employment Preferences And Diversity In The Private Workplace, Corey A. Ciocchetti, John Holcomb

Corey A Ciocchetti

The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backward-looking to forward-looking. The Remedial Rationale – …

Consider The Source: When The Harasser Is The Boss, Susan Grover

Susan Grover

This essay identifies a gap in harassment doctrine that biases results in employers’ favor. The current doctrine requires courts to assess the seriousness of harassment, but gives no role in that analysis to the harasser’s identity. Yet harassment at the hands of one’s supervisor is far more harmful than harassment at the hands of a co-equal employee. This essay argues that the doctrine should be corrected to reflect that fact.

The Telltale Sign Of Discrimination: Probabilities, Information Asymmetries, And The Systemic Disparate Treatment Theory, Jason R. Bent

Jason R Bent

The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International B’hood of Teamsters, 431 U.S. 324, 360-61 (1977), the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a “pattern or practice” of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about …

The Wild West Of Supreme Court Employment Discrimination Jurisprudence, Henry L. Chambers Jr.

South Carolina Law Review

No abstract provided.