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Table Of Contents

Seattle University Law Review

Table of Contents

Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …

Will Conservative Justices Sound The Death Knell Of State Action? Be Careful For What You Wish, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.

Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie

ConLawNOW

Soon after the United States Supreme Court’s decision in Obergefell v. Hodges, some elected officials and civil servants objected to the requirement that same-sex couples be offered marriage licenses. In particular, they argued that a government employee whose job duties include issuing marriage licenses cannot be forced to do so if it would violate his or her religion’s dictates. This piece argues that position is unavailing as it ignores the jurisprudence construing the free exercise clause of the First Amendment as well as the mandate created by the Court’s interpretation of the Fourteenth Amendment in Obergefell.

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins

Kayla Higgins

On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …

Constitional Basis And Implications Of Federal Collective Bargaining Legislation For State And Local Employees, Ronald C. Brown

Ronald Brown

No abstract provided.

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

Elizabeth Dale

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

But We Were Born Free: The Racial & Sexual Quota As A Constitutiional Bill Of Attainder, David D. Butler

David D. Butler

Racial & Sexual Quota Schemes meet or equal every constitutionial forbidden practice ennumerated in the bar against government's use of bills of attainder or bills of pains and penalities.

Profit Sharing: An Alternative Minimum Wage Model, Nicholas Parker

Nicholas Parker

No abstract provided.

Freedmen And Day Laborers: Why Enforcement Matters, Raja Raghunath

Raja Raghunath

As the one hundred and fiftieth anniversary of Emancipation approaches, there is a cautionary lesson for modern workers from the period that followed the abolition of chattel slavery. Reconstruction, after the Civil War, was the moment when the promise of universal liberty to work first became part of the American state’s covenant with its people. But this promise was quickly lost, as the rights that the federal government extended to the freed slaves – the freedmen – were contested and eventually nullified by vehement opposition in the working fields and cities of the South. In this sense, workers’ rights were …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Fundamental Nature Of Title Vii, Maria Ontiveros

Maria L. Ontiveros

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title …

In Favor Of Restoring The Sherbert Rule - With Qualifications, Jesse H. Choper

Jesse H Choper

No abstract provided.

Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed

Abraham Z Melamed

No abstract provided.

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Unions, Corporations, And The First Amendment: A Response To Professors Fisk And Chemerinsky, Todd E. Pettys

Todd E. Pettys

In this response to Professor Fisk and Chemerinsky’s critique of the Supreme Court’s ruling in Knox v. SEIU Local 1000, I make two arguments. First, I challenge the premise of shareholder-employee equivalency that undergirds key portions of Fisk and Chemerinsky’s analysis. Second, I contest the claim that Knox contributes to incoherence in the Court’s First Amendment jurisprudence. Specifically, I challenge Fisk and Chemerinsky’s argument that Knox is difficult to reconcile with the Court’s leading precedents on the speech rights of government employees, and I raise doubts about their reading of the Court’s compelled-speech cases involving complaints that one’s resources are …

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Social Protection Afforded To Irregular Migrant Workers: Thoughts On International Norms, The Southern African Development Community, Botswana And South Africa, Bruno Ps Van Eck, Felicia Snyman

Bruno PS Van Eck

The majority of migrant workers target those countries in southern Africa that have stronger economies. Irregular migrants are in a particularly vulnerable position, and this article discusses the protection that this category of persons may expect to experience in the southern African region. The authors recommend that the broad notion of “social protection”, rather than the narrower concept “social security” should be emphasized. International, continental and regional instruments providing protection to irregular migrants are traversed and the constitutional and legislative frameworks in relation to social protection in Botswana and South Africa are compared. The article concludes that there are significant …

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

More than four decades ago, the Supreme Court concluded that Title VII of the Civil Rights Act of 1964’s prohibition on racial discrimination in employment is properly construed to forbid “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” that nevertheless “operate as ‘built-in headwinds’ for minority groups . . . that are unrelated to testing job capability.” In the Civil Rights Act of 1991, Congress codified liability for cases in which an employer “uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Less Than Meets The Eye: Anti-Discrimination And The Development Of Section 5 Enforcement And Eleventh Amendment Abrogation Law Since City Of Boerne V. Flores, Justin Schwartz

Justin Schwartz

The conventional wisdom is that the Supreme Court's interpretation of the Eleventh Amendment since City of Boerne has raised the bar for Congress to pass anti discrimination legislation and made it far more difficult for plaintiffs to sue the states and state agencies. I show, by close analysis of the Court's case law on state sovereign immunity and Congress' Section 5 power to abrogate that immunity, that this is a misreading.

As the jurisprudence developed from Boerne, Kimel (age discrimination) and Garrett (disability discrimination in employment) to Hibbs (sex discrimination) and Lane (disability discrimination in public accommodations), the Court has …

The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman

Faculty Publications

This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.

The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …

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 – …

Forced Labor, Revisited: The Thirteenth Amendment And Abortion, Andrew Koppelman

Faculty Working Papers

Many recent works on the Thirteenth Amendment break new ground, deploying the amendment in new and creative ways. This is not one of them. I here restate an argument I made twenty years ago, defending abortion rights on the basis of the amendment. I then consider how the work was received, offer some amendments to the argument, and conclude with some reflections on how, perhaps, it can have more influence in the future.

Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros

Maria L. Ontiveros

This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration …

Recent Decisions, Phoebe A. Haddon

Phoebe A. Haddon

No abstract provided.

Speaking Against Norms: Public Discourse And The Economy Of Racialization In The Workplace, Terry Smith

American University Law Review

Free speech controversies erupt from reactions to outlier voices, and these voices are often those of subordinated citizens such as racial minorities. Employing the tools of narrative, interviews with litigants and subjects, and interdisciplinary analysis of case law, Professor Terry Smith probes whether the social inequality of government employees of color affects the rigor of the First Amendment protection afforded their speech. Professor Smith argues that all public sector employees lack sufficient protection because their speech typically does not receive the highest constitutional scrutiny and because of the Supreme Court's recent decision in Garcetti v. Ceballos, which stripped public sector …

The Thirteenth Amendment And Access To Education For Children Of Undocumented Workers: A New Look At Plyler V. Doe, Maria Ontiveros, Joshua Drexler

Maria L. Ontiveros

This paper examines the extent to which the Thirteenth Amendment can be used to guarantee access to public education for the children of undocumented workers. It offers a reimagined version of Plyer, written using the Thirteenth Amendment, instead of the Fourteenth Amendment. After offering a brief summary of Thirteenth Amendment jurisprudence, it offers a variety of theoretical frameworks for analyzing the denial of education under the U.S. Constitution. It argues that the Thirteenth Amendment can provide a powerful tool for litigation, moral persuasion, organizing and legislation in the area.