Labor and Employment Law Commons^™

Disrupting Adhesion Contracts With #Metoo Innovators, Xuan-Thao Nguyen

Articles

Adhesion contracts are everywhere. Take it or leave it, the dominant party holds the leverage while the weaker party adheres. Ninety percent of employment contracts contain mandatory arbitration clauses, and attempts to challenge arbitration requirements meet with judicial indifference or hostility. Ultimately, arbitration clauses eviscerate the employee's right to a jury trial and access to the court system in general. In recent years, employers in the tech sector have faced unexpected resistance from innovators. Just as innovators are known for disrupting old business models through technological innovations, #MeToo reformers are disrupting the seemingly insurmountable adhesion contract regime. They organize, protest, …

Brief In Opposition. Idaho Department Of Corrections V. Fuller, 138 S.Ct. 1345 (2018) (No. 17-959), Eric Schnapper, Ericka Birch, Kass Hartstad

Court Briefs

QUESTION PRESENTED The court of appeals concluded that a reasonable jury could find that actions by supervisors at the Idaho Department of Corrections created a hostile work environment. Petitioner does not seek review of that holding. The question presented is: Did the court of appeals err in concluding that the record contained sufficient evidence to permit a reasonable jury to infer that the actions of those supervisors were gender-based?

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

Articles

The Genetic Information Nondiscrimination Act of 20081 ("GINA") is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual's genetic information, with some exceptions.

One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us -the use …

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

Articles

The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of …

The Customer Is Always Right . . . Not!: Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn

Articles

This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?

The thesis of this article is that third party sexual harassment is a prevalent form of harassment that the legal system does not currently …

From Office Ladies To Women Warriors?: The Effect Of The Eeol On Japanese Women, Jennifer S. Fan

Articles

In this Article, Jennifer Fan argues that existing laws in Japan do not adequately protect working women from sex discrimination. Specifically, Fan examines the Equal Employment Opportunity Law (EEOL), a law designed to prevent discrimination against women in the workplace, and concludes that the EEOL is little more than a paper tiger that preserves the status quo. After briefly discussing the legal sources of protection for working women in Japan before the passage of the EEOL, Fan examines the creation of the EEOL, its substantive provisions, and its legal impact. Through her analysis of recent sexual harassment cases in light …

Some Of Them Still Don't Get It: Hostile Work Environment Litigation In The Lower Courts, Eric Schnapper

Articles

This Article describes how the courts of appeals have decided sexual harassment cases in the five years since Harris v. Forklift Systems, Inc., 510 US 17 (1993). In some circuits, events have unfolded largely as Justice Scalia anticipated: the trier of fact—ordinarily a jury—applies the hostile work environment standard announced in Meritor and elaborated upon in Harris.