Labor and Employment Law Commons^™

Disability And Employment Discrimination At The Rehnquist Court, Anita Silvers, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Re-Defining Superwoman: An Essay On Overcoming The "Maternal Wall" In The Legal Workplace, Nicole B. Porter

Faculty Publications

As Professor Joan Williams comments, most women never even approach the glass ceiling; they are "stopped dead, long beforehand, by the maternal wall." The maternal wall affects women with children in many aspects of their jobs, including hiring, promotions, pay, and even terminations. It is difficult for mothers to perform as ideal workers, because pregnancy, maternity leave, and the continual demands of child-rearing inevitably cause them to be absent from work. In addition, because mothers are not similarly situated to men or women without children, courts permit employers to treat them differently, which usually means they are treated more poorly. …

Emergency Preparedness And Disability, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Disability, Disparate Impact, And Class Actions, Michael Ashley Stein, Michael E. Waterstone

Faculty Publications

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons …

Deferred Compensation Reform: Taxing The Fruit Of The Tree In Its Proper Season, Eric D. Chason

Faculty Publications

Executive pensions (or deferred compensation) grabbed headlines after Enron's collapse and fresh concerns over ever-increasing executive pay. They also grabbed the attention of Congress, which reformed executive pensions legislatively in 2004 with § 409A of the Internal Revenue Code. Section 409A merely tightens and clarifies the doctrines that had already governed executive pensions, leaving the basic economics of executive pensions unchanged. Executives can still defer taxation on current compensation until actual payment is made in the future. Deferral still comes at the same price to the employer, namely the deferral of its deduction for the compensation expense. Thus, the timing …

Victimizing The Abused?: Is Termination The Solution When Domestic Violence Comes To Work?, Nicole B. Porter

Faculty Publications

Domestic violence occurs in the workplace more frequently than one might presume. Workplace violence is the number one cause of death for women in the workplace in part because of domestic violence spillover, where an abuser harms his victim as well as any co-workers who try to intervene.

The conflict between domestic violence and the workplace is often exposed in its rawest state when a victim of domestic violence is considered to be a threat to the workplace by her employer.

The initial reaction of most people when hearing of [a] hypothetical [in which an employer fires a domestic violence …

Brief For The Lawyers' Committee For Civil Rights Under Law; Aarp; The American Civil Liberties Union Foundation; The Legal Aid Society – Employment Law Center; The National Asian Pacific American Legal Consortium; The National Association For The Advancement Of Colored People; The National Employment Lawyers Association; The National Partnership For Women And Families; The National Women's Law Center; And Now Legal Defense And Education Fund; As Amici Curiae In Support Of Respondent, Susan Grover, Patricia E. Roberts, Barbara R. Arnwine, Thomas J. Henderson, Michael L. Foreman, Sarah R. Crawford, Audrey Wiggins

Briefs

No abstract provided.

Same Struggle, Different Difference: Ada Accommodations As Antidiscrimination, Michael Ashley Stein

Faculty Publications

The Americans with Disabilities Act (ADA) was heralded as an "emancipation proclamation" for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this prevalent belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by …

Book Review Of Gender On Trial: Sexual Stereotypes And Work/Life Balance In The Legal Workplace, Nicole B. Porter

Faculty Publications

Holly English's book, Gender on Trial: Sexual Stereotypes and Work/Life Balance in the Legal Workplace, offers a very interesting, albeit mostly anecdotal, look at the many real or perceived sexual stereotypes in the legal workplace. Her book is the result of interviews with 180 lawyers (fifty of them men) over a two-year period in all regions of the country. Her main purpose of the book was to "explore the fact that persistent gender stereotypes present a continuing obstacle that obstructs the availability of broad opinions and choices for men and women lawyers." Through eight substantive chapters, she seeks to explore …

Book Review Of The Home Office And The Dangerous Trades: Regulating Occupational Disease In Victorian And Edwardian Britain, Michael Ashley Stein

Faculty Publications

No abstract provided.

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Sex Plus Age Discrimination: Protecting Older Women Workers, Nicole B. Porter

Faculty Publications

There is little doubt that sexism and ageism still exist. To remedy these "isms," there are laws to protect both women and older workers from discrimination in the workplace, namely Title VII of the Civil Rights Act of 1964 ("Title VII"), which prohibits sex discrimination as well as discrimination based on many other protected categories, and the Age Discrimination in Employment Act of 1967 ("ADEA"), which prohibits age discrimination. Despite these protections, an older woman cannot bring a claim based on the fact that she feels she was discriminated against because she is an older woman. In other words, her …

Priestley V. Fowler (1837) And The Emerging Tort Of Negligence, Michael Ashley Stein

Faculty Publications

Priestly v. Fowler has long been noted as the source of the doctrine of common employment. This Article, however, argues that the case is better understood in the context of the then-emerging independent tort of negligence-specifically, as an unsuccessful attempt to require of masters a duty of care towards their servants. The Article re-examines the facts, arguments, personalities, and various reported versions of the case in tracing the effort to establish a new duty of care. The Article traces, as well, to another case, Hutchinson v. York, the true origins of the common employment doctrine. Finally, the Article compares the …

Book Review Of Against Equality Of Opportunity, Michael Ashley Stein

Faculty Publications

No abstract provided.

After Ellerth: The Tangible Employment Action In Sexual Harassment Analysis, Susan Grover

Faculty Publications

In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability far supervisors' unlawful sexual harassment of subordinates. The Article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington Indus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer …

Disability, Employment Policy, And The Supreme Court, Michael Ashley Stein

Faculty Publications

No abstract provided.

Contract Rights And Civil Rights, Davison M. Douglas

Faculty Publications

No abstract provided.

Section 1: Adarand Constructors V. Mineta, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 7: Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

War, Society, And Disability: Some Thoughts On Applying Under-Utilized Methodologies, Michael Ashley Stein

Faculty Publications

No abstract provided.

Hardball, Politics, And The Nlrb, Michael Ashley Stein

Faculty Publications

No abstract provided.

Fulfilling The Bargain: How The Science Of Ergonomics Can Inform The Laws Of Workers’ Compensation, Jason M. Solomon

Faculty Publications

In the last decade, cumulative trauma disorders have become a significant percentage of reported workplace injuries and litigated workers'compensation claims. Arising from the accumulated impact of daily work activities on the body, these injuries do not fall neatly within "disease" categories which comprise workers' compensation laws. As a result, courts and legislatures have struggled to properly evaluate workers' compensation claims for these injuries. This Note looks at the legal treatment of cumulative trauma injuries in light of the "original bargain" of workers' compensation, where workers give up a tort remedy against their employers in exchange for guaranteed, but limited, compensation …

Section 4: Civil Rights & Employment Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Labor Markets, Rationality, And Workers With Disabilities, Michael Ashley Stein

Faculty Publications

No abstract provided.

Marital Status Discrimination: A Proposal For Title Vii Protection, Nicole B. Porter

Faculty Publications

Marital status is not one of the protected categories of Title VII of the Civil Rights Act of 1964, the federal antidiscrimination statute that governs discrimination in employment. This Article will argue that to avoid the types of inequities caused by marital status discrimination, it is necessary for Title VII to protect employees against marital status discrimination.

The more common claims of marital status discrimination are claims that an employer's no-spouse rule or antinepotism policy violates the state antidiscrimination statute. [These policies have two significant problems.] First of all, many courts fail to look at the widely disparate consequences of …

Empirical Implications Of Title I, Michael Ashley Stein

Faculty Publications

No abstract provided.

Civil Rights Act Of 1991 -- Employer Liability For Punitive Damages In Title Vii Claims, Angela M. Banks

Faculty Publications

No abstract provided.

Book Review Of Employment Discrimination Law, James S. Heller

Library Staff Publications

No abstract provided.

The Business Necessity Defense In Disparate Impact Discrimination Cases, Susan Grover

Faculty Publications

No abstract provided.

Section 5: Moot Court: Harris V. Forklift Systems, Inc., Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.