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Articles 1 - 10 of 10
Full-Text Articles in Labor and Employment Law
Rethinking Erisa's Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik
Rethinking Erisa's Promise Of Income Security In A World Of 401(K) Plans, Lawrence A. Frolik
Articles
This article discusses the evolution of retirement income funds from defined benefit packages to 401(k) and IRA accounts and how the changing dynamic has reshaped the way retirees think about post-retirement income. The article outlines the mechanics of 401(k) accounts and rollover IRAs in the post-retirement period and presents questions about the ability of retirees to successfully address the complex issues relating to investment choices including, what entity they entrust their savings to, the volume and source of distributions, and long-term sufficiency planning. The article suggests that an increase in the use of annuities may help to resolve some of …
Retaliation In An Eeo World,, Deborah L. Brake
Retaliation In An Eeo World,, Deborah L. Brake
Articles
This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies …
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Tortifying Retaliation: Protected Activity At The Intersection Of Fault, Duty, And Causation, Deborah L. Brake
Articles
In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation …
The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim
The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim
Articles
In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …
Toward An "Unqualified" Otherwise Qualified Standard: Job Prerequisites And Reasonable Accommodation Under The Americans With Disabilities Acts, John E. Rumel
Articles
No abstract provided.
At The Tipping Point: Race And Gender Discrimination In A Common Economic Transaction, Lu-In Wang
At The Tipping Point: Race And Gender Discrimination In A Common Economic Transaction, Lu-In Wang
Articles
This Article examines the ubiquitous, multibillion dollar practice of tipping as a vehicle for race and gender discrimination by both customers and servers and as a case study of the role that organizations play in producing and promoting unequal treatment. The unique structure of tipped service encounters provides plenty of opportunities and incentives for the two parties to discriminate against one another. Neither customers nor servers are likely to find legal redress for the kinds of discrimination that are most likely to occur in tipped service transactions, however, because many of the same features of the transaction that promote discrimination …
Tenure, The Aberrant Consumer Contract, James J. White
Tenure, The Aberrant Consumer Contract, James J. White
Articles
This symposium concerns asymmetric contracts, usually contracts where one party has great power and the other has little. The papers deal generally with contracts between consumers who get a “take it or leave it” offer and corporations such as Hertz, Microsoft, Verizon, and General Motors who draft the contracts according to their wishes. In almost all of these asymmetric contracts the stronger (corporations) writes the terms and presents them to the weaker (consumers) for signing without negotiation. Indeed the corporate agent with whom the consumer deals (e.g., the person at the Hertz desk) has no authority to change the contract …
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos
Articles
Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.
Retaliation In The Eeo Office, Deborah L. Brake
Retaliation In The Eeo Office, Deborah L. Brake
Articles
This Article examines a new and as-yet unexplored development in retaliation law under Title VII and other anti-discrimination statutes: the denial of protection from retaliation to the class of employees charged with enforcing their employers’ internal anti-discrimination policies and complaint procedures. Through distinctive applications of traditional retaliation doctrine and newer rules formulated specifically for this class of employees, these workers are increasingly vulnerable to unchecked retaliation by their employers. This troubling trend has important implications for workplace retaliation law and for employment discrimination law more broadly. This Article makes two contributions to legal scholarship. First, it traces the legal doctrines …
Pensioners, Bondholders, And Unfair Discrimination In Municipal Bankruptcy, Andrew B. Dawson
Pensioners, Bondholders, And Unfair Discrimination In Municipal Bankruptcy, Andrew B. Dawson
Articles
Detroit recently confirmed its plan of debt adjustment under which the city has endeavored to adjust its pension obligations. The court's confirmation order and oral opinion on the record present what is perhaps the most significant decision regarding a key question facing any city attempting to adjust pensions in bankruptcy: can a city propose to pay its pension claimants significantly more than its other unsecured creditors? This question involves interpreting the Bankruptcy Code's unfair discrimination rule.
The Detroit bankruptcy court applied a novel interpretation of unfair discrimination, eschewing the relatively thin body of case law interpreting this rule, and suggesting …