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Articles 1 - 30 of 309
Full-Text Articles in Law
Protecting Protected Characteristics: Statutory Solutions For Employment Discrimination Post-Bostock, Chase Mays
Protecting Protected Characteristics: Statutory Solutions For Employment Discrimination Post-Bostock, Chase Mays
Vanderbilt Law Review
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Significantly, these protected characteristics are undefined, and judicial interpretations of race, sex, and national origin have allowed employers to lawfully discriminate against proxies for these protected characteristics. This Note examines the use of race-based hairstyles, gendered-appearance standards, and citizenship as proxies for race, sex, and national origin, respectively, and how the availability of such proxies inhibits Title VII’s goal of creating equal employment opportunities. The Supreme Court’s dicta in Bostock v. Clayton County offer potential redress to …
The Labor Gerrymander, Joel Heller
The Labor Gerrymander, Joel Heller
Vanderbilt Law Review
The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.
This Article interrogates the political-model analogy through the lens of …
The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock -- Assistant Professor Of Law, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics
The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolutio, Blair D. Bullock -- Assistant Professor Of Law, Joni Hersch -- Cornelius Vanderbilt Professor Of Law And Economics
Vanderbilt Law Review
The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop "secret settlements" by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.
But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …
Gender, Race, And Job Satisfaction Of Law Graduates, Joni Hersch
Gender, Race, And Job Satisfaction Of Law Graduates, Joni Hersch
Vanderbilt Law School Faculty Publications
Studies typically find that lawyers have high job satisfaction and that women are not less satisfied than are men. But racial differences as well as gender differences by race or ethnicity in satisfaction may be masked because most lawyers identify as racially White. To examine whether job satisfaction differs by race and whether gender and race/ethnicity have an intersectional relation to job satisfaction, I use data on nearly 13,000 law graduates drawn from six waves of the National Survey of College Graduates (NSCG) conducted between 2003 and 2019. The NSCG uniquely provides a large enough sample to examine intersectionality in …
Paid Sick Leave's Payoff, Jennifer B. Shinall
Paid Sick Leave's Payoff, Jennifer B. Shinall
Vanderbilt Law Review
Perhaps paid sick days have never been more valuable than during the COVID-19 pandemic. Yet even before COVID-19, seventeen states and the District of Columbia began passing legislative mandates that employers provide employees with paid sick leave (“PSL”) days. Most of this legislation requires employers to provide up to one week of PSL for both full- and part-time employees, which they can utilize with few notice or documentation requirements. Using the 2017–2018 American Time Use Survey Leave and Job Flexibilities Module, I first demonstrate that workers in PSL states are less likely to go to work sick, which may, in …
Without Accommodation, Jennifer B. Shinall
Without Accommodation, Jennifer B. Shinall
Vanderbilt Law School Faculty Publications
Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey's Leave and Job Flexibilities Module, …
Basketball On Strike: The All-Stars Of The Fight For Racial Equality, Sherif Robert Hesni Jr.
Basketball On Strike: The All-Stars Of The Fight For Racial Equality, Sherif Robert Hesni Jr.
Vanderbilt Journal of Entertainment & Technology Law
National Basketball Association players have a long history of fighting against racial injustice. In August 2020, players participated in the most attention-grabbing endeavor to date: a league-wide strike against racial discrimination in the United States. Refusing to play games entails financial risk for players because of a no-strike clause in the collective bargaining agreement between the National Basketball Players Association and National Basketball Association team governors. Team governors can fine, bench, or fire players for refusing to play. However, it may be infeasible to discipline players for attempting to fight for racial equality—-players are extremely important to the well-being of …
The Path To Employee Status For College Athletes Post-Alston, Tyler J. Murry
The Path To Employee Status For College Athletes Post-Alston, Tyler J. Murry
Vanderbilt Journal of Entertainment & Technology Law
College athletics are in a state of flux following the Supreme Court’s decision in NCAA v. Alston. While student athletes can now earn money from their name image and likeness (NIL) through endorsement deals, the NCAA and its member schools can still exploit college athletes to earn billions of dollars. To remedy this injustice, courts should classify student athletes as employees under the Federal Labor Standards Act (FLSA) to compensate these students for their work. Whether student athletes should be eligible for minimum wage and employment benefits has been a hot-button topic in the legal community for many years. Fortunately, …
The Ministerial Exception: Our Lady Of Guadalupe School And Antidiscrimination Employment Laws, Shelly A. Yeini
The Ministerial Exception: Our Lady Of Guadalupe School And Antidiscrimination Employment Laws, Shelly A. Yeini
Vanderbilt Journal of Transnational Law
The Ministerial Exception (ME) is a legal doctrine providing that antidiscrimination employment laws do not apply to the relationship between religious institutions and their ministers. Such a notion appears in various democracies, as it aims to confront a shared problem: the attempt to solve the clash between antidiscrimination employment laws and religious autonomy. Liberal democracies strive to protect employees from discrimination, as well as to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations. While being able to choose their staff is at the heart of the existence of religious institutions, the fulfillment of such …
Labor Organization In Ride-Sharing—Unionization Or Cartelization?, Mark Anderson, Max Huffman
Labor Organization In Ride-Sharing—Unionization Or Cartelization?, Mark Anderson, Max Huffman
Vanderbilt Journal of Entertainment & Technology Law
The sharing economy brings together the constituent parts of a business enterprise into a structure that, on its surface, resembles a business firm, but in crucial ways is nothing like the traditional firm. This includes the ownership of the primary capital assets used in the business, as well as one of the most fundamental features of a firm—the relationship with its labor force. Sharing economy workers are formally contractors, running small businesses as sole entrepreneurs, with the effect that they are excluded from many of the protections made available to workers across the economy. The result is a seeming disparity …
Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers
Employment Practices Liability Insurance And Ex Post Moral Hazard, Joni Hersch, Erin E. Meyers
Vanderbilt Law School Faculty Publications
Many businesses purchase Employment Practices Liability Insurance (EPLI), a form of insurance that protects them from claims of discrimination, harassment, retaliation, and wrongful termination. But critics of EPLI argue that allowing insurance coverage for employment liability detracts from employment law's goal of deterrence and from notions of justice. We assess the validity of these criticisms by examining the nature of employment law claims and by reviewing characteristics of the current EPLI market. We find that past critiques miss the mark in diagnosing EPLI's major problem.
The EPLI market, for the most part, functions in a way that poses little to …
Protecting Pregnancy, Jennifer B. Shinall
Protecting Pregnancy, Jennifer B. Shinall
Vanderbilt Law School Faculty Publications
Laws to assist pregnant women in the workplace are gaining legislative momentum, both at the state and federal levels. Last year alone, four such laws went into effect at the state level, and federal legislation advanced farther than ever before in the House of Representatives. Four types of legislative protections for pregnant workers currently exist-pregnancy accommodation laws, pregnancy transfer laws, paid family leave laws, and state disability insurance programs but very little is known about how each type of legislation performs relative to the others. This Essay provides empirical insight into this question, which is important for setting legislative priorities. …
Becoming Visible, Jennifer B. Shinall
Becoming Visible, Jennifer B. Shinall
Vanderbilt Law School Faculty Publications
This Article will consider the consequences of a large number of workers making their health conditions known to their employers during the pandemic. Becoming visible will likely have short-term costs for both employers and employees-—in terms of health-status discrimination, privacy, and administrative burdens. Nonetheless, this Article will ultimately argue that becoming visible also has a major benefit: improved information flow between employers and employees. Although the long-run cost-benefit analysis of increased health-status visibility during the pandemic remains to be seen, increased visibility ultimately has the potential to improve the employer-employee relationship.
Certifying Second Chances, Cara Suvall
Certifying Second Chances, Cara Suvall
Vanderbilt Law School Faculty Publications
Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences-invisible punishments that inhibit opportunity in all facets of a person's life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.
But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out …
Secrets, Lies, And Lessons From The Theranos Scandal, Lauren Rogal
Secrets, Lies, And Lessons From The Theranos Scandal, Lauren Rogal
Vanderbilt Law School Faculty Publications
Theranos, Inc., the unicorn startup blood-testing corporation, was ultimately laid low by a former employee whistleblower. The experience of that whistleblower during and after her employment illuminates detrimental secrecy practices within the startup sector, as well as legal and practical barriers to corporate accountability. Theranos sought to avoid exposure by cultivating an environment of secrecy and intimidation, and by aggressively extracting and enforcing nondisclosure agreements. The legal landscape for whistleblowers facilitated this strategy: while whistleblowing employees enjoyed certain protections under anti-retaliation statutes, trade secrets statutes, and common law contract principles, these protections were neither readily accessible nor certain. This Article …
Is Labor Arbitration Lawless?, Paige M. Skiba, Ariana R. Levinson, Erin O'Hara O'Connor
Is Labor Arbitration Lawless?, Paige M. Skiba, Ariana R. Levinson, Erin O'Hara O'Connor
Vanderbilt Law School Faculty Publications
Labor arbitration is often viewed as a more peaceful, productive, and private alternative to workplace strikes and violence. On the other hand, statutory laws are intended to protect all workers, and contract law default rules and rules of interpretation often serve a protective role that could be harmful if ignored in this private dispute resolution setting. To provide more insight into how arbitrators decide labor disputes, we utilize our newly crafted data set of hundreds of labor arbitration awards spanning a decade. Unlike prior data sets, our data are more inclusive: they include both published and unpublished awards as well …
Predictability Of Arbitrators' Reliance On External Authority?, Paige M. Skiba, A. Levinson, E. O'Hara O'Connor
Predictability Of Arbitrators' Reliance On External Authority?, Paige M. Skiba, A. Levinson, E. O'Hara O'Connor
Vanderbilt Law School Faculty Publications
Should arbitrators consider authority-such as statutes or case law-external to the collective bargaining agreement when deciding labor grievances? Do they rely on such external authority? If so, do they do so in particular circumstances or in certain types of cases? To provide more insight on this often-debated issue, we have amassed a new data set of hundreds of labor arbitration awards spanning a decade. In contrast to previous research, we find that the overwhelming majority of awards do not cite to any external authority (statutes, administrative authorities, case law, or secondary sources). Yet, only a small fraction of awards explicitly …
Salary History And Pay Parity, Jennifer Safstrom
Salary History And Pay Parity, Jennifer Safstrom
Vanderbilt Law School Faculty Publications
Inquiries about a prospective applicant's salary history are controversial because of the role such inequities play in the broader gender pay equity debate. The use of prior salary to determine compensation can perpetuate pay discrimination for women, especially women of color, and lock them into cycles of underpayment when these inequities are carried over from job to job. Reliance on salary history perpetuates historical discrimination and is antithetical to the language and purpose of Title VII and the Equal Pay Act. The purpose of this paper is to critically analyze the legal reasoning relied upon to interpret these laws, especially …
The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben
The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben
Vanderbilt Journal of Transnational Law
Consumers are increasingly demanding that the goods and services they consume be produced in a way that meets their social expectations. By extension, they are exhibiting greater willingness to pay more at the cash register for products made in good working conditions, and they are willing to punish companies that do not satisfy these expectations. Driving these "citizen-consumers" is what this Article terms the "consumer imaginary," which is defined as the narratives that consumers tell themselves about the people that make their things--people whom consumers will likely never meet, and whose lived experiences are distant from their own. Policymakers have …
The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth
The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth
Vanderbilt Law School Faculty Publications
Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run afoul of …
Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch
Efficient Deterrence Of Workplace Sexual Harassment, Joni Hersch
Vanderbilt Law School Faculty Publications
Although sexual harassment imposes costs on both victims and organizations, it is also costly for organizations to reduce sexual harassment. Legislation, education, training, and litigation have all been unsuccessful in eradicating workplace sexual harassment. My proposal is to establish financial incentives of sufficient magnitude to incentivize organizations to eliminate sexual harassment. The key challenge is in monetizing the harm caused by sexual harassment. I propose a new approach that draws on my research, which calculated the risk of sexual harassment by gender, industry, and age based on charges filed with the Equal Employment Opportunity Commission. Using these risk measures, I …
Valuing The Risk Of Workplace Sexual Harassment, Joni Hersch
Valuing The Risk Of Workplace Sexual Harassment, Joni Hersch
Vanderbilt Law School Faculty Publications
Using data on sexual harassment charges filed with the Equal Employment Opportunity Commission, I calculate the risk of sexual harassment by gender, industry, and age and establish that white females, but not nonwhite females, receive a compensating wage differential for exposure to a higher risk of sexual harassment. I use this risk premium to calculate the value of statistical harassment (VSH) in a manner analogous to the calculation of the value of statistical life (VSL). The VSH is around $7.6 million, about three-quarters of the size of the most-commonly cited levels of the VSL, and far above the maximum damages …
Made In Misery: Mandating Supply Chain Labor Compliance, Julia Zenker
Made In Misery: Mandating Supply Chain Labor Compliance, Julia Zenker
Vanderbilt Journal of Transnational Law
Virtually all consumer products in the developed world are produced in supply chain factories abroad. Media exposes periodically reveal the deplorable working conditions in factories that produce products for world-renowned brands. Public institutions, however, tend to be too weak to enforce local labor laws in the prime jurisdictions for supply chain manufacturing, and the recent efforts of private regulators to maintain labor standards throughout the chains have failed. This Note argues that supply chain labor compliance ought to be mandatory, not aspirational. Several examples of innovative public-private partnerships have delivered on the promise of supply chain labor maintenance. In order …
The Price Is (Not) Right: Mandatory Arbitration Of Claims Arising Out Of Sexual Violence Should Not Be The Price Of Earning A Living, Nicolette Sullivan
The Price Is (Not) Right: Mandatory Arbitration Of Claims Arising Out Of Sexual Violence Should Not Be The Price Of Earning A Living, Nicolette Sullivan
Vanderbilt Journal of Entertainment & Technology Law
As demonstrated by the #MeToo movement, current attempts to curtail systemic sexual violence in the workplace have fallen flat: approximately sixty million US workers are subject to mandatory arbitration clauses, which employers tend to bury deep within the fine print of employment contracts. These clauses, often coupled with confidentiality agreements, have provided offenders--and their employers--with a mechanism to escape liability and public scrutiny. Under the existing judicial framework, whether a court will allow victims of workplace sexual violence to escape binding arbitration remains unclear. Congress attempted to address this uncertainty by proposing the Ending Forced Arbitration of Sexual Harassment Act …
Feminism And The Tournament, Jessica A. Clarke
Feminism And The Tournament, Jessica A. Clarke
Vanderbilt Law School Faculty Publications
Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …
Legal Strategies For Economic Empowerment Of Persons In Recovery, Lauren Rogal
Legal Strategies For Economic Empowerment Of Persons In Recovery, Lauren Rogal
Vanderbilt Law School Faculty Publications
Substance use disorders, which afflict nearly 8% of the U.S. population,' exact a devastating human and economic toll. The opioid epidemic has caused overdose deaths to quadruple since 1999.2 In 2013 alone, the epidemic imposed an economic burden of over $78.5 billion, including $28.9 billion in spending on health care and substance abuse treatment. These burdens increasingly fall on rural and under-resourced areas, particularly in the Appalachian region. The crisis has evoked a range of policy reforms to prevent addiction, investments in treatment for sufferers, and lawsuits against purveyors of addictive substances.
Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski
Inside The Arbitrator's Mind, Chris Guthrie, Susan D. Franck, Anne Van Aaken, James Freda, Jeffrey J. Rachlinski
Vanderbilt Law School Faculty Publications
Arbitrators are lead actors in global dispute resolution. They are to global dispute resolution what judges are to domestic dispute resolution. Despite its global significance, arbitral decision making is a black box. This Article is the first to use original experimental research to explore how international arbitrators decide cases. We find that arbitrators often make intuitive and impressionistic decisions, rather than fully deliberative decisions. We also find evidence that casts doubt on the conventional wisdom that arbitrators render “split the baby” decisions. Although direct comparisons are difficult, we find that arbitrators generally perform at least as well as, but never …
College Football Coaches' Pay And Contracts: Are They Overpaid And Unduly Privileged?, Randall S. Thomas, R. Lawrence Van Horn
College Football Coaches' Pay And Contracts: Are They Overpaid And Unduly Privileged?, Randall S. Thomas, R. Lawrence Van Horn
Vanderbilt Law School Faculty Publications
College football coaches' employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …
Something To Talk About, Joni Hersch, Jennifer Bennett Shinall
Something To Talk About, Joni Hersch, Jennifer Bennett Shinall
Vanderbilt Law School Faculty Publications
To avoid the appearance of sex discrimination that would violate Title VII of the Civil Rights Act, both Equal Employment Opportunity Commission (EEOC) guidance and a common misunderstanding of the law have resulted in little or no information about family status being provided in pre-employment interviews. To investigate whether concealing family information actually improves women’s employment prospects, we conduct an original experimental study fielded on more than 3,000 subjects. Our study provides the first ever evidence that concealing personal information lowers female applicants’ hiring prospects. Subjects overwhelmingly preferred to hire candidates who provided information, regardless of content. Any explanation improved …
Are College Presidents Like Football Coaches? Evidence From Their Employment Contracts, Randall Thomas, Lawrence R. Van Horn
Are College Presidents Like Football Coaches? Evidence From Their Employment Contracts, Randall Thomas, Lawrence R. Van Horn
Vanderbilt Law School Faculty Publications
College presidents and football coaches are frequently criticized for their high compensation. In this paper, we argue that these criticisms are unmerited, as the markets for both college presidents and football coaches exhibit properties consistent with a competitive labor market. Both parties compensation varies in sensible ways related to the size of the programs they manage, as well as their potential for value creation. Successful college presidents and football coaches can greatly increase the value of their schools well beyond the amount they receive in compensation. If these higher education executives' compensation is the result of a competitive labor market, …