Law Commons^™

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 …

Cracks In The Shield: The Necessity Of The Employment Non-Discrimination Act, James N. Bolotin

James N Bolotin

This paper argues that legislation protecting homosexuals from employment discrimination is necessary, despite hopeful arguments that the text of Title VII should or can already protect against discrimination based on sexual orientation. The paper discusses how the precedent of the federal courts has gone too far in the wrong direction to believe that they will fix this interpretation problem on their own. Furthermore, it posits that the passage of ENDA or similar legislation will successfully lessen the prevalence of this type of discrimination.

Part I considers the history of Title VII’s “because of sex” protection. This includes a short discussion …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

The Pro-Employee Bent Of The Roberts Court, Lisa D. Taylor

Lisa D Taylor

A surprising yet readily discernible trend is emerging from recent United States Supreme Court decisions – a trend favoring the rights of individual employees in cases requiring interpretation of federal employment statutes. Though marquee employment-context cases like Wal-Mart Stores, Inc. v. Dukes may be touted as exemplifying the pro-business tendencies of the Roberts Court, a closer and more comprehensive look suggests that the Court does not favor business interests at all, at least in the workplace. Indeed, the relative dark-horses of the Court’s last Term suggest the opposite – all three of the Court’s most recent decisions interpreting federal employment …

The Gender Bind: Men As Inauthentic Caregivers, Kelli K. Garcia

Kelli K. Garcia

Almost 20 years after the enactment of the Family and Medical Leave Act, an ostensibly gender neutral statute, companies are still less likely to offer paternity leave than they are to offer maternity leave. Although women have traditionally faced discrimination in the workplace because they are viewed as inauthentic workers—not fully committed to paid employment—men face the corresponding problem and are viewed as inauthentic caregivers. Men who seek family leave transgress gender norms and risk workplace discrimination and stereotyping. This paper seeks to make explicit how the social and cultural contexts in which the FMLA is applied interact to maintain …

The Sex Stereotyping Prohibition At Work, Kimberly A. Yuracko

Kimberly Yuracko

In 1989 the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited from of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of Title VII. It has been used to extend the Act’s coverage and protect groups that were previously excluded. Astonishingly, however, the contours, dimensions and requirements of the prohibition have never been clearly articulated by courts or scholars. In this paper I evaluate four interpretations of what the sex stereotyping prohibition might mean in order to determine what it actually …

Canned For Medical Cannabis: Terminating Employees For Lawful, At-Home Use Of Medical Cannabis For Palliative Care Amounts To Disability Discrimination And Chills Their Liberty Interest To Pain Relief, Elizabeth M. Votra

Elizabeth M Votra

Although qualified California citizens may lawfully use medical cannabis, there are no protective regulations in the employment arena for those who are medical cannabis patients. Upon examination of the California Supreme Court case Ross v. RagingWire Telecommunications (medical cannabis patients cannot succeed on grounds of wrongful termination claims when fired for their at-home use of medical cannabis) and the United States Supreme Court case Washington v. Glucksberg (deeply rooted liberty interests in pain relief qualify for protection), I show that there is a disconnect between what the voters clearly wanted-as described in the Compassionate Use Act-and the current state of …