Law Commons^™

Does Title Vii Prohibit Discrimination In Employment-Transfer Decisions Only If They Cause Materially Significant Disadvantages For Employees?, Anne Marie Lofaso

Law Faculty Scholarship

Case at a Glance: Petitioner Jatonya Clayborn Muldrow, a sergeant for the St. Louis Police Department, was transferred to another unit within the department. Muldrow sued the City of St. Louis for making a discriminatory transfer decision in alleged violation of Title VII. This case presents the question of whether Title VII prohibits discriminatory transfer decisions absent a separate court determination that the decision caused Muldrow materially significant disadvantages.

A Road To Resolution For Federal Whistleblowers' Mixed Case Claims, Devin Redding

West Virginia Law Review

Since the birth of the United States, whistleblowers have held our nation’s government accountable for illegal, fraudulent, and harmful behavior. The triumphs and failures of whistleblowers are deeply entwined with our nation’s struggle for independence, civil rights, and economic freedom. Nevertheless, employees who bravely expose misdeeds at all levels of our federal government are often bullied and discriminated against on the basis of sex, gender, age, disability, and more. In recent decades, and despite improved whistleblower protections, federal whistleblowers increasingly suffer from adverse employment actions and discrimination as reprisal for their disclosures. Employees looking toward our administrative law systems and …

God, Guns, And Hair Salons: Public Perceptions Of Rights And Liberties During The Covid-19 Pandemic, Jessica R. Graham, Kyle J. Morgan

West Virginia Law Review

In response to the COVID-19 pandemic, elected officials across the United States took efforts to slow the spread of the virus. Some of these efforts raised constitutional questions about the ability of the government to curtail rights during a crisis. This project makes use of an original dataset—letters to the editor submitted to 33 of the nation’s largest newspapers during the early months of the pandemic—to analyze public attitudes about these restrictions. Like much of the previous work regarding attitudes towards rights and liberties during a crisis, we find that these concerns are not front of mind to the public. …

Discrimination On Wheels: How Big Data Uses License Plate Surveillance To Put The Brakes On Disadvantaged Drivers, Nicole K. Mcconlogue

Law Faculty Scholarship

As scholarly discourse increasingly raises concerns about the negative societal effects of “fintech,” “dirty data,” and “technochauvinism,” a growing technology provides an instructive illustration of all three of these problems. Surveillance software companies are using automated license plate reader (ALPR) technology to develop predictive analytical tools. In turn, software companies market those tools to auto financers and insurers as a risk assessment input to evaluate consumers seeking to buy a car. Proponents of this technology might argue that more information about consumer travel habits will result in more accurate and individualized risk predictions, potentially increasing vehicle ownership among marginalized groups. …

Transgender Rural Communities And Legal Rights To Gender-Affirming Health Care, Nathan R. Hamons, Valarie K. Blake

West Virginia Law Review

No abstract provided.

Separate But Free, Joshua E. Weishart

Law Faculty Scholarship

“Separate but equal” legally sanctioned segregation in public schools until Brown. Ever since, separate but free has been the prevailing dogma excusing segregation. From “freedom of choice” plans that facilitated massive resistance to desegregation to current school choice plans exacerbating racial, socioeconomic, and disability segregation, proponents have venerated parental freedom as the overriding principle.

This Article contends that, in the field of public education, the dogma of separate but free has no place; separate is inherently unfree. As this Article uniquely clarifies, segregation deprives schoolchildren of freedom to become equal citizens and freedom to learn in democratic, integrated, …

Bias Preservation In Machine Learning: The Legality Of Fairness Metrics Under Eu Non-Discrimination Law, Sandra Wachter, Brent Mittelstadt, Chris Russell

West Virginia Law Review

Western societies are marked by diverse and extensive biases and inequality that are unavoidably embedded in the data used to train machine learning. Algorithms trained on biased data will, without intervention, produce biased outcomes and increase the inequality experienced by historically disadvantaged groups. Recognizing this problem, much work has emerged in recent years to test for bias in machine learning and AI systems using various fairness and bias metrics. Often these fairness metrics address technical bias, but not the underlying cause of inequality: social bias. In this Article we make three contributions. First, we assess the compatibility of fairness metrics …

Health Care Civil Rights Under Medicare For All, Valarie K. Blake

Law Faculty Scholarship

The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. …

Sex Discrimination In Healthcare: Section 1557 And Lgbtq Rights After Bostock, Amy Post, Ashley Stephens, Valarie K. Blake

Law Faculty Scholarship

Section 1557 of the Affordable Care Act (“ACA”) banned sex discrimination in health care. In June of 2020, however, the Trump administration finalized a rule that explicitly removed sexual orientation and gender identity from Section 1557’s safeguards. That same month, the Supreme Court held that sexual orientation and gender identity discrimination are forms of sex discrimination for purposes of Title VII employment discrimination in Bostock v. Clayton County. Following the Court’s decision in Bostock, this Article argues that sex discrimination under Section 1557 necessarily encompasses gender identity and sexual orientation discrimination.

Sane, Manipulative Self-Harm: When Hostage And Hostage Taker Become One, John R. Fitzgerald

West Virginia Law Review

No abstract provided.

Racial Segregation In West Virginia Housing, 1929-1971, Nathan Tauger

West Virginia Law Review

No abstract provided.

North Carolina's H.B.2: A Case Study In Lgbtq Rights, Preemption, And The (Un)Democratic Process, Mark Dorosin

West Virginia Law Review

No abstract provided.

Does The Adea's Federal-Sector Provision Require A Plaintiff To Prove That Age Was A But-For Cause Of The Challenged Personnel Action?, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Legal Remedies To Address Stigma-Based Health Inequalities In The United States: Opportunities And Challenges, Valarie K. Blake, Mark L. Hatzenbuehler

Faculty & Staff Scholarship

Stigma is an established driver of population-level health outcomes. Antidiscrimination laws can generate or alleviate stigma and, thus, are a critical component in the study of improving population health.

Currently, antidiscrimination laws are often underenforced and are sometimes conceptualized by courts and lawmakers in ways that are too narrow to fully reach all forms of stigma and all individuals who are stigmatized.

To remedy these limitations, we propose the creation of a new population-level surveillance system of antidiscrimination law and its enforcement, a central body to enforce antidiscrimination laws, as well as a collaborative research initiative to enhance the study …

On Race, Teacher Activism, And The Right To Work: Historicizing The "Red For Ed" Movement In The American South, Jon N. Hale

West Virginia Law Review

No abstract provided.

Geographic Discrimination: Of Place, Space, Hillbillies, And Home, William Rhee, Stephen C. Scott

West Virginia Law Review

This Essay explores the two-sided challenge of geographic discrimination, where U.S. citizens receive disparate treatment from other citizens or the government solely because of where they live or self-identify as home, through the interdisciplinary concepts of space, place, and distance; and an original examination of discrimination against Appalachians. Such disparate treatment is unavoidable and even arguably politically correct. Where we call home matters in a number of legitimate ways to include our access to jobs and services, culture, educational opportunities, and other basic human capabilities. Although technology has increased individual mobility more than ever before, a majority of Americans nevertheless …

Utah V. Strieff: Lemonade Stands And Dragnet Policing, Guy Padula

West Virginia Law Review

No abstract provided.

Ebolamania And Equal Protection Of Health Care Workers Under Rational Basis With Bite Review, Jennifer Jolly-Ryan

West Virginia Law Review

No abstract provided.

Rethinking The Americans With Disabilities Act’S Insurance Safe Harbor, Valarie K. Blake

Law Faculty Scholarship

Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that …

Fallout From Obergefell: The Dissolution Of Unconventional Adoptions To Pave The Way For Same-Sex Marriage Equality, Jodi B. Mileto

West Virginia Law Review

No abstract provided.

Connecting Nineteenth-Century Antislavery And Labor Movements With Twenty-First-Century Workers’ Rights, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Remedying Stigma-Driven Health Disparities In Sexual Minorities, Valarie K. Blake

Law Faculty Scholarship

No abstract provided.

Civil Rights Activities, Maureen Miller, Hope Bragg, Christy Keefer

Integrated Math & Social Studies Lessons

The activities in this lesson support the students to investigate the development of Civil Rights initiatives leading to the Civil Rights Act of 1964. The lesson includes readings on Jim Crow laws, Brown vs Board of Education, Montgomery bus boycott, and the sit-in movements, .

The Strange Persistence Of Affirmative Action Under Title Vii, Deborah C. Malamud

West Virginia Law Review

No abstract provided.

World Cup Dreaming: Sporting Activism And The Incrementalist Advancement Of Sexual Equality Through Association Football, Richard J. Peltz-Steele, Jose A. Benavides

West Virginia Law Review

No abstract provided.

Democracy And The Other: The Inverse Relationship Between Majority Rule And A Heterogeneous Citizenry, Franciska A. Coleman

West Virginia Law Review

No abstract provided.

Coping With A New "Yellow Peril": Japanese Immigration, The Gentleman's Agreement, And The Coming Of World War Ii, Paul Finkelman

West Virginia Law Review

No abstract provided.

A Dry Hate: White Supremacy And Anti-Immigrant Rhetoric In The Humanitarian Crisis On The U.S.-Mexico Border, Kristina M. Campbell

West Virginia Law Review

No abstract provided.

Seen But Not Recognized: Black Caregivers, Childhood Cruelties, And Social Dislocations In An Increasingly Colored America, Reginald Leamon Robinson

West Virginia Law Review

No abstract provided.

Moving From Carolene To The Commerce Clause: A New Approach To Race For The New American Future, Nareissa L. Smith

West Virginia Law Review

No abstract provided.