Law Commons^™

Expanding The Core: Pregnancy Discrimination Law As It Approaches Full Term, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was …

Introduction To Amici Curiae Brief In Young V. United Parcel Service, Inc., Joanna L. Grossman, Deborah L. Brake

Faculty Journal Articles and Book Chapters

On March 25, 2015, the U.S. Supreme Court issued its decision in Young v. United Parcel Service, Inc., the most important pregnancy discrimination case before the Court in nearly a quarter century. The Court ruled for Peggy Young in a decision that will chart the path of pregnancy discrimination litigation for years to come. Our brief, published here with a short introduction, lays out our theory for why an employer’s refusal to accommodate pregnancy with light-duty assignments on the same terms as other medical conditions similarly affecting work violates Title VII and the Pregnancy Discrimination Act. The brief was …

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

Making Pregnancy Work: Overcoming The Pregnancy Discrimination Act's Capacity-Based Model, Joanna L. Grossman, Gillian Thomas

Faculty Journal Articles and Book Chapters

This article considers the gaps and obstacles in current law faced by the pregnant woman whose job duties may conflict with pregnancy's physical effects. While there is no inherent conflict between pregnancy and work, women in physically strenuous or hazardous occupations, from nursing to law enforcement, routinely confront situations in which they are physically unable to perform aspects of their job or, though physically able, they seek to avoid certain tasks or situations because of the potential risks to maternal or fetal health. The Pregnancy Discrimination Act of 1978 (PDA) broadly protects against "pregnancy discrimination," but it provides absolute rights …

The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …

Is The Solomon Amendment Unconstitutional, Dale Carpenter

Faculty Journal Articles and Book Chapters

No abstract provided.

Job Security Without Equality: The Family And Medical Leave Act Of 1993, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This piece reevaluates the passage and implementation of the Family and Medical Leave Act (FMLA) against the egalitarian ideal described by the Supreme Court in its recent decision in Nevada Department of Human Resources v. Hibbs. The Court in Hibbs upheld the FMLA against an Eleventh Amendment challenge, concluding that Congress enacted the law as a congruent and proportional remedy to the longstanding history of state-sponsored discrimination against working women. According to the Court, Congress enacted the FMLA to remedy a longstanding history of discrimination against working women by forcing employers to offer caretaking leave on gender-neutral terms. At least …

“The University Works Because We Do”: The Status Of Graduate Teaching And Research Assistants For The Purpose Of Collective Bargaining, Grant M. Hayden

Faculty Journal Articles and Book Chapters

No abstract provided.

Making A Federal Case Out Of It: Section 1981 And At-Will Employment, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

The First Bite Is Free: Employer Liability For Sexual Harassment, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

In June, 1998, the Supreme Court issued two decisions, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton that established new standards for employer liability for sexual harassment. Although the two cases presented different questions and factual predicates, the Court adopted a unified holding with respect to employer liability for supervisor harassment. Many commentators interpreted the new standards as a blow to employers based on the perception that employers would now be held accountable for workplace harassment without regard to their culpability.

The thesis of this article is that the conventional wisdom with respect to Faragher and …

Some Keys To The Nba Lockout, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This article addresses two central issues regarding the 1998-99 National Basketball Association (“NBA”) lockout: 1) its impact on labor law doctrine and 2) what it reveals about the state of labor relations in the United States. The author concludes that, while the use of the traditional lockout weapon did not break any new ground in the area of labor law, the unique attributes of the NBA labor dispute provide insight into the condition of the American labor movement and public perceptions of unions. In particular, the author notes that the NBA lockout highlights both the dramatic differences in the power …