Law Commons^™

The Global Health And Care Worker Compact: Evidence Base And Policy Considerations, Eric A. Friedman, Robert Bickford, Charles Bjork, James Campbell, Giorgio Cometto, Alexandra Finch, Catherine Kane, Sarah A. Wetter, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Background During the COVID-19 pandemic, and recognising the sacrifice of health and care workers alongside discrimination, violence, poor working conditions and other violations of their rights, health and safety, in 2021 the World Health Assembly requested WHO to develop a global health and care worker compact, building on existing normative documentation, to provide guidance to ‘protect health and care workers and safeguard their rights’.

Methods A review of existing international law and other normative documents was conducted. We manually searched five main sets of international instruments: (1) International Labour Organization conventions and recommendations; (2) WHO documents; (3) United Nations (UN) …

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear. Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

Maximizing #Metoo: Intersectionality & The Movement, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Although women of color experience high rates of harassment and assault, the #MeToo movement has largely left them on the margins in terms of (1) the online conversation, (2) the traditional social movement activity occurring offline, and (3) the consequential legal activity. This Article analyzes how race shapes experiences of harassment and how seemingly positive legal strides continue to fail women of color thirty years beyond Kimberlé Crenshaw’s initial framing of intersectionality theory. I discuss the weaknesses of the reform efforts and argue for more tailored strategies that take into account the ineffectiveness of our current Title VII framework and, …

Beyond Sex-Plus: Acknowledging Black Women In Employment Law And Policy, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and …

Kicked Out, Kicked Again: The Discharge Review Boards’ Illiberal Application Of Liberal Consideration For Veterans With Post-Traumatic Stress Disorder, Jessica Lynn Wherry

Georgetown Law Faculty Publications and Other Works

In recent years, the Department of Defense (DoD) has responded to the growing awareness of mental health issues for military servicemembers during and after service. This Article focuses on veterans who have already been discharged from service, and specifically those who have been discharged under other-than-honorable conditions for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD), traumatic brain injury, sexual assault, or sexual harassment. Thousands of former servicemembers have been kicked out of the military for misconduct rather than treated for mental health conditions they experienced due to their military service. When …

The Trouble With Identity And Progressive Origins In Defending Labour Law, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Debate about labour regulation is not new. What is new is the urgency with which labour law reform is promoted as an important fix to economic woes. In recent years, calls for reform resound in poor and rich countries alike. The economic crisis in the United States and in Europe has intensified these debates, making labour regulation a prime target for reform. In several US states public sector unions have been under attack, depicted as a privileged class that drains public funds with high wages, cosy benefits, and retirement privileges that no other workers enjoy. Several European countries have introduced …

Illusory Conflicts: Post-Employment Clearance Procedures And The Ftc’S Technological Expertise, Lindsey Barrett, Laura M. Moy, Paul Ohm, Ashkan Soltani

Georgetown Law Faculty Publications and Other Works

The federal government restricts what former employees can work on after they leave the government, and for good reason. These post-employment conflict restrictions attempt to address the “revolving door” problem, where employees take information learned from their position in government to unfairly advantage industry. But an unintended consequence of overbroad conflict rules is that they impede well-meaning, former federal employees from providing their knowledge and general expertise to other enforcement agencies with similar missions, such as those at the state level. This is playing out right now with FTC technologists, at a time when the agency—and, indeed, consumer protection agencies …

The New Principle-Practice Gap: The Disconnect Between Diversity Beliefs And Actions In The Workplace, Jamillah Bowman Williams, Jonathan Cox

Georgetown Law Faculty Publications and Other Works

Following increased calls for racial justice, many organizations have pledged to play their part in dismantling systemic racism. One common step leaders take is to invest in diversity and inclusion programs. Yet, despite organizations’ bold claims to value diversity and the investment of billions of dollars on related efforts, workplace discrimination continues to be a major factor in the lives of people of color. Additionally, existing research highlights a principle-policy gap, wherein people--particularly White Americans--espouse support for the principles of diversity, yet their support wanes for policies that address inequalities. In this survey study, we explore attitudes about organizational diversity …

Discounting Credibility: Doubting The Stories Of Women Survivors Of Sexual Harassment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited …

All Balls And No Strikes: The Roberts Court’S Anti-Worker Activism, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

For decades, legislatures and courts have created and preserved rights and remedies for vulnerable groups—consumers, employees, victims of mass torts, investors, and the like. Both branches have extolled the virtues of these substantive rights and the private enforcement mechanisms required to effectuate them. However, despite statements like that of Justice Roberts and others that the judiciary is not a lawmaking body—indeed, that the judicial institution should take care to exercise restraint—the Roberts Court has engaged in sweeping reform that tends to extinguish these substantive rights.

In 2012, I traced how the Roberts Court paid scant attention to the integral role …

Reimagining Trade Agreements For Workers: Lessons From The Usmca, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

A backlash against the post-Cold War order of liberal globalization has taken hold in the rich North Atlantic countries. Concerns about wages, working conditions, and economic opportunity are central to the critique of international trade agreements of the last three decades. While labor rights have progressively been included in trade agreements, they have done little to reshape workers’ well-being and workplace conditions. The new United States-Mexico-Canada Agreement (USMCA) may signal a pivot to a new model requiring reforms of domestic labor law and other issues important to workers. However, there is much more to be done to rebalance the power …

The New Frontier For Labor In Trade Agreements, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

In the spring of 2015, I took my students of international trade law to visit the World Trade Organization (WTO) in Geneva. It was a two-day trip, organized around lectures and discussions with staff from different divisions of the organization, the Advisory Centre of WTO Law and the permanent missions of two countries. None of my students had been there before, and even though I had taught international trade law for several years, it was also my first time visiting the headquarters of the organization. We were excited and curious. The building looked big and majestic. The back side opened …

From Hierarchies To Markets: Fedex Drivers And The Work Contract As Institutional Marker, Julia Tomassetti

Georgetown Law Faculty Publications and Other Works

Judges are often called upon today to determine whether certain workers are “employees” or “independent contractors.” The distinction is important, because only employees have rights under most statutes regulating work, including wage and hour, anti-discrimination, and collective bargaining law. Too often judges exclude workers from statutory protection who resemble what legal scholars have described as typical, industrial employees — long-term, full-time workers with set wages and routinized responsibilities within a large firm. To explain how courts reach these counterintuitive results, the article examines recent federal decisions finding that FedEx delivery drivers are independent contractors rather than employees. It argues that …

Cultivating Justice For The Working Poor: Clinical Representation Of Unemployment Claimants, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

The combination of current economic conditions and recent changes in the United States’ welfare system makes representation of unemployment insurance claimants by clinic students a timely learning opportunity. While unemployment insurance claimants often share similarities with student attorneys, they are unable to access justice as easily as student attorneys, and as a result, face the risk of severe poverty. Clinical representation of unemployment claimants is a rich opportunity for students to experience making a difference for a client, and to understand the issues of poverty and justice that these clients experience along the way. These cases reveal that larger lessons …

The Who Global Code Of Practice On The International Recruitment Of Health Personnel: The Evolution Of Global Health Diplomacy, Allyn L. Taylor, Ibadat S. Dhillon

Georgetown Law Faculty Publications and Other Works

The May 2010 adoption of the World Health Organization Global Code of Practice on the International Recruitment of Health Personnel created a global architecture, including ethical norms and institutional and legal arrangements, to guide international cooperation and serve as a platform for continuing dialogue on the critical problem of health worker migration. Highlighting the contribution of non-binding instruments to global health governance, this article describes the Code negotiation process from its early stages to the formal adoption of the final text of the Code. Detailed are the vigorous negotiations amongst key stakeholders, including the active role of non-governmental organizations. The …

Following In Paul Miller's (Very Large) Footsteps, Chai R. Feldblum

Georgetown Law Faculty Publications and Other Works

A tribute to Paul Miller, former Commissioner of the Equal Employment Opportunity Commission (EEOC). Miller was a leader on disability rights and on ensuring that the EEOC was effectively and forcefully implementing the Americans with Disabilities Act (ADA) of 1990. The author discusses Miller's work as EEOC Commissioner.

Honest-Services Fraud: A (Vague) Threat To Millions Of Blissfully Unaware (And Non-Culpable) American Workers, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The author believes that statute 18 U.S.C. § 1346 is unconstitutionally vague, at least as applied to cases in which employees of private entities are prosecuted for depriving their employers of a right to their honest services (so-called “private cases”). Objections to vagueness rest on due process. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” The Supreme Court’s vagueness precedents do not provide much …

Three Transnational Discourses Of Labor Law In Domestic Reforms, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of …

Labor Flexibility, Legal Reform And Economic Development, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

The current global financial crisis has provoked intense criticism of the regulatory framework for financial markets. Financial market flexibility, once considered the key to successful financial institutions and economic growth, has now come under intense scrutiny. In contrast, labor market flexibility is still promoted by scholars and international policymakers as an essential part of the recipe for economic development. This Article argues that the predominant understanding of labor flexibility is misguided and needs to be revised. To illustrate why, the Article undertakes a critical examination of labor flexibility as developed by a leading World Bank project, called “Doing Business.” It …

A Tale Of Two Lochners: The Untold History Of Substantive Due Process And The Idea Of Fundamental Rights, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

To say that the Supreme Court's decision in Lochner v. New York is infamous is an understatement. Scholars remember Lochner for its strong right to contract and laissez-faire ideals--at least that is the conventional account of the case. Whether one concludes that Lochner leads to the judicial activism of Roe v. Wade, or foreshadows strong property rights, the standard account depends upon an important assumption: that the Lochner era's conception of fundamental rights parallels that of today. From that assumption, it appears to follow that Lochner symbolizes the grave political dangers of substantive due process, with its "repulsive connotation …

Overcoming Resistance To Diversity In The Executive Suite: Grease, Grit, And The Corporate Tournament, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Once we open the corporate governance/human resources nexus to deeper inquiry, mutual scholarly interest in diversity and discrimination follows naturally. Firms have complex motives to take nondiscrimination and the promotion of diversity seriously. First, at least certain forms of discrimination are both unlawful and socially illegitimate and hence present threats of potential liability and injury to reputation. Second, human resources demands are such that attracting and motivating a diverse workforce is a competitive imperative. At the same time, however, offsetting economic forces may exist that favor subtle forms of discrimination and hostility to diversity, even if intentional and overt racial …

David Feller, Senior Partner, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

While in law school, in the late 1950's, I decided that I wanted a career in labor law, representing unions. I asked my labor law professor what firms I should consider. He told me there was one firm nationwide that stood out from all the rest: Goldberg, Feller and Bredhoff. He warned, though, that the firm was very small, and the chances of getting a job there remote. I did some research and discovered that the firm had only four lawyers: three partners (Arthur Goldberg, Dave Feller, and Elliot Bredhoft), and one associate (Jerry Anker). The firm was General Counsel …

“Head Start Works Because We Do”: Head Start Programs, Community Action Agencies, And The Struggle Over Unionization, Eloise Pasachoff

Georgetown Law Faculty Publications and Other Works

In the summer of 2002, the city of Boston watched a fierce battle unfold between low-wage workers who provide child care and the social service agencies that employ them. Boston requires its city contractors to pay more than twice the federal minimum wage of $5.15 an hour to their employees, according to the terms of the city's "living wage" ordinance. The social service agencies, which receive government subsidies to run their child care programs, claimed that they could not afford to pay this rate. These agencies mounted an intense legal and political campaign, arguing that they would be forced to …

Disability, Federalism, And A Court With An Eccentric Mission, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

This article examines the Supreme Court's recent Eleventh and Fourteenth Amendment decisions constraining Congress's power to impose legal obligations on state governments. The context for this examination is the Court's consideration this Term of the constitutionality of the provision of the Americans with Disabilities Act authorizing individual suits against states by persons alleging they have been victimized by state disability discrimination. This article was written while the fate of the ADA case was unknown. But the Court issued its decision just as this article was going to press. A postscript has been added describing that decision and its implications. The …

Wellington’S Labors, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

My first class as a student at Yale Law School was the first class Harry Wellington taught there. It was the Fall of 1956. The course was Contracts. Harry entered the classroom, looking no older than the students (in truth, he 'wasn't much older), but surely better dressed. He settled himself on the corner of the desk, and the magic began. Without introduction or fanfare, Harry embarked on a monologue about a magazine that kept arriving, uninvited, in his mailbox each month. He confessed to leafing through the pages from time to time, and wondered if this obligated him to …

Taking Stock: New Views Of American Labor Law Between The World Wars, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

This symposium originated in a session at the annual meeting of the American Society for Legal History held in Seattle in October 1998. Entitled "Labor, Law, and the State in the Interwar Period," the panel provided four different views of a decisive period in the development of labor law in the United States. In the 1980s the panel's chair, Katherine Van Wezel Stone, and commentator, Christopher L. Tomlins, published works that helped spark a modern revival in the historical study of U.S. labor law. The authors of the four papers presented at the session were more recent entrants into the …

Workers' Health And Safety: Whose Costs, Whose Benefits?, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

Health and safety on the job remain sources of bitter controversy in the public forums. Businessmen rail against the Occupational Safety and Health Administration (OSHA) for its "dictatorial" enforcement of "oppressive" regulations, leading President Ford in early 1976 to demonstrate sympathy for their concerns. Labor leaders deplore the failure of industry and government to stem the toll of death and disablement from work-related disease. Members of' Congress, responsive to pressures from constituents, fill pages of the Congressional Record with reports of both employer vexations and employee tragedies.

Like ships passing in the night, advocates on both sides tend to regard …

Toward Meaningful Protection Of Worker Health And Safety, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

In the annals of job health and safety, 1974 was a signal year. It produced an epidemic of occupational liver cancer associated with vinyl chloride disclosure of a plan to soft-pedal federal regulation of industrial hazards in return for contributions to the 1972 Nixon reelection campaign, and the publication of a brace of exposes decrying the human toll taken by workplace perils. These events furnish hard evidence that the bright hopes raised by passage of the landmark Occupational Safety and Health Act of 1970 remain far from fulfillment.

In the search for reasons for this ostensible failure, two books present …

Sovereign Immunity In A Constitutional Government: The Federal Employment Discrimination Cases, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

Very early in our history we took steps to insure that the.rule of law, as expressed in the Constitution, would prevail over the mortals who run our government. Yet even as the concepts of rule of law and judicial review came into ascendancy, we also harbored the sovereign immunity doctrine as a restraint on judicial power and as an apparent repudiation of the rule of law.

The inherent antagonism between the rule of law and the sovereign immunity doctrine has produced much mischief in our courts...this Article will argue that the sovereign immunity doctrine is not anticonstitutional, but rather reflects …