Law Commons^™

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

The Tort Label, Sandra F. Sperino

Faculty Articles and Other Publications

Courts and commentators often label federal discrimination statutes as torts. Since the late 1980s, the courts increasingly applied tort concepts to these statutes. This Article discusses how courts placed employment discrimination law within the organizational umbrella of tort law without examining whether the two areas share enough theoretical and doctrinal affinities.

While discrimination statutes are torts in some general sense that they do not arise out of criminal law and are not solely contractual, it is far from clear that these statutes are enough like traditional torts to justify the reflexive and automatic use of tort law. Employment discrimination statutes …

Let's Pretend Discrimination Is A Tort, Sandra F. Sperino

Faculty Articles and Other Publications

In the past decade, the Supreme Court has repeatedly invoked tort common law to interpret federal discrimination statutes. During this same time period, the Supreme Court increasingly invoked textualism as the appropriate methodology for interpreting these statutes. One immediate effect of these two trends - tortification and textualism - is to restrict discrimination law by tightening causal standards.

This Article explores how interpreting discrimination statutes through the lenses of tort law and textualism can expand, rather than restrict, discrimination law. It assumes that courts will continue to characterize discrimination statutes as torts and as deriving from the common law, despite …

Torts And Civil Rights Law: Migration And Conflict: Symposium Introduction, Sandra F. Sperino

Faculty Articles and Other Publications

Curiously, the connection between civil rights and civil wrongs has not been a topic that has captivated the attention of large numbers of legal scholars over the years. The distance that has developed between the two fields likely reflects their placement on opposite sides of the public-private divide, with Title VII and other anti-discrimination statutes forming part of public law, while torts is a classic, private law subject. To compound the division, both subjects are to some extent still under-theorized. Employment discrimination scholarship is often caught up in the process of analyzing the doctrinal implications of the latest Supreme Court …

The Interaction Of The Ada, The Fmla, And Workers' Compensation: Why Can't We Be Friends?, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article addresses some of the issues that arise when an employee injured at work qualifies for leave under the ADA, the FMLA and workers' compensation statutes. Part II of the Article provides a brief overview of these
three statutory schemes, focusing on the provisions, which define employee and employer qualification and the rights and responsibilities surrounding leave due to a work-related injury. Part III examines how the courts have resolved some of the overlapping and conflicting provisions contained in these statutes. This section particularly focuses on how the courts address employer obligations under all three statutes when an employee …

Taming Terrorists But Not "Natural Born Killers", S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article will explore the possibility of shifting or sharing the liability
stemming from criminal activities to those who provide detailed directions on
how to commit those acts, when the publication in question has no other
redeeming value. This Article concludes that in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others.

Part I of this Article reviews the First Amendment and discusses the Brandenburg test and its potential application to situations involving speech
advocating socially harmful activity. Part II …