Law Commons^™

Cognitive Decline And The Workplace, Sharona Hoffman

Faculty Publications

Cognitive decline will increasingly become a workplace concern because of three intersecting trends. First, the American population is aging. In 2019, 16.5 percent of the population, or fifty-four million people, were age 65 and over, and the number is expected to increase to seventy-eight million by 2025. Dementia is not uncommon among older adults, and by the age of eighty-five, between twenty-five and fifty percent of individuals suffer from this condition. Second, individuals are postponing retirement and prolonging their working lives. For example, about a quarter of physicians are over sixty-five, as are fifteen percent of attorneys. The average age …

Age’S Influence On Workplace Safety, Kelly Muhammad, Cheryl Marcham

Publications

According to the National Safety Council (NSC, n.d.), the total cost of work injuries in 2019 was an estimated $171 billion. This estimate includes wage and productivity losses, medical expenses, administrative expenses and employers’ uninsured costs. In that same year, an estimated 105 million workdays were lost due to injuries (NSC, n.d.). This report does not provide any specific details or any characteristics about the injured. However, knowledge of certain characteristics of the injured such as age can be critical information. This type of information could be useful in the development of workplace hazard prevention and mitigation programs.

Age, Time, And Discrimination (Forthcoming), Alexander Boni-Saenz

All Faculty Scholarship

Discrimination scholars have traditionally justified antidiscrimination laws by appealing to the value of equality. Egalitarian theories locate the moral wrong of discrimination in the unfavorable treatment one individual receives as compared to another. However, discrimination theory has neglected to engage seriously with the socio-legal category of age, which poses a challenge to this egalitarian consensus due to its unique temporal character. Unlike other identity categories, an individual’s age inevitably changes over time. Consequently, any age-based legal rule or private discrimination will ultimately yield equal treatment over the lifecourse. This explains the weak constitutional protection for age and the fact that …

We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro

Works of the FIU Libraries

This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.

Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …

Reply Brief. Hildebrand V. Allegheny County (No. 14-363), 2014 U.S. S. Ct. Briefs Lexis 3445, Eric Schnapper, Marjorie E. Crist

Court Briefs

No abstract provided.

Petition For A Writ Of Certiorari. Hildebrand V. Allegheny County (No. 14-363), 2014 U.S. S. Ct. Briefs Lexis 3445, Eric Schnapper, Marjorie E. Crist

Court Briefs

QUESTION PRESENTED Does the Age Discrimination in Employment Act, which forbids age-based discrimination against state and local government employees, preclude those employees from bringing a section 1983 action to redress age discrimination that violates the Equal Protection Clause?

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

Brief For Respondent. Madigan V. Levin, 571 U.S. 1 (2013) (No. 12-872), 2013 U.S. S. Ct. Briefs Lexis 3187, Eric Schnapper, Harvey Levin, Edward Theobald

Court Briefs

No abstract provided.

Reforming The Age Discrimination In Employment Act: Proposals And Prospects, Michael C. Harper

Faculty Scholarship

This article argues that the Age Discrimination in Employment Act (ADEA) should be amended to provide it with the same procedural and substantive strengths Congress has provided Title VII. The article highlights four gaps between the ADEA and Title VII: damage remedies; class actions; defenses to disparate impact actions; and causation standards for disparate treatment actions. The article also advocates other modifications of the ADEA to encourage the employment of older Americans. The article recommends compelling employers to retain productive incumbent older workers, regardless of the compensation previously promised experienced workers. It also recommends considering allowing employers to hire older …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Publications

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …

Petition For A Writ Of Certiorari. Opp V. Office Of The State's Attorney Of Cook County, 565 U.S. 815 (2011) (No. 10-1163), 2011 U.S. Lexis 6893, Eric Schnapper, Brian R. Holman, Dennis H. Stefanowicz, Tara Beth Davis, Susan Bogart

Court Briefs

QUESTION PRESENTED Five major federal employment statutes, including in this case the Age Discrimination in Employment Act, exclude certain government workers "at the policymaking level" from the definition of employees protected by those laws. The question presented is: who is a worker "on the policymaking level"?

Decent Work, Older Workers, And Vulnerability In The Economic Recession: A Comparative Study Of Australia, The United Kingdom, And The United States, Susan Bisom-Rapp, Andrew Frazer, Malcolm Sargeant

Faculty Scholarship

In countries with aging populations, the global recession presents unique challenges for older workers, and compels an assessment of how they are faring. To this end, the International Labour Organization's concept of decent work provides a useful metric or yardstick. Decent work, a multifaceted conception, assists in revealing the interdependence of measures needed to secure human dignity across the course of working lives. With this in mind, in three English-speaking, common law countries (Australia, the United Kingdom, and the United States), this Article considers several decent work principles applicable to older workers and provides evaluations in light of them. Relevant …

Picked Apart: The Hidden Struggles Of Migrant Worker Women In The Maryland Crab Industry., Jayesh Rathod, Adrienne Lockie

Reports

Every year, hundreds of Mexican women travel thousands of miles from their impoverished, rural home communities to work on the Eastern Shore of Maryland in the state’s historic crab industry. Maryland crab companies have increasingly come to rely on these women, who enter the U.S. on temporary guestworker visas known as H-2B visas. This report describes these women’s experiences as H-2B migrant workers, and is the result of over 40 formal interviews conducted in both the U.S. and Mexico since 2008. By obtaining first-hand accounts from the workers, the report documents the forces and conditions that give rise to this …

The Uses And Misuses Of Statistical Proof In Age Discrimination Claims, Thomas Tinkham

Faculty Scholarship

When it comes to statistics, age discrimination is different than other forms of discrimination. In most discrimination cases we can take the protected population and make appropriate adjustments for necessary characteristics like education and compare the results to the other employee groups.

With age discrimination this method does not work. It doesn’t work because the normal patterns of aging and promotion or wage increase distort the statistical result. Employees typically are promoted more quickly and receive the highest percentage wage increases in early years. However, they generally retain those benefits for life. Employees reach a high point in their careers …

Dealing With Harrassment In All Of Its Forms, Michael T. Zugelder, Paul J. Champagne, Steven D. Maurer

Finance Faculty Publications

Workplace harassment in its many forms presents an increasingly serious challenge for employers, in terms of legal liability and its potential negative effect on employee behavior. This article reviews workplace harassment with attention to the affirmative defense that the Supreme Court has authorized and the factors the courts have considered in deciding whether the defense has been established. That analysis in turn is applied to a discussion of specific actions organizations might take to prevent harassment and create a more positive and effective organizational environment.

Understanding The Unrest Of France’S Younger Workers: The Price Of American Ambivalence, Joseph Seiner

Faculty Publications

The youth of France refer to themselves as the “throwaway generation,” in part because they perceive that their value to the labor market is simply disregarded by the government. Against this backdrop, young French workers recently took to the streets in riot to protest a newly enacted employment law that stripped employees under the age of twenty-six of many of their employment protections. The protests persisted after the French Constitutional Council held that the law did not violate France's constitution. The continued violent opposition ultimately forced French President Jacques Chirac to abandon the law, resulting in an embarrassing defeat for …

Aggravating Youth: Roper V Simmons And Age Discrimination, Elizabeth F. Emens

Faculty Scholarship

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational – they are a …

Rehabilitate The Age Discrimination In Employment Act: Resuscitate The “Reasonable Factors Other Than Age” Defense And The Disparate Impact Theory, Judith J. Johnson

Journal Articles

The Age Discrimination in Employment Act (ADEA) promised to protect older workers from discriminatory exclusion from the workforce, but recent studies show that older workers are being cut from the workforce and are unable to find employment. In a 1995 article, I warned of the potential dangers of construing the ADEA to allow employment decisions based on age-correlated criteria. Most courts have failed to heed these warnings and now approve employer practices, such as terminating employees based on higher salaries and refusing to hire workers with too much experience. These practices may explain the difficulty older workers are having retaining …

One Of These Things Is Not Like The Other: Analogizing Ageism To Racism In Employment Discrimination Cases, Rhonda M. Reaves

Journal Publications

The development of anti-discrimination law in the employment context was designed and applied with the elimination of race discrimination in mind. The expansion of anti-discrimination law to older workers has taken place within a legal system that encourages groups to present themselves as "similar to" African Americans. This article explores the difficulty of applying general anti-discrimination principles to the uniquely positioned group of older workers.

Adea Doctrinal Impediments To The Fulfillment Of The Wirtz Report Agenda, Michael C. Harper

Faculty Scholarship

Ideally, this symposium marking the three-decade anniversary of the Age Discrimination in Employment Act (ADEA) would present an opportunity to assess how well the ADEA has achieved its plausible goals. However, I recognize that any definitive assessment of the success of a statute like the ADEA, which requires the modification of the behavior of social actors, must depend on the kind of sophisticated empirical study for which I have neither the time, resources or capability. I also recognize that defending my identification of the goals of the ADEA might itself require an entire essay.

Therefore, I will present a more …

Semantic Cover For Age Discrimination: Twilight Of The Adea, Judith J. Johnson

Journal Articles

In 1967, Congress recognized that the number of displaced older people in the workforce was growing, due in large part to the problems older people were encountering in finding new jobs once displaced from a job of many years. In these times of corporate downsizing, older workers are particularly vulnerable to bearing the brunt of workforce reductions due to the fact that they are often "paid a little more because they have been with the company a little longer." As a result, since 1967 older workers have been protected from discrimination based on their age by the Age Discrimination in …

Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman

Scholarly Works

No abstract provided.

Age-Based Incentives, Coercion, And The Prospective Waiver Of Adea Rights: The Failure Of The Older Workers' Benefit Protection Act, Michael C. Harper

Faculty Scholarship

The theses of this Article shall be developed in the following manner. Part I shall explain how conditional age-based exit incentive windows can be used by employers to achieve indirectly what the ADEA clearly prohibits when accomplished directly: the removal from employment of a group of employees chosen, at least in part, on the basis of their age. This Part further explains how this removal is accomplished by effectively inducing employees to waive prospectively their future ADEA protection. Part II analyzes the treatment of age-based conditional exit incentives by the courts before the passage of the OWBPA, stressing that the …

Overqualified, Unqualified Or Just Right: Thinking About Age Discrimination And Taggart V. Time, Julia C. Lamber

Articles by Maurer Faculty

No abstract provided.

The Bfoq Defense In Adea Suits: The Scope Of "Duties Of The Job", Robert L. Fischman

Articles by Maurer Faculty

No abstract provided.