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Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper Oct 2015

Distinguishing Disparate Treatment From Disparate Impact; Confusion On The Court, Michael C. Harper

Faculty Scholarship

In two decisions in the 2014-2015 Term, Young v. United Parcel Service, Inc., and Equal Employment Opportunity Commission v. Abercrombie & Fitch, Inc., the Court seemed to give contradictory answers to an important unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group based on their protected status to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or does such assignment have only a disparate impact on the protected status group?

In Young, the first of these decisions, all members of the …


Focusing The Multifactor Test For Employee Status: The Restatement’S Entrepreneurial Formulation, Michael C. Harper Oct 2015

Focusing The Multifactor Test For Employee Status: The Restatement’S Entrepreneurial Formulation, Michael C. Harper

Faculty Scholarship

The American Law Institute’s twenty-first century mission to restate for the first time American employment law carried the responsibility to provide more clear guidance on the law’s critical distinction between employees and independent contractors. This distinction delineates the scope not only of federal employee protection and benefit statutes, but also of employee protections and benefits conferred by state statutory and common law.

A Restatement of Employment Law, however, like any Restatement, could not formulate clearer or otherwise more desirable doctrine from the whole cloth of the views and values of the Reporters or the ALI membership. The Restatement could not …


Foreword: The Restatement Of Employment Law Project, Michael C. Harper, Samuel Estreicher, Matthew T. Bodie, Stewart J. Schwab Sep 2015

Foreword: The Restatement Of Employment Law Project, Michael C. Harper, Samuel Estreicher, Matthew T. Bodie, Stewart J. Schwab

Faculty Scholarship

After over a dozen years of work, the American Law Institute (ALI or Institute)'s Restatement of Employment Law has been completed. The membership of the ALI, the nation's leading private organization dedicated to clarifying and improving the law, approved the proposed final draft, subject to editing, at its May 2014 annual meeting. The final edits are done and the volume is now available both electronically and as a book to practitioners, judges, scholars, and law libraries around the country and world.

We have had the honor to serve as Reporters for the Restatement of Employment Law and are pleased to …


After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien Aug 2015

After Tackett: Incomplete Contracts For Post-Employment Healthcare, Maria O'Brien

Faculty Scholarship

This paper examines the recent U.S. Supreme Court retiree health care decision in Tackett v. M & G Polymers and focuses, in particular, on the ostensibly odd silence with respect to a critical contract term — whether the parties in fact agreed that these benefits were vested. Although the union in Tackett insisted these welfare benefits were clearly intended to vest and the employer now asserts they can be modified at any time, the collective bargaining agreement and supporting documents are ambiguous on this question. This paper examines how and why this “silence” persisted for so many decades and concludes …


The Nlrb As An Uberagency For The Evolving Workplace, Michael Z. Green Jul 2015

The Nlrb As An Uberagency For The Evolving Workplace, Michael Z. Green

Faculty Scholarship

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker's right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rule …


Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper Feb 2015

Class-Based Adjudication Of Title Vii Claims In The Age Of The Roberts Court, Michael C. Harper

Faculty Scholarship

This article considers two barriers to class-based adjudication of Title VII claims erected by the Roberts Court: (1) the Court's interpretation of Rule 23, primarily in Wal-Mart v. Dukes; and (2) the Court's interpretation of the Federal Arbitration Act (FAA) in a series of decisions, both employment-related and not. The article contends that it is the latter group of decisions that are the more significant for Title VII private aggregate litigation as well as for other types of private litigation. The Wal-Mart Court predictably did not expand an employer's obligations to avert discrimination by its agents, and its predictable interpretations …


Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis Jan 2015

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college athletics …


Colorism Among South Asians: Title Vii And Skin Tone Discrimination, Taunya L. Banks Jan 2015

Colorism Among South Asians: Title Vii And Skin Tone Discrimination, Taunya L. Banks

Faculty Scholarship

In 2013 Nina Davuluri, an Asian Indian from Syracuse, NY, became the first South Asian-American Miss America. The largely congratulatory comments from South Asian bloggers while reveling in the significance of her win, also commented on her skin tone, characterizing the new Miss America as dark brown, some adding that Davuluri would have never won the Miss Indian America USA title because she is “too dark.” Early discussions of colorism, skin tone bias, by legal scholars focus on how the practice impacts black Americans or other persons with some African ancestry. Yet the comments from South Asians about Davuluri’s skin …


"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks Jan 2015

"Least Restrictive Means”: Burwell V. Hobby Lobby, Noah Marks

Faculty Scholarship

No abstract provided.


Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott Jan 2015

Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott

Faculty Scholarship

No abstract provided.


Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles Jan 2015

Centering The Teenage "Siren": Adolescent Workers, Sexual Harassment, And The Legal Construction Of Race And Gender, Anastasia M. Boles

Faculty Scholarship

Recent scholarship and media attention has focused on the prevalence of sexually harassing behavior directed at working teenagers, and the emergence of sexual harassment lawsuits by these minors against their employers. Although many of the legal issues concerning workplace sexual harassment and adult workers (and the various state and federal jurisprudence prohibiting it) have been widely discussed, there is surprisingly little discourse, research, and precedent addressing the problem of workplace sexual harassment and teen workers.

Currently, most sexual harassment cases brought by adolescent workers are litigated using the doctrinal framework for adult workers. Only the Seventh Circuit has developed an …


Unusual Unanimity And The Ongoing Debate On The Meaning Of Words: The Labor And Employment Decisions From The Supreme Court's 2013-14 Term, Michael Z. Green Jan 2015

Unusual Unanimity And The Ongoing Debate On The Meaning Of Words: The Labor And Employment Decisions From The Supreme Court's 2013-14 Term, Michael Z. Green

Faculty Scholarship

During its 2013-14 term, the Supreme Court focused on labor relations, wage and hour law, whistleblowing, and employee benefits in several cases. The Court also addressed constitutional issues concerning the First Amendment, the Recess Appointments Clause, and affirmative action. The Court did not decide any employment discrimination cases during the term. Even without employment discrimination cases, the 2013-2014 term provided ten key cases of importance to labor and employment lawyers. Three of these cases involved distinctly different matters of concern for organized labor. Two cases addressed employee whistleblowing matters. Three cases focused on employee benefits. Two cases addressed issues tangentially-related …


A Sip Of Cool Water: Pregnancy Accommodation After The Ada Amendments Act, Joan C. Williams Jan 2015

A Sip Of Cool Water: Pregnancy Accommodation After The Ada Amendments Act, Joan C. Williams

Faculty Scholarship

No abstract provided.


Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg Jan 2015

Obergefell At The Intersection Of Civil Rights And Social Movements, Suzanne B. Goldberg

Faculty Scholarship

A judicial decision striking down formalized discrimination marks a crucial moment for those it affects and, in some instances, for the surrounding society as well. The Supreme Court’s ruling in Obergefell v. Hodges was unquestionably one of those instances.

This essay considers the distinct ways in which the civil rights and social movements for marriage equality gave rise to this durable socio-political transformation. While some scholarship is skeptical about whether rights-focused advocacy can bring meaningful change to people’s day-to-day lives, I argue that the marriage equality movements demonstrate a synergistic relationship between law reform and social change efforts. During the …


Mandatory Disclosure And Individual Investors: Evidence From The Jobs Act, Colleen Honisberg, Robert J. Jackson Jr., Yu-Ting Forester Wong Jan 2015

Mandatory Disclosure And Individual Investors: Evidence From The Jobs Act, Colleen Honisberg, Robert J. Jackson Jr., Yu-Ting Forester Wong

Faculty Scholarship

One prominent justification for the mandatory disclosure rules that define modem securities law is that these rules encourage individual investors to participate in stock markets. Mandatory disclosure, the theory goes, gives individual investors access to information that puts them on a more equal playing field with sophisticated institutional shareholders. Although this reasoning has long been cited by regulators and commentators as a basis for mandating disclosure, recent work has questioned its validity. In particular, recent studies contend that individual investors are overwhelmed by the amount of information required to be disclosed under current law, and thus they cannot and do …