Law Commons^™

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Sexual Orientation And Gender Identity Discrimination Claims Under The Fair Housing Act After Bostock V. Clayton County, Rigel C. Oliveri

Faculty Publications

On June 15, 2020, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, Georgia, ruling by a vote of 6-3 that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination. The majority held that the statute's prohibition against discrimination in employment "because of ... sex" necessarily applies to discrimination based on sexual orientation and transgender identity.

This decision will undoubtedly have ramifications reaching beyond the employment context because many other federal statutes contain language similar to that in Title VII. In particular, the federal Fair Housing Act (FHA), …

The Lost Promise Of Disability Rights, Claire Raj

Michigan Law Review

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

Rationing In The Time Of Covid And The Perils Of Anti-Subordination Rhetoric, Mark Kelman

Washington and Lee Law Review Online

With surges in COVID-19 cases threatening to overload some hospital facilities, we must face the possibility that therapeutic treatments will need to be rationed, at least in some places. I do not propose any particular ideal rationing scheme but caution strongly against adopting a position that Professor Bagenstos advocated this past spring, rejecting rationing on the basis of patient life expectancy simply because life expectancy based rationing might threaten the factual interests of those with disabilities and might conceivably be implemented by those making judgments that were not simply inaccurate but grounded in biased, unacceptably discriminatory intuitions that some decision …

The Statutification Of Tort Law Involving The Workplace, Alex B. Long

Scholarly Works

The phenomenon of the "tortification" of employment law involves the consideration and importation of common-law tort principles when interpreting statutory anti-discrimination law. This Article explores the other side of the coin: the “statutification” of tort law as it applies to the workplace. State courts have only infrequently partaken in this enterprise, even in situations in which the two areas of law involve similar issues. This Article suggests that at least some limited form of statutification of tort law as it pertains to the workplace might be useful.

Proving Discrimination By The Text, Deborah Widiss

Articles by Maurer Faculty

Employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts for relief, courts rarely assess whether their claims meet the statutory standard. Instead, they funnel the evidence through a convoluted body of judge-made law known as McDonnell Douglas burden shifting.

This Article lays bare fundamental inconsistencies between the statutes’ causal language, as definitively interpreted by the Supreme Court in recent cases, and the burden-shifting process. In Bostock v. Clayton …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Necessary Coverage For Authentic Identity: How Bostock Made Title Vii The Strongest Protection Against Employer-Sponsored Health Insurance Denial Of Gender-Affirming Medical Care., Jennifer A. Knackert

Marquette Law Review

In June 2020, the United States Supreme Court held that Title VII

protection from discrimination on the basis of sex extended to LGBTQ+

employees. The Bostock v. Clayton County, Georgia decision dealt with three

separate cases where LGBTQ+ employees had been fired from their jobs based

on either their sexual orientation or gender identity. While the shared issue in

these cases had to do with employee termination, the textualist argument

presented by the Court leads many legal scholars to believe that the holding

would be applicable to other areas of employment discrimination covered by

Title VII such as employer-sponsored healthcare …

Veiling And Inverted Masking, Saleema Saleema Snow

Journal Articles

“Good morning, Your Honor, AA, here on behalf of the United States government.”1 AA recounted her proudest moment: appearing in federal district court as an attorney for the Department of Justice (DOJ) in a religious accommodation case under Title VII of the Civil Rights Act of 1964.2 There she stood, an Ivy League graduate and the granddaughter of sharecroppers. She appeared before the court as an African-American Muslim woman in hijab representing the government to uphold the constitutional rights of another Muslim woman.3 The complainant, Safoorah Khan, was employed as a teacher in a small Illinois school district and had …

An Update On Gambling Disorder, Neuroscience, And The Law, Stacey A. Tovino

Faculty Articles

No abstract provided.

Catching Unfitness, Jon J. Lee

Faculty Articles

Bias and prejudice are pervasive in the legal profession. Yet only relatively recently has there been a recognition among those in the profession that it is imperative to sanction attorneys who manifest bias and prejudice through harassment and discriminatory acts. Even then, it took decades for the ABA to adopt Model Rule 8.4(g) to proscribe such misconduct, and its reception by states has been lukewarm at best to antagonistic at worst. This recent controversy leads to an even more fundamental question: How can the legal profession effectively regulate the multitude of ways in which an attorney may commit misconduct, given …

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Michigan Journal of Race and Law

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist,and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white Anglo- Saxon race against the threat of …

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …

Disclosing Discrimination, Stephanie Bornstein

UF Law Faculty Publications

In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural …

Introduction: What Matters For Black Workers After 2020?, Michael Z. Green

Faculty Scholarship

This paper operates as the Introduction to a Symposium that resulted from a Call for Papers discussing the topic of "What Matters for Black Workers after 2020?" to be published in the 25th volume of the Employee Rights and Employment Policy Journal for 2021. This paper briefly discusses the papers in that Symposium publication authored by Jamillah Bowman Williams, Michael Duff, and Henry Chambers that address this topic. I thank Noah Zatz, Marty Malin, Michael Oswalt, Marcia McCormick, and Tristan Kirvan for their dedicated efforts, feedback, and encouragement in completing this Symposium issue for the journal on this very important …

Dissing Ability, Tory L. Lucas

Lewis & Clark Law Review

People with disabilities have historically endured the horrors of exclusion and elimination because America has incessantly fixated on disability without seeing ability. To correct a disabling view of people with disabilities, this Article prescribes a paradigm shift that permanently redirects the focus from disability to ability. If America achieves this hopeful vision to no longer diss—or disrespect—ability, then people with disabilities will enjoy equal access to equal opportunity.

The $2 Billion-Plus Price Of Injustice: A Methodological Map For Police Reform In The George Floyd Era, David Schultz

Mitchell Hamline Law Review

No abstract provided.

Critical Legal Thought: The Case For A Jurisprudence Of Distribution, Paulo Borrozo

University of Colorado Law Review

No abstract provided.

Equality, Animus, And Expressive And Religious Freedom Under The American Constitution: Masterpiece Cakeshop And Beyond, Daniel O. Conkle

Books & Book Chapters by Maurer Faculty

Professor Conkle's contribution to this volume, pre-print attached, is the chapter "Equality, Animus, and Expressive and Religious Freedom Under the American Constitution: Masterpiece Cakeshop and Beyond."

CHAPTER ABSTRACT: Does the First Amendment protect religious wedding vendors from anti-discrimination laws that require them to provide goods or services for same-sex weddings? The fundamental question is whether equality or religious freedom should prevail in this setting, but the complexities of American free speech and free exercise law—exacerbated by the Supreme Court’s decision in Masterpiece Cakeshop—have obscured the debate with dubious distinctions and highly contentious rationales and arguments. In this Essay, I present …

Causation In Civil Rights Legislation, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Employees are often left unprotected from discrimination because they are unable to satisfy the requirement of causation. Courts have made clear that to obtain legal redress for discrimination, it is generally insufficient to show that a protected characteristic such as race or sex was a “motivating factor” of an adverse employment decision. Rather, under Supreme Court precedent—including the Court’s Comcast and Babb decisions in the 2020 term—the antidiscrimination statutes generally require a showing of “but-for” causation. Consequently, many victims of discrimination will be unable to prevail because an employer can readily refute allegations of discrimination by asserting a legitimate purpose—true …

Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc-Tizoc Gonzaléz, Sarudzayi Matambanadzo, Sheila I. Vélez Martínez

Faculty Scholarship

LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.

A teoria LatCrit é um gênero relativamente recente de teoria do direito “outsider” …

Foreword, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

Challenges In Bringing Gender Equity Into The Workplace: Addressing Common Concerns Women Have When Deciding To Hold Employers Accountable For Gender Discrimination, Siobhan Klassen

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Long Shortlist: Women Considered For The Supreme Court, Michael Conklin

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Gender Pay Gap, In Relation To Professional Sports, Bryan Ramdat

Journal of Race, Gender, and Ethnicity

No abstract provided.

Amen Over All Men: The Supreme Court’S Preservation Of Religious Rights And What That Means For Fulton V. City Of Philadelphia, Christopher Manettas

Journal of Race, Gender, and Ethnicity

No abstract provided.

Hair Goes Nothing: Proposing The Uniform Enactment Of The Crown Act Across The United States, Alexandra Halbert

Journal of Race, Gender, and Ethnicity

No abstract provided.

1 Step Forward 2 Steps Back: The Transgender Individual Right To Access Optimal Health Care, Alexandre Rotondo-Medina

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Evolution Of Gender Equity From A Marxist And Existentialist Perspective, Alexandria Lopez

Journal of Race, Gender, and Ethnicity

No abstract provided.