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Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein Jun 2018

Rwu First Amendment Blog: Jared Goldstein's Blog: Masterpiece Cakeshop Ruling: No Constitutional Right To Discriminate (For Now) 06-05-2018, Jared A. Goldstein

Law School Blogs

No abstract provided.


Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 9) (2016), Roger Williams University School Of Law Jan 2016

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 9) (2016), Roger Williams University School Of Law

RWU Law

No abstract provided.


Griggs At Midlife, Deborah A. Widiss Apr 2015

Griggs At Midlife, Deborah A. Widiss

Michigan Law Review

Not all Supreme Court cases have a midlife crisis. But it is fair to say that Griggs v. Duke Power Co., which recently turned forty, has some serious symptoms. Griggs established a foundational proposition of employment discrimination law known as disparate impact liability: policies that significantly disadvantage racial minority or female employees can violate federal employment discrimination law, even if there is no evidence that the employer “intended” to discriminate. Griggs is frequently described as one of the most important decisions of the civil rights era, compared to Brown v. Board of Education for its “momentous social consequences.” In 1989 ...


A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth Jul 2014

A Failure To Supervise: How The Bureaucracy And The Courts Abandoned Their Intended Roles Under Erisa, Lauren R. Roth

Pace Law Review

This Article addresses how courts failed to adequately supervise employers administering pension plans before ERISA. Relying on a number of different legal theories—from an initial theory that pensions were gratuities offered by employers to the recognition that pension promises could create contractual rights—the courts repeatedly found ways to allow employers to promise much and provide little to workers expecting retirement security. In Section III, this Article addresses how Congress failed to create an effective structure for strong bureaucratic enforcement and the bureaucratic agencies with enforcement responsibilities failed to fulfill those functions. Finally, in Section IV, this Article discusses ...


Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos Jan 2014

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.


Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt Oct 2013

Why Whistleblowers Lose: An Empirical And Qualitative Analysis Of State Court Cases, Nancy M. Modesitt

All Faculty Scholarship

This Article was originally intended to be an analysis of the propriety, or impropriety, of the doctrines most commonly used by courts to decide employees’ whistleblowing retaliation claims against employers. However, upon conducting initial research, it quickly became apparent that there was very little data available on whistleblowing cases. Unlike employment discrimination cases, where several empirical studies have been conducted, there is only one empirical analysis of whistleblower claims, which focused solely on outcomes in the federal administrative process for claims brought under the Sarbanes-Oxley Act (SOX). That study revealed that whistleblowers fare poorly for a number of reasons, but ...


The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill Feb 2011

The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill

University of Michigan Journal of Law Reform

The Employee Retirement Income Security Act of 1974 ("ERISA"), the federal law that regulates employer-sponsored benefit plans, has a rich history of judiciallycreated federal common law. This Article explores the theoretical, policy, statutory, and stare decisis grounds for the development of another area offederal common law under ERISA-the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. The Article proposes that the federal courts should adopt a federal common law rule of vicarious fiduciary liability under ERISA based on the traditional scope of ...


Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns Jan 2011

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers ...


Reinventing The Eeoc, Nancy M. Modesitt Oct 2010

Reinventing The Eeoc, Nancy M. Modesitt

All Faculty Scholarship

The Equal Employment Opportunity Commission (EEOC) has struggled to be a meaningful force in eradicating employment discrimination since its inception. The primary reasons for this are structural in nature. The EEOC was designed to react to discrimination complaints by investigating and conciliating all of the thousands of complaints filed annually. The EEOC has never been able to investigate all these complaints despite using the vast majority of its resources attempting to do so. The devotion of resources to managing and investigating the huge volume of complaints prevents the EEOC from taking more effective steps to eliminate discrimination. This article proposes ...


Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine Jan 2010

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population ...


Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine Jan 2001

Gilmer In The Collective Bargaining Context, Theodore J. St. Antoine

Articles

Can a privately negotiated arbitration agreement deprive employees of the statutory right to sue in court on claims of discrimination in employment because of race, sex, religion, age, disability, and similar grounds prohibited by federal law? Two leading U.S. Supreme Court decisions, decided almost two decades apart, reached substantially different answers to this questionand arguably stood logic on its head in the process. In the earlier case of Alexander v. Gardner-Denver Co., involving arbitration under a collective bargaining agreement, the Court held an adverse award did not preclude a subsequent federal court action by the black grievant alleging racial ...


The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine Jan 2001

The Changing Role Of Labor Arbitration (Symposium: New Rules For A New Game: Regulating Employment Relationships In The 21st Century), Theodore J. St. Antoine

Articles

A quarter century ago, in a provocative and prophetic article, David E. Feller lamented the imminent close of what he described as labor arbitration's "golden age." I have expressed reservations about that characterization, insofar as it suggested an impending shrinkage in the stature of arbitration. But Professor Feller was right on target in one important respect. Labor arbitration was going to change dramatically from the autonomous institution in the relatively self-contained world of union-management relations which it had been from the end of World War II into the 1970s. When the subject matter was largely confined to union-employer agreements ...


Contract Reading' In Labor Arbitration, Theodore J. St. Antoine Jan 2000

Contract Reading' In Labor Arbitration, Theodore J. St. Antoine

Articles

A quarter century ago, I used the phrase "contract reader" to characterize the role an arbitrator plays in construing a collective bargaining agreement. This phrase has almost invariable been misunderstood to refer to reading or interpreting the contract. When I spoke of the "contract reader," it was in the context of judicial review of an award. My point was this: When a court has before it an arbitrator's award applying a collective bargaining agreement, it is as if the employer and the union had signed a stipulation stating: "What the arbitrator says this contract means is exactly what we ...


Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine Jan 1998

Mandatory Arbitration Of Employee Discrimination Claims: Unmitigated Evil Or Blessing In Disguise?, Theodore J. St. Antoine

Articles

One of the hottest current issues in employment law is the use of mandatory arbitration to resolve workplace disputes. Typically, an employer will make it a condition of employment that employees must agree to arbitrate any claims arising out of the job, including claims based on statutory rights against discrimination, instead of going to court. On the face of it, this is a brazen affront to public policy. Citizens are being deprived of the forum provided them by law. And indeed numerous scholars and public and private bodies have condemned the use of mandatory arbitration. Yet the insight of that ...


Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine Jan 1997

Why Mandatory Arbitration May Benefit Workers, Theodore J. St. Antoine

Articles

Would employees-including union employees-be better off with mandatory arbitration, even of statutory employment claims? The answer to this important question should depend less on abstract notions about the importance of statutory claims and the sanctity of the right to a jury trial, and more on a pragmatic assessment of what is likely to be best for the great majority of workers. Employing this type of analysis, which would take into account an overworked, underfunded Equal Employment Opportunity Commission, backlogged court dockets and other practical problems, my view is that most employees might well be better off with mandatory arbitration, provided ...


Preemption Jan 1993

Preemption

Touro Law Review

No abstract provided.


Employment Discrimination, Charles Stephen Ralston, Paul Kamenar, William Bradford Reynolds, Gail Wright-Sirmans Jan 1989

Employment Discrimination, Charles Stephen Ralston, Paul Kamenar, William Bradford Reynolds, Gail Wright-Sirmans

Touro Law Review

No abstract provided.


At-Will Employment: An Overview, Theodore J. St. Antoine Jan 1989

At-Will Employment: An Overview, Theodore J. St. Antoine

Articles

The most dramatic development of the last decade has been the rapid judicial expansion of modifications in at-will employment doctrine.


A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, Theodore J. St. Antoine Jan 1988

A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, Theodore J. St. Antoine

Articles

In this paper, I shall briefly review the nature and limitations of the theories most frequently invoked by the courts in dealing with wrongful dismissal. I shall then examine the major arguments for and against a general overhaul of the doctrine of employment at will. Lastly, I shall discuss some of the particular questions that will have to be addressed in fashioning a statutory solution.


Reckless Endangerment Of An Employee: A Proposal In The Wake Of Film Recovery Systems To Make The Boss Responsible For His Crimes, Anne D. Samuels Apr 1987

Reckless Endangerment Of An Employee: A Proposal In The Wake Of Film Recovery Systems To Make The Boss Responsible For His Crimes, Anne D. Samuels

University of Michigan Journal of Law Reform

This Note argues that the traditional regulatory, civil, and criminal mechanisms are both ineffective and inappropriate to deter or punish corporate decisionmakers for decisions that pose risks to the safety or health of employees in the workplace. The Note proposes a new criminal offense to prevent and punish culpable corporate decisionmaking that results in employee deaths or injuries. Part I explains the novel application of the traditional murder offense in Film Recovery Systems and demonstrates that the case fails to lay the foundation for a standardized response to employee endangerment. Part II analyzes the traditional responses of the regulatory and ...


Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine Jan 1986

Integrity And Circumspection: The Labor Law Vision Of Bernard D. Meltzer, Theodore J. St. Antoine

Articles

Bernard Meltzer has testified under oath that he "rarely take[s] absolute positions." The record bears him out. While his colleagues among labor law scholars often strain to demonstrate that the labor relations statutes and even the Constitution support their hearts' desires, the typical Meltzer stance is one of cool detachment, pragmatic assessment, and cautious, balanced judgment. The "itch to do good," Meltzer has remarked wryly, "is a doubtful basis for jurisdiction" -or, he would likely add, for any other legal conclusion. In this brief commentary I propose to examine the Meltzer approach to four broad areas of labor law ...


The Revision Of Employment-At-Will Enters A New Phase, Theodore J. St. Antoine Jan 1985

The Revision Of Employment-At-Will Enters A New Phase, Theodore J. St. Antoine

Articles

The most significant development in the whole field of labor law during the past decade was the growing willingness of the courts to modify the traditional doctrine of employment-at-will. Applying either tort or contract theory, or both, judges in some thirty jurisdictions declared their readiness to blunt the worst rigors of the rule that an employment contract of indefinite duration can be terminated by either party at any time for any reason. These dramatic breakthroughs evoked almost universal acclaim from disinterested commentators, primarily on the grounds of simple justice. Now we may be entering a new phase of consolidation, refinement ...


Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine Jan 1984

Legal Barriers To Worker Participation In Management Decision Making, Theodore J. St. Antoine

Articles

Collective bargaining lies at the heart of the union-management relationship. It is the end and purpose of the whole effort to protect employees against reprisals when they form an organization to represent them in dealing with their employers. Collective bargaining is grounded in the belief that industrial strife will be checked, and the workers' lot bettered, if workers are given an effective voice in determining the conditions of their employment. My thesis is that federal law, even while placing the force of government behind collective bargaining, has so artificially confined its scope that the process has been seriously impeded from ...


Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine Jan 1982

Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine

Articles

"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the ...


Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel Jan 1966

Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel

Articles

In Elfbrandt v. Russell, the Supreme Court, in a 5-to-4 decision, declared unconstitutional Arizona's requirement of a loyalty oath from state employees. At first glance, Elfbrandt appears to be just another decision voiding a state loyalty oath on limited grounds relating to the specific language of the particular oath. Yet, several aspects of Mr. Justice Douglas' opinion for the majority suggest that Elfbrandt is really of far greater significance: it may sharply limit the scope and coverage of loyalty oaths generally and, indeed, may presage a ruling invalidating all such oaths. Of course, only the Supreme Court can determine ...


Labor Organizations In Legislation, Jerome C. Knowlton Jan 1908

Labor Organizations In Legislation, Jerome C. Knowlton

Articles

During the first months of the current year, the Supreme Court of the United States handed down three decisions on important questions in labor legislation.1 The Employers' Liability Act was declared unconstitutional, but on grounds that may be avoided by subsequent legislation; the boycott was decided to be an unlawful conspiracy against interstate commerce, and in violation of the Anti-Trust Act and the congressional enactment providing criminal punishment for the discharge of an employee because of his membership in a labor organization was also held unconstitutional. These decisions have been unjustly spoken of by some, as unreasonably severe on ...