Law Commons^™

Protecting Protected Activity, Daiquiri J. Steele

Washington Law Review

The United States Supreme Court recently rolled back protections in employment retaliation cases by requiring plaintiffs to prove that their protected activity was the but-for cause of adverse actions by their employers. As a result, employers may escape liability even though the employee-plaintiffs have proven that employers had an impermissible motive in taking adverse actions. In doing so, the Court undermined the underlying statutes’ retaliation provisions created to help enforce the underlying statute, leading to a court-instituted failure to protect activity that Congress sought to protect.

While legal scholars have paid much attention to the establishment of a but-for causation …

Co-Worker Evidence In Court, Sandra F. Sperino

Faculty Publications

This symposium explores ways to empower workers. Many employment laws rely on workers filing private rights of action to enforce the underlying substantive law. Unfortunately, when workers file these claims in court, courts often do not allow them to rely on evidence from their co-workers. While courts regularly allow employers to submit co-worker evidence of a plaintiff's poor performance or lack of qualifications, they often diminish or exclude a plaintiff's co-worker evidence that the plaintiff performed well or possessed desired qualifications. This Article identifies and explores this evidentiary inequality. It argues that efforts to empower workers must include the power …

Organizational Justice And Antidiscrimination, Brad Areheart

Scholarly Works

Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most promising way to curb workplace discrimination is not through amending statutes or trying to change the behavior of individual bad actors; instead, we must modify the workplace itself. Specifically, this Article argues that Organizational Justice — a theory empirically grounded in behavioral science — provides novel guidance for how to proactively …

Discrimination Against Employees Without Covid-19 Antibodies, Debbie N. Kaminer

Publications and Research

Policies that favor those with immunity to a contagious disease are a novel concept and have not been used in recent United States history. It is important to think about the legal and policy issues associated with banning employees without immunity to Covid-19 from the workplace and the appropriate balance between an individual’s right to work and the public health of the nation. In doing so, it is useful to compare these policies to immunization laws, mandatory retirement laws and the Americans with Disabilities Act.

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Bridget J. Crawford, Margaret E. Johnson, Marcy L. Karin, Laura Strausfeld Esq., Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis.

This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …

Explorations With Charlie Sullivan: Theorizing A Different Universe Of Employment Discrimination, William Corbett

All Scholarship

No abstract provided.

The Emerging Statutory Proximate Cause Doctrine, Sandra F. Sperino

Faculty Publications

The year 2011 marked the birth of a new idea. The United States decided Staub v. Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. It is rare in jurisprudence to be present at the birth of an idea and then see that idea develop over its first decade. This Article charts the emerging proximate cause doctrine from its early days as a baby doctrine. Now, the doctrine is pre-adolescent, with all of the changes and turmoil that phrase entails.

The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss

All Faculty Scholarship

Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate …

Florida's Late Entrance To The Ongoing Trend: Sexual Orientation In The Workplace, Ernesto Rivero

St. Thomas Law Review

John Doe is an exceptional firefighter who also happens to be a homosexual. John performs his duties every day to the utmost of his ability; however, in response to his sexual orientation, John is verbally harassed daily, underpaid for his line of work, and subsequently discharged from his position. This is a consequence of practicing his protected constitutional right of same sex marriage at his workplace. Every individual ought to have a fair and inclusive workplace free from discrimination; that is not the case in today’s America. Although employees are protected from discrimination by the Civil Rights Act of 1964 …

Retaliation: 462 Clark County School District V. Breeden, 532 U.S. 268 (2001), Rebecca White

Scholarly Works

Clark County School District v. Breeden, to my mind, has always been a sleeper case. A per curiam opinion, it takes up no more than five pages in the US reports, yet when I taught this case to my employment discrimination students, we often would spend a full class period – and sometimes more – on it. Why? Because it presents virtually every issue that can crop up under section 704 of Title VII of the Civil Rights Act of 1964, the statute’s antiretaliation provision.

Killing The Cat's Paw, Sandra F. Sperino

Faculty Publications

In federal employment discrimination law, courts apply the label "cat's paw" to describe certain cases. Judge Richard Posner first used the term cat's paw in the context of federal discrimination jurisprudence, invoking a fable about an enterprising monkey who tricks a cat into getting hot chestnuts from a fire.' As the cat removes the hot chestnuts from the fire, the monkey eats them, leaving the cat with nothing except burnt paws.

In its traditional form, a cat's paw case is one in which a biased individual passes along negative information about a worker to an "unbiased" decisionmaker. The "unbiased" decisionmaker …

Harassment, Workplace Culture, And The Power And Limits Of Law, Suzanne B. Goldberg

Faculty Scholarship

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment – from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to …