Law Commons^™

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear. Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

Big Data Affirmative Action, Peter N. Salib

Northwestern University Law Review

As a vast and ever-growing body of social-scientific research shows, discrimination remains pervasive in the United States. In education, work, consumer markets, healthcare, criminal justice, and more, Black people fare worse than whites, women worse than men, and so on. Moreover, the evidence now convincingly demonstrates that this inequality is driven by discrimination. Yet solutions are scarce. The best empirical studies find that popular interventions—like diversity seminars and antibias trainings—have little or no effect. And more muscular solutions—like hiring quotas or school busing—are now regularly struck down as illegal. Indeed, in the last thirty years, the Supreme Court has invalidated …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Undocumented Domestic Workers: A Penumbra In The Workforce, Abigail A. Roman

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Beyond Sex-Plus: Acknowledging Black Women In Employment Law And Policy, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

It has been more than 30 years since Kimberlé Crenshaw published her pathbreaking article critiquing the inadequacy of antidiscrimination law in addressing claims at the intersection of race and sex discrimination. This Article focuses on the challenges Black women continue to face when bringing intersectional claims, despite experiencing high rates of discrimination and harassment. The new status quo has not resolved the problems that she documented, and has introduced a set of second generation intersectionality issues. Most significantly, many courts now recognize that Black women experience discrimination differently than do white women or Black men. Yet, despite the professionally and …

Foreword, National Injunctions: What Does The Future Hold?, Suzette Malveaux

Publications

This Foreword is to the 27th Annual Ira C. Rothgerber Jr. Conference, National Injunctions: What Does the Future Hold?, which was hosted by The Byron R. White Center for the Study of American Constitutional Law at the University of Colorado Law School, on Apr. 5, 2019.

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Stephen Rushin

No abstract provided.

Where The Law Ends - Part 1: M&G; Polymers V. Tackett And Cnh Industrial V. Reese - Federal Labor Policy, The Interpretation Of Collective Bargaining Agreements, And The Failure Of Stare Decisis, Roger J. Mcclow

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Effects Of Senate Bill 4 On Wage-Theft: Why All Workers Are At Risk In Low-Income Occupations, Daniella Salas-Chacon

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

State Labor Law And Federal Police Reform, Stephen Rushin, Allison Garnett

Faculty Publications & Other Works

No abstract provided.

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

A Signal Or A Silo? Title Vii's Unexpected Hegemony, Sophia Z. Lee

All Faculty Scholarship

Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively …

A European Solution To America’S Basketball Problem: Reforming Amateur Basketball In The United States, Jaimie K. Mcfarlin, Joshua Lee

Jaimie K. McFarlin

The system of amateur and collegiate basketball in America is flawed, as every year, thousands of young men and women pursue their basketball dreams under the shadow of a multi-million dollar, predatory business model. Integral to telling the history of the NCAA and AAU organizations are recruiting horror stories and other examples of young talents who were taken advantage of by unscrupulous actors, both of which continue today. The commercialization and professionalization of amateur basketball has fed an ecosystem of exploitation in which private actors and institutions capitalize on the American mantra of "amateurism." The European system of amateur athletics …

Workers Disarmed: The Campaign Against Mass Picketing And The Dilemma Of Liberal Labor Rights, Ahmed A. White

Publications

In the late 1930s and early 1940s, mass picketing, characterized by large numbers of workers congregating in common protest at or near their employers' establishments, emerged as a crucial weapon in a historic campaign by American workers to realize basic labor rights and build an enduring labor movement in the face of strident resistance from a powerful business community. So potent a weapon did mass picketing prove that these business interests, aided by allies at all levels of government, moved quickly to ban the tactic. From the real-world complexities of labor conflict, this coalition forged a simplistic, analytically dubious, but …

Discrimination Against Mothers Is The Strongest Form Of Workplace Gender Discrimination: Lessons From Us Caregiver Discrimination Law, Stephanie Bornstein, Joan C. Williams, Genevieve R. Painter

UF Law Faculty Publications

Work-family reconciliation is an integral part of labor law as the result of two major demographic changes: the rise of the two-earner family, and the pressing concern of elder care as Baby Boomers age. Despite these changes, most European and American workplaces still assume that the committed worker has a family life secured so that family responsibilities do not distract from work obligations. This way of organizing employment around a breadwinner husband and a caregiver housewife, which arose in the late eighteenth century, is severely outdated today. The result is workplace-workforce mismatch: Many employers still have workplaces perfectly designed for …

Building A Movement With Immigrant Workers: The 1972-74 Strike And Boycott At Farah Manufacturing, Maria L. Ontiveros

Maria L. Ontiveros

Between May, 1972 and February, 1974, thousands of Chicana workers struck Farah Manufacturing plants throughout Texas. They were joined in their efforts by the Amalgamated Clothing Workers of America who orchestrated nationwide pickets calling for a boycott of Farah slacks. The strike and boycott were supported by various civil rights groups, politicians and religious organizations. Working together, they caused a dramatic drop in sales, large operating losses and a substantial drop in the company's share price. After several victories before the National Labor Relations Board, the strike settled with the company rehiring 3,000 strikers and recognizing the union. The company, …

Antidiscrimination Rights Of Contingent Workers In The United States, Hyun Joo Kang

Maurer Theses and Dissertations

Title VII of the Civil Rights Act of 1964 prohibits an employer's discriminatory employment practices against an employee on the basis of race, color, religion, gender, or national origin. Most contingent workers in the United States are faced with discriminatory employment practices, such as low wages and low or no benefits, and they are disproportionately women and minorities. Title VII is the focal point, but Title VII has not functioned as a remedy for contingent workers. This dissertation examines why contingent workers suffer discrimination, despite Title VII, and suggests possible solutions.

In the United States, the distinctive interpretation of laws …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

Publications

It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …

Female Immigrant Workers And The Law: Limits And Opportunities, Maria Ontiveros

Maria L. Ontiveros

This paper explains the reasons that traditional United States labor and employment laws are incapable of effectively addressing the types of workplace problems confronting female immigrant workers. It critiques the protections supposedly offered by the free market, labor standards, antidiscrimination laws and collective bargaining. It argues that statutory exclusion, immigration issues, nonrecognition of injury, and cultural limitations thwart the effectiveness of traditional approaches. It then describes a variety of initiatives and approaches being taken at the domestic and international level that more effectively address these problems. These initiatives include the use of the Thirteenth Amendment and antitrafficking legislation, as well …

Card Check Recognition: The Ongoing Legal And Legislative Battle, Michael E. Aleo

ExpressO

A great debate has been brewing for years over whether unions should be able to organize employees outside of the traditional election procedures provided by the National Labor Relations Act (“NLRA” or “the Act”). Typically, in an organizing drive, a union solicits support from employees to indicate a desire to run a National Labor Relations Board (“NLRB” or “Board”) election. The union does this by collecting cards from employees affirming the employees’ desire to have a representation election. If the union collects valid cards from at least one-third of eligible employees in the appropriate bargaining unit, the union may then …

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

Immigration Restrictions As Employment Discrimination, Howard F. Chang

All Faculty Scholarship

In this paper, I analyze restrictions on immigration to the United States as a form of government-mandated employment discrimination against aliens. Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. Under our immigration and nationality laws, we base this discrimination explicitly on circumstances of birth beyond the control of the alien. I argue that immigration restrictions thereby violate our liberal ideals of equality, which require a cosmopolitan perspective that extends equal concern to all individuals. Furthermore, even if we assume a less demanding moral theory that allows us to give the interests …

Political Power Of Nuisance Law: Labor Picketing And The Courts In Modern England, 1871-Present, The , Rachel Vorspan

Faculty Scholarship

This inquiry, a comprehensive historical study of the impact of nuisance law on labor picketing in England, comprises six sections. Part I introduces general principles of labor law and nuisance law in the nineteenth century, particularly the legislative scheme of "collective laissezfaire" that emerged after 1871 and remained relatively intact until 1980. Part II examines the use of nuisance doctrines against picketers in the first phase of confrontational picketing from 1889 to 1906, when the appearance of militant unions representing unskilled workers stimulated inventive judicial responses in both private and public nuisance. Part III investigates the much heralded judicial and …

A Unified Approach To Causation In Disparate Treatment Cases: Using Sexual Harassment By Supervisors As The Causal Nexus For The Discriminatory Motivating Factor In Mixed Motive Cases, Margaret E. Johnson

All Faculty Scholarship

This Comment examines a unified approach for disparate treatment mixed motives claims paired with sexual harassment claims under Title VII. The Author argues that because of the policy for nondiscriminatory and desegregated work environments embodied in Title VII, and because of the documented harm resulting from sexual harassment, courts should allow the burden of proof to shift to the defendant if the plaintiff demonstrates that her supervisor sexually harassed her, or condoned the harassment, and that the harassing supervisor made an employment decision that was adverse to her.

Judicial And Adminstrative Enforcement Of Individual Rights Under The National Labor Relations Act And Under The Labor-Management Relations Act Between 1935 And 1990 - An Historical And Empirical Analysis Of Unsettled Intercircuit And Intracircuit Conflicts, Willy E. Rice

Faculty Articles

This Article is concerned with exploring the extent to which both the National Labor Relations Act of 1935 and the Labor-Management Relations Act of 1947 have protected individual employees' rights in administrative and judicial proceedings.

Recent Cases, Vanderbilt Law Review Staff

Vanderbilt Law Review

Civil Rights--Private Education-Racially Discriminatory Admissions Policies Violate Right to Contract Provision of 42 U.S.C. § 1981

Plaintiffs, ' blacks who had been denied admission solely on the basis of their race to two all-white private schools that received no state aid,' sought damages and injunctive relief in federal district court contending that these rejections violated section 1981 of 42 U.S.C. by denying them the same right to contract as enjoyed by white citizens.

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Copyright--Telecommunications--CATV Importation of Distant Television Signals Constitutes Infringement Under Sections One (c) & (d) of the Copyright Act

Plaintiffs,' creators and producers of television programs,brought a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Personal Injury--Intent to Injure Is Not a Prerequisite to Recovery for Police Abuse Under Section 1983

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Constitutional Law--Abortion--Statute Prohibiting Abortion of Unquickened Fetus Violates Mother's Constitutional Right of Privacy

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Constitutional Law--Obscenity--State Statute Allowing Injunction Against Dissemination of Allegedly Obscene Material Prior to Adversary Hearing Not Violative of First Amendment

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Constitutional Law--Right of Privacy--State Statute Requiring Disclosure of All Substantial Financial Interests of Public Officials is Overbroad and an Unconstitutional Invasion of Privacy

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Constitutional Law--Sixth Amendment--Admission of Prior Inconsistent Statements as Substantive Evidence Does Not Violate Right of Confrontation

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Criminal Procedure--Search and Seizure--Warrantless Search of …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Exclusion of Wage Earners as a Class from Jury Service in State Courts Violates

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International Law and Trademark Infringement--Rights of Former Owners of Confiscated Cuban Businesses Under Hickenlooper Amendment

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Jurisdiction--Minimum" Contacts--First Amendment Requires a Greater Showing of Contact in a Libel Action To Satisfy Due Process Than Is Necessary in Other Types of Actions

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Labor Law--Attorney Undertaking Persuader Activity on Behalf of Employer Must Report Such Activity Under LMRDA

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Labor Law--Employer Must Bargain About an Economically Motivated Decision To Close a Portion of Its Operations

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Labor Law--Employer's Duty To Bargain When Authorization Cards Are …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Civil Rights--Federal Criminal Code Protects Rights Secured by Fourteenth Amendment

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Civil Rights--Removal--Strict Interpretation of Federal Removal Statute Affirmed

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Labor Law--Judicial Review of Arbitrator's Authority To Imply Contractual Condition

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Labor Relations--Federal Preemption of Defamation Suits Arising in Course of Organizational Campaign

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State and Local Taxation--Economic Exploitation Sufficient Connection To Require Non-Resident Seller To Collect Use Tax