Law Commons^™

Intolerable Asymmetry And Uncertainty: Congress Should Right The Wrongs Of The Civil Rights Act Of 1991, William R. Corbett

Journal Articles

No abstract provided.

Because Of Bostock, Noelle N. Wyman

Michigan Law Review Online

On a below-freezing January morning, Jennifer Chavez, an automobile technician, sat in a car that she was repairing to keep warm while waiting for delayed auto parts to arrive. Without intending to, she nodded off. Her employer promptly fired her for sleeping on the job. At least, that is the justification her employer gave. But Chavez had reason to believe that her coming out as transgender motivated the termination. In the months leading up to the January incident, Chavez’s supervisor had told her to “tone things down” when she talked about her gender transition. The repair-shop owner said that the …

Consent, Coercion, And Employment Law, Samuel R. Bagenstos

Articles

The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …

A More Perfect Pickering Test: Janus V. Afscme Council 31 And The Problem Of Public Employee Speech, Alexandra J. Gilewicz

University of Michigan Journal of Law Reform

In June 2018, the Supreme Court issued its long-awaited—and, for the American labor movement, long-feared—decision in Janus v. AFSCME Council 31. The decision is expected to have a major impact on public sector employee union membership, but could have further impact on public employees’ speech rights in the workplace. Writing for the majority, Justice Samuel Alito’s broad interpretation of whether work-related speech constitutes a “matter of public concern” may have opened the floodgates to substantially more litigation by employees asserting that their employers have violated their First Amendment rights. Claims that would have previously been unequivocally foreclosed may now …

The Possible Final Word On Employment Discrimination Relief, Neal Devins

Neal E. Devins

No abstract provided.

Are Residential Quotas Constitutional?, Neal Devins

Neal E. Devins

No abstract provided.

Janus's Two Faces, Kate Andrias

Articles

In ancient Roman religion and myth, Janus is the god of beginnings, transitions, and endings. He is often depicted as having two faces, one looking to the future and one to the past. The Supreme Court’s Janus v AFSCME case of last Term is fittingly named.1 Stunning in its disregard of principles of stare decisis, Janus overruled the forty-yearold precedent Abood v Detroit Board of Education. 2 The Janus decision marks the end of the post–New Deal compromise with respect to public sector unions and the FirstAmendment.Looking to the future, Janus lays the groundwork for further attack on labor rights—as …

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Restoring A Willingness To Act: Identifying And Remedying The Harm To Authorized Employees Ignored Under Hoffman Plastics, Rita Trivedi

University of Michigan Journal of Law Reform

Part I of this Article provides a background for both the NLRA and the IRCA. It examines the goals and remedies of both statutes as well as the impact of the Supreme Court’s Hoffman decision on available remedies.

Part II addresses the currently-skewed remedial incentives. It considers why employers are tempted to hire unauthorized workers and commit unfair labor practices that are then inadequately remedied, which creates a situation that adversely effects the rights of authorized employees.

Part III more closely analyzes this consequential harm. This Part identifies the erosions on the NLRA’s collective nature and the impact on authorized …

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Publications

No abstract provided.

Labor And Employment Arbitration Today: Mid-Life Crisis Or New Golden Age?, Theodore J. St. Antonie

Articles

The major developments in employer-employee arbitration currently do not involve labor arbitration, that is, arbitration between employers and unions. The focus is on employment arbitration, arbitration between employers and individual employees. Beginning around 1980, nearly all the states judicially modified the standard American doctrine of employment-at-will whereby, absent a statutory or contractual prohibition, an employer could fire an employee "for good cause, for no cause, or even for cause morally wrong." Under the new regime, grounded in expansive contract and public policy theories, wrongfully discharged employees often reaped bonanzas in court suits, with California jury awards averaging around $425,000." Many …

Are Unions A Constitutional Anomaly?, Cynthia Estlund

Michigan Law Review

This term in Friedrichs v. California Teachers Ass’n, the Supreme Court will consider whether ordinary public employees may constitutionally be required to pay an “agency fee,” as a condition of employment, to the union that represents them in collective bargaining. The Court established the terms of engagement in the 2014 decision Harris v. Quinn, which struck down an agency fee on narrower grounds while describing the current doctrine approving agency fees, blessed many times by the Court itself, as an “anomaly.” This Article asks whether labor unions are themselves anomalies in our legal system, particularly in their constitutional entitlements. Its …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

OKEZIE CHUKWUMERIJE

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

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, …

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia Narine

Articles

No abstract provided.

Labor Unions And Title Vii: A Bit Player At The Creation Looks Back, Theodore St. Antoine

Book Chapters

During the debates over what became Title VII (Equal Employment Opportunity) of the Civil Rights Act of 1964, I was the junior partner of the then General Counsel of the AFL-CIO, J. Albert Woll. There were only three of us in the firm. The middle partner, Robert C. Mayer, handled the business affairs of the Federation and our other union clients. Bob was also the son-in-law of George Meany, president of the AFL-CIO, which gave us a unique access to Meany’s thinking. The Federation had only one in-house lawyer, Associate General Counsel Thomas Everett Harris. Tom was an aristocratic Southerner …

The Evolution And Decline Of The Effective-Vindication Doctrine In U.S. Arbitration Law, Okezie Chukwumerije

Pepperdine Dispute Resolution Law Journal

This article offers information on the history, significance and role of the effective-vindication doctrine in U.S. arbitration law in promoting access to justice. It analyzes the significance of broad policy implications regarding the interpretation of the Federal Arbitration Act (FAA) by the Court facilitating the arbitration of commercial disputes and protecting the statutory rights of consumers in the context of the U.S. Supreme Court's decision in Green Tree Financial Corp. v. Randolph.

Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro

University of Michigan Journal of Law Reform

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Publications

No abstract provided.

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.

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt

Michigan Law Review

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …

Categorically Black, White, Or Wrong: 'Misperception Discrimination' And The State Of Title Vii Protection, D. Wendy Greene

University of Michigan Journal of Law Reform

This Article exposes an inconspicuous, categorically wrong movement within antidiscrimination law. A band of federal courts have denied Title VII protection to individuals who allege “categorical discrimination”: invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of “misperception …

Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn

Michigan Law Review

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …

A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner

Pepperdine Law Review

In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.

Newport News Shipbuilding & Dry Dock Company V. Eeoc: Expanding The Scope Of Title Vii , Mark D. Klein

Pepperdine Law Review

Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 prohibits sex discrimination on the basis of pregnancy. In Newport News Shipbuilding and Dry Dock Co. v. EEOC, the United States Supreme Court extended the scope of the Act to include not only female employees, but also female dependents of male employees. The author examines the Supreme Court's analysis of and the legislative intent behind the Pregnancy Discrimination Act and explores the future impact of the decision.

Baring Inequality: Revisiting The Legalization Debate Through The Lens Of Strippers' Rights, Sheerine Alemzadeh

Michigan Journal of Gender & Law

The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if …

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Terry Morehead Dworkin, Aarti Ramaswami, Cindy A. Schipani

Michigan Journal of Gender & Law

The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

No abstract provided.