Labor and Employment Law Commons^™

Litigation For The People, Samuel R. Bagenstos

Reviews

Can anti-discrimination litigation be a tool for social change? For many years, a contingent on the academic left contended that the answer is no. The Critical Legal Studies movement (CLS) of the 1970s and ’80s argued that using litigation to enforce rights privileged lawyers, fed an alienating and individualized discourse, and ultimately had a depoliticizing effect. CLS adherents believed that anti-discrimination laws often legitimated, rather than challenged, the fundamental inequalities of society.

Although CLS is no longer a presence in law schools, its ideas live on. Its critique of rights litigation has been bolstered by the opposition to identity politics …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Equality Is A Brokered Idea, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

O Brother Where Art Thou? The Struggles Of African American Men In The Global Economy Of The Information Age, Kenneth G. Dau-Schmidt

Indiana Journal of Law and Social Equality

As early as the late 1980’s, William Wilson argued that widespread economic transitions had altered the socioeconomic structure of American inner cities to the detriment of African Americans. Wilson identified declines in manufacturing work and its replacement with poorly compensated service sector work as driving racial segregation and leaving African Americans jobless, poor and alienated from American society. These transitions were particularly problematic for African American men since manufacturing work was their primary gateway to middle-class employment while African American women had already focused more on service work.

Since the initial exposition of Wilson’s theory of deindustrialization, Wilson’s framework of …

Erasing Race, Llezlie Green

Scholarly Articles in Law Reviews & Journals

Low-wage workers frequently experience exploitation, including wage theft, at the intersection of their racial identities and their economic vulnerabilities. Scholars, however, rarely consider the role of wage and hwur exploitation in broader racial subordination frameworks. This Essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader antisubordination …

Ai Report: Humanity Is Doomed. Send Lawyers, Guns, And Money!, Ashley M. London

Law Faculty Publications

AI systems are powerful technologies being built and implemented by private corporations motivated by profit, not altruism. Change makers, such as attorneys and law students, must therefore be educated on the benefits, detriments, and pitfalls of the rapid spread, and often secret implementation of this technology. The implementation is secret because private corporations place proprietary AI systems inside of black boxes to conceal what is inside. If they did not, the popular myth that AI systems are unbiased machines crunching inherently objective data would be revealed as a falsehood. Algorithms created to run AI systems reflect the inherent human categorization …

The New Principle-Practice Gap: The Disconnect Between Diversity Beliefs And Actions In The Workplace, Jamillah Bowman Williams, Jonathan Cox

Georgetown Law Faculty Publications and Other Works

Following increased calls for racial justice, many organizations have pledged to play their part in dismantling systemic racism. One common step leaders take is to invest in diversity and inclusion programs. Yet, despite organizations’ bold claims to value diversity and the investment of billions of dollars on related efforts, workplace discrimination continues to be a major factor in the lives of people of color. Additionally, existing research highlights a principle-policy gap, wherein people--particularly White Americans--espouse support for the principles of diversity, yet their support wanes for policies that address inequalities. In this survey study, we explore attitudes about organizational diversity …

What's Wrong With Police Unions?, Benjamin Levin

Publications

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Bias In, Bias Out, Sandra G. Mason

AI-DR Collection

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies …

The Gendered Burdens Of Conviction And Collateral Consequences On Employment, Joni Hersch, Erin E. Meyers

Journal of Legislation

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living. This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men. This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record. In addition, women have access to far fewer vocational programs while incarcerated. Further exacerbating this burden is that …

Black Hair(Tage): Career Liability Or Civil Rights Issue?, Kaili Moss

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Chronic Harm, Ann Kennedy

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Fool Me Once, Shame On You; Fool Me Twice, Shame On You Again: How Disparate Treatment Doctrine Perpetuates Racial Hierarchy, David Simson

Articles & Chapters

Title VII race discrimination doctrine is excessively hostile to workers of color, and many observers agree that it needs to be fixed. Yet comparatively few analyses of the doctrine weave together doctrinal and theoretical insights with systematic empirical findings from social science. This Article looks to Social Dominance Theory—a social psychology theory with a robust body of supporting empirical research—to take on this task and connect judicial interpretation of Title VII to the human tendency to create and maintain group-based hierarchies. In doing so, the Article questions the common view that Title VII race discrimination doctrine is symmetrical, protecting all …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

A Study Of Factors Influencing Hiring Decisions In The Context Of Ban The Box Policies, Ronald F. Day

Dissertations, Theses, and Capstone Projects

This dissertation investigates whether NYC employers adhered to Ban the Box by removing the question about criminal history from employment forms, by refraining from inquiring about an applicant’s criminal record during the interview process, and by complying with other aspects of the policy. The study also documents employer perspectives on Ban the Box and on the hiring of individuals with criminal convictions, and examines whether more individuals with a criminal record were hired after the policy was implemented.

Using a mixed-methods approach, surveys were administered to companies in the nonprofit and private sectors, and semi-structured interviews were conducted with a …

Inclusion Riders And Diversity Mandates, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In this piece, I situate these sorts of diversity requests within the broader context of other customer/client preferences that implicate Title VII. To be sure, the “inclusion riders” are not literal customer/client requests, but rather requests from celebrities who are themselves being hired by the employer for a specific project. Broadly speaking, however, they raise the same legal issue regarding third-party preferences that implicate protected characteristics under Title VII.

As a starting point, the general rule within employment discrimination law is that customer preferences cannot justify discriminatory treatment by employers. That baseline has led courts to rule that employers cannot, …

Politically Engaged Unionism: The Culinary Workers Union In Las Vegas, Ruben J. Garcia

Scholarly Works

This chapter introduces the reader to "politically engaged unionism" as demonstrated by the bargaining successes of The Culinary Workers Union Local 226 in Las Vegas, Nevada. Professor Ruben J. Garcia provides a brief background of the union and its member demographics, arguing it can serve as a model for unions across the country.

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

Faculty Scholarship

Expressing racial preferences in casting calls and hiring practices is nothing new. Producers of television shows, movies, and Broadway musicals have regularly and explicitly sought to hire actors and actresses with certain physical characteristics, including race, in casting their productions. And, given that the industry seemingly accepted this standard when it favored white talent, the public heard little about it. To the extent controversy arose, courts quelled concerns in a swift and easy fashion, without consideration of the societal harms or impacts that stereotyped or limited portrayals of minorities in entertainment could have on the public’s perception of people of …

Law & Laundry: White Laundresses, Chinese Laundrymen, And The Origins Of Muller V. Oregon, Emily Prifogle

Articles

This article uses the historian’s method of micro-history to rethink the significance of the Supreme Court decision Muller v. Oregon (1908). Typically considered a labor law decision permitting the regulation of women’s work hours, the article argues that through particular attention to the specific context in which the labor dispute took place — the laundry industry in Portland, Oregon — the Muller decision and underlying conflict should be understood as not only about sex-based labor rights but also about how the labor of laundry specifically involved race-based discrimination. The article investigates the most important conflicts behind the Muller decision, namely …

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

A Conversation On Learning From The History Of The Civil Rights Movement, Walter F. Mondale

Minnesota Journal of Law & Inequality

Introduction & Abridged Transcript, The Summit for Civil Rights, November 10, 2017

Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq.

St. Mary's Law Journal

Abstract forthcoming

The Predictors Of Juvenile Recidivism: Testimonies Of Adult Students 18 Years And Older Exiting From Alternative Education, La Toshia Palmer

Dissertations

Purpose: The purpose of this descriptive, qualitative study was to identify and describe the importance of the predictors of juvenile recidivism and the effectiveness of efforts to prevent/avoid juvenile recidivism as perceived by previously detained, arrested, convicted, and/or incarcerated adult students 18 years of age and older exiting from alternative education in Northern California. A second purpose was to explore the types of support provided by alternative schools and the perceived importance of the support to avoid recidivism according to adult students 18 years of age and older exiting from alternative education.

Methodology: This qualitative, descriptive research design identified …

Rape In Context: Lessons For The United States From The International Criminal Court, Caroline Davidson

Cardozo Law Review

The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute's proposed overhaul of the Model Penal Code's provision on sexual assault carves out a middle ground and introduces, in addition to …

"When They Enter, We All Enter": Opening The Door To Intersectional Discrimination Claims Based On Race And Disability, Alice Abrokwa

Michigan Journal of Race and Law

This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

Feminism And The Tournament, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Naomi Bishop, the protagonist of the 2016 film "Equity," is the rare "she-wolf of Wall Street."' At the beginning of the film, Bishop appears on a panel at an alumni event. She explains her career choices to the young women in the audience as follows: I like money. I do. I like numbers. I like negotiating. I love a challenge. Turning a no into a yes. But I really do like money. I like knowing that I have it. I grew up in a house where there was never enough. I was raised by a single mom with four kids. …

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …