Labor and Employment Law Commons^™

The "Presence Is An Essential Function" Myth: The Ada's Trapdoor For The Chronically Ill, Audrey E. Smith

Seattle University Law Review

In nearly all cases, long-term chronic illnesses satisfy the ADA's broad definition of disability. However, when these illnesses begin to cause absenteeism, the "presence is an essential function" rule effectively denies protection to the victims of these illnesses, as they are no longer "qualified individuals" under the ADA regardless of whether they satisfy the technical requirements for a position. The idea that "presence is an essential function" is a myth because (1) it erroneously assumes that most jobs can be performed only at the worksite, and (2) virtually all employers are able to, and do, accommodate some degree of employee …

The Preemptive Effect Of Erisa On The Prevailing Wage Act, 29 J. Marshall L. Rev. 55 (1995), Scott D. Miller

UIC Law Review

No abstract provided.

Handling Difficult Issues Under The Family Medical Leave Act, Helen Norton

Publications

No abstract provided.

Reflections On Group Action And The Law Of The Workplace Symposium: The Changing Workplace, James J. Brudney

Faculty Scholarship

Sixty years after the National Labor Relations Act (NLRA) was passed, collective action appears moribund. Current analysis burying and praising the NLRA has focused primarily on the changed economic realities of the product and labor markets. Yet there is another story to be told involving a comparable transformation of the legal culture. Relying in part on empirical analysis of court decisions, I argue that changes in federal workplace law over the past thirty years have undermined the concept of group action-in particular collective bargaining-as a preferred means of regulating the employment relationship. These changes are the product of leading institutional …

Famous Victory: Collective Bargaining Protections And The Statutory Aging Process, A , James J. Brudney

Faculty Scholarship

When it enacted the National Labor Relations Act in 1935, Congress gave statutory recognition to collectively bargained terms and conditions of employment. In recent decades, the number of cases in which the Supreme Court has interpreted the NLRA has declined, leaving the Act's interpretation and enforcement primarily to the National Labor Relations Board and the federal courts of appeals. In this Article, Professor Brudney presents the results of his study of 1,224 NLRB adjudications and their fate upon federal court review, from 1986 to 1993. Professor Brudney analyzes the reversal and affirmance data, and identifies areas of general Board-court agreement …

Collective Bargaining Or "Collective Begging"?: Reflections On Antistrikebreaker Legislation, Samuel Estreicher

Michigan Law Review

The strike is a necessary part of collective bargaining. Workers should not ordinarily lose their jobs by pressing their disputes in this manner. But neither should strikes be viewed as a risk-free means of empowering unions to lock employers into uncompetitive contracts.

Employment Discrimination Claims Under Erisa Section 510: Should Courts Require Exhaustion Of Arbitral And Plan Remedies?, Jared A. Goldstein

Michigan Law Review

This Note examines whether courts should require section 510 claimants to exhaust either plan-based or arbitral remedies before seeking judicial relief. It begins by comparing the basis for an exhaustion requirement with respect to benefits claims with the basis for such a requirement with respect to statutory claims - like those under section 510. Part I examines the rationale courts have offered for requiring exhaustion of plan remedies for benefits claims. Part I concludes that federal courts have correctly determined that Congress intended individuals bringing benefits claims to exhaust the remedies provided by the plan before seeking judicial relief. Part …

Employment Discrimination Law In Perspective: Three Concepts Of Equality, John J. Donohue Iii

Michigan Law Review

The essay begins with a discussion of which groups deserve the protection of employment discrimination law. With the protected categories of Title VII of the 1964 Civil Rights Act etched into the American consciousness, many might consider the appropriate categories to be fully self-evident. But of course, they are not, and many jurisdictions continue to struggle over whether certain dispreferred groups merit the law's solicitude.

Structuralist And Cultural Domination Theories Meet Title Vii: Some Contemporary Influences, Martha Chamallas

Michigan Law Review

This essay first looks at three important theoretical approaches - motivational, structural, and cultural - that mark the scholarly discourses on workplace equality since 1965. The motivational or individual choice theory is well established and has dominated legal discourse throughout this period. I concentrate in this essay on the other two visions, dating structuralist accounts from the mid1970s and cultural domination theories from the mid-1980s.

Only Girls Wear Barrettes: Dress And Appearance Standards, Community Norms, And Workplace Equality, Katharine T. Bartlett

Michigan Law Review

In this essay I study both the judicial rationales and the scholarly criticisms thereof, agreeing with critics that community norms are too discriminatory to provide a satisfactory benchmark for defining workplace equality, but also questioning the usual implications of this critique. Critics assume that it is possible, and desirable, to evaluate dress and appearance rules without regard to the norms and expectations of the community - that is, according to stable or universal versions of equality that are uninfected by community norms. I question this assumption, arguing that equality, no less than other legal concepts, cannot transcend the norms of …

Title Vii And The Complex Female Subject, Kathryn Abrams

Michigan Law Review

One strength of Title VII has been its capacity to accommodate the changing conceptions of discrimination and the self-conceptions of subject groups. In the first decades of its enforcement, advocates have raised - and courts have endorsed - a range of contrasting conceptions in order to broaden the employment opportunities of protected groups. This flexibility is particularly evident with respect to women.

After exploring recent doctrinal efforts to respond to complex claimants, I address these questions and assess the prospects of change. Although the unitary or categorical notions of group identity under which Title VII has historically been enforced might …

Checking The "Trigger-Happy" Congress: The Extraterritorial Extension Of Federal Employment Laws Requires Prudence, Derek G. Barella

Indiana Law Journal

No abstract provided.

Small Numbers, Black Men, Precipitous Responses, Big Problems, Michael A. Middleton

Faculty Publications

Professor Culp has aptly warned us that in our discussion of employment discrimination we should not lose sight of the need to address the spectrum of policies affecting the status of African-Americans. Without serious efforts in all aspects of American life (e.g., housing, education, health care, political and economic empowerment) our chances of significantly improving the future for African-American men are slim.

The Making Of The Model Employment Termination Act, Theodore J. St. Antoine

Articles

Courts in about 45 states have ameliorated the harshness of employment at will, but the common-law modifications still exhibit serious deficiencies. Legislation is needed. The Model Employment Termination Act proposes a balanced compromise. It would protect most employees against discharge without good cause and it would relieve employers of the risk of devastating financial losses When liability is imposed. Arbitration procedures under the Model Act would also be simpler, faster, and cheaper than existing court proceedings.

Divergent Strategies: Union Organizing And Alternative Dispute Resolution, Theodore J. St. Antoine

Articles

The Commission on the Future of Worker-Management Relations, the so-called "Dunlop Commission," is focusing on three principal subjects: (1) union organizing, (2) worker participation in management decision making, and (3) alternative dispute resolution (ADR). I am going to concentrate on the last, but first I would like to say a few words about union organizing. After all, unionization and collective bargaining - and for that matter, worker participation as well - can fairly be viewed as special forms of alternative dispute resolution.

Life-Cycle Justice: Accommodating Just Cause And Employment At Will, Stuart J. Schwab

Michigan Law Review

The goal of this article is to articulate a coherent framework for understanding the default rules for employment termination. While most observers see chaos here, I find a certain logic in the leading cases. The courts have been boldest when job protection is most appropriate, and they have hesitated precisely when at will plays its most useful role.

The Constitutionality Of Employer-Accessible Child Abuse Registries: Due Process Implications Of Governmental Occupational Blacklisting, Michael R. Phillips

Michigan Law Review

This Note discusses the due process implications of permitting employer access to state child abuse registries when disclosure affects registry members' employment.

Understanding Mixed Motives Claims Under The Civil Rights Act Of 1991: An Analysis Of Intentional Discrimination Claims Based On Sex-Stereotyped Interview Questions, Heather K. Gerken

Michigan Law Review

This Note analyzes the Civil Rights Act of 1991 and relevant case law to determine whether posing sex-stereotyped interview questions is actionable conduct under Title VII. It questions whether proof of discrimination during a phase in the hiring process, specifically during the interview stage, supports a Title VII claim without other independent evidence that the hiring decision was discriminatory. Part I explains that the circuit courts have envisioned the impact of discrimination during the hiring process differently and, as a result, are divided in determining whether sex-stereotyped interview questions are actionable under Title VII. Part II examines the legislative history …

Afterword: Labor Law Reform: Waiting For Congress?, Martin H. Malin

All Faculty Scholarship

No abstract provided.

The Charge-Filing Requirement Of The Age Discrimination In Employment Act: Accrual And Equitable Modification, Jim Beall

Michigan Law Review

This Note argues that ADEA causes of action should accrue when the plaintiff discovers, or reasonably should have discovered, that she has been injured by an adverse employment action such as discharge, demotion, denial of a position or promotion, or receipt of pay lower than employees doing the same job. Courts should equitably modify the filing period for the time in which the plaintiff reasonably failed to file a charge even though she already knew of the adverse employment action. Such a situation arises largely in two contexts: (1) when an employer engages in active misconduct that keeps the plaintiff …

The Pebble In The Shoe: Making The Case For The Government Employee, Joan R. Bullock

Journal Publications

This Article addresses the issue of whether federal government employees should be able to use the False Claims Act, also known as the "federal whistleblower statute," to personally benefit from uncovering fraud against the government during the course of their employment. The Article addresses, therefore, the apparent collision between two policies: on the one hand, the federal government has a compelling interest in vigorously pursuing those contractors who defraud it; on the other hand, the government has an interest in not encouraging its own investigators to enrich themselves by bringing personal suits for damages against the target of their investigations.

Defining "Disability": The Approach To Follow, Theodore J. St. Antoine

Articles

The definition of "disability" has once again become a central issue in workers' compensation law. I am partly responsible. A decade ago I served as the Governor's Special Counselor on Workers' Compensation. In my Reportto the Cabinet Council on Jobs and Economic Development, I stated: "If I could write on a clean slate, I would prefer to see the Michigan definition brought even closer into the mainstream of American law by declaring that 'disability' means a 'limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work …

Employment-At-Will—Is The Model Act The Answer?, Theodore J. St. Antoine

Articles

Over the last quarter century, the most significant development in the field of labor and employment law has been a nationwide movement toward a revision of the at-will employment doctrine. Courts in over forty-five jurisdictions have used one or more of three main theories to carve out exceptions to the previously allpervasive principle. Unfortunately, though one can applaud the values embodied in these decisions, there are serious deficiencies in the common law modifications. The purpose of this Article is to outline those defects and to demonstrate that the interests of employees and employers alike would be better served by new …

The Law And Arbitration: The Model Employment Termination Act, Theodore J. St. Antoine

Articles

The Model Employment Termination Act(META), which the Uniform Law Commissioners have recommended for adoption by all state legislatures, could provide the most significant legal change of this quarter century in the American workplace. In addition, if the annual case load of grievance arbitrations in this country now stands at somewhere around 65,000, the Act holds the potential for at least quadrupling that figure. Our colleague Jack Stieber has calculated that there are 60 million U.S. employees who are not protected by union contracts or civil service laws, and are thus subject to the employment-at-will doctrine. They can be fired for …

An Administrative Battle Of The Forms: The Eeoc's Intake Questionnaire And Charge Of Discrimination, Laurie M. Stegman

Michigan Law Review

This Note argues that the EEOC's interpretation of Title VII as reflected in its regulations is consistent with underlying statutory intent and strikes an appropriate balance between the needs of employers and employees. Therefore, Congress should amend section 706(b) of Title VII of the Civil Rights Act of 1964 to provide that a charge must be verified prior to the commencement of an EEOC investigation but not necessarily within the statutory filing period. Part I examines the legislative history of Title VII and its integrated procedures for obtaining administrative and judicial relief. Part II critiques the various ways in which …

Cumulative Trauma Disorders: Osha's General Duty Clause And The Need For An Ergonomics Standard, David J. Kolesar

Michigan Law Review

This Note argues that neither the Act nor its underlying policies supports OSHA's current use of the general duty clause to prosecute alleged ergonomics violations and that the only way to protect workers from CTDs fairly and effectively is through the promulgation of an ergonomics standard. Part I examines the purposes of the Act, as well as the function of the Act's general duty clause. Part II analyzes the four requirements of the general duty clause in the context of CTDs and finds that the clause does not apply to CTDs. Part III argues that the Act's intended policies support …

Employment Equality, Affirmative Action, And The Constitutional Political Consensus, Robert A. Sedler

Michigan Law Review

A Review of Equality Transformed: A Quarter-Century of Affirmative Action by Herman Belz and A Conflict of Rights: The Supreme Court and Affirmative Action by Melvin I. Urofsky

The Model Employment Termination Act: Fairness For Employees And Employers Alike, Theodore J. St. Antoine

Articles

The Model Employment Termination Act (META), which state legislatures are expected to consider in the near future aims to prevent the unfair firing of Amer~ ican workers. At the same time, the Act aims to prevent devastating financial blows to American business. For both employees and employers, META offers streamlined dispute resolution procedures that would be simpler, less costly, and less time-consuming than the civil courts. The essence of the proposal is compromise-not as a matter of political expediency but as a practical, balanced accommodation of the competing worthwhile interests of employers and employees. Workers are entitled to be free …

Two (Federal) Wrongs Make A (State) Right: State Class Action Procedures As An Alternative To The Opt-In Class Action Provisions Of The Adea, Janet M. Bowermaster

University of Michigan Journal of Law Reform

This Article argues that the opt-in class action of the ADEA is an anachronism and that age-discrimination litigants can take advantage of the broader protection afforded to Title VII litigants by bringing their ADEA suits as Rule 23 class actions in state courts. A comparison of the two statutes reveals similar purposes and nearly identical substantive provisions, but procedural provisions that provide less protection to victims of age discrimination, including widely disparate class-action provisions.

The Nlrb's Deferral Policy And Union Reform: A Union Perspective, Leonard Page, Daniel W. Sherrick

University of Michigan Journal of Law Reform

Part I of this Article outlines the government's approach to civil RICO actions involving labor unions, including an overview of the government's prior civil RICO actions and a summary of the types of issues that often arise in such actions. Part II examines the unique issues involved in a civil RICO action brought by a private plaintiff. The principal issue addressed in this Part is whether a private plaintiff can bring an action under the equitable remedies provisions of the RICO statute. This Part also addresses the issues of how a private plaintiff can gain access to information that may …