Labor and Employment Law Commons^™

Brief Amicus Curiae Of Administrative And Constitutional Law Professors In Support Of Petitioners, Robert Glicksman, Richard Pierce, Alan B. Morrison, Jeffrey Lubbers, Peter L. Strauss

Amicus Briefs & Court Filings

INTRODUCTION AND SUMMARY OF ARGUMENT: The ninety-six temporary agricultural workers employed by respondent were allowed to come to the United States solely because Congress established the program that governs their employment. As petitioners’ brief demonstrates, in order for respondent to be eligible to bring in foreign workers, it had to submit an application to the Department of Homeland Security. As part of that process, respondent had to establish that it would not employ non-citizen workers to displace domestic workers. Included in the required showing is an agreement by respondent to pay both domestic and foreign workers the same pay, so …

No Exception For Ultra Vires Discrimination, Rev. James Deboer

American University Journal of Gender, Social Policy & the Law

The Ministerial Exception (“the Exception”) is an affirmative defense that religious institutions may use to obtain dismissal of discrimination claims brought by current and former ministerial employees.The Exception rests on the seemingly straightforward premise that churches and other religious institutions must be free to select and remove their own ministers without interference from secular laws.  It applies with equal force to any kind of discrimination; extends to harassment and retaliation; and is not confined to forms of alleged discrimination motivated by religious belief.

The Supreme Court has only addressed the Exception twice. First, in 2012, through Hosanna-Tabor Evangelical Lutheran Church …

Kidfluencer Protection: Illinois’ Attempt At Expanding Its Version Of The Coogan Law., Genevieve Sloan

American University Business Law Review

On July 1, 2024, Illinois enacted pioneering legislation, which expanded its child labor laws to “[m]inors featured in vlogs.” This legislation marks the first successful attempt at protecting the finances of children in the business of social media influencing. Over the past several years, society has started recognizing the dangers of the otherwise lucrative child influencer industry, notably children’s lack of legal entitlement to their earnings.

Accordingly, the Illinois legislation began inspiring similar child labor laws in other states. This Comment analyzes whether Section 95 and Section 100 of Illinois’ Child Labor Law of 2024 maintain parental autonomy and adequately …

Quota Reform, Repression, And The Fight For Human Rights In Bangladesh, Noreen Tareque

Human Rights Brief

On June 5, 2024, the High Court of Bangladesh ruled against the government’s decision to cancel the country’s quota system, stating that the decision to cancel the system in 2018 was invalid. This meant the country would go back to using the quota system to assign government jobs to students after they had completed their higher education. The quota system established that 30% of Bangladesh’s government jobs were reserved for the children and family members of freedom fighters who lost their lives during the Bangladesh Liberation War of 1971 against Pakistan.  Additionally, the quota system reserved 10% for women affected …

Unprincipled Investor Bifurcations, Anita K. Krug

American University Law Review

The investment world is full of bifurcations—that is, divisions among groups of investors that the securities laws establish for the purpose of furthering the regulatory goal of investor protection. The notion behind these bifurcations is that only more wealthy investors should be permitted to invest in riskier investment products. However, as this Article details, a more pernicious bifurcation has emerged in recent years, alongside the growing popularity of exchange-traded funds, or “ETFs.” Investing in ETFs is desirable for many investors because ETF shares, unlike shares of mutual funds, can be traded throughout the day. In addition, ETFs allow investors to …

Remote Work's Complication Of Companies' Personal Jurisdiction Standings: Morphing The Historical Analysis To Fit Modern Remote Work Characteristics, Lindarose Piccolo

American University Business Law Review

Personal jurisdiction ensures that the proper forum adjudicates civil disputes to prevent burdening a defendant with litigating in inconvenient forums. International Shoe Co. v. Washington established that defendants must have minimum contacts with the forum state such that exercise of jurisdiction comports with fair play and substantial justice. Following International Shoe, many cases have provided examples of the minimum contacts that would establish personal jurisdiction.

However, the ability for employees to work remotely from their homes using technological devices and software has exponentially increased over the past five years. Because of the increased ability to work remotely from anywhere in …

Professors And Company Law: Implications For Academic Freedom, Salar Ghahramani J.D.

American University Journal of Gender, Social Policy & the Law

This Article examines the intersection of company law and academic freedom, specifically exploring how nonprofit universities might invoke corporate and agency law principles to assert breach of fiduciary duty claims when a university could view a professor’s handling of controversial topics or facilitation of provocative class discussions as detrimental to its financial interests or public reputation. Such allegations might arise when universities perceive that these discussions alienate donors, provoke public backlash, or otherwise harm the institution’s standing, thereby framing the professor’s academic choices as potentially disloyal or harmful to the university. While public university professors might argue that the First …

Blood Cobalt: Unmasking And Charging Corporations For Involvement In International Law Violations In The Democratic Republic Of Congo, Bolu Jegede

American University International Law Review

Joint Criminal Enterprise (JCE) is a legal doctrine developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold participants in a criminal enterprise equally liable for all results of the group’s criminal actions, even if the individuals were not directly involved in committing the crimes. While traditionally used to prosecute individual criminal actions, JCE provides a legal pathway to hold corporations criminally liable for their actions that further international law violations. Although corporations currently do not have specific, listed responsibilities under international law, they are required to respect human rights and ensure their activities do not perpetrate …

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …

Securing Workers' Futures: Why Replacing Union Workers With Artificial Intelligence In Creative Professions Is The New Subcontracting, Katherine J. Kyriakoudes

American University Law Review

Artificial intelligence poses a significant threat to unionized professionals in creative industries, particularly as employers may be tempted to replace unionized workforces with artificial intelligence. However, Supreme Court precedent and the National Labor Relations Act paves a path forward for unionized workers in creative fields to safeguard themselves from job displacement through collective bargaining.

This Comment argues that replacing a unionized workforce with artificial intelligence is analogous to subcontracting under Fibreboard Paper Products Co. v. NLRB, First National Maintenance Corp. v. NLRB, and congressional intent behind the National Labor Relations Act. Consequently, artificial intelligence should be a mandatory subject of …

Foreword Introduction To Symposium: Enhancing Anti-Discrimination Laws In Education And Employment, Susan D. Carle

American University Journal of Gender, Social Policy & the Law

When this Symposium was first conceived in the Summer of 2021, the nation was just emerging from the first phases of the COVID-19 pandemic. This was the beginning of trying to go back to life as normal. Given this reawakening, the Symposium’s planning committee felt the urgency of a need to regroup, rethink, and reassess the state of employment antidiscrimination law. We were not sure where others would be on this possible project, given the newness of the hopeful end to lockdowns and social isolation and return to “normal” concerns. But we quickly found that those who joined the Symposium …

Letter From The Editor, Adriana E. Morquecho

American University Journal of Gender, Social Policy & the Law

It is an honor to write this editor’s note for Volume 30.2 of the Journal of Gender, Social Policy & the Law (“Journal”) commemorating our Symposium co-hosted by the National Institute for Workers’ Rights (“Institute”), “Enhancing Anti-Discrimination Laws in Education & Employment.” The Symposium and this Volume are a culmination of months of tireless work to draw attention to an area of law needing greater attention—employment and education discrimination

Panel 1 - Towards Effective Governmental Intervention: Ending Discrimination In The Workplace, Rebecca Salawdeh, Patrick Patterson, Victoria Lipnic, Carol Miaskoff, Hnin Khaing

American University Journal of Gender, Social Policy & the Law

FACILITATOR: Good morning, everyone and welcome to the “Enhancing Antidiscrimination Laws in Education and Employment Symposium”, hosted by the American University Journal of Gender, Social Policy & the Law, the American, and the National Institute for Workers’ Rights (“Institute”). And without further ado, let me pass it off to the Institute’s board president, Rebecca Salawdeh

Panel 2 - Unreported Shortcomings Of Title Ix, Lisa Taylor, Leslie Annexstein, Elizabeth Kristein, Natasha Martin, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

MODERATOR: Hello, everyone, and welcome to our second panel, Unreported Shortcomings of Title IX. I’m going to start off with a quick introduction of our moderator. Today we have Dean Lisa Taylor who is our Dean for Diversity, Inclusion and Affinity Relations at WCL. She is much beloved by students of the Journal and students of WCL in general. And I know she is going to kick off a great panel. Dean Taylor, it’s all yours.

Panel 4 - Severe Or Pervasive: Towards Empowering Workers, Allegra Fishel, Joe Sellers, Bernice Yeung, Ann Mcginley, Alexis Ronickher

American University Journal of Gender, Social Policy & the Law

FACILITATOR: All right. We’re back and I wanted to introduce our moderator for our panel, Severe or Pervasive: Towards Empowering Workers. We have Ms. Allegra Fishel moderating. Ms. Fishel is a seasoned civil rights advocate and the founder of The Gender Equality Law Center. So, thank you so much for being here and, Ms. Fishel, I turn it over to you.

Panel 5 - The Future Of Employment Law, Karla Gilbride, Geraldine Sumter, Stephen Rich, Marcia Mccormick, Michael Selmi

American University Journal of Gender, Social Policy & the Law

FACILITATOR: All right everyone, welcome to our last panel, “The Future of Employment Law.” I want to quickly introduce our moderator, Karla Gilbride, the co-director of the Access to Justice Project. Karla, you can take it away.

Ensuring The Laws Barring Sexual Harassment Protect The Reticent Victim, Joseph M. Sellers, Aniko R. Schwarcz

American University Journal of Gender, Social Policy & the Law

According to multiple employee surveys, sexual harassment is one of the most underreported forms of abuse in the workplace. There are a number of reasons that reportedly account for this reluctance to complain about sexual harassment. They include the potential shame, embarrassment, and fear that may accompany reports of sexual harassment and the blame and heightened scrutiny of the victim that may be prompted by these complaints. Unlike most other forms of discrimination, where their presence may be inferred from patterns observed in workforce data, sexual harassment is typically undetectable and certainly not actionable unless it is the subject of …

Reflection On Progress Without Equity: Title Ix K-12 Athletics At Fifty, Elizabeth Kristen

American University Journal of Gender, Social Policy & the Law

Title IX of the Education Amendments of 1972 (“Title IX”) turned fifty this year. Despite tremendous progress for women and girls over the last five decades, the promise of gender equity in athletics remains elusive, especially at the K-12 level. Unlike so many other civil rights laws passed in the 1960s and 1970s, Title IX remains a highly under-litigated and underenforced statute. A basic Westlaw search for “Title VII of the Civil Rights Act of 1964” yields more than 10,000 federal cases. But the same search for “Title IX of the Education Amendments of 1972” yields about 2500 cases. Only …

Laboratories Of Democracy: State Law As A Partial Solution To Workplace Harassment, Ann C. Mcginley

American University Journal of Gender, Social Policy & the Law

Despite the recent public awakening concerning both sexism and racism in our society, the federal courts have systematically chipped away at employees’ civil rights under Title VII of the 1964 Civil Rights Act to be free of both sexual and racial harassment at work.

The Deadly Cost Of Unregulated Labor: How The United States Fair Labor Standards Act Violates The International Labour Organization’S Ilo Convention No. 182 In Failing To Provide Protections For Children Working In Agriculture, Sara Salinas

Upper Level Writing Requirement Research Papers

The Fair Labor Standards Act of 1938 (FLSA) was the first successful comprehensive legislation addressing child labor laws in the United States. While important, the FLSA left a lot to be desired for agricultural child workers as it provides less protections for them than for non-agricultural child workers. This disparity has left child agricultural workers legally allowed to work in hazardous conditions at a young age, and work nearly unlimited hours. For the most part, child labor laws were at a stalemate until 1999 when the United States ratified the International Labor Organization (ILO) Convention No. 182, also known as …

The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, Rachel F. Moran

American University Law Review

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely …

The Need For Federal Disclosure And Fraud Protection In The Workplace, Carlos Garcia

Legislation and Policy Brief

No abstract provided.

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 …

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 …

Labor, Trade, And Populism: How Ilo-Wto Collaboration Can Save The Global Economic Order, Sungjoon Cho, Cesar F. Rosado-Marzan

American University Law Review

Populists are trying to take down the global economic order and its institutions. While some of those forces might be fueled by racism, they also play to legitimate social concerns that include massive plant closings and deindustrialization, inadequate skills programs, and lack of decent jobs. Some of these problems also concern the Global South, as workers there face exploitation, unhealthy working conditions, and other social ills caused by global capitalism. In light of these problems, this Article argues that the International Labor Organization (ILO) should design new conventions on lead firm liability and mass layoffs. While other scholars and policymakers …

Outsourcing Discrimination, Llezlie Green

Scholarly Articles in Law Reviews & Journals

The significant growth in employers’ use of labor intermediaries—that is, third parties that stand between the workers and the organizations for whom they complete work— has fundamentally changed how many low-wage workers enter and function in the workplace. Temporary staffing agencies that hire and place workers with companies and organizations have taken on a gatekeeper role to low-wage jobs in many industries. Recent litigation and various reports allege flagrant hiring discrimination by temporary staffing agencies whose clients encourage them not to hire African American workers and hire and send Latinx immigrants instead. This Article explores the discriminatory treatment of low-wage …

The Business Case For Lawyers To Advocate For Corporate Supply Chains Free Of Labor Trafficking And Child Labor, E. Christopher Johnson Jr., Fernanda Beraldi, Edwin Broecker, Emily Brown, Susan Maslow

American University Law Review

No abstract provided.

Following The Fifth Circuit: Title Vii As The Sole Remedy For Employment Discrimination On The Basis Of Sex In Educational Institutions Receiving Federal Funds, Alicia Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Right To Be An Asshole: The Need For Increased First Amendment Public Employment Protections In The Age Of Social Media, Alexis Martinez

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.