Labor and Employment Law Commons^™

In Search Of The Reasonable Woman: Anti-Discrimination Rhetoric In The United States, Francis J. Mootz Iii

Scholarly Works

This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

Scholarly Works

This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

Facilitating Wage Theft: How Court Use Procedural Rules To Undermine Substantive Rights Of Low-Wage Workers, Nantiya Ruan

Scholarly Works

In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs’ recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability …

Summary Of Ozawa V. Vision Airlines, Inc., 125 Nev. Adv. Op. No. 16, Nick Portz

Nevada Supreme Court Summaries

Consolidated appeals considering two issues: (1) whether to recognize a new exception to the at-will employment doctrine and to allow a claim for tortious discharge related to an employee’s termination for attempting to organize his fellow employees; and (2) whether the district court abused its discretion in its resolution of respondents’ request for attorney fees and costs.

Summary Of Hd Supply Facilities Maint. V. Bymoen, 125 Nev. Adv. Op. No. 20, Casey G. Perkins

Nevada Supreme Court Summaries

Certified questions from the United States District Court, District of Nevada, arising from a action by HD Supply Facilities Maint., Ltd. (“HDS”), seeking enforcement of restrictive employment covenants against its former employee, Leif Bymoen (“Bymoen”) and Bymoen’s current employer AZ Partsmaster, Inc. (“AZP”). The questions each relate to whether the Nevada rule, set forth by the Nevada Supreme Court in Traffic Control Servs. v. United Rentals,2 prohibiting the assignment of noncompetition covenants in asset purchase transactions “applies when a successor corporation acquires covenants of noncompetition, nonsolicitation, or confidentiality as a result of a merger.”

Erisa Does Not Give Employers A Free Pass: Refusing To Place The Burden Of Careless Drafting On The Employee, Charles R. Peterson

Nevada Law Journal

No abstract provided.

Reproducing Gender On Law School Faculties, Ann C. Mcginley

Scholarly Works

This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses. More than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not …

Toward Fundamental Change For The Protection Of Low-Wage Workers: The “Workers’ Rights Are Human Rights" Debate In The Obama Era, Ruben J. Garcia

Scholarly Works

In order to avoid the pendulum swings of politics, advocates must argue for more fundamental norms for the protection of labor rights. Statutory protections, while important, will not provide long-lasting change toward establishing workers' rights as fundamental under constitutional and international law principles. Workers' rights must be seen as fundamental to the functioning of a democratic society, rather than as the special interest agenda of unions or plaintiffs' attorneys. This can be done through more advocacy for a minimum set of workers' rights as human rights, including the right to organize labor unions and the right to be free from …

Teaching Problem-Solving And Preventive Law Skills Through International Labour And Employment Law, Ruben J. Garcia

Scholarly Works

This essay describes how problem-solving and preventive law principles apply in the teaching of international labor and employment law. This is because the subject itself crosses disciplinary and geographical boundaries. Students are taught about the importance of the lawyer's role as a counselor, rather than simply a litigator, which is at the center of the model of the lawyer as a problem solver.

Awaking Rip Van Winkle: Has The National Labor Relations Act Reached A Turning Point?, William R. Corbett

Nevada Law Journal

No abstract provided.

Summary Of International Game Tech., Inc. V. Dist. Ct., 124 Nev. Adv. Op. No. 18, Krystal Gallagher

Nevada Supreme Court Summaries

This opinion rejects International Game Technology’s (hereinafter “IGT”) challenge to the district court’s denial of their motion to dismiss for failure to state a claim under Nevada False Claims Act’s anti-retaliation provisions (hereinafter “FCA”). The Court also clarifies the meaning of the statute at issue, NRS 357.250.

Summary Of Public Employees’ Benefits Prog. V. Lvmpd, 124 Nev. Adv. Op. No. 14, Meredith Holmes

Nevada Supreme Court Summaries

Appeal from a district court order granting declaratory relief to Las Vegas Metro Police Department (Metro) and Clark County, regarding whether the local government employers were required to subsidize their retirees’ Public Employees’ Benefits Program (PEBP) premiums.

Summary Of Umc Physicians V. Nev. Serv. Emp. Union, 124 Nev. Adv. Op. No. 9, William Miller

Nevada Supreme Court Summaries

This appeal clarifies the procedure and standard for filing a complaint with Nevada’s Local Government Employee-Management Relations Board (the “Board”), under NRS 288.110 and NRS 288.040. The Nevada Supreme Court held that a complainant need only be an employee organization as defined in NRS 228.040 and have a legally recognizable interest in a justiciable controversy in order to file a complaint.

Economic Analysis Of Labor And Employment Law In The New Economy: Proceedings Of The 2008 Annual Meeting, Association Of American Law Schools, Section On Law And Economics, Ruben J. Garcia

Scholarly Works

Professor Ruben Garcia shares his comments on Professor Jagdeep Bhandari's paper, Migration to Developed Countries and Labor Markets, while on this panel at the 2008 Annual Meeting of the section on Law and Economics of the American Association of Law Schools.

Against Legislation: Garcetti V. Ceballos And The Paradox Of Statutory Protection For Public Employees, Ruben J. Garcia

Scholarly Works

In Garcetti v. Ceballos, the Supreme Court denied constitutional protection to a deputy prosecutor named Richard Ceballos. In reaching its decision, the Court pointed to the plethora of statutory protections that were available to government whistleblowers. A closer examination of these statutory alternatives reveals that they will not protect Ceballos. This is the paradox of statutory protection in labor and employment law-more sometimes is less for vulnerable workers.

This Article places the Garcetti case in the historical trajectory of worker protection—from no protection to statutory protection. This Article argues for a move toward constitutional and international protection …

Accommodating Respectful Religious Expression In The Workplace, Nantiya Ruan

Scholarly Works

This Article makes the case for judicial recognition of respectful religious expression in the workplace as more consistent with the Court's Establishment Clause jurisprudence and also more true to the legislative intent of the religious accommodation provisions of Title VII. Respectful religious pluralism in the workplace should become the norm through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the majority of the Justices because it is consistent with their expressed views, in the Establishment Clause case law, that religion fosters moral good and that in a pluralistic society religious expression cannot …

A More Employee Friendly Standard For Pretext Claims After Ash V. Tyson, Deanna C. Brinkerhoff

Nevada Law Journal

No abstract provided.

Summary Of Manwill V. Clark County, 123 Nev. Adv. Op. No. 28, Erin Phillips

Nevada Supreme Court Summaries

Appeal from district court order denying judicial review in an occupational disease case.

Summary Of Mcgrath V. State, Dep’T Of Pub. Safety, 123 Nev. Adv. Op. No. 15, Jeremy K. Cooper

Nevada Supreme Court Summaries

Appeal from a district court order denying a petition for judicial review of the appeals officer’s decision denying compensation, in a worker’s compensation case. The Nevada Supreme Court affirmed the district court’s order.

The Less Than Fair Employment Practice Of An English-Only Rule In The Workplace, L. Darnell Weeden

Nevada Law Journal

No abstract provided.

Placing The Reality Of Employment Discrimination Cases In A Comparative Context, Jean R. Sternlight

Scholarly Works

No abstract provided.

Harassing “Girls” At The Hard Rock: Masculinities In Sexualized Environments, Ann C. Mcginley

Scholarly Works

Masculinities theory explains that masculinity is constructed in relation to a dominant image of gender difference, ultimately defining itself simply as what “femininity” is not. In the workplace, masculinities comprise both a structure that reinforces the superiority of men over women, and a series of practices associated with masculine behavior (performed by men and women) that maintain men’s superior position over women at work, yet specific masculinities differ according to the type of workplace. This article applies masculinities theory to analyze whether Title VII should protect women employees in highly sexualized workplaces from sex- or gender-based hostile work environments, created …

Babes And Beefcake: Exclusive Hiring Arrangements And Sexy Dress Codes, Ann C. Mcginley

Scholarly Works

Las Vegas casinos exclusively hire women to serve cocktails on the casino floor, dressing them in tight-fitting, sexy, uncomfortable costumes and high heels. The exclusive hiring of women as cocktail servers violates Title VII's prohibition against sex discrimination unless the employer can demonstrate that being a woman is a bona fide occupational qualification ("BFOQ") for the job of cocktail server. Sitting en banc, the Ninth Circuit Court of Appeals recently decided Jespersen v. Harrah's Operating Co., which concluded that sex-differentiated appearance and grooming codes are legal in jobs held by both men and women unless they impose unequal burdens on …

Summary Of Flamingo Hilton V. Gilbert, 122 Nev. Adv. Op. No. 108, Aubree Nielsen

Nevada Supreme Court Summaries

Appeal from a district court order denying a petition for judicial review in a workers’ compensation matter.

Summary Of Seput V. Lacayo, 122 Nev. Adv. Op. No. 45, Christian Hale

Nevada Supreme Court Summaries

Appeal from a district court order granting a motion to dismiss an injured pest control worker's tort action against a homeowner for premises liability.

Bringing Sense To Incentives: An Examination Of Incentive Payments To Named Plaintiffs In Employment Discrimination Class Actions, Nantiya Ruan

Scholarly Works

Employment discrimination class actions (EDCA) are complex creatures for many reasons. One complexity involves the resolution of EDCAs, which typically includes a provision for an incentive award or "bonus" for named plaintiffs. This Article describes five models under which courts struggle with awarding incentive awards to named plaintiffs in EDCAs. It examines how (under which model) and why (upon what justification) courts award or refuse to award incentive payments. This examination illustrates that courts have failed to differentiate between incentive payments that further Title VII's statutory goal of workplace fairness and other litigation matters, such as securities litigation or consumer …

Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley

Scholarly Works

Like the women blackjack dealers at the Hard Rock, cocktail servers, exotic dancers, and prostitutes in legal brothels are vulnerable to sexual harassment by customers. The content of the four jobs reveals the fallacy of the "good girl"/"bad girl" dichotomy, because all four jobs require behavior that falls into both categories if we expand the definition of good and bad girls to include gendered behavior as well as sexual behavior. Once the defense applies to discrimination in sexualized environments, it could logically apply to sexual or racial harassment cases in companies that permit their employees to harbor and act upon …

From North To South Country: Race, Gender And Immigration And The Role Of Unions In The Sanitized Workplace, Ruben J. Garcia

Scholarly Works

Professor Vicki Schultz's ground-breaking article, The Sanitized Workplace, questions whether all sexual conduct is inappropriate in the workplace, whether sexually-charged work environments necessarily disadvantage women, and whether sanitizing the workplace of sexuality impedes gender equality. Her article proposes that a less sanitized workplace with less over-reaction to sexuality would allow for more freedom of sexual expression and be more advantageous to women. According to Professor Schultz, the misuse of sexual harassment law may lead to increased segregation and employers' unwillingness to hire women. In many workplaces today, where office romances are seen as a litigation threat instead of a …

Labor As Property: Guestworkers, International Trade, And The Democracy Deficit, Ruben J. Garcia

Scholarly Works

In the 1914 Clayton Act, Congress declared: "The labor of a human being is not a commodity or an article of commerce." The practical reason for this section of the Clayton Act was to exempt collusion in labor negotiations from antitrust liability. The law also gave effect to the rejection of the commodification of human labor. Since the passage of the Clayton Act, developments in law and society have chipped away at the law's symbolic anti-commodification message. This paper examines the commodification of labor in the international trade and guestworker debates. Historically, the concept of "comparative advantage" in international trade …

Labor’S Fragile Freedom Of Association Post-9/11, Ruben J. Garcia

Scholarly Works

The fragility of civil liberties in the United States became evident after the terrible attacks of September 11, 2001 (9/11). Labor's freedom of association, which is the right to form unions, bargain collectively, and engage in concerted activities, is one of the civil liberties at risk in the post-9/11 period. This Article focuses specifically on post-9/11 limitations of labor's freedom of association conducted by the executive branch and the Congress, and the ways that the courts have adjudicated labor rights in the post-9/11 era. Domestic labor law and constitutional rights alone, however, will not stop the collision of security and …