Labor and Employment Law Commons^™

A New Look At The Ada's Undue Hardship Defense, Nicole Buonocore Porter

Faculty Publications

...This Article will not only summarize and attempt to categorize the undue hardship cases but will also identify three trends that become apparent when engaging in a thorough analysis of this body of cases.

This Article will proceed in four additional parts. Part II will provide the background of the undue hardship provision, including the statutory language and its regulations, the legislative history, and the undue hardship cases decided under the precursor to the ADA—the Rehabilitation Act of 1973. Part III will delve into the undue hardship cases under the ADA. Even though most people think about undue hardship as …

Salary History Should Be Her Story: Upholding Regulations Of Salary History Through A Commercial Speech Analysis, Elizabeth Lester-Abdalla

William & Mary Law Review

No abstract provided.

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.

Pregnancy As A Normal Condition Of Employment: Comparative And Role-Based Accounts Of Discrimination, Reva B. Siegel

William & Mary Law Review

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.

In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. Both Congress and the Court appealed to social roles in defining the wrongs of pregnancy discrimination. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women …

Bringing Up Baby Under The Fmla: How The Federal Unpaid Maternity Leave System In The United States Will Not Carry To Term, Samantha Jean Quan Forsyth

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

This Note will examine current maternity leave laws both within the United States and internationally, and argues that there are major issues with the existing federal law in the United States that render such legislation ineffective. This Note will further argue that because paid maternity leave remains almost exclusively as a benefit employers can choose to provide, the federal government should not only adopt a paid maternity leave program, but also ensure that it is broader and more encompassing than current legislation.

An Ambitious Approach, Nicole Buonocore Porter

Faculty Publications

In their book, Lifetime Disadvantage, Discrimination and the Gendered Workforce, Susan Bisom-Rapp and Malcolm Sargeant explore the disadvantages women experience in the workforce throughout their careers and the cumulative effects of those disadvantages over their lifetimes.

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Part II of this review is a chapter-by-chapter summary of the book. Part III provides my critical evaluation of the both the goals of this book and its execution. Part IV uses this book's ambitious approach as a springboard for exploring one of my own research projects that has been simply gathering dust.

This abstract has been taken from the author's introduction.

Mothers With Disabilities, Nicole Buonocore Porter

Faculty Publications

For the past several decades, feminist theorists have focused on the intersection of sex and other identities: race, primarily, but also religion, sexual orientation, gender identity, and ethnicity. More recently, a few scholars have begun exploring the intersection of sex and disability, highlighting the unique obstacles facing women with disabilities. This Article advances the intersectionality literature by exposing and exploring the marginalization experienced by mothers with disabilities. Specifically, this Article will explore how the stereotypes that apply to women, mothers, and individuals with disabilities, intersect to produce a particularly precarious position for mothers with disabilities in the workplace (employment law) …

Ending Harassment By Starting With Retaliation, Nicole Buonocore Porter

Faculty Publications

This Essay posits that the fear of retaliation significantly contributes to the problem of harassment—we cannot hope to end harassment without starting by addressing the reality of retaliation. Although some scholars have argued that the fear of retaliation is one reason women don’t report harassment, and some scholars have discussed the inadequacies of anti-retaliation law, this Essay breaks new ground by arguing that ending harassment must start with preventing retaliation. Part I backs up what seems to be a commonsense proposition: Many victims of harassment do not report it because they fear retaliation.5 Part II then describes the difficulty in …

Cumulative Hardship, Nicole Buonocore Porter

Faculty Publications

Although there are plenty of cases that mention the undue-hardship provision under the ADA, there are relatively few cases where the undue-hardship provision is outcome-determinative or even discussed in depth. To complicate matters further, the Author of this Article could find no case where the court discussed the issue of cumulative hardship in the ADA context. This Article explores this issue and arrives at possible solutions for how this issue should be resolved when it arises.

This Article proceeds in four parts. Part I gives an introduction to the ADA and the undue-hardship provision. Part 1H gets to the heart …

A Return On Investment: How The Breastfeeding Promotion Act Can Change The Make-Up Of The Private Workforce, Krishna Jani

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

No abstract provided.

Data-Driven Discrimination At Work, Pauline T. Kim

William & Mary Law Review

A data revolution is transforming the workplace. Employers are increasingly relying on algorithms to decide who gets interviewed, hired, or promoted. Although data algorithms can help to avoid biased human decision-making, they also risk introducing new sources of bias. Algorithms built on inaccurate, biased, or unrepresentative data can produce outcomes biased along lines of race, sex, or other protected characteristics. Data mining techniques may cause employment decisions to be based on correlations rather than causal relationships; they may obscure the basis on which employment decisions are made; and they may further exacerbate inequality because error detection is limited and feedback …

Bare Minimum: Stripping Pay For Independent Contractors In The Share Economy, Michael H. Leroy

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

My study explores a small but revealing corner of the share economy, where an individual’s private resources are bartered for limited use by others in exchange for compensation. Strip clubs create value for owners by commoditizing sexual labor. Clubs avoid employment in favor of independent contracting with dancers. They pay no wages or benefits; patrons pay dancers with fees and tips. But clubs extract entry fees from dancers who work; require them to rent dressing rooms and stage time; and compel them to share tips with DJs, emcees, house moms, bouncers, and bartenders. My research identified seventy-five federal and state …

Public Policy And Workers' Rights: Wrongful Discipline Actions And Good-Faith Beliefs, Ann C. Mcginley, Nicole B. Porter

Faculty Publications

The purpose of this paper is to provide our thoughts on Chapter 5 of the ALI's Restatement of the Law: Employment Law ("Restatement of Employment Law"), concerning "The Tort of Wrongful Discharge in Violation of Public Policy."'

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Instead of a detailed critique of Chapter 5's provisions, we have chosen to focus on two significant issues that we see as problematic and worthy of further discussion. The first involves the elimination in the final draft of the Restatement of protection against wrongful discipline, which left only the protection against wrongful discharge that violates public policy.

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The second …

Leave And Marriage: The Flawed Progress Of Paternity Leave In The U.S. Military, T. J. Keefe

William & Mary Law Review

No abstract provided.

Ptsd, Tbi, And Oth Discharges: A Case Study Of A Young Service Member, Patricia E. Roberts

Faculty Publications

No abstract provided.

Madonnas And Whores In The Workplace, Jessica Fink

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

Much has been written about “lookism”—the preferential treatment given to those who conform to societal standards of beauty. But in a recent case before the Iowa Supreme Court, a sex discrimination plaintiff alleged “reverse-lookism,” claiming that her male employer terminated her long-term employment because she was too physically attractive, thus tempting the employer to consider entering into an extramarital affair. To the great surprise of many who followed this case, the Iowa Supreme Court sided with the employer, declining to find him liable for sex discrimination. As one might expect, uproar ensued, with the media, the public, and the academic …

Jack & Jill Take Lots Of Pills, But Jill Comes Tumbling After: Gender Inequality In Privately Funded Early Phase Clinical Trials, Shana F. Oppenheim

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

No abstract provided.

Accommodating Everyone, Nicole Buonocore Porter

Faculty Publications

This Article attempts to eliminate “special treatment stigma” by accommodating everyone. Special treatment stigma occurs when some employees (usually individuals with disabilities and workers with caregiving responsibilities) are provided with accommodations in the workplace. This receipt of “special treatment” causes employers and coworkers to resent these employees. This Article argues that the best way to ameliorate the stigma that accompanies special treatment in the workplace is to accommodate everyone through a universal accommodation mandate. This mandate would require employers to accommodate all employees who request an accommodation in the workplace, regardless of the reason for the accommodation. As long as …

Special Treatment Stigma After The Ada Amendments Act, Nicole Buonocore Porter

Faculty Publications

This Article explores a unique source of stigma suffered by individuals with disabilities in the workplace. Instead of focusing on those with the most stigmatizing disabilities, I focus on those individuals who have disabilities that are not perceived as very severe, yet they still suffer stigma. These individuals are stigmatized because of the special treatment they receive (or are perceived as receiving) through workplace accommodations provided pursuant to the Americans with Disabilities Act (ADA). In prior work, I have called this phenomenon "special treatment stigma, " the harm that arises from receiving special treatment in the workplace, especially when coworkers …

Vets Just Want Fair Benefits, Patricia E. Roberts

Popular Media

No abstract provided.

Section 1: Moot Court: Friedrichs V. California Teachers Association, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Employment Discrimination Against Bisexuals: An Empirical Study, Ann E. Tweedy, Karen Yescavage

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

No abstract provided.

Cry Havoc: Are Incompetent Private Military Companies Ruining The Defense Base Act?, William Burke

William & Mary Business Law Review

The Defense Base Act (“DBA” or “Act”) provides a no-fault, insurancebacked workers’ compensation mechanism for compensating private security contractors who are injured overseas. Critics of the Act allege that it should be fundamentally altered or replaced because combat zone work is uninsurable, the Act’s compensation is insufficient, and it is less efficient than the alternatives. This Note argues that, on the contrary, the DBA insurance market is functional and improving, its benefits are sufficient when viewed in combination with contractors’ other compensation, and it is a far more efficient compensation system than is offered by tort litigation. The flaws cited …

Dias V. Archdiocese Of Cincinnati: Deciphering The Ministerial Exception To Title Vii Post-Hosanna-Tabor, Caroline O. Dehaan

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

No abstract provided.

Self-Perception Of Disability And Prospects For Employment Among U.S. Veterans, Christopher L. Griffin Jr., Michael Ashley Stein

Faculty Publications

No abstract provided.

Withdrawn Accommodations, Nicole Buonocore Porter

Faculty Publications

This Article addresses a phenomenon that often arises in reasonable accommodation cases under the Americans with Disabilities Act, a phenomenon I call “withdrawn accommodations.” This occurs when an employer has agreed to provide an accommodation to an employee with a disability and then later withdraws the accommodation. Employers might withdraw accommodations for a couple of reasons. First, an employer might withdraw an accommodation because it finds out that the employee’s need for the accommodation is permanent, rather than temporary, as the employer might have first believed. Second, a new supervisor might arrive on the scene, and decide to withdraw a …

The Difficulty Accommodating Health Care Workers, Nicole Buonocore Porter

Faculty Publications

I argue that accommodating health care workers is difficult, perhaps more difficult than accommodating other workers, and I explain why. First, in Part II, I will describe the characteristics of health care jobs that make those jobs difficult for individuals with disabilities. These characteristics include: (1) most health care jobs are physically rigorous, often involving heavy lifting, pushing, and walking and standing for long periods of time; (2) most health care jobs involve long hours and/or shift work; and (3) the majority of jobs in the health care industry are safety-sensitive positions, with life or death often hanging in the …

Social Framework Studies Such As Women Don’T Ask And It Does Hurt To Ask Show Us The Next Step Toward Achieving Gender Equality—Eliminating The Long-Term Effects Of Implicit Bias—But Are Not Likely To Get Cases Past Summary Judgment, Andrea Doneff

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

Lawyers and judges long have relied on outside evidence—usually studies or empirical research—to help them better understand the impact or meaning of the facts in certain cases. In employment cases, lawyers have used studies that show statistical variance in hiring or promotion between men and women to prove discrimination. They have used studies that talk about implicit bias, the kind of bias that we apply without even knowing we are biased, perhaps the kind of bias we apply even when we are doing our best not to be biased, to understand that comments like “You should go to charm school” …

The Unwelcome Requirement In Sexual Harassment: Choosing A Perspective And Incorporating The Effect Of Supervisor-Subordinate Relations, Larsa K. Ramsini

William & Mary Law Review

No abstract provided.

Mutual Marginalization: Individuals With Disabilities And Workers With Caregiving Responsibilities, Nicole Buonocore Porter

Faculty Publications

This Article explores the marginalization of two groups of employees--individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers' expectations of an "ideal worker." Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal-worker norm. The need for accommodation causes both groups of employees to suffer from "special-treatment stigma," which manifests itself in …