Labor and Employment Law Commons^™

Makeup For Success: Why Jespersen V. Harrah's Stifles Diversity By Promoting Stereotypes In Employment, Alison J. Hartwell

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Ninth Circuit's decision in Jespersen v. Harrah's Operating Co. undermines efforts to promote diversity by upholding employer grooming policies that reinforce gender stereotypes. It contends that the court failed to adequately address how such policies perpetuate discrimination and limit opportunities for employees who do not conform to traditional gender norms.

Women And Weight-Based Employment Discrimination, Alexandra W. Griffin

Cardozo Journal of Equal Rights & Social Justice

The note argues that weight-based employment discrimination disproportionately affects women, contributing significantly to the gender wage gap. It advocates for recognizing this issue as a feminist concern and urges the use of existing legal frameworks and social change to address it.

Rosenbaum V. Israel Prison Service Commissioner, Aharon Barak, Dorit Beinisch, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Asher Grunis, Esther Hayut

Translated Opinions

Facts: The respondents introduced a compulsory retirement age of 55 for all of their employees. The petitioners challenged this policy on the grounds that it discriminated between them and civil servants in other parts of the civil service, where the customary retirement age was 65.

Held: Although the law gave the respondents the possibility of retiring its employees at the age of 55, the introduction of a compulsory retirement policy at the lowest age allowed by the law resulted in discrimination in relation to the other parts of the civil service. This consideration had not been taken into account by …

Righting Wrongful Discharge: A Recommendation For The New York Judiciary To Adopt A Public Policy Exception To The Employment-At-Will Doctrine, Nadjia Limani

Cardozo Public Law, Policy & Ethics Journal

The note examines the public policy exception to the employment-at-will doctrine, emphasizing its critical role in addressing unjust terminations while balancing employer discretion. It highlights the variability in how states define and apply this exception, with a particular focus on New York's refusal to recognize the exception despite its recognition in most other jurisdictions. The analysis advocates for a structured, four-element test to resolve wrongful discharge claims, ensuring clarity and fairness for all parties involved.

Kav Laoved Worker’S Hotline V. Government Of Israel, Edmond E. Levy, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the …

From Legally Blonde To Miss Congeniality: The Femininity Conundrum, Anna M. Archer

Cardozo Journal of Equal Rights & Social Justice

The article argues that popular movies like Legally Blonde and Miss Congeniality perpetuate harmful gender stereotypes by depicting women as needing to conform to traditional notions of femininity or masculinity to succeed in male-dominated professions. These portrayals contradict the protections provided by Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex. The article contends that such films send the wrong message by suggesting women must change themselves to fit societal expectations rather than challenging those expectations.

On The Applicability Of The Silica Mdl Proceeding To Asbestos Litigation, Lester Brickman

Articles

The article argues that the findings from the silica multidistrict litigation (MDL), presided over by U.S. District Court Judge Janis Jack, have significant implications for understanding the fraudulent practices in asbestos litigation. The author contends that both silica and asbestos litigations share a common "entrepreneurial model" where a small group of doctors and screening companies generate specious claims for financial gain, often without proper medical oversight. Judge Jack's findings in the silica MDL, which revealed widespread fraud and manipulation of medical diagnoses, corroborate the author's long-standing critique of asbestos litigation practices.

Antidiscrimination Law In The Administrative State, Julie C. Suk

Articles

The article argues that antidiscrimination law in the U.S. should shift its focus from corrective justice, which addresses individual wrongs, to distributive justice, which aims to eradicate systemic inequalities and promote equal opportunities. This shift would require enhancing the role of administrative agencies, such as the EEOC, to enforce antidiscrimination laws more effectively through proactive regulation and rulemaking. The article draws on the British model, where administrative agencies have stronger enforcement powers, to suggest reforms for the EEOC.

Buying White Beauty, Imani Perry

Cardozo Journal of Equal Rights & Social Justice

The article argues that the global phenomenon of skin-bleaching is a manifestation of structural inequality rooted in race, poverty, and globalization. It critiques how the marketing and use of skin-whitening products perpetuate racial hierarchies and reflects broader societal power dynamics, emphasizing the need for legal and regulatory responses to address the health and social implications of this practice.

Cultural, Economic And Legal Factors Underlying Trafficking In Thailand And Their Impact On Women And Girls From Burma, Christa Foster Crawford

Cardozo Journal of Equal Rights & Social Justice

The article examines the complex factors underlying human trafficking in Thailand, particularly focusing on the trafficking of women and girls from Burma. It argues that while Thailand has made efforts to address the issue, the root causes, including cultural attitudes, economic interests, and legal frameworks, remain unaddressed. The analysis highlights the shift in trafficking patterns from Thai women to Burmese migrants due to improved socio-economic conditions for Thai nationals and worsening conditions in Burma. The article emphasizes the need for comprehensive solutions addressing both supply and demand factors, including legal reforms and policy changes.

Helping Those Who Are Helping Us: Sarbanes-Oxley Whistleblower Protection And Its Interplay With Arbitration, Adam Fisher

Cardozo Journal of Conflict Resolution

The accounting profession took a major blow to its credibility in 2002 when numerous scandals surfaced on the front pages of newspapers seemingly everyday. The most notable stories told of two women who, despite the enormous pressure and harassment they knew they would face, came forward to reveal the ugly truth behind the facades of America's corporate skyscrapers. Cynthia Cooper and Sherron Watkins, employees at WorldCom and Enron respectively, blew the whistle on major accounting frauds at these companies. Their employers' retaliation was harsh and swift, revealing the truth about how todays' corporate juggernauts operate.

Mandatory Mediation: The Extra Dose Needed To Cure The Medical Malpractice Crisis, Florence Yee

Cardozo Journal of Conflict Resolution

This Note discusses the advantages and drawbacks of mandating participation in mediation in medical malpractice disputes. Part II of this Note reviews the extent of the current medical malpractice crisis. Part III examines litigation as the traditional means of resolving medical malpractice disputes and suggests that litigation's weaknesses eclipse any of its strengths. Part IV evaluates the lingering challenges to arbitration, accounting for its ineffectiveness in resolving medical malpractice disputes. Part V analyzes why mediation may be the better alternative to both litigation and arbitration in resolving such disputes, and how its hurdles can be best surmounted by mandatory mediation. …

Globalization & Law: Beyond Traditional Methodology Of Comparative Legal Studies And An Example From Private International Law, Fabio Morosini

Cardozo Journal of International and Comparative Law

The article explores the impact of globalization on comparative legal studies and private international law, arguing that traditional methodologies in comparative law must evolve to address the challenges posed by globalization. It emphasizes the need for interdisciplinary approaches, particularly incorporating economic analysis, to better understand and adapt to the changing legal landscape. The analysis focuses on the European Union as a case study, demonstrating how European Community law influences the private international law of its member states and advocating for methodological innovations to maintain the relevance of comparative legal studies in a globalized world.

Outsourcing And Collective Bargaining: A "Win-Win" For Employers And Employees, Shelby Silverman

Cardozo Journal of International and Comparative Law

The note argues that the National Labor Relations Act (NLRA) framework effectively promotes negotiation over outsourcing decisions, aligning with Congress's intent to foster industrial peace through collective bargaining. Despite challenges in modern labor markets, the legal framework encourages mutual negotiation, driven by uncertainty and the desire to avoid disputes.

Expert Testimony On Sexually Abused Child Syndrome In A Child Protective Proceeding: More Hurtful Than Helpful, Mary Ellen Reilly

Cardozo Public Law, Policy & Ethics Journal

The note argues that Sexually Abused Child Syndrome (SACS) testimony is unreliable and should not be admitted as corroborating evidence in child protective proceedings. It contends that SACS lacks scientific validity, is not recognized as a medical diagnosis, and fails to meet evidentiary standards for reliability. The author asserts that allowing SACS testimony violates due process rights and risks wrongful outcomes, advocating for stricter standards for expert testimony and alternative methods of substantiating abuse allegations.

The Unwitting Attorney, The Desperate Client, And The Perpetuation Of The New York Power Play: A Proposal To Ban Voluntary Assignments Of Legal Malpractice Claims Via New York General Obligations Law Section 13-101, Rosalie S. Walters

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Interpreting Sexual Disparities In Elites: The Unrecognized Implications Of Gaussian Distributions, Lloyd Cohen, Iliana Ilieva

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Xxx-Files: Cal/Osha's Regulatory Response To Hiv In The Adult Film Industry, Christina Jordan

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges in regulating California's straight adult film industry following an HIV outbreak, highlighting tensions between the industry's resistance to regulation and CalOSHA's efforts to enforce workplace safety standards. It critiques the industry's reliance on self-regulation and explores the legal implications of determining whether performers are employees or independent contractors. The analysis underscores the potential public health consequences of inadequate oversight and the industry's threats to evade regulation by moving underground.

On The Logic Of Suing One's Customers And The Dilemma Of Infringement-Based Business Models, Justin Hughes

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Is Alternative Dispute Resolution Really An Alternative For Federal Employees?: Possible Suggestions For Encouraging Federal Employees To Participate In Adr Programs, Lisa Pell

Cardozo Journal of Conflict Resolution

This Note will examine the various dispute resolution programs employed by the federal government. Part One of this Note will look at the different federal programs and determine their usefulness. Part Two will establish that ADR is not being used to its potential. Part Three will discuss the reasons for the low ADR usage. Part Four will suggest options for increasing ADR usage in federally implemented programs. Finally, Part Five will conclude that if the federal agencies took advantage of their own programs, the possibilities for change are great.

The Unguided Use Of Internal Adr Programs To Resolve Sexual Harassment Controversies In The Workplace, Jessica Oser

Cardozo Journal of Conflict Resolution

This Note will explore some of the concerns raised by the use of mandatory IDR mechanisms in the workplace, particularly in the context of resolving sexual harassment disputes. As previously noted, the use of IDR in the workplace can be highly effective and beneficial for both the employee and the employer. However, just as the Food and Drug Administration approves drugs that have potentially harmful side effects, the public and the U.S. government should approve of the use of IDR mechanisms despite the potential for abuse. In both circumstances, the public deserves to be warned about the possible dangers. This …

The Defined Contribution Paradigm, Edward A. Zelinsky

Articles

Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. I suggest that, over the last generation, something even more fundamental has occurred, something that can justly be called a paradigm shift. Americans today primarily conceive of and implement retirement savings in the form of individual accounts. Such accounts have become primary instruments of public policy, not just for retirement savings, but increasingly for health care and education as well.

Reinventing Unchanged Andean Traditions, Terence N. D'Altroy

Cardozo Journal of International and Comparative Law

The article argues that Andean traditions and cultural property are not static but have been continually reinvented and adapted over time, challenging the common misconception that these elements have remained unchanged since pre-Columbian times. The author emphasizes the importance of understanding the dynamic and evolving nature of traditional knowledge and its relationship to power, history, and cultural identity in the Andean region. This understanding is crucial for addressing contemporary issues of cultural property and traditional knowledge in a region increasingly influenced by Westernization.

Association For Civil Rights V. Minister Of Public Security, Aharon Barak, Theodor Or, Eliahu Mazza, Dalia Dorner, Dorit Beinisch, Edmond E. Levy, Mishael Cheshin

Translated Opinions

Facts: The petitioner challenged the respondents’ recruitment policies, which restrict the age of job applicants to a maximum of thirty-five or forty. The petitioner argued that these policies were discriminatory on the basis of age and therefore unlawful. The respondents argued that the policies were required by the demanding nature of the work.

Held: In the absence of evidence justifying their policies, the Supreme Court held that the recruitment policies of the respondent were indeed discriminatory on the basis of age and therefore void.

Petition granted.

Supreme Court Narratives On Equality And Gender Discrimination In Employment: 1971-2002, Vicki Lens

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's evolving approach to gender discrimination in the workplace, particularly during the 1970s and 1980s, as it grappled with the intersection of formal and substantive equality. The Court's decisions reflected the influence of the feminist movement and broader societal shifts, addressing issues such as pregnancy-related discrimination, sexual harassment, and workplace stereotypes. While the Court often invalidated discriminatory practices, its rulings also revealed tensions in balancing equal treatment with competing interests, such as military preparedness or employer liability. The analysis highlights how the Court's narrative on gender equality was shaped by legal doctrines, cultural values, and …

Albert Pujols: Major League Baseball Salary Arbitration From A Unique Perspective, Stuart J. Riemer

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Equitable Remuneration" In Copyright Law: The Amended German Copyright Act As A Trap For The Entertainment Industry In The U.S.?, Reto M. Hilty, Alexander Peukert

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Out With The Old And In With The New: The Second Circuit Shows It's Time For The Supreme Court To Finally Overrule Mcdonnell Douglas, Kerry S. Acocella

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Desert Palace, Inc. v. Costa case represents a significant shift in employment discrimination law under Title VII, as it simplifies the process for plaintiffs to prove discrimination by allowing the use of circumstantial evidence in mixed-motive claims. The decision aligns with the 1991 Civil Rights Act and highlights the need to reassess the stricter standards of the McDonnell Douglas framework, which the author critiques as overly burdensome. The analysis also examines the implications of this shift through the lens of the Sanders v. NYC HRA case, advocating for the explicit overruling of McDonnell Douglas in …

The Uneasy Case For Department Of Justice Control Of Federal Litigation, Neal Devins, Michael Herz

Articles

No abstract provided.

A Woman's Climb Up The Law School Ladder, Autumn Mesa

Cardozo Journal of Equal Rights & Social Justice

The article examines the challenges women face in law school, arguing that the hierarchical and male-dominated structure of legal education creates significant barriers for female students. It contends that women are disproportionately affected by the competitive and often hostile environment, which can lead to feelings of alienation, lower self-esteem, and a struggle to maintain their unique perspectives. The author advocates for systemic change in legal academia to create a more inclusive environment that values diversity and supports female success.