Labor and Employment Law Commons^™

Necessity Or Preference? Navigating The Role Of Physical Presence In The Post-Pandemic Workplace, Shelby Wray

Cardozo Law Review

The COVID-19 pandemic fundamentally altered how society conceptualizes the spatial boundaries of the workplace, proving that businesses can operate effectively without requiring employees’ physical presence. As remote work gained legitimacy during the pandemic, longstanding assumptions about where jobs can be performed—and where legal protections apply—have come into question. In particular, the scope of the Americans with Disabilities Act (ADA) has become increasingly hazy, especially regarding when the ADA is triggered outside of the physical workplace.

Currently, there is a circuit split as to whether employees with disabilities are entitled to ADA protections for their commute to work. This Note addresses …

Disability-Related Misconduct And The Untapped Potential Of The Disparate Impact Theory, Kelly Cahill Timmons

Cardozo Law Review

Disabilities often manifest themselves in behavior that could be characterized as misconduct. Since the early days of the Americans with Disabilities Act (ADA), courts have struggled with how to treat disability-related misconduct in the workplace. In Raytheon Co. v. Hernandez, the Supreme Court indicated that terminating an employee for violating a neutral, generally applicable conduct rule is not disparate treatment because of disability. Instead, the Court suggested that concern about the effect of such a rule on a disabled employee should be addressed under the disparate impact theory of discrimination. In the years that followed, Congress enacted the ADA Amendments …

Human Capital Disclosure & Corporate Governance: The New Evidence, George S. Georgiev

Cardozo Law Review

This Article explores the evolution of human capital disclosure—firm-supplied information about various workforce-related matters—as a factor in contemporary corporate governance. Regulatory and nonregulatory developments from recent years have upended longstanding practices and generated extensive new evidence. Most notably, the Securities and Exchange Commission (SEC) adopted a human capital management (“HCM”) disclosure mandate in 2020, which, though long overdue, was criticized from the outset for its modest scope and lax design. In the meantime, courts have taken a renewed interest in board of directors’ oversight responsibilities in a number of areas, including HCM, while labor’s power has unexpectedly increased in some …

“Split My Award With Whom?” A Case For Plaintiff Incentive Awards And Plaintiff-Attorney Fee Splitting In Class Action Lawsuits, Ilana Kruchenetskaya

Cardozo Law Review

Named plaintiffs are the heart of class action lawsuits—without them, there is no class action. To motivate these individuals to be the face of the class and compensate them for their role in the litigation process, courts typically approve named plaintiff incentive awards when such awards are included in settlement offers. Recently, however, the Eleventh Circuit held that these awards are prohibited under purported Supreme Court precedent from the late 1800s. This decision undermines the future of class actions by removing any incentive individuals may have in taking on the extra work and scrutiny of bringing a class action lawsuit. …

The Death Of The Gid Exclusion: Williams V. Kincaid Revitalizes The Ada For Trans Litigants, Alexandra Newman

Cardozo Law Review

Kesha Williams is a transgender woman with gender dysphoria who spent six months incarcerated in the Fairfax County Adult Detention Center in Virginia. When Williams first entered the facility, she was assigned to women’s housing and given the uniforms typically provided to female inmates. However, upon learning that Williams had not undergone transfeminine bottom surgery, prison deputies stripped Williams of her female undergarments and transferred her to the men’s side of the facility. There, Williams was harassed by other inmates, misgendered by prison deputies, and delayed in receiving medical treatment for her gender dysphoria. Following her release, Williams asserted several …

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Susan Block-Lieb, Edward J. Janger

Cardozo Law Review

The topic of this symposium—Automating Bias—considers how artificial intelligence can produce, reinforce, and hide racial and other forms of discrimination in consumer finance. The animating intuition is that the complexity and opacity of algorithms and artificial intelligence in consumer lending create a greater need for disparate impact analysis to combat lending discrimination. This view was articulated forcefully by the current Director of the Consumer Financial Protection Bureau (CFPB), Rohit Chopra, when he was still a commissioner at the Federal Trade Commission (FTC).

Emotionally Harmed? It Might Not Matter: An Analysis Of Cummings V. Premier Rehab Keller And Its Implications For Title Ii Of The Americans With Disabilities Act Of 1990, Sotir Zhupa

Cardozo Law Review

On April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..

Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate …

Faculty Handbook As Contract, Karen Halverson Cross

Cardozo Law Review

Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, …

Backdating #Metoo, Jessica K. Fink

Cardozo Law Review

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to …

Growth Beyond Its Limits - How Much Growth Is Too Much For The Purpose Of The Local Government Antitrust Act Of 1984?, Katherine Stern

Cardozo Law Review

No abstract provided.

Demystifying The Elusive Quest For Cyber Insurance Protection: The Need For New Contract Language, Deborah L. Johnson

Cardozo Law Review

Cyberattacks and electronic data breaches are on the rise, and the costs associated with those breaches can be astronomical. In response, the insurance industry has created a specialty market for cyber coverage. However, despite the number of cyber insurance policies currently offered on the market, insurers frequently deny claims for cyber coverage under both these specialty and traditional policies.

Examining the evolution of cyberattacks, data breaches, and the massive harm they can cause to businesses, this Article explores the legal and market obstacles to obtaining adequate cyber insurance coverage and offers potential solutions to policyholders and insurers to satisfy this …

Beyond Offense: Why The First Amendment Does Not Protect Deliberate Misgendering, Molly Dower

Cardozo Law Review

No abstract provided.

The Coming Causation Revolution In Employment Discrimination Litigation, D’Andra Millsap Shu

Cardozo Law Review

For more than a decade, employment discrimination causation law has been a confusing, often overly restrictive quagmire that has contributed substantially to the paltry success rate of plaintiffs in employment discrimination cases. Most of these cases are dismissed pretrial, all too often based on a failure of causation. A key reason traces back to loose and misleading language—centered on a single word—in a 2009 Supreme Court opinion involving the but-for causation standard that applies in most discrimination cases. The Court said that the discriminatory motive must be “the” but-for cause of the employer’s action when it should have said “a” …

Driving The National Labor Relations Act Forward: Analyzing Abusive Conduct That Occurs In The Course Of Protected Activity After General Motors Llc, Kurt Stumpo

Cardozo Law Review

No abstract provided.

Civil Rights Catch-22s, Jonathan P. Feingold

Cardozo Law Review

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

The Prison Litigation Reform Act Exhaustion Requirement: How A Legislative Decision From 1996 Is Controlling Covid-19 Conditions Inside Correctional Facilities, And What Can Be Done To Fix It, Hannah E. Mirzoeff

Cardozo Law Review

No abstract provided.

Why Do You Care About My Hair? A Proposal For Remedying Hair Discrimination In The Workplace On A Federal Level, Grayson Moronta

Cardozo Law Review

No abstract provided.

Beyond The Grave: A Fiduciary’S Access To A Decedent’S Digital Assets, Isabelle N. Sehati

Cardozo Law Review

No abstract provided.

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William R. Corbett

Cardozo Law Review

No abstract provided.

Contra Publius: The House As Cure For The Complaisance And Venality Of The Senate, Sam Solomon

Cardozo Law Review

No abstract provided.

Employers’ Secret Weapon: How The After-Acquired Evidence Doctrine Allows Employers To Get Away With Disability Discrimination, Emma Schwab

Cardozo Law Review

No abstract provided.

Court Packing Is A Chimera, Brian L. Frye

Cardozo Law Review

The dream of the 1930s is alive in Washington. Democrats see Republicans hemorrhaging voters as Trump struggles with the economy and the pandemic and are salivating at the prospect of retaking not only the White House, but also the Senate. Of course, you should never sell a bearskin until you’ve caught the bear. But even a blowout victory can’t get Democrats the prize they really want, a Supreme Court majority. So, in back-to-the-future fashion, many progressives are pushing the idea of court packing. After all, in politics, rules are made to be broken.

Legalizing Undocumented Work, Jennifer J. Lee

Cardozo Law Review

No abstract provided.

Contracting Away Your Career: An Interstate Comparison Of Noncompete Law And A Proposal For Optimal Legislation In New York, Matthew Rametta

Cardozo Law Review

No abstract provided.

Selling Out, Andrew B. Dawson

Cardozo Law Review

When bankruptcy policy competes with other federal and state regulatory policies, which should take priority? Bankruptcy law, provided it is used to save a struggling business from having to close its doors. Bankruptcy's supremacy, then, can preserve the debtor's going concern value, save jobs, and limit the collateral damage from a business failure. But should this bankruptcy supremacy apply only when the debtor is pursuing a traditional reorganization under chapter 11, or should it also apply when bankruptcy is used to bring about a quick sale of substantially all of the debtor's assets?

This Article addresses this question in the …

Supervisory Liability And Ashcroft V. Iqbal, Alexander A. Reinert

Cardozo Law Review

No abstract provided.

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Cardozo Law Review

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article discusses these …

On Constitutional Identity And The Loyalties Of The Constitutional Judge, András Sajó

Cardozo Law Review

The following remarks consider the relation of judicial loyalty and constitutional identity. These two concepts were always of great interest to Arthur Jacobson's scholarship and their combined discussion is not only necessitated by certain constitutional developments in this age's return to nationalist sovereignty but is a token of Arthur's appreciation.

Code Of Silence, Melissa Mortazavi

Cardozo Law Review

To read the literature on professional responsibility is to inhabit a world focused on what is said explicitly about what it means to be a lawyer: the aspirations of the canons, the commands of the Model Rules of Professional Responsibility, the clarifications of court and ethics opinions, and the guidance of the Restatement. However, it often neglects what is not said: spaces where silence reigns. This Article takes a different approach; it listens to the taciturn.

This Article draws insight from when the bar chooses to be silent in the face of widely known violations of the law of lawyering. …

The Sec's Part 205.3(D)(2) And Wadler V. Bio-Rad Labs. Should Be Revisited: The Sec Exceeded Authority In Creating A Reporting Out Provision For In-House Attorneys, Briana Sheridan

Cardozo Law Review

This Note proceeds in three parts. Part I introduces relevant statutory law. Part I discusses federal law, notably Section 307 of the Sarbanes-Oxley Act and the SEC's Part 205.3(d)(2), as well as the American Bar Association (ABA) Model Rules and conflicting state law. Part II first examines case law involving the preemption of state ethics laws, including Wadler v. Bio-Rad Laboratories, which concluded broadly that Part 205 preempts California law.23 Part II then examines the doctrine of federal preemption, which is followed by a preemption analysis of Part 205.3(d)(2). Part III recommends that Part 205.3(d)(2) should be revisited, as the …