Labor and Employment Law Commons^™

Expanding The Core: Pregnancy Discrimination Law As It Approaches Full Term, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was …

Rwu Law: The Magazine Of Roger Williams University School Of Law (Issue 9) (2016), Roger Williams University School Of Law

RWU Law

No abstract provided.

Madonnas And Whores In The Workplace, Jessica K. Fink

Faculty Scholarship

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 gender discrimination plaintiff alleged a sort of “reverse-lookism,” claiming that her male employer terminated her long-term employment because the employee was too physically attractive, thus tempting the employer to think about 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 gender discrimination. As one might expect, uproar ensued, with …

Equality, Non-Discrimination And Work-Life Balance In Canada, Eric Tucker, Alec Stromdahl

Articles & Book Chapters

The principle that everyone has a right to equal treatment was first entrenched in Canadian law in the aftermath of the Second World War when legislation began to be enacted prohibiting discrimination on the basis of sex, race and religion. Since that time, the grounds of prohibited discrimination have steadily increased. These grounds will be discussed in greater detail in the answer to question 1. Because Canada is a federal state and courts have held that legislative authority over human rights is primarily a matter of provincial jurisdiction, there is no uniform law of Canada. Nevertheless, the provisions of statutory …

Working Time And Flexibility In Canada, Eric Tucker, Leah F. Vosko

Articles & Book Chapters

Canada is a federal state and, under its constitution, legislative jurisdiction over labour and employment is vested primarily in its provinces and territories. As a result, there is no generally applicable national regime regulating hours of work, but rather a patchwork of laws with limited reach. It is not possible to cover all these laws in a brief overview and so we have chosen to focus on the laws of Ontario, Canada’s most populous province. However, it is also fair to say that while provincial laws vary, the law of Ontario reflects the general pattern of hours of work laws …

Using The Nfl As A Model? Considering Zero Tolerance In The Workplace For Batterers, Deseriee A. Kennedy

Scholarly Works

The impact of domestic violence can increasingly be felt in the workplace, and it can adversely affect the safety and productivity of employees. Legislators and employers have begun to recognize the effect of domestic violence on employment, and many have adopted policies to protect the interests of domestic violence survivors. This article suggests that wider adoption of domestic violence policies are needed and these policies should be broadened to directly address batterers in the workplace. The article argues that employer based sanctions would increase batterer accountability and workplace safety. It uses the newly revised NFL Personal Conduct Policy as a …

Green V. Donahoe, Gerard Quinn

NYLS Law Review

No abstract provided.

Louisiana Municipal Police Employees’ Retirement System V. Wynn, Benjamin Eisenstein

NYLS Law Review

No abstract provided.

Fulk V. Norfolk Southern Railway Company, Jonathon Sizemore

NYLS Law Review

No abstract provided.

Navistar, Inc. V. Forester, Adrienne Baffa

NYLS Law Review

No abstract provided.

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Allowing States To Help Workers Safe For Retirement: Department Of Labor's Proposed Rulemaking That Provides A Safe Harbor For State Savings Programs Under Erisa, William A. Nelson

Marquette Benefits and Social Welfare Law Review

There is a “retirement crisis” in America. Contributing to

this crisis is the fact that millions of Americans do not have

access to a retirement savings plan through their employers.

States, concerned with the economic stability of their citizens,

have created laws that require private sector employers to

implement state-administered payroll deduction IRA programs

in their workplaces. Even though many states are currently

debating whether to adopt state payroll deduction programs,

this Article will focus on Oregon, Illinois, and California, which

have enacted laws along those lines.

One obstruction to wider adoption of such state measures

has been uncertainty about …

Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou

Marquette Benefits and Social Welfare Law Review

The psycho-legal concept of “rights apathy” is developed in

this Essay as an underlying factor of the very low rate of

incidence of workplace discrimination lawsuits filed in China,

despite an increasingly elaborate legal framework “on paper”

and workers’ rising awareness of their legal rights under

anti-discrimination laws. “Rights apathy” is underpinned by the

notions of “frustration” and “learned helplessness,” depicting the

indifference of workers in exercising their legal rights before a

tribunal or court. A number of institutional problems, namely

defects in existing anti-discrimination provisions, judicial

practices, and contradictions in other laws, policies, and

practices, can contribute to the …

Comment: Transgender Employment Discrimination Equality In Wisconsin: The Demise Of A Former Lgbtiq+ Rights Trailblazer, Alexandra A. Klimko

Marquette Benefits and Social Welfare Law Review

Wisconsin, once known as “The Gay Rights State” and a

pioneer of the LGBTIQ+ civil rights movement, has

disappointingly failed to create transgender-inclusive

employment discrimination legislation, much like the majority of

American states. As a result, Wisconsin transgender employees

face shocking workplace discrimination with saddening

repercussions felt by transgender individuals who call Wisconsin

home. This Comment identifies the federal, state, and city

approaches that have extended equal employment

discrimination legal protections to transgender workers in the

United States. Further, this Comment urges the Wisconsin

legislature to incorporate “gender identity or expression” to

Wisconsin’s Fair Employment Act as a non-discrimination

category, …

The Same-Actor Inference Of Nondiscrimination: Moral Credentialing And The Psychological And Legal Licensing Of Bias, Victor D. Quintanilla, Cheryl R. Kaiser

Articles by Maurer Faculty

One of the most egregious examples of the tension between federal employment discrimination law and psychological science is the federal common law doctrine known as the same-actor inference.

When originally elaborated by the Fourth Circuit in Proud v. Stone, the same-actor doctrine applied only when an “employee was hired and fired by the same person within a relatively short time span.” In the two decades since, the doctrine has widened and broadened in scope. It now subsumes many employment contexts well beyond hiring and firing, to scenarios in which the “same person” entails different groups of decision makers, and the …

Pension De-Risking, Brendan Maher

Faculty Articles and Papers

The United States is facing a retirement crisis, in significant part because defined benefit pension plans have been replaced by defined contribution retirement plans that, whatever their theoretical merit, have left significant numbers of workers unprepared for retirement. A troubling example of the continuing movement away from defined benefit plans is a new phenomenon euphemistically called “pension de-risking.” Recent years have been marked by high-profile companies engaging in various actions designed to reduce the company’s exposure to pension funding risk (hence the term “pension de-risking”). Some de-risking strategies convert a federally-guaranteed pension into a more risky private annuity. Other approaches …

Serving In The Master’S House: Legal Protection For In-Home Care Workers In The United States, Michael Fischl

Faculty Articles and Papers

This essay will focus on the developing forms of legal protection available in the United States to those whose principal place of work is another person’s home and who are paid to do what is broadly referred to as “care work.” The particular services vary widely – from housecleaning, to child care, to companionship and routine health care management for the elderly and the infirm – but the labor market demographics do not: This is low-wage/no-benefit work performed almost exclusively by women and primarily by women of color and of extra-national origin

Employment Standards Enforcement: A Scan Of Employment Standards Complaints And Workplace Inspections And Their Resolution Under The Employment Standards Act, 2000, Leah F. Vosko, Andrea M. Noack, Eric Tucker

All Papers

No abstract provided.

Maximizing Opportunity, Minimizing Risk: Aligning Law, Policy And Practice To Strengthen Work-Integrated Learning In Ontario, Joseph F. Turcotte, Leslie Nichols, Lisa Philipps

All Papers

A broad consensus is emerging in Ontario and at the federal level in favour of expanding postsecondary students’ access to experiential or “work-integrated learning” (WIL) opportunities. One of the challenges in implementing this vision is navigating the complex legal status of students as they leave campus and enter workplaces in a wide range of industries and roles. This study aims to support these efforts by mapping the current legal landscape for WIL to identify both risks and opportunities for students, post-secondary institutions (PSIs) and placement hosts alike (referred to collectively in this study as “WIL participants”). It makes recommendations to …

The Two Laws Of Sex Stereotyping, Noa Ben-Asher

Faculty Publications

This Article offers two main contributions to the study of sex stereotyping. First, it identifies an organizing principle that explains why some forms of sex stereotyping are today legally prohibited while others are not. Second, it argues for a shift in the current rights framework—from equal opportunity to individual liberty—that could assist courts and other legal actors to appreciate the harms of currently permissible forms of sex stereotyping. Commentators and courts have long observed that the law of sex stereotyping has many inconsistencies. For instance, it is lawful today for the state to require that unwed biological fathers, but not …

Crowdwork, Corporate Social Responsibility, And Fair Labor Practices, Miriam A. Cherry, Winifred R. Poster

Faculty Publications

Crowdwork, in which large numbers of workers find and perform paid tasks through online platforms, is a paradox. It can make job-matching and production processes more efficient, but it can also lead to a decline in labor standards. We seek to link ethical labor practices in virtual work with well-established notions of corporate social responsibility, that include concerns for worker well-being and fair treatment. We present a typology of trends in labour, and argue that the new phase of ‘crowdwork’ is distinct from previous eras of ‘industrial’ and ‘digital’ employment. The chapter then outlines three best practices for crowdwork. First …

People Analytics And Invisible Labor, Miriam A. Cherry

Faculty Publications

(Excerpt)

In recent years, I have been writing about two increasingly salient labor and employment law issues: the presence of invisible labor and the rise of people analytics.' First, invisible labor could include emotion work, such as being a colleague's "work wife," or could include "identity work" that is time and effort spent on making others feel comfortable with the worker. Invisible labor might also include uncompensated time spent in "looking good" and "sounding right." It could also include instances where technology obscures work that is being done through a website platform or mobile application. The second trend is …

Political Decision-Making At The National Labor Relations Board: An Empirical Examination Of The Board's Unfair Labor Practice Disputes Through The Clinton And Bush Ii Years, Amy Semet

Journal Articles

Does partisan ideology influence the voting of members of multi-member adjudicatory bodies at “independent agencies”? In studying the federal circuit courts of appeals, scholars have found that results of cases vary depending upon the partisan composition of the particular panel hearing a case. Few scholars to date, however, have systematically studied whether partisan panel effects occur in administrative adjudication. In this Article, I explore the impact that partisan ideology and panel composition have on the vote choices of an administrative agency rumored to be one of the most partisan: the National Labor Relations Board (“NLRB”). Employing an original dataset of …

The Restorative Workplace: An Organizational Learning Approach To Discrimination, Deborah Thompson Eisenberg

University of Richmond Law Review

No abstract provided.

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the "zero-sum mindset, " can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in …

Saving Mr. Banks And Other Interest-Based Negotiations, Michael Rogers

Cardozo Journal of Conflict Resolution

The goal of this article is to encourage the use of interestbased negotiations. Some of the stories included will be familiar; others will be fresh. In Getting to Yes, Fisher and Ury identify four principles of negotiation ("principled negotiation") that can be employed effectively in almost any type of dispute resolution: (1) Separate the people from the problem; (2) Focus on interests rather than positions; (3) Invent options for mutual gain; and (4) Insist on using objective criteria. Because focusing on interests is the second step identified in Getting to Yes, and inventing options for mutual gain is the …

And Ain't I A Woman: Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Faculty Scholarship

No abstract provided.

Mike Zimmer, Mcdonnell Douglas And "A Gift That Keeps Giving", William Corbett

Journal Articles

No abstract provided.

The Ninth Circuit's Decision In Von Saher V. Norton Simon Museum Of Art At Pasadena: The Invocation Of The Act Of State Doctrine And Its Implications For Future Nazi-Stolen Art Claims, Erica Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.