Labor and Employment Law Commons^™

Intellectual Property And Employee Selection, Elizabeth A. Rowe

UF Law Faculty Publications

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …

What The Awards Tell Us About Labor Arbitration Of Employment Discrimination Claims, Ariana R. Levinson

University of Michigan Journal of Law Reform

This Article contributes to the debate over mandatory arbitration of employment-discrimination claims in the unionized sector. In light of the proposed prohibition on union waivers in the Arbitration Fairness Act, this debate has significant practical implications. Fundamentally, the Article is about access to justice. It examines 160 labor arbitration opinions and awards in employment-discrimination cases. The author concludes that labor arbitration is a forum in which employment-discrimination claims can be-and, in some cases, are-successfully resolved. Based upon close examination of the opinions and awards, the Article recommends legislative improvements in certain cases targeting statutes of limitations, compulsory process, remedies, class …

Equal Employment Opportunity Commission V. Wyoming: Appomattox Courthouse Revisited , Richard M. Stephens

Pepperdine Law Review

A highly divided Court again addressed the relatively new doctrine in constitutional law: state exemption from federal regulations due to the concept of federalism. Although the Court applied the tests from National League of Cities v. Usury and its progeny, the Court reached a different result which, without expressly overruling that controversial case, severely limited National League of Cities to its facts. The hope of modern states' rights advocates proved to be short lived.

Bathroom Bias: Making The Case For Trans Rights Under Disability Law, Daniella A. Schmidt

Michigan Journal of Gender & Law

Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note …

Flexible Scheduling And Gender Equiality: The Working Families Flexibility Act Under The Fourteenth Amendment, Lane C. Powell

Michigan Journal of Gender & Law

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman …

Implausible Injuries: Wal-Mart V. Dukes And The Future Of Class Actions And Employment Discrimination Cases, Marcia L. Mccormick

All Faculty Scholarship

In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

Summary Judgment In Employment Discrimination Cases: A Judge’S Perspective, Hon. Denny Chin

NYLS Law Review

No abstract provided.

Cognitive Illiberalism, Summary Judgement, And Title Vii: An Examination Of Ricci V. Destefano, Ann C. Mcginley

Scholarly Works

No abstract provided.

The Cost Of Non-Compensable Workplace Harm, Henry L. Chambers, Jr.

Law Faculty Publications

This essay briefly addresses the limited fashion in which Title VII remedies sex discrimination in the workplace. Those limitations fall into three broad categories. The first encompasses how courts have applied procedural rules to Title VII claims. The second involves Title VII's explicit limitation on its coverage. The third includes substantive limitations that courts have placed on causes of action that are clearly covered by Title VII. This essay addresses those categories in turn.

Cognitive Illiberalism, Summary Judgment, And Title Vii: An Examination Of Ricci V. Destefano, Ann C. Mcginley

NYLS Law Review

No abstract provided.

The Exit Myth: Family Law, Gender Roles, And Changing Attitudes Toward Female Victims Of Domestic Violence, Carolyn B. Ramsey

Publications

This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims of intimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth.

While the situation that gave rise to the battered women's movement in the 1970s is often presumed …

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs' Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Publications

For a major field, employment discrimination suffers surprisingly low-quality plaintiffs' lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs' briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs' briefs far more often yield decisions crediting debatable defenses. These findings are puzzling. In a major legal service market, how …

(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss

Publications

No abstract provided.

Essay:1 From The “No Spittin’, No Cussin’ And No Summary Judgment”2 Days Of Employment Discrimination Litigation To The “Defendant’S Summary Judgment A Rmed Without Comment” Days: One Judge’S Four-Decade Perspective, Hon. Mark W. Bennett

NYLS Law Review

No abstract provided.

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

NYLS Law Review

No abstract provided.

Bringing Back Reasonable Inferences: A Short, Simple Suggestion For Addressing Some Problems At The Intersection Of Employment Discrimination And Summary Judgment, Hon. Bernice B. Donald, J. Eric Pardue

NYLS Law Review

No abstract provided.

“Only Procedural”: Oughts On The Substantive Law Dimensions Of Preliminary Procedural Decisions In Employment Discrimination Cases, Elizabeth M. Schneider, Hon. Nancy Gertner

NYLS Law Review

No abstract provided.

Stopped At The Starting Gate: E Overuse Of Summary Judgment In Equal Pay Cases, Deborah Thompson Eisenberg

NYLS Law Review

No abstract provided.

Rescuing The Union Grievance From The Shoals Of Garcetti: A Call For The Return To Reason In Public Workplace Speech Jurisprudence, Eric Marshall

NYLS Law Review

No abstract provided.

Teaching Employment Discrimination Law, Virtually, Miriam A. Cherry

Faculty Publications

(Excerpt)

The process of education, teaching, and learning has ideally been conceived of as a transformative endeavor. Students learn a new way of thinking and asking questions, rather than memorizing or assimilating material verbatim by rote. As curiosity and inquisitiveness are to be valued, students change their mode of analysis and in so doing, the way that they perceive the world. While this is the typical meaning of “transformative” learning, what if learning were actually transformative? In other words, what if what you were learning or the process of learning turned you into someone else (at least for the course …

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

Publications

No abstract provided.

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

Publications

No abstract provided.

Employment Law And Social Equality, Samuel R. Bagenstos

Michigan Law Review

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or …

Teaching The Post-Sex Generation, Kerri Lynn Stone

Faculty Publications

There is a trend that I have observed in the course of leading my classes in discussions about the kinds of behavior that may constitute unlawful discrimination: the emergence of an attitude among students that society is simply “post-sex,” or no longer in need of most or all anti-sex discrimination jurisprudence. This Article details my own approach to teaching and to raising and conducting discussions about how anti-discrimination legislation and jurisprudence works in theory, in practice, and how it would/could work in an ideal world. I enjoy teaching students with a diversity of viewpoints. However, when I began to encounter …

Expanding The Hostile Environment Theory To Cover Age Discrimination: How Far Is Too Far?, Julie Vigil

Pepperdine Law Review

No abstract provided.

Employment Discrimination Claims Remain Valid Despite After-Acquired Evidence Of Employee Wrongdoing, Christine Neylon O'Brien

Pepperdine Law Review

This article explores the legal practice area of employment discrimination and adverse decisions based on after-acquired evidence. A division among the circuits courts arose concerning the impact of after-acquired evidence of employee wrongdoing upon an employer's liability for employment discrimination. When pre-trial discovery unveiled a separate nondiscriminatory reason for termination, numerous circuits allowed such previously unknown information to constitute a legitimate basis for the employment decision, following the model of a mixed-motive discharge. A trend developed however, among other circuits that after-acquired evidence of employee misconduct should not prevent the establishment of employer liability, but that it should be considered …

Admission Possible: Reconsidering The Impact Of Eeoc Reasonable Cause Determinations In The Ninth Circuit, Michael D. Moberly

Pepperdine Law Review

No abstract provided.

Paramours, Promotions, And Sexual Favoritism: Unfair, But Is There Liability?, Mitchell Poole

Pepperdine Law Review

No abstract provided.

Burlington Industries, Inc. V. Ellerth: “Whole-Cloth Creation” Or Manifestation Of Congressional Intent?, John Corrington

Pepperdine Law Review

No abstract provided.