Labor and Employment Law Commons^™

The New Ada Backlash, Nicole Buonocore Porter

Faculty Publications

[T]his paper explores whether courts are using the reasonable accommodation provision or the qualified individual inquiry to limit the number of individuals entitled to the special protection of the ADA...

This paper will proceed in five parts. Part II provides a brief history of the ADA, both of its structure and legislative history. It then proceeds to a discussion of the major Supreme Court cases that dramatically narrowed the coverage of the ADA through a narrow interpretation of what it means to be an individual with a disability. I will also discuss why courts may have narrowly construed the statute. …

A Defining Moment: A Review Of Disability & Equity At Work, Why Achieving Positive Employment Outcomes For Individuals With Disabilities Requires A Universal Definition Of Disability, Nicole Buonocore Porter

Faculty Publications

This book, Disability & Equity at Work, describes its goal as "to discuss factors contributing to disabled persons' inequality at work and to offer proposals for leveling this uneven playing field." The book is an interdisciplinary, international review of the laws, policies, initiatives, and studies regarding the employment situation of individuals with disabilities. It is a compilation of fifteen different chapters by different authors, which cover a wide variety of subject matters. Some chapters focus on low- and middle-income countries, where individuals with disabilities often have low employment and high poverty rates. And some chapters focus on problems that …

$1.6 Million Employment Bias Award Upheld By Manhattan Appeals Court, Arthur S. Leonard

Other Publications

No abstract provided.

Unions & Campaign Finance Litigation, Charlotte Garden

Faculty Articles

Labor unions and federations, particularly the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO), devote significant resources to litigating before the Supreme Court. This Supreme Court litigation frequently takes place in cases that reach far beyond labor law, meaning that unions help to shape the law governing many aspects of American society. Virtually no legal scholarship considers the role that unions play in these cases, and consequently there has been no systemic attention to the positions that unions take before the Supreme Court. Yet, unions’ litigation positions, especially before the Supreme Court, yield useful information about union strategies and priorities. …

Citizens United & The First Amendment Of Labor Law, Charlotte Garden

Faculty Articles

The Supreme Court's decision in Citizens United v. Federal Election Commission sparked a widespread dialogue about the fundamental First Amendment right of free speech and the future of election spending. This article contributes to that dialogue with a focus on how the Citizens United decision affects labor unions. After explaining the Court's rationale in Citizens United, the author juxtaposes Citizens United with earlier cases concerning the First Amendment rights of labor unions. Specifically, the article explores inconsistencies in two areas: first, labor protest rights, as to which pre-Citizens United Supreme Court decisions upheld certain speaker-based restrictions on protest tactics; and …

Private Enforcement Of The Kansas Wage Payment Act, Joseph Schremmer

Faculty Articles

The argument of this article is that there should be greater private enforcement of the KWPA, and that this goal can be achieved by amending the KWPA to include an attorney fee shifting provision that awards prevailing plaintiffs their reasonable attorney fee. A fee shift is necessary for three reasons. First, without a fee shift, deserving employees are unfairly barred from enforcing their wage payment claims in court. Second, an attorney fee shift is necessary to give meaning to the rights granted by the KWPA, which are rendered hollow by the lack of enforcement under the present system. And third, …

Federal Equal Protection, Taylor Flynn

Faculty Scholarship

The Author explores the use of due process and equal protection guarantees from the U.S. Constitution as a means to challenge workplace discrimination faced by LGBT government employees. The Author also discusses how private employees must rely on Title VII of the Civil Rights Act to assert similar claims. Because sex discrimination is prohibited under both the Constitution and Title VII, federal courts have relied on reasoning in the former context when analyzing the latter, and vice versa. This means that a watershed case regarding one law can contain reasoning for the other. The Author goes on to the discuss …

Harm And The Fluid Nature Of Identity In Wrongful Life Cases Involving Preimplantation Genetic Diagnosis, Matthew Reisman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Real World: Child Labor And Reality Television, Ariel Tacher

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal vulnerabilities faced by child participants in reality television shows, arguing that current child labor laws fail to adequately protect them. It highlights how the classification of these children as "participants" rather than "employees" exempts them from protections afforded to child actors, leading to exploitation and insufficient safeguards.

Keynote: Five Omar Mualimmak, Five Omar Mualimmak

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Amici Brief Of Labor Relations And Research Center, U. Mass., Amherst And Massachusetts Wage Campaign, In Meshna V. Scrivanos, Sjc 11618, Harris Freeman

Faculty Scholarship

Amici brief submitted by the Labor Relations and Research Center, University of Massachusetts and the Massachusetts Wage Campaign, to the Massachusetts Supreme Judicial Court in the case of Meshna v. Scrivanos. The brief argues that the Massachusetts Tips Act prohibits no-tipping policies and that it does not sanction such no-tipping policies as a lawful business response to customer demand or preference. Furthermore, it argues that no-tipping policies contribute to the impoverishment of the low-wage workforce and foist the social and economic costs of tipping bans onto citizen-tax payers.

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

Articles

In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

Formalism And Employer Liability Under Title Vii, Samuel R. Bagenstos

Articles

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique. This critique argues that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique. This critique observes that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but argues that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case.

Single And Childfree! Reassessing Parental And Marital Status Discrimination, Trina Jones

Faculty Scholarship

No abstract provided.

Lessons From The Dolphins/Richie Incognito Saga, Kerri Lynn Stone

Faculty Publications

No abstract provided.

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Scholarship@WashULaw

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline Kim

Scholarship@WashULaw

In 2011, the United States Supreme Court struck down a class action suit alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions, making it more difficult to obtain certification of private employment discrimination class actions. As a result, the role of the Equal Employment Opportunity Commission in seeking structural reform of the workplace, always of substantial influence, has gained in comparative importance. Yet there is remarkably little written about the EEOC’s large-scale injunctive cases. This Article addresses this major gap in scholarship. Using both qualitative case studies and a new quantitative data-set, we test existing theories …

The Judiciary And Fiscal Crises: An Institutional Critique, Peter Conti-Brown, Ronald J. Gilson

Faculty Scholarship

Scholars have long debated the role for courts with respect to governmental action that responds to crisis. Most of the crises analyzed, however, are exogenous to the political process; the courts’ role in response to politically endogenous crises has received less attention. We evaluate the role of the judiciary in a subset of those endogenous crises: the judicial treatment of governmental efforts to resolve the crisis facing underfunded public pensions. Assessing institutional competence schematically with reference to an institution’s democratic accountability and fact-finding ability, we argue that, where institutions function properly, judicial intervention in politically endogenous economic crises should be …

Comment On The Definition Of "Eligible Organization" For Purposes Of Coverage Of Certain Preventive Services Under The Affordable Care Act, Robert P. Bartlett, Richard M. Buxbaum, Stavros Gadinis, Justin Mccrary, Stephen Davidoff Solomon, Eric L. Talley

Faculty Scholarship

This comment letter was submitted by U.C. Berkeley corporate law professors in response to a request for comment by the Health and Human Services Department on the definition of "eligible organization" under the Affordable Care Act in light of the Supreme Court's decision in Burwell v. Hobby Lobby. "Eligible organizations" will be permitted under the Hobby Lobby decision to assert the religious principles of their shareholders to exempt themselves from the Affordable Care Act's contraceptive mandate for employees.

In Hobby Lobby, the Supreme Court held that the nexus of identity between several closely-held, for-profit corporations and their shareholders holding “a …