Labor and Employment Law Commons^™

The Reverse-Morals Clause: The Unique Way To Save Talent's Reputation And Money In A New Era Of Corporate Crimes And Scandals, Porcher L. Taylor Iii, Fernando M. Pinguelo, Timothy D. Cedrone

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Black And Brown Coalition Building During The Post-Racial Obama Era, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

This essay explores how the past Civil Rights Movement and discrimination against persons of color, mainly Latinos and African Americans, can help to address current forms of discrimination in our country. In particular, since the election of the first African American President, who also has immigrant parents, many people have claimed that we have reached a “post-racial” America. In the new post-racial America, proponents claim that the pre-Civil Rights Movement racial caste system of the sixties has been eradicated. In this context, this essay seeks to explore whether there is any link between the past experiences of African Americans with …

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

Publications

This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

Publications

The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to …

Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan

Publications

No abstract provided.

Pretext In Peril, Natasha T. Martin

Faculty Articles

This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintiffs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary—why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination.

Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how courts "chip …

Sharing The Stage: Using Title Vii To End Discrimination Against Female Playwrights On Broadway, Marisa Rothstein

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Fractured Membership: Deconstructing Territoriality To Secure Rights And Remedies For The Undocumented Worker, D. Carolina Nuñez

Faculty Scholarship

Relied upon but unwelcome, among us but uninvited, undocumented workers in the United States – now numbering over 8 million – labor on the border of inclusion and exclusion, between a status-based conception of membership and a territorial approach to membership. Although mere presence in the U.S. secures undocumented workers many of the same labor protections afforded to authorized workers, undocumented status often forecloses certain remedies otherwise available for employer breaches of those protections. Many commentators have criticized this effective status-based denial of rights to undocumented workers as inimical to the goals underlying labor and immigration law. While this Article …

Still On The Border: The Fractured Membership Rights Of The Undocumented Worker, D. Carolina Nuñez

Faculty Scholarship

No abstract provided.

Mandatory Employment Arbitration: Keeping It Fair, Keeping It Lawful, Theodore J. St. Antoine

Articles

President Obama's election and the Democrats' takeover of Congress, including what was their theoretically filibuster-proof majority in the Senate, have encouraged organized labor and other traditional Democratic supporters to make a vigorous move for some long-desired legislation. Most attention has focused on the Employee Free Choice Act (EFCA). As initially proposed, the EFCA would enable unions to get bargaining rights through signed authorization cards rather than a secret-ballot election, and would provide for the arbitration of first-contract terms if negotiations fail to produce an agreement after four months. The EFCA would apply to the potentially organizable private-sector working population; at …

In Defense Of Transnational Domestic Labor Regulation, David J. Doorey

Vanderbilt Journal of Transnational Law

Transnational domestic labor regulation (TDLR) is unilateral regulation introduced by a government to influence labor practices in foreign jurisdictions. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations systems in ways that might lead to improved labor conditions. Particularly interesting is the potential for TDLR to harness or steer private labor regulation--the many non-state sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should try to influence foreign labor practices at all is a controversial question. This Article explores the arguments both …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Discrimination Redefined, Ann C. Mcginley

Scholarly Works

In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

Beyond The 'Chilling Effect': Immigrant Worker Behavior And The Regulation Of Occupational Safety & Health, Jayesh Rathod

Scholarly Articles in Law Reviews & Journals

This article forms part of a broader scholarly project that seeks to understand the root causes of immigrant worker injury and fatality trends in the U.S., and the ways in which legal norms and regulatory practices shape these trends. This particular contribution examines the broad range of attributes and experiences that influence immigrant worker behavior relating to occupational safety and health -- in the context of interactions with employers and regulatory bodies, and relating to the choices that workers themselves make about how to perform their work.

Drawing upon scholarship from multiple disciplines, the article encourages a more robust understanding …

Teaching International Law: Lessons From Clinical Education: Introductory Remarks, Richard J. Wilson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Achieving Accountability For Migrant Domestic Worker Abuse, Janie Chuang

Scholarly Articles in Law Reviews & Journals

Domestic work has become increasingly commoditized in the global economy. Migrant domestic workers' remittances constitute a rich source of revenues for their countries of origin, while their labor ameliorates the “care deficit” experienced in wealthier countries of destination. Despite the importance of their work, migrant domestic workers are some of the most exploited workers in the world. They are often discriminated against based on their gender, class, race, nationality, and immigration status, and they are excluded from labor law protections in most countries of destination.

This essay examines some of the underlying reasons for this mistreatment and neglect. After describing …

Review Of Labor And Employment Decisions From The United States Supreme Court’S 2008–2009 Term, Kenneth G. Dau-Schmidt, Todd C. Dvorak

Articles by Maurer Faculty

In its most recently completed Term, the United States Supreme Court decided eight labor and employment law cases of some consequence. The decided cases covered a broad array of labor and employment subjects, including: the Employee Retirement Income Security Act (ERISA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), public sector labor law, and private sector labor law. Practitioners who specialize in a particular area might be tempted to focus on only the cases in their area. Academics might be tempted to try to devise some economic or logical theory …

A Misguided Reversal: Why The Oklahoma Supreme Court Should Not Have Interpreted Saint V. Data Exchange, Inc. To Provide A Burk Tort Cause Of Action To Plaintiffs Alleging Age Discrimination In Employment, Katherine R. Morelli

Oklahoma Law Review

No abstract provided.

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

The Dean Takes His Stand: Julian Monnet's 1912 Harvard Law Review Article Denouncing Oklahoma's Discriminatory Grandfather Clause, Harry F. Tepker

Faculty Articles

No abstract provided.