Tolulope F. Odunsi REMEDYING TRAIT-BASED EMPLOYMENT DISCRIMINATION: LESSONS FROM THE CROWN ACT 14 Northeastern University Law Review 317 (June, 2022) Introduction I. Background A. America's Racial Hierarchy and its Impact on Today's Workforce B. Federal Theories of Discrimination: Section 1981 & Title VII II. Historical and Legal Overview of Colorism Against Dark-Skinned, Black Litigants A. Scholarly and Administrative Solutions III. A History of Federal Hair Discrimination Jurisprudence A.... 2022
Emily Vida SHORT-TIME WORK: AN ALTERNATIVE TO AD HOC LEGISLATION FOR SAVING EMPLOYMENT DURING ECONOMIC CRISES 23 Oregon Review of International Law 249 (2022) Introduction. 250 I. Employment Landscape Following the COVID-19 Crisis. 252 A. COVID-19's Economic Effect in the United States. 253 B. COVID-19's Economic Effect in Germany. 257 II. Policy Responses. 258 A. United States' Paycheck Protection Program. 258 B. Short-Time Work Programs and Germany's Kurzarbeit. 261 III. Policy Impacts on Employment.... 2022
Katelyn Deibler THE BLACKLIST: POST-EMPLOYMENT RETALIATION UNDER THE FALSE CLAIMS ACT 49 Ohio Northern University Law Review 21 (2022) Within employment and whistleblower statutes lie hundreds of anti-retaliation provisions that were enacted to encourage individuals to report discrimination, harassment, and fraud in the workplace. In creating these protections, legislatures recognized one basic principle: strong anti-retaliation protections are necessary to encourage employees to... 2022
D'Andra Millsap Shu THE COMING CAUSATION REVOLUTION IN EMPLOYMENT DISCRIMINATION LITIGATION 43 Cardozo Law Review 1807 (June, 2022) 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... 2022
Joshua G. Wolford THE MOST DANGEROUS OF ALL SUBVERSIONS: TAMING THE AT-WILL EMPLOYMENT DOCTRINE BY STATUTORILY SAFEGUARDING PRIVATE EMPLOYEES' PUBLIC PROTEST SPEECH 110 Kentucky Law Journal 791 (2021-2022) Table of Contents. 791 Introduction. 792 I. The American Worker and Free Speech: Protections for Some, Capriciousness for Most, AND Uncertainty for All. 794 A. Protections for Some. 795 B. Capriciousness for Most. 798 II. Wrongful Discharge Claims and The Free Speech Freeze Out. 801 A. The Common Law Mess. 802 B. Wrongful Termination in Violation... 2022
Keith E. Sonderling, Bradford J. Kelley, Lance Casimir THE PROMISE AND THE PERIL: ARTIFICIAL INTELLIGENCE AND EMPLOYMENT DISCRIMINATION 77 University of Miami Law Review 1 (Fall, 2022) Artificial intelligence (AI) is undeniably transforming the workplace, though many implications remain unknown. Employers increasingly rely on algorithms to determine who gets interviewed, hired, promoted, developed, disciplined, or fired. If appropriately designed and applied, AI promises to help workers find their most rewarding jobs, match... 2022
Conner J. Voegel THE SYRINGE THAT DRIPS MONEY: HOW TITLE VII AFFECTS EMPLOYER-MANDATED VACCINATIONS IN THE MANUFACTURING SECTOR 19 Indiana Health Law Review 217 (2022) On December 31, 2019, as many around the world were celebrating the New Year, Chinese health officials were reporting to the World Health Organization (WHO) that approximately forty-one people had contracted a mysterious pneumonia from the Huanan Seafood Wholesale Market. Within seven days, Chinese officials determined the virus was a novel... 2022
Paul Spruhan TRIBAL LABOR AND EMPLOYMENT LAW 58-AUG Arizona Attorney 44 (July/August, 2022) How should a tribal nation structure its labor and employment system? Like other sovereigns, an Indian tribe employs a workforce for its government (including wholly owned enterprises and corporations), but it also regulates the employment relationships of other employers within its territory. However, a tribe may do so generally free of state and,... 2022
Theresa M. Green UNPROTECTED BUT NOT FORGOTTEN: A CALL TO ACTION TO HELP FEDERAL JUDICIARY EMPLOYEES ADDRESS WORKPLACE SEXUAL MISCONDUCT 107 Minnesota Law Review 359 (November, 2022) The federal judiciary employs more than 30,000 people, but none of them are currently protected by Title VII of the Civil Rights Act of 1964 (Title VII)--the primary federal statute that prohibits discrimination, harassment, and retaliation in the workplace based on, among other things, a person's sex. While other employees --including other... 2022
Michelle Verkhoglaz WALKING BETWEEN THE LINES: WHY THE WRIGHT LINE STANDARD IS NOT ALWAYS APPLICABLE WHILE EMPLOYEES DEMAND SAFER COVID-19 WORKING CONDITIONS 16 Brooklyn Journal of Corporate, Financial & Commercial Law 305 (Spring, 2022) Before the National Labor Relation Board's (NLRB) July 2020 decision in General Motors LLC and Charles Robinson, employers faced difficulty in disciplining employees that engaged in protected activity under the National Labor Relations Act (NLRA) when their behavior was abusive. However, this changed after the NLRB adopted the Wright Line standard... 2022
Emily Scace WHAT'S IN A FORM? EMPLOYMENT BACKGROUND CHECKS UNDER THE FAIR CREDIT REPORTING ACT 54 Connecticut Law Review 551 (April, 2022) For employers, background checks, credit checks, and similar measures are a prudent step to guard against negligent hiring claims and other potential losses that can result from poor hiring decisions. But these practices necessarily require employees to relinquish some of their interests in privacy and may also introduce bias into the hiring... 2022
Stephanie M. H. Moore WHEN RIGHTS CONFLICT: PROTECTING EMPLOYEES IN RELIGIOUS ORGANIZATIONS FROM HOSTILE WORK ENVIRONMENTS AS SMITH HOVERS IN THE BALANCE 32 George Mason University Civil Rights Law Journal 217 (Spring, 2022) The Religion Clauses of the First Amendment, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, have a long and storied history. Our country was founded on a promise of religious freedom and the Supreme Court has wrestled with how to balance that freedom and other human rights for over... 2022
Caroline Lewis Bruckner , Jonathan Barry Forman WOMEN, RETIREMENT, AND THE GROWING GIG ECONOMY WORKFORCE 38 Georgia State University Law Review 259 (Winter, 2022) Gig work--the selling or renting of labor, effort, skills, and time outside of traditional employment--is a long-standing feature of the U.S. economy. Today, millions of online gig workers sell goods and services, or rent rooms, houses, vehicles, and other assets using apponline and app-based platforms (for example, Uber, Lyft, Rover, DoorDash,... 2022
Michael Hayes "SORRY, IT'S MY BAD, BUT YOU'RE STILL FIRED--& HAVE NO CASE": THE HONEST BELIEF DEFENSE IN EMPLOYMENT LAW 69 Drake Law Review 531 (2021) The honest belief defense for employers to employee claims has been applied by federal and state courts throughout employment law. Under this defense even if the employer's reason for terminating or taking other adverse action against an employee is based on a mistake of fact or law or both, the employee will lose unless the employee proves the... 2021
Nia A.D. Langley #SEEHERNAME: USING INTERSECTIONALITY AND STORYTELLING TO BRING VISIBILITY TO BLACK WOMEN IN EMPLOYMENT DISCRIMINATION AND POLICE BRUTALITY 14 DePaul Journal for Social Justice 1 (Summer, 2021) C1-2Table of Contents I. Introduction. 2 II. Intersectionality. 4 III. Intersectional Challenges In 2021. 4 A. Employment Discrimination. 5 1. Intersectionality's Legal Status. 6 2. Hair Discrimination. 7 B. Police Brutality. 12 1. Black Women and Black Men Experience Police Brutality Similarly. 13 2. Black Women and Black Men Experience Police... 2021
Christopher Wiltowski BILLIONS UNREALIZED: MODIFYING TAX EXPENDITURES ON EMPLOYER-SPONSORED INSURANCE PLANS 30 Annals of Health Law Advance Directive 305 (Spring, 2021) Amidst the constant political bickering concerning America's national debt, many fail to consider that tax expenditures on employer-sponsored insurance plans lose the American government upwards of a trillion dollars every year in unrealized federal tax revenue. Employer-sponsored insurance (ESI) plans are group health care plans provided by... 2021
William R. Corbett FIRING EMPLOYMENT AT WILL AND DISCHARGING TERMINATION CLAIMS FROM EMPLOYMENT DISCRIMINATION: A COOPERATIVE FEDERALISM APPROACH TO IMPROVE EMPLOYMENT LAW 42 Cardozo Law Review 2281 (October, 2021) C1-2Table of Contents Introduction. 2283 I. The Twin Pillars of U.S. Employment Law and Their Relationship: Problems and a Way Forward. 2289 A. Fire at Will. 2297 1. Origins and Proliferation. 2297 2. Statutory Abrogation: Proposals and a Record of Futility. 2298 3. Weakened by Employment Discrimination Law. 2304 B. Employment Discrimination Law.... 2021
Lawrence D. Rosenthal IS PROTECTING AN EMPLOYEE'S RIGHT TO KNOWINGLY FILE FALSE EEOC CHARGES A NECESSARY EVIL? 54 Loyola of Los Angeles Law Review 1151 (Summer, 2021) In addition to prohibiting workplace discrimination based on race, color, religion, sex, and national origin, Title VII of the Civil Rights Act of 1964 protects: (1) employees who oppose an employer's discriminatory employment practices, and (2) employees who participate in Title VII's enforcement process. Thus, not only are employees protected... 2021
Casey Thibodeaux IT'S WHAT YOU SAID AND HOW YOU SAID IT: THE NLRB'S ATTEMPT TO SEPARATE EMPLOYEE MISCONDUCT FROM PROTECTED ACTIVITY IN GENERAL MOTORS LLC 82 Louisiana Law Review 227 (Fall, 2021) C1-2Table of Contents Introduction. 228 I. The Employer's Simultaneous Obligations Under the NLRA and Title VII. 231 A. The National Labor Relations Act. 232 1. The NLRA Creates Certain Protections & Obligations for Employees and Employers. 234 2. Enforcement of the NLRA Through Adjudication and Rulemaking. 235 B. Title VII of the Civil Rights Act... 2021
Erin Ebeler Rolf, Andrea Woods LABOR AND EMPLOYMENT RISK IN THE REAL WORLD: A PRACTICAL GUIDE TO UNDERSTANDING RECENT TRENDS AND LAWS INTERSECTING THE CONSTRUCTION INDUSTRY 41-WTR Construction Lawyer 6 (Winter, 2021) This article aims to serve as a practical guide for employers and attorneys to understand the legal issues facing the construction industry in the area of labor and employment, including topics such as the increasing use of arbitration clauses in employment contracts; LGBTQ, sexual orientation, and gender identification in the workplace;... 2021
Steven T. Taylor MCDERMOTT PARTNER MANAGES TWO OFFICES, PRACTICES EMPLOYMENT LAW, AND ADVOCATES FOR DIVERSITY/RACIAL EQUALITY 40 Of Counsel 24 (February, 2021) It didn't take the partners at Chicago-based McDermott Will & Emery long to see the talents that Pankit Doshi brings to their firm. In the two and half years he's been with the partnership, Doshi's risen to the leadership ranks, serving as the managing partner of McDermott's San Francisco and Silicon Valley offices. He advocates for diversity and... 2021
Reed L. Russell , Julie A. Girard PROCEED WITH CAUTION: VOLUNTARY DIVERSITY EFFORTS MUST BE UNDERTAKEN WITH CARE TO LIMIT LITIGATION RISK FOR EMPLOYERS 95-DEC Florida Bar Journal 52 (November/December, 2021) Employers across the country are voluntarily implementing plans to promote diversity within their workforce, especially in management positions. Wells Fargo, Microsoft, and Amazon are just a few of the companies whose efforts have recently made headlines. And businesses are using their influence to encourage diversity in their other relationships,... 2021
Matthew B. Seipel REIMAGINING EMPLOYMENT ADVERTISING LAW FOR THE NEW ERA 42 Berkeley Journal of Employment and Labor Law 1 (2021) This Article examines and reimagines a feature of employment discrimination law that, as of late, has largely been ignored: the ban on discriminatory advertising. This feature deserves renewed attention as employers actively engage in novel methods of advertising, including the use of career websites, visual imagery, testimonials, social media, and... 2021
Yina Cabrera THE "ULTIMATE" QUESTION: ARE ULTIMATE EMPLOYMENT DECISIONS REQUIRED TO SUCCEED ON A DISCRIMINATION CLAIM UNDER SECTION 703(A) OF TITLE VII? 15 FIU Law Review 97 (Spring, 2021) To make a prima facie case of disparate treatment discrimination, courts apply the paradigm set forth in McDonnell Douglas Corp. v. Green. The plaintiff must show that he or she: (1) belongs to a protected class; (2) was qualified for the job; and (3) was subjected to an adverse employment action; and that (4) the employer gave better treatment to... 2021
Tatiana Hyman THE HARMS OF RACIST ONLINE HATE SPEECH IN THE POST-COVID WORKING WORLD: EXPANDING EMPLOYEE PROTECTIONS 89 Fordham Law Review 1553 (March, 2021) In one year, the COVID-19 pandemic and egregious incidents of racial violence have created significant shifts in the United States's workplace culture and social climate. Many employers are transitioning employees to long-term or permanent remote work, and conversations about racial justice are more pervasive and divisive, especially on social... 2021
Craig R. Senn ACCOMMODATING GOOD-FAITH EMPLOYERS IN TITLE VII DISPARATE IMPACT CASES 94 Tulane Law Review 639 (April, 2020) This Article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer's facially neutral job policy or criterion inadvertently but disproportionately affects individuals... 2020
John E. Rumel BEYOND ABERCROMBIE AND HEFFERNAN: TOWARD A UNIFORM APPROACH TO DISCRIMINATION AND RETALIATION CLAIMS BASED ON MISPERCEPTION THEORY IN THE EMPLOYMENT CONTEXT 24 Employee Rights and Employment Policy Journal 189 (2020) Imagine these two scenarios: a man with dark complexion and kinky hair works for an employer who has just hired a white manager and assigns the manager to supervise the employee. The employee is Polynesian, not African American. Unfortunately, the supervisor harbors racist sentiments against African Americans and, for that reason, eventually... 2020
Joan C. Williams , Rachel M. Korn , Sky Mihaylo BEYOND IMPLICIT BIAS: LITIGATING RACE AND GENDER EMPLOYMENT DISCRIMINATION USING DATA FROM THE WORKPLACE EXPERIENCES SURVEY 72 Hastings Law Journal 337 (November, 2020) This Article joins other voices in challenging what I will call the implicit bias consensus in employment discrimination law, first crystallized in the work of Susan Sturm and Linda Hamilton Krieger. The implicit bias consensus has two basic components. The first is that most employment discrimination today is what Sturm christened second... 2020
Marc Chase McAllister COMPARE THIS: HOW EMPLOYERS USE COMPARATOR EVIDENCE TO DEFEAT EMPLOYMENT DISCRIMINATION CLAIMS 2020 Michigan State Law Review 803 (2020) Employment discrimination statutes prohibit employers from discriminating against individuals on the basis of certain protected characteristics, such as race or sex. For intentional discrimination claims, plaintiffs often attempt to prove an employer's discriminatory intent with comparator evidence demonstrating that the plaintiff was treated... 2020
Read Rydberg HASSEN v. RUSTON LOUISIANA HOSPITAL CO.: A FIFTH CIRCUIT MAJORITY GIVES LEEWAY TO EMPLOYERS DEFENDING ALLEGATIONS OF DISCRIMINATION 94 Tulane Law Review 1085 (May, 2020) I. Introduction. 1085 II. Background. 1088 A. Overview of Federal Anti-Discrimination Protections for Employees. 1088 B. The Employer's Burden to Offer Legitimate and Consistent Explanations for Potentially Discriminatory Actions. 1089 III. Analysis of the Court's Decision. 1091 A. The Majority's Lenient Concept of a Consistent Explanation. 1091 B.... 2020
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