Analysis and Commentary on Employment Law

The Fifth Circuit Pushes Pre-Enforcement Review Too Far in Barring the EEOC from Publishing Guidance on Title VII’s Regulation of Ex-Convict Employment Bars

NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Fifth Circuit, in which that court enjoined the Equal Employment Opportunity Commission (EEOC) from publishing its guidance on the applicability of Title VII’s disparate impact analysis to employers’ use of criminal records in hiring decisions. Estreicher explains why the federal appeals court was incorrect in holding that the EEOC violated the notice-and-comment procedures for rulemaking under the Administrative Procedure Act.

Small Steps Forward: New York Legislature Increases Protections for Sexual Harassment Victims

SMU Dedman School of Law professor Joanna L. Grossman describes recently passed anti-discrimination laws in New York that improve protections for victims of sexual harassment and assult. Grossman describes the role of the #MeToo movement in increasing awareness of the prevalence of sexual harassment and assault and praises New York for being a leader in protecting the rights of women.

Use It or Lose It: The Supreme Court Gets a Procedural Point About Title VII Unanimously Right

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent unanimous decision by the U.S. Supreme Court clarifying a procedural point about Title VII and the requirements of employees filing discrimination claims in federal court. As Grossman explains, the Court’s opinion correctly minimizes the importance of a technical requirement of employees and might as a result provide greater protection to employees who suffer from workplace discrimination.

SCOTUS LGBT Discrimination Case Will Test Conservative Commitment to Textualism

Cornell law professor Michael C. Dorf comments on three cases in which the US Supreme Court recently granted review that together present the question whether Title VII of the Civil Rights Act of 1964 forbids employment discrimination on the basis of sexual orientation and gender identity. Dorf points out that the cases pose a test for the Court’s conservative majority—whether they will keep faith with their textualist commitment and rule for the plaintiffs or instead follow their conservative social views and rule for the defendant employers.

Untethered Textualism in the Seventh Circuit’s Kleber Ruling on Age Bias in Hiring

NYU law professor Samuel Estreicher comments on a recent decision by the US Court of Appeals for the Seventh Circuit that purports to interpret the Age Discrimination in Employment Act (ADEA) based on a textualist approach. Estreicher argues that the interpretation erroneously ignores the clear purpose of ADEA and constitutes a highly abstract interpretive venture that departs significantly from the legislators’ manifest intent.

Holy Dictum: Federal Judge Rejects Protection Against Transgender Discrimination in “Elegant Aside”

SMU Dedman School of Law professors Joanna L. Grossman and Grant M. Hayden comment on a concurring opinion by a Fifth Circuit judge that goes well out of its way to make illogical arguments regarding transgender discrimination under Title VII. Grossman and Hayden briefly describe the history of courts’ interpretation of Title VII and explain, point by point, why Judge James Ho’s writing is merely an “op-ed piece masquerading as a concurring opinion.”

#MeToo Goes Global: Introducing the #MeToo Treaty

Illinois law professor Lesley Wexler discusses a draft treaty by the International Labor Organization that would address, on a global scale, many of the issues of workplace harassment and sexual assault that the #MeToo movement has brought into the spotlight. Wexler describes how the treaty is grounded in human rights language and would create protections for workers far more expansive than even those recognized under current US law, such as Title VII of the Civil Rights Act of 1964.

Run, Baby, Run: Federal Court (Correctly) Sends Pregnancy Discrimination Case to Trial

SMU Dedman School of Law professor Joanna L. Grossman praises a recent decision by a federal district court allowing a claim of pregnancy discrimination to go to trial and denying the employer’s motion for summary judgment. Grossman describes the factual and legal background of the case and explains how the court used two methods to find that the case should go to trial on the merits.

Beneath the Fray: Federal Courts Continue the Work of Enforcing Sexual Harassment Laws

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal court in Florida correctly denying an employer’s motion for summary judgment in a workplace rape case that deserves a full trial on the merits. Grossman points out that anti-discrimination law is not sufficient to eliminate, or even substantially reduce, the incidence of sexual harassment at work, but it is unquestionably necessary to address that problem and protect survivors.

The Sex Trifecta: United Airlines Sued Over Pilot Who Tormented Flight Attendant with Stalking, Revenge Porn, and Harassment

SMU Dedman School of Law professor Joanna L. Grossman comments on a lawsuit recently filed by the EEOC against United Airlines alleging that the airline failed to protect a female flight attendant from sexual harassment by a pilot, in violation of its obligations under federal anti-discrimination law. Grossman argues that while United is entitled to its day in court, it will need compelling evidence to refute the allegations in the EEOC's complaint.

The Supreme Court and Conservatives’ Right Not to Be Associated in Any Way With Disagreeable Things

GW Law professor and economist Neil H. Buchanan argues that the pro-business, anti-union expressed during oral argument and in the majority opinion in Janus v. AFSCME, written by Justice Samuel Alito and joined by the other conservative justices including Justice Anthony Kennedy, epitomizes both Kennedy’s right-wing fundamentalism and the direction in which the Court would have continued to move even if he had chosen not to retire. Buchanan points out that the trend among the conservative justices is to insulate conservatives—especially Christian Republicans—from having to be in any way connected to anything with which they disagree, such as collective bargaining, sexual liberation, or provision of contraception.

The Aftermath of the #MeToo Movement

SMU Dedman School of Law professor Joanna L. Grossman gives a brief overview of the #MeToo movement and describes the great strides our society has made, yet also the challenges it still faces. Specifically, Grossman points out that it is now time for businesses and lawmakers to figure out how best to prevent sexual harassment while protecting women’s career opportunities.

The Last Roar of the ‘Liberal Lion’: Judge Stephen Reinhardt Reverses Ruling That Would Have Allowed Employers to Justify Women’s Lower Wages by Prior Salaries

SMU Dedman School of Law professor Joanna L. Grossman describes the last ruling by the late Judge Stephen Reinhardt, in which Reinhardt, writing for the Ninth Circuit en banc, reversed an interpretation of the Equal Pay Act that allowed employeers to justify paying female employees less than their male counterparts based on salary history. Grossman explains why the ruling is a correct interpretation of the Equal Pay Act and notes that the decision underscores Judge Reinhardt’s reputation as a staunch defender of equality and justice.

The EEOC and the #MeToo Era: Is the Budget Increase Enough?

Marci A. Hamilton—a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, and the CEO and Academic Director of CHILD USA—considers recent news of the EEOC’s budget increase for fiscal year 2018. Hamilton notes that this appears to be a win for the EEOC and the #MeToo movement at first glance. Nevertheless, Hamilton explains that the increasing public encouragement for victims of sexual misconduct to come forward does not negate the unwillingness of those in power to effect change within the legal system for these victims to have a real chance at justice.

Take a Flying Leap: The Second Circuit Holds That Skydiving Instructor Can Sue for Sexual Orientation Discrimination Under Title VII

SMU Dedman School of Law professor Joanna Grossman comments on a decision by the US Court of Appeals for the Second Circuit, sitting en banc, holding that sexual orientation discrimination is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964. Grossman explains the significance of the holding and describes the circuitous route federal courts have taken to finally arrive at that common-sense conclusion.

The Trump Presidency and the #MeToo Movement

Professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, Marci A. Hamilton likens the relationship between the #MeToo movement and Donald Trump’s presidency as a David versus Goliath moment. Hamilton describes the contrast in apparent values between the two but finds comfort in the #MeToo movement’s demonstration that there is still identifiable right and wrong that we as a society can see and discuss.

‘All the Money in the World,’ But Not Enough to Pay Male and Female Stars the Same?

SMU Dedman School of Law professor Joanna L. Grossman comments on the most recent high-profile revelation of pay disparity between men and women—that between Mark Wahlberg and Michelle Williams in Ridley Scott’s “All the Money in the World.” Grossman describes the state of pay discrimination laws and while she commends Wahlberg for donating the $1.5 million difference in compensation to the Time’s Up fund, she points out that it was not Wahlberg’s responsibility to rectify this disparity. Grossman calls upon the director Ridley Scott, the agency that represented Williams, and all Hollywood studios and directors to right the wrong of gender pay inequality.

Reflections on America’s Reckoning with Sexual Harassment

SMU Dedman School of Law professor Joanna L. Grossman reflects on the wave of stories of sexual harassment and assault that have come to light in 2017. Grossman points out that sexual harassment of women, particularly in the workplace, is not a new phenomenon, but the sheer number of women sharing their stories today has emboldened others to come forward, and may even signal a cultural shift to address this pervasive problem. Grossman argues that true change will only come when institutional actors decide to hold themselves accountable for the way women are treated.

Got Milk? Eleventh Circuit Holds That Discrimination Because of Employee’s Breastfeeding is Unlawful Discrimination

SMU Dedman School of Law professor Joanna Grossman comments on a recent decision in which the US Court of Appeals for the Eleventh Circuit recognized that discrimination because of an employee’s breastfeeding constitutes illegal pregnancy discrimination. Grossman explains the facts leading up to the case and explains why the court found that the employer, the Tuscaloosa Police Department, had violated the employee’s rights under the Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act.

Unsolicited Opinion: The Department of Justice Files Brief Urging Court to Block Rights for LGBT Employees

SMU Dedman School of Law professor Joanna L. Grossman and Chicago-Kent College of Law professor Anthony Michael Kreis comment on a brief recently filed by the U.S. Department of Justice arguing that Title VII of the Civil Rights Act of 1964 does not protect against sexual orientation discrimination. Grossman and Kreis point out the flaws in the DOJ’s arguments and explain the dangerous consequences its position will have if it prevails.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more