Analysis and Commentary on Employment Law

ENDA and the Rainbow Workforce

Justia columnist and Hofstra law professor Joanna Grossman comments on the U.S. Senate’s passage of the Employment Discrimination Act (ENDA) of 2013, which would prohibit employers from discriminating on the basis of sexual orientation or gender identity. Although the measure is not predicted to survive the House, Grossman contends that its passage in the Senate is noteworthy and encouraging.

The Pregnancy Discrimination Act Reaches Advanced Maternal Age

Justia columnist and Hofstra law professor Joanna Grossman comments on the Pregnancy Discrimination Act (PDA) on its 35th anniversary. Although the PDA was a key landmark, Grossman notes that pregnant workers today continue to face high levels of discrimination and to lack some basic legal protections that are necessary to enable some women to continue working throughout their pregnancies, indicating that additional legal reform is necessary. Moreover, she notes that instead of following the plain language of clause two of the PDA, requiring pregnant workers to be treated as well as other workers “similar in their ability to work,” lower courts are increasingly demanding evidence of a discriminatory intent lurking behind such policies before striking them down.

When Can Administrative Claims Preclude Constitutional Claims?

Justia columnist and attorney David Kemp discusses a case argued before the U.S. Supreme Court on the first day of its 2013-2014 Term. That case, Madigan v. Levin, raises the question whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims brought directly under the Equal Protection Clause. Kemp notes that the particular facts of the case and the tone of arguments at the Supreme Court suggest that the Court may not decide the case on the merits. However, he argues that the case does present important questions on the power of Congress to abrogate individuals’ right to sue for constitutional violations, and its duty to do so only when the statutory remedies are both adequate and broadly accessible.

Revenge: The Supreme Court Narrows Protection Against Workplace Retaliation in University of Texas Southwestern Medical Center v. Nassar

Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and University of Pittsburgh law professor Deborah Brake together comment on the Supreme Court's recent decisions in two cases that involved employment discrimination. In one, the Court narrowed the definition of “supervisor” in harassment cases, which reduces the number of cases in which employers can be held vicariously liable for unlawful harassment. In the other case, the same 5-4 majority took a restrictive view of causation in workplace retaliation cases, which Grossman and Brake note will undermine protection for workers who complain about discrimination. As Justice Ginsburg observed in her strong dissents in both cases, and as Grossman and Brake also contend, the majority opinions are insensitive to the realities of working life, and are wrongly preoccupied with making it easy for employers to win discrimination cases at the summary judgment stage.

The Power to Harass: The Supreme Court Adopts A Definition of “Supervisor” that Reduces Employer Liability for Harassment

Justia columnist and Hofstra law professor Joanna Grossman critiques the Supreme Court majority opinion in Vance v. Ball State University. There, Grossman explains, the Court majority held that a harasser does not qualify as a supervisor unless he or she has the power to “take tangible employment actions against the victim”—also known informally as having the power to hire and fire. This ruling matters in important ways, Grossman explains, because the employer’s liability under Title VII of the Civil Rights Act of 1964 for workplace harassment committed by supervisors is much stronger than it is for harassment inflicted by co-workers. Accordingly, the ruling leaves some workers with less protection from harassment than they would have had, if the Court's minority had had its way. Grossman also covers Justice Ginsburg's dissent, which she finds very persuasive.

No Unpaid Interns Need Apply: Why a Federal Court Got It Right in Finding Unpaid Interns to Really Be Employees

Justia columnist and U. Washington law professor Anita Ramasastry comments on a recent ruling from a New York-based federal district judge regarding the legal status of unpaid internships. In the wake of the ruling, which held in favor of a number of former unpaid interns who had performed duties for Fox Searchlight, interns from The New Yorker, and W Magazine now argue that based on the ruling, they, too, should have been paid for the work they did at these high-profile companies. Ramasastry notes that the ruling may well be a watershed for unpaid interns. She also emphasizes the Department of Labor’s criteria relating to when an unpaid internship is—or is not—legally legitimate.

Seneca Falls Redux: New York’s Governor Cuomo Pushes A New Law to Protect Women’s Rights

Justia columnist and Hofstra law professor Joanna Grossman explains the specific provisions of, and the keen need for, the bill that Governor Cuomo of New York has recently proposed, which is entitled the Women's Equality Act (WEA). Pointing to two hypothetical babies, a boy and a girl, Cuomo notes that the girl's life will be marked with risks and forms of discrimination that the boy will never have to suffer. The bill, Cuomo contends, will help level the playing field for girls and women, via changes in the law in ten different areas, each of which Grossman comments upon.

Is Veganism a Religion Under Anti-Discrimination Law? An Ohio Federal District Court Says Perhaps

Justia columnist and Cornell law professor Sherry Colb comments on a discrimination case in which the Cincinnati Children’s Hospital Medical Center fired a Customer Service Representative, Sakile S. Chenzira, for refusing to get a seasonal flu vaccine, in contravention of hospital policy. Chenzira refused the vaccine because she is a vegan and the vaccine is produced in chicken eggs. After her firing, Chenzira went to federal district court, arguing that her firing violated her right to be free of religious discrimination. The court denied the hospital’s motion to dismiss the case, and decided to hear the evidence. Colb describes in detail what it means to be a vegan, and explains why, for some vegans, the decision whether or not to be vaccinated is a difficult one. She also discusses when, under federal law, a belief system counts as a religion, noting that veganism ought to qualify under that definition. Colb also offers a prediction as to the likely outcome of Ms. Chenzira’s case.

A Step in the Right Direction: The Family and Medical Leave Act of 1993 at 20

Justia columnist and Hofstra law professor Joanna Grossman discusses the Family and Medical Leave Act (FMLA) on its twentieth anniversary. Grossman notes that after an eight-year fight over its provisions, the FMLA was left somewhat anemic when it was finally enacted into law. Grossman also explains specifically why the FMLA is disappointing to many workers: For instance, many U.S. workers are not eligible for FMLA leave; many of the eligible cannot afford to take leave; and the FMLA has done little to alter the disproportionate burden of caretaking that falls on women in most families. In addition, Grossman points out, the FMLA did not alter the U.S.’s disappointingly low ranking among industrialized countries when it comes to medical and caretaking leave benefits for workers. Grossman urges some much-needed fixes to the FMLA, advocating that the law should be changed to solve some serious problems with, and close some worrisome gaps in, leave benefits, which she details.

Labor of Love: Sex, Jobs, and Workers' Compensation

Justia columnist and Hofstra law professsor Joanna Grossman, and Justia guest columnist and Stanford law professor Lawrence Friedman comment on a case that raised the issue whether workers' compensation covered an injury that was incurred during sex on a business trip, with the injury at issue involving a broken and dangerous light fixture. Grossman and Friedman explain why, though the Australian woman who suffered the light-fixture injury prevailed on her workers' compensation claim, and most American claimants injured during sex on a business trip likely would, too, other would-be claimants with sex-on-a-business-trip injuries have been left without any remedy from workers’ compensation.

Can Health Care Providers Ethically Go on Strike?

Justia columnist and attorney David Kemp considers the ethics around health care providers going on strike. Invoking various philosophical viewpoints relating to the matter, Kemp notes that while the unjust treatment of any group of employees is intolerable, there is a unique set of factors present when discussing the labor conditions of health care providers. Kemp points out that both the patient and the individual employee are impacted by unjust or unfair working conditions, but argues that because the health-care provider’s first duty is to care for the patient, the strike may not be an ideal negotiation device. Kemp concludes that although there are strong arguments on both sides, the risk of harm to patients ultimately outweighs the need for health-care workers to strike in a majority of circumstances.

When Good Courts Go Bad: The Iowa Supreme Court Issues an Absurd Decision on Sexual Jealousy and Employment

Justia columnist and Hofstra law professor Joanna Grossman takes strong issue with a recent Iowa Supreme Court decision holding that a male dentist did not violate a law banning sex discrimination in employment when he fired his very competent dental assistant simply because he was attracted to her. Grossman argues that the Iowa courts should, in this case, have recognized that the dentist perpetrated what is called “sex-plus discrimination,” which joins sex discrimination with another factor, such as an attraction to a particular person of that sex. Thus, Grossman explains, it is not a factor in the dentist's favor, legally, that he had hired other female assistants, and did not harass them. When women are treated worse than men at work because of their gender, Grossman concludes, discrimination law must apply, regardless of how many women are harassed or how selective or attraction-based the harasser may be.

Who’s the Boss? The Supreme Court Hears Argument on the Meaning of the Term “Supervisor” in Workplace Harassment Law

Justia columnist and Hofstra law professor Joanna Grossman comments on the legal definition of “supervisor” in the context of the law addressing harassment in the workplace. The topic is especially timely because the Supreme Court just recently held oral argument in Vance v. Ball State University, which focuses on this very issue. Grossman begins by covering workplace harassment basics, and then goes on to consider the scope of employers’ affirmative defense to a workplace harassment claim—which has proven to be a highly contested issue. She then focuses on Vance itself, discussing both the facts of that case, and the split among the federal circuits about who qualifies as a “supervisor.” Grossman ultimately comes down in favor of the EEOC’s definition of “supervisor,” arguing that it is clearly correct. She also comments on some of the Justices’ apparent positions on the matter, as likely betrayed by their respective comments at oral argument.

Hands Off the Merchandise!: Appellate Court Orders Grocery Store to Ban Sexual Harasser from Premises

Justia columnist and Hofstra law professor Joanna Grossman comments on a flagrant case of sexual harassment in a grocery store, which eventually led to litigation that came before the U.S. Court of Appeals for the Second Circuit. The case, as Grossman explains, arose from the store owner’s fiance’s habit of touching sexually, and otherwise sexually harassing, the store’s employees, who were mostly teenage girls. The girls complained, but nothing was done. Ultimately, the store was found liable for sexual harassment. Grossman explains the steps necessary to win such a case, and discusses the question of the scope of the remedy that was imposed upon the store in this case. She also notes that in such cases, both legal remedies (money damages) and equitable remedies (court orders to do or refrain from doing something) are appropriate.

Binders for Women, Blinders for Romney

Justia columnist and Hofstra law professor Joanna Grossman comments on the second presidential debate, and especially on Mitt Romney’s now-famous comment about “binders full of women,” which has now become an Internet meme. Grossman argues that the comment reveals Romney’s dated and uninformed view of women in the workplace. She also notes that Romney, while avoiding the question about pay inequity that led to the “binders” comment, revealed that he believes that the only workers who need flexible schedules are women, apparently due to the assumptions that all women have children, and that only women perform child care.

Costly Mistakes: Employers Ignore Workplace Harassment at their Peril, As the Recent Cases of New York State Assemblyman Vito Lopez and Chrysler Show

Justia columnist and Hofstra law professor Joanna Grossman discusses two recent cases of workplace harassment, one at a New York Assemblyman’s office, and another at a Chrysler factory. She focuses, especially, on why, in both cases, the harassment was allowed to continue for significant periods of time, despite the fact that the relevant decisionmakers knew about it. Grossman also raises the related question of why the prospect of even whopping punitive damages awards did not seem to make a difference in these two cases, with the harassers still being allowed to continue their bad behavior, even in the face of potentially massive legal sanctions. She also discusses the lessons that other employers should learn, from these cases, so that they, too, do not go astray, and then have to pay handsomely in court.

Cyber-Screening, Social Media, and Fair Credit Reporting: Why We Need to Move Beyond the FTC’s Recent Spokeo Enforcement Action

Justia columnist and U. Washington law professor Anita Ramasastry comments on the current use of social-media data in decisions made by employers regarding whether to hire a potential employee, or retain a current employee. While we are used to being judged by our credit reports, the use of our social-media information is much more recent and novel, as Ramasastry explains. And yet, the federal Fair Credit Reporting Act (FCRA), Ramasastry notes, does apply to the use of social-media information—as the company Spokeo recently learned, when it was subject to a Federal Trade Commission (FTC) enforcement action and a hefty fine, based on its use of social-media information. Ramasastry discusses the possible issues with, and ramifications of, this fairly novel use of social-media information in employment decisions, and explains how current federal law may apply.

How a Recent Supreme Court Case About Labor Unions Foreshadowed the Obamacare Ruling

Justia columnist and Cornell law professor Michael Dorf comments on an interesting end-of-Term Supreme Court ruling, Knox v. Service Employees International Union, Local 1000. Although the Knox opinion was, like all the other end-of-Term opinions, overshadowed by the blockbuster Obamacare opinion that the Court handed down, Dorf points out that the Knox opinion—which was issued before the Obamacare opinion—if carefully read, had actually foreshadowed the result in the Obamacare opinion. In addition to further exploring the relationship between the Knox and Obamacare opinions, Dorf also reads the Knox opinion to potentially spell bad news for labor unions, in the future. Yet the nature of that bad news may be ironic, for Dorf notes that if the conservative Justices do strike a blow to labor unions, they will need to betray their own conservative principles in order to do so.

Another Frontier: Connecticut’s High Court Recognizes a Cause of Action for Sexual-Orientation Harassment in the Workplace

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent important decision from the Connecticut Supreme Court. As Grossman explains, the case arose when a manufacturing company failed to take action to stop the ceaseless name-calling that the plaintiff endured in his workplace regarding his sexual orientation. Even worse than the slurs themselves, some of the plaintiff’s tormentors would say the slurs while standing right behind the plaintiff while he was operating heavy machinery. Grossman begins by sketching the legal landscape (federal and state) regarding sexual orientation discrimination, and then goes on to focus on the law of Connecticut, where the employer was located, and the result the Connecticut Supreme Court reached in the case. Grossman also questions why the employer took the case all the way up to Connecticut’s high court when the illegality of the acts involved was quite clear.

The Pregnant Workers’ Fairness Act: Accommodating the Needs of Pregnant Working Women

Justia columnist and Hofstra law professor Joanna Grossman comments upon the proposed Pregnant Workers’ Fairness Act (PWFA), which was recently introduced in the House of Representatives. Grossman explains that, if the bill becomes law, it will guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of their job, as long as the accommodation does not impose an undue hardship on the employer. Grossman explains the limited protections that federal law currently offers pregnant women, how even those protections have been narrowed by courts, and why further protections are needed. Grossman describes the holdings of relevant Supreme Court cases, explains the provisions of the 1978 Pregnancy Discrimination Act (PDA), and argues that the PDA’s protections are markedly insufficient, especially in light of the courts’ narrowing of pregnant women’s rights. Grossman concludes that the passage of the PWFA is urgently needed to ensure fair treatment for pregnant workers.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

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

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence... more

Lesley Wexler
Lesley Wexler

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