Discrimination Law

When Saying Gay Is No Longer Sufficient: Response to Marie-Amélie George’s Expanding LGBT

Aníbal Rosario Lebrón

Abstract Response to Marie-Amélie George, Expanding LGBT In her article, Expanding LGBT, Professor George attempts to provide a framework beyond incrementalism and radicalism to think about how U.S. LGBT organizations can reformulate their missions and advocacy efforts to benefit queer individuals. She argues that doing so will not only better the lives of queer non-binary, […]

Reassigning Batson: A Modern Approach

Max Angel

Abstract In Batson v. Kentucky, the Supreme Court of the United States held that using peremptory challenges to strike jurors solely on their race violates the Equal Protection Clause. Following that decision, the Supreme Court extended Batson to gender-based peremptory challenges, holding that state-sponsored group stereotypes rooted in historical prejudice that bars a potential juror […]

Black Lives Matter in the Jury Box: Abolishing the Peremptory Strike

Payton Pope

Abstract Since its creation, the Batson Challenge has been widely criticized as a failure. It does not prevent discrimination in the jury selection process, has no bite, and does not serve as an adequate incentive to prevent discriminatory practices. The Supreme Court of the United States has had multiple opportunities in the last thirty years […]

Race and Reasonable Suspicion

Ric Simmons

Abstract The current political moment requires society to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal […]

Expanding LGBT

Marie-Amélie George

Abstract In many circles, “LGBT” is an antiquated acronym that excludes many of the individuals that the movement is supposed to serve. “LGBTQ,” “LGBTQIA,” and other variations of the acronym have become ever more pervasive as nonbinary, intersex, and asexual individuals have become increasingly visible. The LGBT initials that once signaled solidarity and intersection are […]

Peña-Rodriguez v. Colorado and the Racial Animus Exception to the No-Impeachment Rule: Extending an Exception to Suspect Classes That Experience Pervasive Bias in the Jury System

Taariq Lewis

Abstract During an inquiry into the validity of a verdict, Federal Rule ofEvidence 606(b) prohibits jurors from testifying about statements madeor incidents that occurred during jury deliberations, including jurors’subjective mental processes used in reaching the verdict. This rule is oftencalled the “no-impeachment” rule. The no-impeachment rule promotesthe finality of verdicts, facilitates free and vibrant discussion […]

Relationships and Retaliation in the #MeToo Era

Nicole Buonocore Porter

Abstract In this #MeToo era, so much important work is being done (and somany stories are being told and listened to), but very little of the workfocuses on retaliation. And none of the work focuses on situations wherethe fear of retaliation is not necessarily job loss (although that certainlyhappens) but rather, it is the fear […]

Rural Resentment and LGBTQ Equality

Luke A. Boso

Abstract In 2015, the U.S. Supreme Court in Obergefell v. Hodges settled a decades-long national debate over the legality of same-sex marriage. Since Obergefell, however, local and state legislatures in conservative and mostly rural states have proposed and passed hundreds of antiLGBTQ bills. Obergefell may have ended the legal debate over same-sex marriage, but it […]

Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage in the Post-Obergefell Era

Written by: Robert Keefe

Abstract Gay and lesbian partners used adult adoption to create family relationships and to ensure inheritance and property rights in the decades before the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide. Same-sex partners who chose adult adoption as an alternative to marriage before the Obergefell decision must now dissolve the adoption […]

Sandra F. Sperino, Retaliation and the Reasonable Person

Abstract When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as […]

Sandra F. Sperino, The Tort Label

Courts and commentators often label federal discrimination statutes as torts. The tort label leads to reasoning that is superficial and not transparent about its motivations and goals. Courts do not engage in nuanced discussions about the kind of reasoning they are using or the values they are prioritizing in reaching the result. Importantly, the tort […]

Nicole Buonocore Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities

This Article explores the marginalization of two groups of employees—individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers’ […]

Wendy Parker, Recognizing Discrimination: Lessons From White Plaintiffs

The Supreme Court has developed a robust equal protection jurisprudence to recognize the rights of whites complaining of race conscious governmental activity. This was particularly reflected in the Court’s opinion in Parents Involved, where the Roberts Court radically repositioned the meaning of Brown v. Board of Education. That opinion all but guarantees that eventually Abigail Noel Fisher will win her […]

Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers

Ask anyone whether the Constitution permits discrimination on the basis of religion, and the response will undoubtedly be no. Yet the modern Supreme Court has not recognized that the antidiscrimination command of the Fourteenth Amendment protects religion in the same way that the Amendment protects against discrimination on the basis of race or gender. In […]

Heather Reynolds, Irreconcilable Regulations: Why the Sun Has Set on the Cuban Adjustment Act in Florida

63 Fla. L. Rev. 1013 (2011)|  | | NOTE :: Just past midnight, four Cubans walked off the beach in the dark and began to wade through warm waves out into the Florida Straits. They walked nearly a mile in waist-high water, carrying all of their possessions above their heads. They knew to stop when they […]

Wendy F. Hensel & Leslie E. Wolf, Playing God: The Legality of Plans Denying Scarce Resources to People with Disabilities in Public Health Emergencies

63 Fla. L. Rev. 719 (2011)| | | | ABSTRACT :: Public health emergencies can arise in a number of different ways. They can follow a natural disaster, such as Hurricane Katrina, the 2004 tsunami, and the recent earthquakes in Haiti and Chile. They may be man-made, such as the September 11 attacks and the […]

David Marcus, Flawed but Noble: Desegregation Litigation and its Implications for the Modern Class Action

63 Fla. L. Rev. 657 (2011)| | | | INTRODUCTION :: From the perspective of the present day, Rule 23 of the Federal Rules of Civil Procedure contains a difficult puzzle. After a court certifies a class pursuant to Rule 23(b)(3) in a money damages case, absent class members must receive notice and have a […]

Robert A. Garda, Jr., The White Interest in School Integration

63 Fla. L. Rev. 599 (2011)| | | | ABSTRACT :: Discussions concerning desegregation, affirmative action, and voluntary integration focus primarily, if not exclusively, on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools, despite white interests underpinning more than thirty years of Supreme Court […]

Susan D. Carle, A Social Movement History of Title VII Disparate Impact Analysis

63 Fla. L. Rev. 251 (2011)| | | | ABSTRACT :: This Article examines the history of Title VII disparate impact law in light of the policy and potential constitutional questions the Court’s recent decision in Ricci v. DeStefano raises. My analysis shows that, contrary to popular assumptions, disparate impact doctrine was not a last-minute, […]

Jeannette Cox, Disability Stigma and Intraclass Discrimination

62 Fla. L. Rev. 429 (2010) |   |   |   | ABSTRACT :: By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated […]

Anita Bernstein, Civil Rights Violations – Broken Windows: De Mimis Curet Lex

62 Fla. L. Rev. 895 (2010) | | | | ABSTRACT :: Civil rights violations that appear relatively slight may warrant judicial redress despite their small size; some of them point up important principles. Leaving these violations unremedied may contribute to an ambient lawlessness that can foster bigger harms. A small infringement in this respect […]

Mark C. Weber, Unreasonable Accommodation and Due Hardship

62 Fla. L. Rev. 1119 (2010) | | | | | ABSTRACT :: This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation […]

Patricia Alten, Gina: A Genetic Information Nondiscrimination Solution in Search of a Problem

61 Fla. L. Rev. 379 (2009) | | | | ABSTRACT :: “Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To address the potential use of […]

Lindsay Roshkind, Employment Law: An Adverse Action Against Employers: The Supreme Court's Expansion of Title VII's Anti-Retaliation Provision

59 Fla. L. Rev. 707 (2007) | | | | TEXT :: State law required Petitioner to maintain workers’ compensation coverage for his freight trucking business. Petitioner contracted with Respondent to provide this insurance. After Petitioner canceled the policy and filed a Chapter 11 bankruptcy, Respondent, in an amended claim, asserted that the unpaid premiums […]

Alex B. Long, The Troublemaker's Friend: Retaliation Against Third Parties and the Right of Association in the Workplace

59 Fla. L. Rev. 931 (2007) | | | | INTRODUCTION :: “To retaliate against a man by hurting a member of his family is an ancient method of revenge, and is not unknown in the field of labor relations.” NLRB v. Advertisers Manufacturing Co. Individuals who complain about workplace discrimination are frequently labeled as […]

Craig Robert Senn, Knowing and Voluntary Waivers of Federal Employment Claims: Replacing the Totality of Circumstances Test with a "Waiver Certainty" Test

58 Fla. L. Rev. 305 (2006) | | | | INTRODUCTION :: Suppose you own a company and you decide to terminate an employee. Other employees have unsuccessfully sued your company for federal employment discrimination, and you want to avoid another discrimination lawsuit and its legal costs. So you offer a generous severance package to […]

Kelly Cahill Timmons, Accommodating Misconduct under the Americans with Disabilities Act

57 Fla. L. Rev. 187 (2005) | | | | INTRODUCTION :: An employer discharges an anesthesiologist with sleep apnea for falling asleep during surgical procedures. Another employer discharges a manager with post-traumatic stress disorder for an angry confrontation with a female co-worker during which he slapped her hand. A third employer discharges a grocery […]

David Crump, The Narrow Tailoring Issue in The Affirmative Action Cases: Reconsidering the Supreme Court's Approval in Gratz and Grutter of Race-Based Decision-Making by Individualized Discretion

56 Fla. L. Rev. 483 (2004) | | | | INTRODUCTION :: The Supreme Court’s doctrine known as strict scrutiny is divided into two elements. First, there is the requirement that a State identify a “compelling governmental interest” that supports the state’s use of race as a factor. Second, and just as important, there is […]

Dennis J. Shields, A Response to Professor Crump's Narrow Tailoring Analysis of Grutter: Does It Matter How Many Angels Can Dance on the Head of a Pin?

56 Fla. L. Rev. 761 (2004) | | | | INTRODUCTION :: On occasion the Supreme Court is faced with a conflict between important public values. The two cases contesting race-conscious admissions decision-making at the University of Michigan placed the Court in just such a circumstance. The plaintiffs represented the powerful principle of color-blindness in […]

Stephen B. Presser, A Conservative Comment on Professor Crump

56 Fla. L. Rev. 789 (2004) | | | | INTRODUCTION :: My assignment was to comment on Professor Crump’s article from a conservative perspective, to complement the response to his article from Dean Dennis Shields, who had been instrumental in administering the University of Michigan School of Law’s affirmative action policies approved in Grutter […]

Marisa Lopez, Constitutional Law: Lowering the Standard of Strict Scrutiny

56 Fla. L. Rev. 841 (2004) | | | | INTRODUCTION :: Respondents adopted a law school admissions policy that considered, among other factors, applicants’ race and ethnicity. The admissions policy was designed to achieve the educational benefits of a diverse student body. As part of this policy, admissions officers often considered daily reports that […]

Robert A. Caplen, Constitutional Law: Forecasting the Sunset of Racial Preferences in Higher Education while Broadening their Horizons

56 Fla. L. Rev. 853 (2004) | | | | INTRODUCTION :: Respondents implemented admissions policies designed to select an academically qualified and diverse student body with substantial promise for success within the legal profession and filed a lawsuit alleging discriminated against her on the basis of race in violation of the Fourteenth Amendment held […]