Employment Law

Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?

Kimberly D. Bailey

Abstract In Oncale v. Sundowner Offshore Services, Inc., the U.S. SupremeCourt recognized same-sex sexual harassment as a cognizable claim ofsex discrimination under Title VII of the Civil Rights Act of 1964. At thetime, many scholars found this recognition to be significant andimportant, but some also argued that the Court provided an incompleteanalysis regarding the meaning […]

Beyond the Binary: Protecting Sexual Minorities from Workplace Discrimination

Written by: Jessica Williams

Abstract      The LGBT community has benefitted from a rapid change in public perception. In the past few decades alone, the Supreme Court has greatly expanded the civil rights of queer people by decriminalizing homosexual conduct and recognizing gay marriage. Despite this progressive social setting, LGBT employees have yet to receive full protection from employment […]

GPS and Cell Phone Tracking of Employees

Marc Chase McAllister

Abstract This Article examines employee location tracking through smart phone apps and GPS devices attached to or embedded within an employee’s personal or company vehicle. For each form of tracking, this Article provides separate frameworks for employers to follow when conducting individual employee misconduct investigations and when tracking an entire group of employees for non-investigatory […]

A Structural-Purposive Interpretation of “Employment” in the Platform Economy

Written by: Gary Spitko

Abstract The considerable growth of the platform economy has focused attention on the issue of whether a provider engaged through a transaction platform should be classified as an employee of the platform operator, and therefore within the purview of workplace protective legislation or as an independent contractor, thus outside the scope of such legislation’s protections. […]

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 […]

Rachel Arnow-Richman, Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination

This Article simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation—the idea that parties reserve the procedural […]

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’ […]

Alex B. Long, The Forgotten Role of Consent in Defamation and Employment Reference Cases

As has been well documented, the fear of defamation suits and related claims lead many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s […]

Kathleen Carlson, Social Media and the Workplace: How I Learned to Stop Worrying and Love Privacy Settings and the NLRB

Social media has permeated every aspect of society. The use of social media can easily lead to issues in an employment law context when employees suffer adverse employment actions based on the information they choose to share via their personal social media websites. Today’s laws concerning online privacy are in a nebulous state and have […]

Hari M. Osofsky, Multidimensional Governance and the BP Deepwater Horizon Oil Spill

63 Fla. L. Rev. 1077 (2011)| | | ARTICLE :: This Article explores the governance challenges posed by the BP Deepwater Horizon oil spill and proposes strategies for developing more inclusive, responsive institutions to help meet them. It begins by analyzing the incident through five core dimensions-vertical, horizontal, direction of hierarchy, cooperativeness, and public- private-to […]

Kimon Korres, Bankrupting Bankruptcy: Circumventing Chapter 11 Protections Through Manipulation of the Business Justification Standard in § 363 Asset Sales, and a Refined Standard to Safeguard Against Abuse

63 Fla. L. Rev. 959 (2011)|  | | NOTE :: Of the twenty largest public company bankruptcy filings from 1980 to the present, seventeen have taken place since 2001, and ten of those seventeen were filed between March of 2007 and August of 2009. One such example is In re Chrysler LLC, in which Chrysler, on […]

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 […]

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 […]

Usha Rodrigues, From Loyalty to Conflict: Addressing Fiduciary Duty at the Officer Level

61 Fla. L. Rev. 1 (2009) | | | | ABSTRACT :: Conflicts of interest are the quintessential agency cost-the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interest. This ignorance […]

Richard D. Shane, Teachers as Sexual Harassment Victims: The Inequitable Protections of Title VII In Public Schools

61 Fla. L. Rev. 355 (2009) | | | | INTRODUCTION :: In 1992, a fifth-grade girl complained to her public school teacher that the boy sitting next to her repeatedly rubbed his body against her and made sexually explicit comments to her. After school authorities ignored her repeated complaints, the student filed suit against […]

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 […]

Dayna B. Royal, Take Your Gun to Work and Leave It in The Parking Lot: Why The OSH Act Does Not Preempt State Guns-At-Work Laws

61 Fla. L. Rev. 475 (2009) | | | | INTRODUCTION :: Two robbers entered an Alabama restaurant and forced customers and employees into a walk-in refrigerator at gunpoint. Fortunately, one of the customers, legally armed with his own pistol, shot the robbers before any hostage was injured. In New York City, a fifty-six year-old […]

Ryan D. Watstein, Out of Jail and Out of Luck: The Effect of Negligent Hiring Liability and the Criminal Record Revolution On an Ex-Offender's employment prospects

61 Fla. L. Rev. 581 (2009) | | | | INTRODUCTION :: In January 1978, Ed Harbour picked up a seventeen-year-old hitchhiker on his Indiana truck-driving route. He brutally raped and beat her, leaving her near death in the sleeping compartment of his truck. Astonishingly, this took place merely one year after Harbour was convicted […]

J.C. Van Lierop III, Post-9/11 Army Disability Decisions: Reinforcing Administrative Law Principles in Fitness and Disability Rating Determinations

61 Fla. L. Rev. 639 (2009) | | | | INTRODUCTION :: Counter-Intuitive Trends in an Army at War “[T]o care for him who shall have borne the battle, and for his widow, and his orphan . . . .” -Abraham Lincoln The terrorist attacks of September 11, 2001 catalyzed two wars in Afghanistan and […]

Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege

60 Fla. L. Rev. 1179 (2008) | | | | INTRODUCTION :: Barbara Hall, an administrative assistant, often arrives at work an hour and a half early solely to check her personal e-mails on her employer’s computer. Afterwards, “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ Barbara Hall carries on a […]

Timothy Zick, Clouds, Cameras, and Computers: The First Amendment and Networked Public Places

59 Fla. L. Rev. 1 (2007) | | | | INTRODUCTION :: It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and “cyber-places” like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it […]

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 […]

Lisa M. Fairfax, Easier Said than Done? A Corporate Law Theory for Actualizing Social Responsibility Rhetoric

59 Fla. L. Rev. 771 (2007) | | | | ABSTRACT :: Post Enron has witnessed renewed concern regarding corporations’ failure to behave responsibly, both in terms of their ethical responsibility and in terms of their responsibilities to advance issues beyond financial matters, such as those that impact employees, customers, and the broader community. Many […]

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 […]

Carole J. Buckner, Due Process in Class Arbitration

58 Fla. L. Rev. 185 (2006) | | | | INTRODUCTION :: The ubiquity of arbitration clauses in consumer and employment agreements and the Supreme Court’s plurality opinion in Green Tree Financial Corp. v. Bazzle, which implicitly permitted class arbitration, marked the beginning of a new era in class arbitration. Although it is well-established that […]

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 […]

John H. Rains IV, Searching for Fairness in all the Wrong Places: Valuing the Pension Benefit Guaranty Corporation's Unsecured Claim in Bankruptcy

58 Fla. L. Rev. 1107 (2006) | | | | INTRODUCTION :: Imagine waking up to this headline: “Major American Corporation Seeks Bankruptcy Protection.” Amid concern over lost jobs, reduced benefits for current employees, dramatic changes in stock prices, protracted litigation, enormous losses for creditors, and the displacement of current owners of the business, two […]

Linda Kelly Hill, The Feminist Misspeak of Sexual Harassment

57 Fla. L. Rev. 133 (2005) | | | | INTRODUCTION :: Feminism is out of control. I recently attended an academic conference on domestic violence where, as usual, the speakers and the audience were virtually all women. As is to be expected, one woman or another lamented the lack of male interest in matters […]

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 […]

Baher Azmy, Squaring the Predatory Lending Circle: A Case for States as Laboratories of Experimentation

57 Fla. L. Rev. 295 (2005) | | | | INTRODUCTION :: Like obscenity, “predatory lending” in the home-mortgage market eludes a precise or uniform definition; the phenomenon instead frequently evokes an “I know it when I see it” understanding among consumer advocates, responsible lenders, and concerned regulators. As a result, accelerating debates about predatory […]

Kelly M. Moore, Pretext Instructions in Employment Discrimination Cases: Inferring a New Disadvantage for Plaintiffs: Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004)

57 Fla. L. Rev. 411 (2005) | | | | TEXT :: Petitioner was fired from his position as the commercial fleet sales manager for Respondent’s car dealership in January of 2001. Respondent told Petitioner that he was being fired because although “he was doing a ‘good job’ . . . the company was going […]

Edward C. Lyons, In Incognito -The Principle of Double Effect in American Constitutional Law

57 Fla. L. Rev. 469 (2005) | | | | INTRODUCTION :: Relying explicitly on the “principle of double effect” for the first time in American law, the Supreme Court in Vacco v. Quill -a decision noteworthy if for no other reason than for that very reliance-rejected an equal protection claim asserting a right to […]

William N. Eskridge, Jr, Dunwody Distinguised Lecture in Law: Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion

57 Fla. L. Rev. 1011 (2005) | | | | TEXT :: The Supreme Court ruled in Lawrence v. Texas that states could not constitutionally criminalize private oral or anal sex between consenting adults. How far does the decision sweep? Is it limited to its facts, with no broader implications for constitutional law, as the […]

Christopher Wolfe, Moving Beyond Rhetoric

57 Fla. L. Rev. 1065 (2005) | | | | TEXT :: William Eskridge’s Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion is an unusually rhetorical piece. At times it appears that Eskridge thinks that if he characterizes his opponents’ position as one of “disgust” and fear of “contagion” often enough […]

Robert C.L. Moffat, "Not the Law's Business:" The Politics of Tolerance and the Enforcement of Morality

57 Fla. L. Rev. 1097 (2005) | | | | TEXT :: In order to appreciate the arguments offered by Professor Eskridge in his Dunwody Lecture, I think a review of the relevant entries in the ongoing discussion regarding the enforcement of morality would help us understand the context in which that debate takes place. […]

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 […]