Labor & 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 […]
The Role of GPS and Cell Phone Tracking of Employees in Big Data Law
Written by: Joanna P. Kimbell
Abstract In GPS and Cell Phone Tracking of Employees, Professor Marc McAllister makes a case for limiting the use of cell phone tracking of employees to either noninvestigatory, work-related purposes or misconduct investigations wherein the use of tracking is used only as a means to corroborate evidence that the tracked employee has committed a terminable […]
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. […]
Rescuing the Rescuer: Reforming How Florida’s Workers’ Compensation Law Treats Mental Injury of First Responders
Written by: Travis J. Foels
Abstract The 2016 Pulse nightclub shooting in Orlando, Florida was the deadliest terrorist attack in the United States since the September 11 attacks in 2001. With a final death toll of forty-nine people, and fifty-three others wounded, the attack sent shockwaves throughout the city, state, and nation. People sent condolences to the families of those […]
Assessing the Viability of Implicit Bias Evidence in Discrimination Cases: An Analysis of the Most Significant Federal Cases
Written by: Anthony Kakoyannis
Abstract The theory of implicit bias occupies a rapidly growing field of scientific research and legal scholarship. With the advent of tools measuring individuals’ subconscious biases toward people of other races, genders, ages, national origins, religions, and sexual orientations, scholars have rushed to explore the ways in which these biases might affect decision-making and produce […]
William C. Matthews, The Fifth Circuit’s Misguided Interpretation of Title VII’s Anti-Retalliation Provision in Hernandez v. Yellow Transportation, Inc.
After Burlington Northern & Santa Fe Railway Co. v. White resolved the issue of what constitutes an “adverse action” under the Title VII anti-retaliation statute, the scope of employer liability was substantially broadened. The Supreme Court’s decision reinforced the broad intent behind the anti-retaliation statute and acknowledged the statute’s remedial purpose. The Fifth Circuit, however, […]
Patricia L. Reid, Fact Sheet #71: Shortchanging the Unpaid Academic Intern
On the eve of the Fair Labor Standards Act’s seventy-fifth anniversary, unpaid academic internships threaten to outpace government regulation and undermine opportunities for gainful employment. Although coveted by students eager to fill a line on their résumé, unpaid academic internships are a subspecies of unpaid internships that might soon face extinction. While the advent of […]
Daniel J. DiMatteo, To Enforce a Privacy Right: The Sovereign Immunity Canon and the Privacy Act's Civil Remedies Provision After Cooper
In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without […]
Kit Johnson, The Wonderful World of Disney Visas
63 Fla. L. Rev. 915 (2011)| | | ARTICLE :: International workers play an important role in perpetuating the carefully crafted fantasy that to visit the Walt Disney World Resort in Orlando, Florida is to be transported to far-off destinations around the globe. This Article examines how Disney has filled its need for these workers in […]
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, […]
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 […]
Sapna Kumar, The Other Patent Agency: Congressional Regulation of the ITC
61 Fla. L. Rev. 529 (2009) | | | | ABSTRACT :: The United States International Trade Commission has recently experienced a dramatic increase in patent infringement investigations under § 337 of the Tariff Act of 1930. In fact, the number of patent enforcement actions submitted to the ITC has nearly doubled in the last […]
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 […]
Brent J. Horton, In Defence of Private-Label Mortgage-Backed Securities
61 Fla. L. Rev. 827 (2009) | | | | ABSTRACT :: The House Financial Services Committee recently concluded that lack of regulation of private-label mortgage-backed securities (MBS) is to blame for the unsustainable housing bubble that peaked in mid-2006-and consequentially, the economic crisis that ensued when the bubble burst. It is true that the […]
Huyen Pham, When Immigration Borders Move
61 Fla. L. Rev. 1115 (2009) | | | | ABSTRACT :: With recent immigration enforcement efforts, we have created a completely new paradigm of moving borders: laws, enacted at all levels of government, that require proof of legal immigration status in order to obtain a driver’s license, a job, rental housing, government need-based assistance, […]
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 […]
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 […]