All content tagged with: Employment Law

Filter

  • Under the Threshold: Gaps in State Employment Discrimination Laws

    (Image of farmworkers with farm equipment in a field) By: Elisa Teeter, Associate Editor, Vol. 27 The purpose of Title VII of the Civil Rights Act of 1964 is to “improve the economic and social conditions of minorities and women by providing equality of opportunity in the work place.”…

  • “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability

    This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of color without disabilities or by White people with disabilities due to the intersection of their race and disability. Yet often our legal and cultural institutions have been reluctant to acknowledge the intersectional experience, preferring instead to understand people by a singular trait like their race, gender, or disability. While courts have recognized the validity of intersectional discrimination claims, they have offered little guidance on how to articulate and prove the claims, leaving compound and complex forms of discrimination unaddressed. This Article thus offers an analysis of how courts and litigants should evaluate claims of workplace discrimination based on the intersection of race and disability, highlighting in particular the experience of Black disabled individuals. Only by fully embracing intersectionality analysis can we realize the potential of antidiscrimination law to remedy the harms of those most at risk of being denied equal opportunity.

  • Federal Constraints on States’ Ability to License an Undocumented Immigrant to Practice Law

    No court has decided whether an undocumented immigrant can be admitted to a state bar in a manner consistent with federal law. At the time of this writing, the issue is pending before the California Supreme Court. Federal law prohibits states from providing public benefits to undocumented immigrants. In its definition of a “public benefit,” 8 U.S.C. § 1621 includes any professional license “provided by an agency of a State . . . or by appropriated funds of a State . . . .” The law’s prohibitions, however, are not unqualified. The statute’s “savings clause” allows states to provide public benefits to immigrants unlawfully present through an affirmative enactment of state law. Current scholarship surrounding this issue has primarily focused on public policy implications. This Note sets out to answer the question of whether 8 U.S.C. § 1621 generally precludes states from issuing law licenses to undocumented immigrants, and if so, how a state may circumvent that prohibition. First, this Note addresses the threshold question of whether a law license is a public benefit under the federal statute. Contrary to the argument put forward by the Committee of Bar Examiners of the State Bar of California, I argue that the most straightforward reading of the statute includes law licenses within the category of prohibited public benefits. Second, this Note explores how a state could use the statute’s savings clause to provide law licenses to undocumented immigrants. By requiring an affirmative enactment of state law, Congress likely had in mind legislative enactments. I argue, however, that in the realm of bar admission where state supreme courts have plenary power to set requirements, a court rule allowing for eligibility of undocumented immigrants should be sufficient to trigger the statute’s savings clause.

  • Have a Job to Get a Job: Disparate Treatment and Disparate Impact of the ‘Currently Employed’ Requirement

    Countless people struggle to find a job in a competitive job market despite possessing solid qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. These groups are often unemployed longer than other job seekers. These groups also suffer the disparate impact of job advertisements that require "current employment" as a prerequisite for hiring. The harsh reality is that the longer a job seeker is unemployed, the closer a job seeker becomes to becoming permanently unemployed. Job advertisements that require "current employment" exacerbate the problem. However, traditional disparate impact analysis under the civil rights laws can help to address some of the issues faced by these long-term unemployed job seekers.

  • Employee Free Choice or Employee Forged Choice? Race in the Mirror of Exclusionary Hierarchy

    The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate tile necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize tile workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This Article deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to shot' that rather than embracing freedom for workers, eliminating, poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.