Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, September 30, 2007

Transgendered Employee Not Protected Under Title VII

10thcir_2  In Etsitty v. Utah Transit Authority, ___F.3d ___(10th Cir. Sept. 20, 2007), the 10th Circuit held that a public transit authority did not unlawfully discharge a trans-gendered employee. The plaintiff was born a male, but identified herself as female. While she has begun the transition process, she is considered a pre-operative trans-gendered individual. Query whether such individuals are protected from sex discrimination under Title VII?

In a lengthly opinion, the 10th Circuit concludes that they are not. The court reasoned:

In light of the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual. Rather, like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.

Plaintiff also asserted a Price-Waterhouse theory arguing that even if being trans-gendered is not protected class under Title VII, adverse employment actions based upon sexual stereotyping- about how a man or woman should act is protected.

Unfortunately, the court side steps this important issue and does not decide it. Why? Because the court found that the employer had a legitimate non-discriminatory reason for its decision. What was that you might ask? The employer only had one rest room!! The court reasoned:   

However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women’s restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.

This is really a sham reason used to support the courts decision not to reach the Price-Waterhouse issue. Of course, the employee will have to use the bathroom. All employees do. Since all employees have to use the bathroom, the court essentially rejected the Price-Waterhouse sexual stereotyping theory. I just wish the court was a bit more honest and upfront with its reasoning.

Hat Tip: Leonard Link

Mitchell H. Rubinstein

September 30, 2007 in Discrimination Law | Permalink | Comments (1) | TrackBack (0)

Harvard Medical Student Given More Time On Medical Boards To Pump Breast Milk

The Associated Press in an article dated September 26, 2007, entitled "Court: New Mom Must Get Extra Test Time" reports on a Massachusetts Appellate Court decision which granted a new mom more time on her Medical Boards so that she can pump breast milk for her 4 month old daughter. As the article states:

A Harvard student must be allowed extra break time during her nine-hour medical licensing exam so she can pump breast milk to feed her 4-month-old daughter, a Massachusetts appeals court judge ruled Wednesday.

Sophie Currier, 33, sued after the National Board of Medical Examiners turned down her request to take more than the standard 45 minutes in breaks during the exam.

Currier said she risks medical complications if she does not nurse her daughter, Lea, or pump breast milk every two to three hours.

A Superior Court judge last week rejected Currier's request to order the board to give her an additional 60 minutes of break time. Appeals Court Judge Gary Katzmann overturned that ruling, finding that Currier needs the extra break time to put her on "equal footing" with the men and non-lactating women who take the exam.

The board had cited a need to be consistent in the amount of break time given and said other nursing mothers who have taken the exam found 45 minutes sufficient.

But Katzmann said that amount of break time was "insufficient" for Currier to nurse her baby, properly express breast milk, eat, drink and use the restroom over the course of the nine-hour exam.

Without extra break time, Currier would have to choose between pumping breast milk and ignoring her bodily functions or foregoing pumping and causing herself significant pain, the judge said.

It's hard to imagine why the Medical Board did not grant this obviously needed accommodation. The only reason I can think of is because, as the article points out, Dr. Currier was already granted an accommodation to take the exam over two days, instead of one, because she also has  dyslexia and attention deficit hyperactivity disorder. In my view, that is not a justification as individuals can need more than one accommodation.

Mitchell H. Rubinstein

September 30, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

Data Base Of Cert. Pool Memo's Available For Researchers

Northwestern Law School Professor Lee Epstein maintains a digital archive of Justice Blackman's papers. Included is a description of the cert process and copies of cert. memo's which are generally written by law clerks to assist the court in determining whether cert should be granted. Some of the memo's even include Justice Blackman's handwritten comments.

This is marvelous find and may be very useful to some researchers.

Hat Tip: Prawfs Blawg

September 30, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Supreme Court Returns To The Bench On Monday Oct. 1st

Ussupremes_2  Monday is the first Monday in October and that means that the U.S. Supreme Court is back in session. Gannett Newspapers are running a September 28, 2007 story, available here, which previews the upcoming term.  As the article states:

The Supreme Court returns to the bench Monday for a new term that will probably reveal as much about the direction of the Roberts Court as the provocative session that ended in June.

As the transformed court led by Chief Justice John Roberts enters its second full term, some cases could test how much a majority tilts to the left, compared with its dramatic rightward shift last session. A dispute involving the rights of foreigners detained at the U.S. naval base at Guantanamo Bay, in particular, raises legal issues on which Anthony Kennedy, the justice in the middle of court, has previously joined with liberals.

Other cases, involving execution by lethal injection, federal law against child pornography and strict criminal sentences, also cover areas in which Kennedy has been more liberal. In contrast, on the key issues that defined last term -- including racial integration plans and a contentious midterm abortion procedure -- Kennedy had been consistently on the right wing.

"The docket this year is raising very different issues," says Georgetown University law professor Susan Low Bloch. "I think it is possible that after the Guantanamo detainees, the porn case and others, you could see headlines that say the court has ruled to the left."

Mitchell H. Rubinstein

September 30, 2007 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Preview of Pending U.S. Supreme Court Cases

Cornell Law School Liibulltin service maintains a listing of all pending U.S. Supreme Court cases.  There listing includes the date of oral argument, docket information and a preview of the issues. That free service is available here. This may be of use for legal researchers.

Mitchell H. Rubinstein

September 30, 2007 in Legal Research, Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Saturday, September 29, 2007

The New Affirmative Action

The September 30, 2007 New York Times has a very interesting story entitled "The New Affirmative Action" by reporter David Leonhardt. It's not a legal article, per se, but it mainly focus on the change in affirmative action in California due to Proposition 209 which forbids public universities to take race into account with respect to admission decisions.

Since Proposition 209 has passed, the article states that minority enrollment at the University of California has declined. The article points out that it is not clear if this is due to Proposition 209.However, some UC schools are sucessfully recruiting minorites through out-reach programs and giving points for students who have a low econmic status/background (eg they come from a poor family etc). As the article states:   

If anything, Proposition 209 may have helped keep the U.C. campuses as economically diverse as they are. Desperate to maintain some racial diversity, university officials set up outreach programs in lower-income school districts, as James Traub described in this magazine several years ago. One of them, run by U.C. Davis, which is outside of Sacramento, visited Frances Harris’s elementary school. It was around this time that Harris first told her parents that she planned to go to college. Over the years, when things got tough, they both made a point of reminding her of her vow. “At times I got discouraged, and they said, ‘You’ve said you’re going to go to college, and you’re going to go,’ ” she recalled. A framed “reservation for college” certificate from the Davis program still hangs in her bedroom.

After the initiative passed, the U.C. campuses also put more weight on students’ socioeconomic backgrounds when they made admissions decisions. Richard Sander, a U.C.L.A. law professor who has become a critic of affirmative action, studied admissions data at Berkeley and found that, all else being equal, lower-income students had a better chance of getting in after 1997 than before. Together, these various class-based efforts have helped the share of Pell Grant students at both U.C.L.A. and Berkeley to hold steady over the last decade, even as it has declined at many similar colleges.

You can make an argument, in fact, that the single most impressive university in the country today is U.C.L.A. It receives more freshman applications than any other — 50,744 this year — and, unlike many of its peers, it can legitimately claim to be an engine of opportunity. About 90 percent of its students, whether they enter as freshmen or transfers, eventually graduate. What City College of New York was to the 20th century, U.C.L.A. is to the 21st.

And now, maybe, it is figuring out ways to solve its race problem.

I have long argued that an affirmative action program that gives preference to an applicant because of race is discriminatory. Much of the same goals, however can be accomplished if you consider an applicants soci-economic background as opposed to his race.

Mitchell H. Rubinstein

September 29, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Letters of Apology as Admissions of Guilt

The ABA is putting pressure on state legislatures to amend their rules of evidence in an effort to reduce the amount of frivolous medical malpractice litigation.  To achieve this end the ABA is persuading state legislatures to disallow the use of physician or healthcare provider issued letters of apology, or expressions of sympathy to be used as admissions of liability.  It is also hoped that these changes to evidentiary rules will also encourage open and honest dialogue between patients and their physicians.  As a limitation on the proposed changes the ABA makes a distinction between letters of apology and outright admissions of guilt which would still be admissible under the ABA proposed resolution.

ABA Litigation News, September 21, 2007, ABA Resolves to Protect Apologies of Health Care Providers, by Brian A. Zemil.

Mitchell H. Rubinstein

Hat Tip: Patrick Jordan, New York Law School

September 29, 2007 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Former N.J. Governor McGreevey and his wife

Gov. McGreevey claimed that he resigned from his position a few years ago because he was gay. If you believe that, I have a bridge to sell you.

In any event, we all probably remember seeing his wife and young child (now age 5) on T.V. The X Governor and his wife, not surprisingly, are going through a divorce. An Associated Press story indicates that he was just ordered by pay $2500 in support.

His wife Matos works at Columbus Hospital in Newark, N.J. The X Governor is studying at an Episcopal seminary. After he completes his studies, it would be interesting to see if he then declares that he is no longer gay.

Mitchell H. Rubinstein

September 29, 2007 in News | Permalink | Comments (0) | TrackBack (0)

Book Review Highlight- Understanding Employment Law

Understandingemploymentlaw Richard A. Bales, Jeffrey M. Hirsch and Paul M. Secunda just published "Understanding Employment Law"  as part of the LEXIS Nexis Understanding series. Professors Bales, Hirsch and Secunda are well known labor and employment law scholars. They also edit the Workplace Prof Blog, a blog we cite to often.

Quite simply the book is a gem. Its size is perfect. It's 254 pages long, not heavy and fits right into a briefcase. The book covers all the leading cases and law review articles concerning employee/independent contractor status, employment-at-will theory and its exceptions, employment arbitration, First Amendment rights of public employees, Employee Privacy Protections, Defamation and References, Trade Secrets, FLSA, FMLA, WARN, ERISA and OSHA.

I found the sections outlining the various tests for employee status,the sections on the FMLA and ERISA to be particularly well done. The book purposely does not cover traditional labor law, employment discrimination or workers compensation.

Since the book is not a case book and is a mini-treatise, the trick is to figure out a way to assign this wonderful text to my employment law students.

Adjuncts also take note. This is not a book of legal theory. Practitioners are well advised to purchase this text for their libraries. It will save you time and your client's legal research fees.

Mitchell H. Rubinstein   

September 29, 2007 in Employment Law, Faculty in the News, Law Professors | Permalink | Comments (0) | TrackBack (0)

Friday, September 28, 2007

LL.B. Degree vs. J.D. Degree

There is a very interesting story in the September 28, 2007 Wall Street Journal Law Blog entitled "Why Did Law Schools Switch from LLBs to JDs?" The article's author contacted Yale Law School which responded that the change from LL.B (Bachelor of Law) to J.D.(Juris Doctor) occurred in 1971, but they did not supply any information with respect to  why that change was made. The author also contacted the ABA and the AALS and did not come up with anything. That blog asks its readers if anyone knows why the change from LL.B to J.D. was made in American Law Schools. I think this is an interesting question. Anyone know the answer??

Mitchell H. Rubinstein

September 28, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Writing a letter of Reference

Just when you thought you have seen it all, along comes an online letter of reference guide. This web site has several different samples of letter of references for college and graduate school admission as well as for personal references. It even has a fill in the blank reference generator form.

Like attorney George Lenard, I believe that this site does contain some helpful information. The only problem is that a reference letter that looks like 100 others is not very useful. I believe most admission officers and most personnel managers would look more favorably towards unique letters with a personal touch. Therefore, this service is of virtually no value.

Mitchell H. Rubinstein   

Hat Tip: George's Employment Blawg

September 28, 2007 in Oddly Enough, Non-Legal | Permalink | Comments (1) | TrackBack (0)

Alumni Feud With Ava Maria Law School

Avemaria    Alumni Feud with Catholic College is an interesting September 28, 2007 Detroit Free Press article which discusses  a feud that is going on at Ava Maria Law School. As the article states:

By failing to earn and maintain support of alumni, the law school administration has "turned the greatest advocates for the law school to their greatest adversaries," said Justin Berger, a 2003 graduate of the law school, who sits on the alumni board of directors.

The board's move followed a rebuke earlier this month from a group of Catholic law professors from around the country. The group issued a joint statement sharply criticizing the law school administration's "failure to live their Christian commitment."

Dobranski says he has no intention of resigning. Monaghan declined to be interviewed.

The tension, Dobranski said, is over the law school's move from Ann Arbor to Florida, where it will join Ave Maria University in the emerging town of Ave Maria, both spurred by about $300 million from Monaghan. . . .

Adjunct Law Prof Blog has previously reported on Ava Maria Law School's troubles here and here, including the possible  loss of ABA accreditation.

This is a story to watch.

Mitchell H. Rubinstein

September 28, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Special Education Law 101

The Special Education Law Blog has an interesting summary of special education law under the IDEA.

This blog outlines what a FAPE and IEP mean and defines who is considered disabled under the IDEA. This blog also discusses Board of Education of Hendrick Hudson v. Rowley 455 U.S. 175, 102 S.Ct. 3034, 553 IDELR 656 (1982), which is one of the most important decisions decided under the IDEA.

This posting may be of interest to non-lawyer parents and to law students first learning about special education.

Mitchell H. Rubinstein

September 28, 2007 in Education Law | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2007

Employer Able To Reduce Retiree Health Benefits Because Grievance Over Expired Welfare Plan Found Not To Be Arbitrable

8thseal In Crown Cork and Seal v. IAM, ___F. 3d ____(8th Cir. Sep't. 18, 2007), the union sought to arbitrate a grievance after the employer unilaterally modified a health care plan for retirees who had already retired. The modified plan included premium sharing, increased deductibles and out of pocket limits, decreased hospitalization coverage and elimination of some coverage for dependents.

The court held that the dispute was not arbitrable. The collective bargaining agreements the union was relying on had expired. While the court recognized that the duty to arbitrate can survive the expiration of the collective bargaining agreement, the court held that duty only survives if the parties failed to negate the presumption in favor of arbitrability expressly or by clear implication, citing Nolde Bros. v. Local No. 358, 430 U.S. 243, 251 (1977). Stated another way, the benefits must be considered "vested" under the collective bargaining agreement.

Significantly, here  there were a number of writings which limited benefits "for the life of the agreement." The plan also had a reservation of rights clause which allowed the employer to unilaterally terminate or modify the retiree health care plan. Accordingly, retiree health benefits was not considered vested and therefore, the dispute was not arbitrable.

The 8th Circuit also dismissed the ERISA cause of action because the plaintiffs could point to no provision of the plan which was violated.

This was a tough case. However, the 8th Circuit's legal analysis appears to be sound. The case points to a need for legislative relief in this area which would prevent employers from modifying health care plans of retirees.

Mitchell H. Rubinstein 


September 27, 2007 in Employee Benefits Law, Welfare Plans | Permalink | Comments (0) | TrackBack (0)

Illinois Enacts Smoke-Free Act

Effective January 1, 2008, Illinios enacted the Smoke-Free Illinois Act which bans smoking in all public places, places of employment and government. Illinios joins 21 other states which have enacted similar legislation.

Under this new statute, smoking is permitted outdoors if smokers stay 15 feet away from entrances, windows and ventilation systems.

Individuals face fines of not less than $100 and owners and operators of public buildings and places of employment face fines of not less than $250 for the first violation, $500 for the second.

A copy of the statute which was signed into law on July 23, 2007 is available here.

Mitchell H. Rubinstein

September 27, 2007 in Legislation | Permalink | Comments (0) | TrackBack (0)

Listserv For Adjunct Law Professors Maintained By ABA

The ABA maintains a listserv for adjunct law professors which is available here. If your an Adjunct, please consider signing up. There are very few emails-too few as a matter of fact. I encourage Adjuncts to post questions and comments.

Adjuncts of the world, also do not forget Adjunct Prof Blog. I encourage you to post your questions and comments. Additionally, if you have something that you would like me to post, please send me an email

Mitchell H. Rubinstein

September 27, 2007 in Adjunct Information in General | Permalink | Comments (0) | TrackBack (0)

Jewish Community Center Exempt From Title VII

3rdcircuit Leboon v. Lancaster Jewish Community Center, ___F. 3d ___ (3d. Cir. Sep't. 19, 2007), is an important Title VII decision dealing with discrimination on the basis of religion. The plaintiff, an evangelical Christian, claim of discrimination against a Jewish Community Center failed because the court held that the Jewish Community Center was a religous organization exempt from Title VII. The court held that the Jewish Community Center was exempt from Title VII because its structure and purpose was primarily religious.

The court's analysis in this regard was lengthly and it looked to multiple factors. It found it significant that the organizations purpose was to promote Jewish life. Though the Jewish Community Center was financially separate from a synagougue, several synagougues provided financial support and assisted with fund raising. The Rabbi's from these synagougues were involved in the Community Centers programing.

There was a dissent generated which would limit the Title VII exemption to entities that are controlled by a religious sect.

This is a tough decision which I believe may have been wrongly decided. The religous exemption needs to be interpreted narrowly.  However, the court interpreted the religious exemption broadly-too broadly. It is apparent that the Jewish Community Center was primarily a cultural organization. Title VII was not designed to exempt such cultural organizations.

Mitchell H. Rubinstein 

September 27, 2007 in Discrimination Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

May Lawyers Use The Term "and Associates" in the Firm's name??

The September 2007, Your ABA E-News Publication entitled "Are there any Doctors or Associates in the House?" addresses the issue of whether law firms can use the word "and associates" in its title. The issue is that the use of this term can imply that the firm is bigger than it really is. 

As it turns out, that lawyers may not use that term if they do not have any associates. However, there is some disagreement if that term can be used where the lawyer has only one associate. Similarly, use of the term law group has been held to be inappropriate if the firm does not have at least two attorneys.

I bet many of you never thought about these issues. However,  they are important considerations for firms to consider.

Mitchell H. Rubinstein

September 27, 2007 in Lawyers | Permalink | Comments (0) | TrackBack (0)


Management lawyer George Lenard over at George's Employment Blawg has an interesting posting entitled "Background and The Job Search."

As George points out, since 911, many more employers are conducting background checks on potential employees. George's point is the the truth will usually come out and most employees may be better off to disclose truthful information about there background (such as whether they have ever been fired). In that way, the job applicant may have a chance to explain what happened. As George states:

Be honest, knowing that the truth is likely to come out. Many facts you would prefer a potential employer not know may not preclude your employment if properly and honestly presented. But if the same facts are discovered by the background investigator, and expose lies on your application and/or resume, you will be viewed as a liar, which is much more likely to preclude hiring.

So, one background-checking expert advises, “The absolute best thing you can do . . . is come clean in the interview process.”

As to the Internet “digital dirt,” take a good hard look at your online presence and clean up your act, if necessary. Better yet, don’t post anything anywhere online that makes you seem unprofessional or otherwise raises red flags to a reasonable employer.

While George has a valid point, I am not frankly sure if he is correct. While some employees may be able to explain away something in their background, if they make this type of disclosure many employees may not even make it to the interview. I do not know whether the probability of the employer finding out is as high as the probability that the employee would not get an interview.

Don't get me wrong. I am not advocating lying on a resume. I am, however, advocating that more research needs to be done in this area of the law.

Mitchell H. Rubinstein

September 27, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 26, 2007

Are Lawyers Considered Doctors??

Are There Any Doctors or Associates in the House is a very interesting September 2007 Your ABA E-News Web publication about lawyers can use the term doctor. As it turns out, the answer is not entirely clear. This article reports that State Bar Associations are actually split over whether lawyers can refer to themselves as "Dr." or "Doctor." As the article states: 

State bar opinions are split over whether a lawyer may refer to himself as “Dr.” or “Doctor”.  See Maher, Lawyers Are Doctors, Too 92 ABAJ 24 (2006).  The analysis usually turns on whether the issuing ethics committee determines that the use of the term would be false or misleading under their state version of Rule 7.1 Communications Concerning a Lawyer’s Services of the ABA Model Rules of Professional Conduct. Rule 7.1 states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

The Ethics Committee of the Texas Supreme Court issued opinion 550 (2004) on this topic in which it withdrew an earlier opinion that had prohibited lawyers from referring to themselves as “Doctor” or “Dr.” and concluded:

The Committee is of the opinion that under the Rules the use of the title "Dr.," "Doctor," "J.D." or "Doctor of Jurisprudence" is not, in itself, prohibited as constituting a false or misleading communication. The Committee recognizes that other professions, such as educators, economists and social scientists, traditionally use title "Dr." in their professional names to denote a level of advanced education and not to imply formal medical training. There is no reason in these circumstances to prohibit lawyers with a Juris Doctor or Doctor of Jurisprudence degree from indicating the advanced level of their education.

However, while use of the title alone is generally permitted, the context in which the title is used may cause use of the title to be a false or misleading communication. For example, a lawyer otherwise qualified to use the title of "Dr." who advertises as "Dr. John Doe" in a public advertisement for legal services in connection with medical malpractice or other areas involving specialized medical issues may be making a misleading statement as to the lawyer's qualifications and may be creating an unjustified expectation about results the lawyer can achieve. Unless accompanied by an appropriate, prominent statement of qualifications and disclaimers, such use of the title "Dr." could readily mislead prospective clients and thus violate the Rules. Compare Comment 2 to Rule 7.02.

I personally believe that it is inappropriate for J.D.'s to use the term doctor. This is because there are further advanced legal degrees, to wit L.L.M's and S.J.D. degrees. Perhaps, the holder of S.J.D. degree should be able to refer to himself as a doctor since that is the terminal degree in law. As with all legal rules, an attorney considering using the term doctor, should research state law with respect to this issue.
Mitchell H. Rubinstein

September 26, 2007 in Lawyers | Permalink | Comments (21) | TrackBack (0)