Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, November 15, 2015

Will Title VII Be Amended To Ban Discrimination Against Gays and Transgender Employees?

The Washington Post published an interesting article on November 11, 2015 stating that the Obama Administration is supporting an amendment to Title VII which would ban discrimination against homosexuals and transgender employees. Here.

Interesting, the Obama administration is not supporting enactment of a separate statute which has been introduced into Congress known as ENDA. I wonder why? I have not studied the differences, if any, between these two Bills. 

As the article points out, for years, LGBT community has been trying to extend the reach of the Supreme Court's Price Waterhouse decision on sexual sex-sterotyping to outlaw this type of employment discrimination. 

Whether as an amendment to Title VII or a free standing statute, enactment of such legislation is the next logical step after the Supreme Court decision on gay marriage. The only question in my mind is whether Congress will go beyond "same sex" discrimination and ban transgender discrimination as well. It is about time that they do.

Mitchell H. Rubinstein

Hat Tip:

Workplace Prof Blog




November 15, 2015 in Discrimination Law, Law Review Ideas | Permalink | Comments (0)

Tuesday, October 6, 2015

Obama Administration Sues School Over Service Dog

A school in upstate New York has been sued by the Department of Justice for refusing to allow a disabled student to bring his service dog to school without a handler provided by the child's family.  An article about this suit can be found here.  A copy of the complaint is here

Law review commentary on the use of service dogs in school would be welcome.

Mitchell H. Rubinstein

October 6, 2015 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Monday, July 13, 2015

Shape up, or you are going to lose your job" and "are you ok? Not Harassment

I bring  Hernandez v. Weil Cornell Medical Center, ___Misc. 3d___ (Bronx Co. July 6, 2015) to your attention because the court held that comments such as "shape up, or you are going to lose your job" and "are you ok? do not state a cause of action for intentional infliction of emotional distress or disability discrimination under New York State and City law.  The court reasoned:

The defendant has sufficiently demonstrated that the plaintiff did not plead any allegations in her complaint that would support her claims of discriminatory working conditions and hostile work environment. Statements by the defendant's employee such as, "shape up, or you are going to lose your job" and "are you ok?" do not amount to conduct that is extreme or outrageous. See Witchard v. Montefiore Medical Center, 103 AD3d 596 (1st Dept. 2013). The Appellate Division has held that an employer's statements that it would fire a disabled employee were not so pervasive as to establish a hostile work environment in violation of New York State Human Rights law.Witchard v. Montefiore Medical Center, (supra). The Appellate Division went on to affirm the employer's motion for summary judgment dismissing the complaint, in part, because the complaint lacked sufficient allegations to prove that the work environment was hostile.

Likewise, the act of questioning an employee's work cannot be fairly characterized as harassment or extreme behavior. Without more evidence, the statements and behavior of Weill Cornell's employees cannot be seen as extreme. Ferrer v. New York State Div. of Human Rights, 82 AD3d 431 (1st Dept. 2011) (finding that the specific conduct alleged by the petitioner in the complaint, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult [and] isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment").

Mitchell H. Rubinstein

July 13, 2015 in Discrimination Law, New York Law | Permalink | Comments (0)

Sunday, September 14, 2014

Flextime As Reasonable Accommodation

Solomon v. Vilsack
, ___F.3d___(D.C. Cir. Aug. 15, 2014), is an interesting case. The D.C. Circuit followed other circuits holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.

Mitchell H. Rubinstein

September 14, 2014 in Discrimination Law | Permalink | Comments (1)

Monday, April 21, 2014

Boys Scouts Revokes Charter For Refusing To Fire Gay Scout Leader

Sometimes you cannnot make this stuff up. The NY Times reports that the Boy Scouts revoked the charter of an affiliate who refused the fire a Scout leader because he was gay. As the article states:

The Boy Scouts of America, whichvoted last year to allow gay scouts but not openly gay scout leaders, has revoked the charter of a church-sponsored troop here for refusing to fire its adult gay scoutmaster.

The decision, which one gay rights organization said was a first since the policy change last year, essentially bars the Rainier Beach United Methodist Church and its 15 scouts from using logos, uniforms or names associated with the Boy Scouts as long as the scoutmaster and Eagle Scout Geoffrey McGrath, 49, remains in charge.

Mitchell Rubinstein

April 21, 2014 in Discrimination Law, Employment Discrimination | Permalink | Comments (0)

Monday, July 8, 2013

EEOC's Jackson Office and Mexican Consulate Sign Historic Outreach Agreement

The U.S. Equal Employment Opportunity Commission (EEOC) recently signed a Memorandum of Understanding (MOU) with the New Orleans Consulate of Mexico at the EEOC's Jackson Area Office.  The agreement establishes an ongoing collaborative relationship between these two entities to provide Mexican nationals with information, guidance, and access to resources on the prevention of discrimination in the workplace, regardless of documentation status. A May 21, 2013 EEOC Press Release describing this Agreement is available here.

Mitchell H. Rubinstein

July 8, 2013 in Discrimination Law | Permalink | Comments (0)

Tuesday, June 4, 2013

Fifth Circuit: Expressing Mom Protected from Sex Discrimination

In a published opinion, the a Fifth Circuit Court of Appeals panel last week, in a sex discrimination lawsuit brought by the EEOC, reversed summary judgment for an employer that allegedly discharged an employee for expressing milk while at work.  The lower court earlier found, as a matter of law, that discharging a lactating female employee for expressing milk does not constitute sex discrimination.  The Fifth Circuit held that discriminating against a woman who is lactating or expressing breast milk violates federal sex discrimination laws.

The opinion is EEOC v. Houston Funding II., Ltd., No. 12-20220 (5th Cir., May 30, 2013).  The opinion, by Judge Grady Jolly, was unanamous, with Judge Edith Jones concurring.  The Houston Chronicle's story on the case adds this interesting tid-bit.

"You would think there would be reported case law on this," said Jim Sacher, regional attorney for the Equal Employment Opportunity Commission in Houston, which is handling the case and its appeal on behalf of Venters.

But this is the first definitive decision in the country that firing someone because of lactation is an example of sex discrimination, Sacher said.

Craig Estlinbaum

June 4, 2013 in Discrimination Law, Employment Discrimination, Federal Law, Interesting Cases | Permalink | Comments (0)

Tuesday, August 21, 2012

Is Maternity Leave Becoming Shorter and Shorter

Maternity Leave? It is More Like a Pause is an interesting July 20, 2012 article from the New York Times. The article points out that more and more executive women are taking short maternity leaves. Sometimes it is measured in weeks-not months. As the article states:

                Like many women, Mrs. Stern has followed the news that Marissa Mayer, the new chief of                 Yahoo, is pregnant with her first child, due in October. Ms. Mayer, 37, told Fortunethat her                 maternity leave would be “a few weeks long, and I’ll work throughout it.”

                With those nine words, she opened a new front in the debate over work-life balance and that                 nettlesome phrase “having it all.” The debate was already simmering in the wake of                 an article in The Atlantic, “Why Women Still Can’t Have it All,” by Anne-Marie Slaughter, a                 Princeton professor who had been director of policy planning at the State Department but                 found, as she wrote, “that juggling high-level government work with the needs of two                 teenage boys was not possible.”

 I for one do not believe that this is a good thing for society, but I understand.

Mitchell H. Rubinstein



August 21, 2012 in Current Events, Discrimination Law | Permalink | Comments (3)

Tuesday, June 12, 2012

Reverse Education Law Discrimination

Reportedly, a male student is suing under Title IX asserting that he has the right to remain on an all girls hockey team. The case is being challenged administratively and the parents are threatening legal action. A copy of a newspaper article in the Boston Herald written by the AP provides additional information, here.

Mitchell H. Rubinstein

June 12, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Tuesday, June 5, 2012

EEOC rules that Title VII protections extend to transgender employees

The case is Macy v. Holder, Appeal No. 0120120821 (EEOC Apr. 20, 2012). Query whether this is consistent with Title VII. Law review commentary would be welcome.

Mitchell H. Rubinstein

June 5, 2012 in Discrimination Law, Employment Discrimination | Permalink | Comments (1)

Sunday, June 3, 2012

NY Appellate Court Holds That Accusing Someone of Being Gay Is No Longer Defamation Per Se

Yonaty v. Mincolla, ____A.D.3d___(3d Dep't. May 31, 2012), is an exceedingly important case that has not gotten much press. The case was a defamation action and the legal issue was whether or not falsing accusing someone as being gay is defamation per se. This is important because if it is slander per se, then plaintiff has to allege special damages. 

Here the court refused to follow 30 year old precedent from another Department which held that making such a false accusation was indeed slander per se. As the court explained:

In regard to New York in particular, we locate "the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community" (Debra H. v Janice R., 14 NY3d 576, 600 [2010], cert denied ___ US ___, 131 S Ct 908 [2011] [internal quotation marks and citations omitted]; see Dickerson v Thompson, 73 AD3d 52, 54 [2010]). Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L 2011, ch 95, § 3) in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage, including "the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State" (Hernandez v Robles, 7 NY3d 338, 358 [2006]). Even prior to the Marriage Equality Act, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" — including numerous statutory benefits and judicial decisions expressing a policy of acceptance (Dickerson v Thompson, 78 AD3d at 54). Similarly "evidenc[ing] a clear commitment to respect, uphold and protect parties to same-sex relationships[,] executive and local orders extend[] recognition to same-sex couples and grant[] benefits accordingly" (id.see Godfrey v Spano, 13 NY3d 358, 380-381 [2009] [Ciparick, J., concurring] [detailing the many statutes and court decisions reflecting a public policy of acceptance of lesbians, gays and bisexuals]).

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was "constrained . . . at this point in time" to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing "social opprobrium of homosexuality" and "[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service" (id. at 241 [emphasis added]). Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored" (id. at 242). In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease (see Stern v Cosby, 645 F Supp 2d 258, 273-275 [SD NY 2009];Albright v Morton, 321 F Supp 2d 130, 136-139 [D Mass 2004], affd on other grounds 410 F3d 69 [2005]; [*5]Donovan v Fiumara, 114 NC App 524, 528-531, 442 SE2d 572, 575-577 [1994]; Hayes v Smith, 832 P2d 1022, 1023-1025 [Colo 1991]; Boehm v Bankers Ins. Group, Inc., 557 So 2d 91, 94 and n 1 [Fla 1990], review denied 564 So 2d 1085 [Fla 1990]; but see Gallo v Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F Supp 2d 520, 549-550 [2008] [relying, in part, on our decision in Tourge v City of Albany (285 AD2d 785 [2001], supra) in concluding that statements imputing homosexuality remain slanderous per se under New York law]). While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, "the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals" (Stern v Cosby, 645 F Supp 2d, at 275).

Mitchell H. Rubinstein

June 3, 2012 in Discrimination Law, Law Review Ideas, Litigation, New York Law | Permalink | Comments (0)

Tuesday, May 15, 2012

4th Circuit Holds ADHD Is Not A Disability


Halpern v. Wake Forest University Health Sciences, ____F.3d____(4th Cir. Feb. 28, 2012), is an extremely important case. The court upholds the discharge of a medical student from medical school and rejected his ADHD defense under the Rehab and ADA. Why, providing deference to the medical school, the court held that he was not qualified under the statute because "professionalism" was an essential part of the program. 

The court cited to several employment cases which held that an employee misconduct is not protected even if the disability caused the misconduct.

Law review commentary on this important case would be most welcome. Here that students!

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 15, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (2)

Saturday, February 25, 2012

Federal district court grants preliminary injunction ordering Missouri district to halt Internet-filter system blocking websites with positive LGBT messages

Parents, Families, and Friends of Lesbians and Gays, Inc. v. Camdenton R-III Sch. Dist., ___F. Supp.2d___(W.D. Mo. Feb. 15, 2012), is an interesting case First Amendment case. A federal lower court in Missouri granted a preliminary injunction to a group of organizations whose websites provide resources for lesbian, gay, bisexual and transgender (LGBT) youth. Specifically, the court ordered that the school district disable its internet-filter system that blocked the groups’ websites. The court concluded that the current internet filtering system constitutes viewpoint discrimination. 

Mitchell H. Rubinstein

February 25, 2012 in Discrimination Law, Education Law, First Amendment | Permalink | Comments (0)

Tuesday, February 21, 2012

Supremes Grant Cert. In Affirmative Action Case

On Feb. 21, 2012, the Supremes granted cert to Fisher v. University of Austin, 631 F.3d 213 (5th Cir.). The docket sheet is here.  The University uses race as one factor in the admissions process. CNN coverage is hereAbove The Law believes that the Court granted cert becaus this is an election year. The question presented is as follows:

Whether this Court's decisions interpreting the Equal Protection Clause ofthe Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003),permit the University of Texas at Austin's use of race in undergraduate admissions decisions.

Mitchell H. Rubinstein








February 21, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Sunday, February 19, 2012

Questions and Answers on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools

Office of Civil Rights Issues Q and A Guide on ADA Amendents with respect to students with disabilities, here.

Mitchell H. Rubinstein

February 19, 2012 in Discrimination Law, Education Law, Special Education Law | Permalink | Comments (0)

Thursday, November 10, 2011

8th Circuit Holds Title IX Plaintiff Must Prove Actions Motivated By Gender As Opposed To Sexual Orientation


Wolfe v. Fayettesville Sch. Dist., ___F.3d____ (8th  Cir. Aug. 9, 2011), is an interesting case. The Eighth Circuit held that a student, who was subjected to anti-gay taunts by classmates, was not entitled to a jury instruction that Title IX’s requirement that discrimination be “on the basis of sex” was met by such taunts regardless of proof that the taunts were motivated by the student’s sexual orientation or perceived sexual orientation. It concluded that Title IX requires proof of  sex-based motivation for a Title IX deliberate indifference claim. The panel rejected the student’s argument that Title IX does not require that the harassment be based on the victim’s gender.

November 10, 2011 in Discrimination Law, Education Law | Permalink | Comments (0)

Thursday, September 8, 2011

Federal district court in California grants preliminary injunction allowing student with autism to be accompanied by service dog at school

C.C. Cypress Sch. Dist., ___F.Supp. 2d ____ (C.D. Cal. Jun. 13, 2011), is an interesting case. A federal district court issued a preliminary injunction allowing a student with autism to be accompanied by his service dog at school. The court concluded that the student had demonstrated a likelihood of success on the merits of his Americans with Disabilities Act (ADA) claim that the dog is a service dog under the ADA and the school district failed to demonstrate that its educational program would be fundamentally altered if the dog is allowed to accompany him to school. The court also found that the student had satisfied the other three elements required for issuance of injunctive relief.

Law review commentary on this controversial issue would be most welcome.

Mitchell H. Rubinstein


September 8, 2011 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Saturday, April 30, 2011

Title IX Abuse

College Teams, Relying On Deception Undermine Gender Equity is an important April 25, 2011 article from the New York Times. The article describes how many universities are padding their woman's sport teams in order to make it look like they are complying with Title IX. As the article states:

At the University of South Florida, more than half of the 71 women on the cross-country roster failed to run a race in 2009. Asked about it, a few laughed and said they did not know they were on the team.

At Marshall University, the women’s tennis coach recently invited three freshmen onto the team even though he knew they were not good enough to practice against his scholarship athletes, let alone compete. They could come to practice whenever they liked, he told them, and would not have to travel with the team.

At Cornell, only when the 34 fencers on the women’s team take off their protective masks at practice does it become clear that 15 of them are men. Texas A&M and Duke are among the elite women’s basketball teams that also take advantage of a federal loophole that allows them to report male practice players as female participants.

Title IX, passed in 1972 at the height of the women’s rights movement, banned sex discrimination in any federally financed education program. It threw into sharp relief the unequal treatment of male and female athletes on college campuses.

Mitchell H. Rubinstein

April 30, 2011 in Discrimination Law | Permalink | Comments (0)

Wednesday, April 27, 2011

Affirmative Action For Veterans

OFCCP recently proposed an affirmative action rule for veterans. That rule can be found 



Interestingly, the affirmative action here is more like simply outreach, record keeping and non-discrimination. I did not see anything expressly mentioning preference. It is the notion of preference which makes affirmative action so controversarial. 



Mitchell H. Rubinstein                                                                                                                                                                                                                                                                                            Hat Tip: Workplace Prof Blog





April 27, 2011 in Discrimination Law | Permalink | Comments (0)

Wednesday, March 16, 2011

The Common Law of Disability Discrimination


DePaul Law School Professor Mark Weber, just wrote an excellent article entitled The Common Law of Disability Discrimination which will appear in Utah Law Review. Professor Weber argues that common law claims sounding in breach of contract and tort are viable despite statutory remedies under the ADA. He believes that such claims would not be preempted and that causes of action for breaches of promises to accommodate or in violation of public policy (as well as others) are viable and can fill in the gaps where the ADA does not provide adequate coverage such as with respect to damage issues, coverage issues and statute of limitations issues. 

I know from personal experience that common law torts such as assault and battery are often asserted in sexual harassment cases. I see know reason why some disability discrimination claims cannot also assert common law causes of action.

This is a must read article. The abstract provides:

In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination. 

On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases. 

Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.

Mitchell H. Rubinstein 

March 16, 2011 in Discrimination Law, Law Review Articles | Permalink | Comments (1)