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, August 10, 2015

Is it too cold at work? Maybe its because it is a man's world

Chilly at Work, is an interesting August 3, 2015 article from the New York Times. Ever notice how woman always seem cold at work? Well, as the article points out, this may be because air conditioning systems were designed for men. 

Professor Charles Sullivan (Seton Hall Law School) and an editor over at Workplace Prof Blog, an expert in employment discrimination, raises the question whether such a claim could be actionable under Title VII under a disparate impact type theory. He appears very skeptical. 

It seems to me that maybe, just maybe if employees are disciplined or not given certain office assignments because of the temp in the office, maybe there might be something to think about. 

Seems like a perfect law review article.

Mitchell H. Rubinstein

August 10, 2015 in Law Professors, Law Review Ideas, Legal Humor, Misc., Legal, Misc., Non-Legal | Permalink | Comments (0)

Tuesday, May 12, 2015

Chemerinsky on the Uniform Bar Exam

In an LA Times editorial yesterday, Erwin Chemerinsky, Dean of Cal-Irvine Law, urges California to adopt the standardized Uniform Bar Exam.  New York has recently done the same.

Craig Estlinbaum

May 12, 2015 in Bar Association Matters, Law Review Ideas, Law Students, Lawyer Employment, Lawyers | Permalink | Comments (0)

Tuesday, July 1, 2014

Employee in Process of Getting Divorce Protected From Marital Status Discrimination

In a major ruling, the NJ Appellate Division held that an employee who was going through a divorce stated a cause of action for marital status discrimination. Smith v. Millville, (June 27, 2014). As the court explained:

        "Marital status" necessarily embraces stages preliminary to
        marriage — one's engagement to be married. The term also covers
        stages preliminary to marital dissolution — separation and
        involvement in divorce proceedings. The apparent purpose of the
        ban on marital-status-based discrimination is to shield persons
        from an employer's interference in one of the most personal
        decisions an individual makes — whether to marry, and to remain

This is an important issue. Law review commentary on this most important topic would be most welcome.

Mitchell H. Rubinstein

July 1, 2014 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, June 30, 2014

Supremes Decide Harris v. Quinn

The Supreme Court just issued its 5-4 decision in Harris v. Quinn. The Court upholds Abood,  a First Amendment decision which upheld agency fee statutory requirements. However, the court refuses to extend that precedent to the quasi-employees in Harris. Law review commentary would be most welcome.

Mitchell H. Rubinstein

June 30, 2014 in Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Monday, June 16, 2014

California Court Strikes Several Teacher Tenure Statutes

In case you have not seen it, a lower court in California struck down, on constitutional grounds, several provisions involving teacher tenure. Vergara v. California (Calif Superior Court, June 10, 2014). Frankly, I have never seen such a poorly written decision. The decision appears to be drafted by a law student. It is written in conclusionary form and does not contain very much analysis which supports its conclusion. 

Though this appears to be a political, rather than legal decision, it has caused much public debate.

Law review commentary would be most welcome.

Mitchell H. Rubinstein

June 16, 2014 in Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Thursday, February 6, 2014

Breaking News. Important District Court Decision Concerning Graduate Students

A United States District Court recently held ruled that legislation seeking to
prohibit Graduate Student Research Assistants from forming labor
organizations was invalid because it was adopted in violation of the
Michigan Constitution . The decision will open the door for GSRA in the
State of Michigan to decide if they wish to be represented by a union.

A copy of the decision can be downloaded by clicking  Download Decision

It will be interesting to see what effect this decision may have on the pending NLRB decision concerning the statutus of graduate students under the NLRA.

Mitchell  Rubinstein

February 6, 2014 in Law Review Ideas, NLRB, Public Sector Labor Law | Permalink | Comments (0)

Tuesday, February 4, 2014

California Admits Undocumented Alien To The Bar

An interesting NYLJ article about California admitting an undocumented alien to the bar can be found here.  Law review commentary on this important topic would be most welcome.

Mitch Rubinstein

February 4, 2014 in Law Review Ideas, Lawyer Employment | Permalink | Comments (0)

Monday, November 4, 2013

7th Issues A Major Decision Concerning Union Release Time


In Titan Tire Corp. v. United Steel Workers (Nov. 1, 2013), the Seventh Circuit held that an arbitration award requiring the company to honor a contract provision requiring the payment of the full-time union salaries of covered employees who took leave to hold local union office was void as against public policy because it required payments that violate LMRA § 302.  Expressly disagreeing with the Third Circuit's decision in Caterpillar, Inv. v. UAW, 107 F.3d 1052 (3d Cir. 1997), the Seventh Circuit concluded that the level of compensation paid to the local officers under the terms of the collectively bargained union leave provision was so incommensurate with the officers' former employment at Titan as to not come within the 302(c)(1) for payments made "by reason of" former employment.  Chief Judge Wood, joined by two other circuit judges, dissented from denial of rehearing en banc.

A copy of the decision is available to be downloaded by clicking  Download Titan Tire v. United Steel Workers

This decision is 49 pages long and full of cites. Law review commentary on this important topic would be most welcome.


Mitchell H. Rubinstein

November 4, 2013 in Law Review Ideas, Unions | Permalink | Comments (0)

Sunday, September 29, 2013

Discrimination and Criminal Background Checks

EEOC v Freeman, ____F.Supp.2d ____(D. Maryland August 9, 2013) is an important case. In a well written decision, the court rejects the EEOC claim that an employer violated Title VII by refusing to hire a minority applicant after a criminal background check was performed. 

This case contains an excellent review of disparate impact and was very critical of the statistical experts retained by the EEOC.

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

Mitchell H. Rubinstein

September 29, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, September 2, 2013

Victimless Sexual Harassment

Professor Charles Sullivan (Seton Hall) wrote an interesting blog posting on victimless sexual harassment where the harasser degrades woman in general, but not a particular individual. He cites to a NJ Supreme Court decision which found this conduct actionable. 

Law review commentary would be most welcome.

Mitchell H. Rubinstein

September 2, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, July 30, 2013

Employee Fired For Adding Him To Benefits Claim Lacks Discrimination Claim

An unmarried, heterosexual female employee of who was fired because she listed her boyfriend as her "spouse" and "same-sex partner" on her benefit enrollment forms lacks marital status and sexual orientation discrimination claims under state law. Hanson v. Mental Health Res. Inc.,____F.Supp. 2d___( D. Minn., No. 12-00540, 6/3/13).

Mitchell H. Rubinstein

July 30, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, July 9, 2013

Court Finds That Retiree's Right To Health Insurance Vested At Time of Retirement

Retirees' rights to lifetime health benefits vested on their retirement and thus were subject to benefits cap that union negotiated when retirees were still active employees. Curtis v. Alcoa Inc., ____F.3d____(6th Cir. 2013). 

This is an important issue which courts are all of the map on.

Law review commentary would be most welcome. 

Mitchell H. Rubinstein

July 9, 2013 in Arbitration Law, Labor Law, Law Review Ideas | Permalink | Comments (0)

Sunday, July 7, 2013

Supremes Decline to Review ADA Case on Reassignment as Reasonable Accommodation

On May 28, 2013, the U.S. Supreme Court declined to review whether an employer violates the Americans with Disabilities Act by allowing disabled employees unable to perform their current jobs to apply for reassignment to vacant jobs, but then choosing the best qualified candidate even if that means the disabled individual does not get the job (United Air Lines Inc. v. EEOC, U.S., No. 12-707, cert. denied 5/28/13).

The Seventh Circuit held that the ADA, as interpreted in US Airways Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002), requires an employer to reassign a disabled employee to a vacant job for which he meets the minimum qualifications, absent a showing of undue hardship (693 F.3d 760(7th Cir. 2012)

The Supreme Court previously had granted review on the same issue, raised in Huber v. Wal-Mart Stores Inc., 486 F.3d 480 (8th Cir. 2007), but that case settled. 

July 7, 2013 in ADA, Law Review Ideas | Permalink | Comments (0)

Wednesday, June 12, 2013

SDNY Circuit Issues Major Decision On Unpaid Interns

Glatt v. Fox Searchlight Pictures, ____F.Supp.2d____(S.D.N.Y. June 11, 2013), is a major FLSA decision concerning the status of unpaid interns. At issue were interns who worked on the movie 'Blank Swan." In a lengthly and well reasoned decision, the court holds that the interns were employees. Of note is that the court approved of the Department of Labor's multiple factor test to examine whether interns are employees. There is also an extensive discussion of joint employment and the statute of limitations. A claim was also sucessfully brought under New York Law.

There are relatively few reported decisions concerning the status of unpaid interns. While this was an FLSA case, it will be interesting to see if the same analysis is applied under other employment statutes such as Title VII or even the NLRA, which apply different tests for employee status. 

Law review commentary is always welcome on this developing issue.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

June 12, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Thursday, May 16, 2013

Breaking News. 3rd Circuit Follows DC Circuit By Invalidating NLRB Craig Becker Appointment

In a 102 page opinion released a majority of the 3d Cir. (Smith and Van Antwerpen) agreed with the D.C. Cir. that recess appointments can only be made during a recess between congressional sessions.  Judge Greenaway wrote a 55 page dissent.  The majority held that Craig Becker's appointment on March 27, 2010, was invalid.  The case is NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936.

Law Review commentary on this important topic, which will likely go to the Supremes, would be most welcome.

Mitchell H. Rubinstein

May 16, 2013 in Law Review Ideas, NLRB | Permalink | Comments (0)

Tuesday, May 14, 2013

Union Release Time In The Public Sector

    A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.
    I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.
    Law review commentary on this important topic would be most welcome.
    Mitchell H. Rubinstein

May 14, 2013 in Law Review Ideas, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Tuesday, May 7, 2013

Justices Will Not Review Ruling Shielding Retirees' Health Care Benefits


Denying a packaging firm's petition for review, the U.S. Supreme Court recently denied cert to a case which held that retirees of a Michigan plant are vested with lifetime, employer-paid health care insurance for themselves and their spouses ( Menasha Corp. v. Moore, U.S., No. 12-942, cert. denied 3/25/13 ).
Menasha Corp., sought review of a U.S. Court of Appeals for the Sixth Circuit decision that outside evidence clarifying collective bargaining agreements signed in 1994 and 1997 indicated Menasha and the union intended to provide retirees and their spouses with vested, lifetime health care benefits (660 F.3d 444, 193 LRRM 3249 (6th Cir. 2012).
This is a huge issue under ERISA and under collective bargaining agreements and I expect the Supremes will visit it one day. Law review commentary on this important topic would be welcome.
Mitchell H. Rubinstein

May 7, 2013 in Employee Benefits Law, Employment Law, Law Review Ideas | Permalink | Comments (0)

Thursday, April 25, 2013

To Mirandize Or Not To Mirandize

Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days.  I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here: 

Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments.  As an aside, I predict a healthy increase in law review submissions by  professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.

Craig Estlinbaum

April 25, 2013 in Articles, Constitutional Law, Criminal Law, Current Affairs, Law Review Ideas | Permalink | Comments (0)