Using Federal Nondiscrimination Laws to Avoid ERISA: Securing Protection From Transgender Discrimination in Employee Health Benefit Plans

Recent attempts to repeal the Affordable Care Act and the potential rollback of the interpretation of the protections the Act affords transgender people put transgender people at risk of being denied services and coverage for gender-affirming care. This Article provides advocates with alternative legal arguments to help employees bring claims when their employer provides a health benefit plan that discriminates on the basis of gender identity. These arguments can avoid the Employee Retirement Income Security Act’s broad preemption scheme and lack of nondiscrimination provisions. This Article proposes that, based on a narrow exception to preemption regarding the Employee Retirement Income Security Act’s construction with other federal laws and the case law interpreting that exception, federal nondiscrimination laws — including Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act — may and must play a role in regulating discrimination on the basis of gender identity in employee health benefit plans

Where Breaking Glass Ceilings Leads to Glass Walls: Gender-Disparate Managerial Decision-Making Power and Authority

Today, litigation over plainly discriminatory employment practices is much less common than it was in the two decades following Title VII’s enactment as employers have largely reformed practices that most obviously violate employment discrimination law. But many less obvious employment practices, particularly those embedded in implicit bias or unconscious sex stereotyping, remain. One example is employers’ distribution of managerial decision-making power and authority based on assumptions about sex. Although this particular employment practice has not yet been litigated, there is a strong argument that a legal challenge to this practice could succeed. This Note argues that female managers can and should seek legal redress under Title VII when they are given less decisional authority under conditions that can only be explained by some implicit bias or sex stereotyping. Both disparate treatment theory and disparate impact theory provide viable paths for a litigant to pursue. Upon weighing the incentives and drawbacks under each theory, this Note concludes that disparate treatment theory offers the most promising and beneficial remedial pathway for potential litigants

The Efficacy of New York\u27s Qualified Prohibition on NDAs and Reforms that Can Protect Sexual Harassment Survivors

The numerous sexual harassment scandals that were uncovered following the Harvey Weinstein exposé have at least one very positive byproduct: new state legislation aimed to protect and combat sexual misconduct in the workplace. New York is leading the charge by creating a legislative framework that protects a broader spectrum of workers against sexual harassment in the workplace. The State’s 2019 fiscal year budget substantiates the commitment to empower survivors and protect those who may be future targets of sexual harassment in their workplaces. As part of this framework, the State’s human rights laws now extend to and protect independent contractors, who ordinarily would have limited federal protections against sexual harassment because they are ineligible for Title VII protection. In another forging step, New York now prohibits employers from including or agreeing to include a nondisclosure agreement (NDA) in a settlement agreement regarding a sexual harassment claim, unless the employee seeks the confidentiality. This prohibition is a step in the right direction as new data shows the increasing prevalence of NDAs in the workplace, often silencing instrumental employee speech

Income Disparity, Gender Equality, and Free Expression

In the past half century, our world has experienced a radical change comparable to the Industrial Revolution of the nineteenth century. At least five elements are key: growing disparity of human opportunity, advance of formal human rights and equality, information transformation, economic globalization, and climate change. My focus is on economic disparity and gender equality in the United States. These two issues, huge in and of themselves, interact with the other cataclysmic changes of our time

Comment: Queer Womyn of Color and Employment Discrimination Law in Wisconsin - Does Wisconsin Law Do Enough to Lift Anxiety?

America\u27s current leadership appears to actively seek out ways to isolate and oppress those who do not identify as cis-gender white heterosexual males. The purpose of this comment is to help readers understand the issues queer womyn of color face interacting with society on a daily basis. This comment will outline the harmful expectations of assimilation and how failure to assimilate may make these womyn targets in their work environments. This comment will also compare the handling of employment discrimination under Title VII and Wisconsin law and determine whether Wisconsin law in practice actually affords queer womyn of color more protection than Title VII. The comment concludes suggesting two ways to improve Wisconsin law and hopefully afford queer womyn of color the same protections America\u27s current leadership actively bestows on its chosen group

Workplace Transparency Beyond Disclosure: What\u27s Blocking the View?

Recent developments have exacerbated informational asymmetry between employers and workers. Employers increasingly use “black box” automateddecision systems, such as machine learning processes where algorithms are used in recruitment and hiring. They have technological tools that enable intense monitoring of workers. Contemporary work relationships have changed, with trends toward remote and scattered worksites. Employees are more frequently bound by nondisclosure agreements, non-disparagement provisions, and mandatory arbitration agreements. These developments have made it more difficult for workers to communicate with each other and to act collectively