The Statutory and Constitutional Limits of Using Protected Speech as Evidence of Unlawful Motive Under the National Labor Relations Act

A difficulty inherent in cases under the National Labor Relations Act (NLRA), as in other areas of employment law, is in determining why the employer acted. Perhaps an even harder question, and one too frequently overlooked, is what form of evidence the National Labor Relations Board (NLRB or Board) and any reviewing court properly may consider in determining motive. More specifically, can the Board take into account an employer\u27s vigorous opposition to the union in deciding whether or not a particular action was motivated by antiunion animus? Although common sense suggests yes, several courts of appeals have said no, relying on section 8(c) of the NLRA and on the First Amendment. This Article explores the extent to which protected employer speech under the NLRA may be used to establish unlawful motivation. It does so in the context of a particular category of unfair labor practice cases—those involving the allegedly discriminatory discipline or discharge of union adherents. This category of cases is not only the most common and critical one under the Act, but it also presents questions of employer motive that are not unique to the NLRA

Title VII and the #MeToo Movement

The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. Additionally, as this Essay describes, those who are retaliated against for making claims of sexual harassment often fare poorly after stepping forward; many complaints concern conduct that has not yet reached the requisite level of severity or pervasiveness, and thus are found unprotected. This Essay identifies where the #MeToo movement, to the extent it reflects societal understanding of what the law should be, may impact judges\u27 and juries\u27 application of governing legal standards. The law often evolves in response to changing social norms, and the #MeToo movement, in ways this Essay describes, has the opportunity to effect this evolution in the law\u27s approach to on-the-job sexual harassment

The Proper Role of After-Aquired Evidence in Employment Discrimination Litigation

A new defense to employment discrimination claims has gained acceptance in the lower courts. Employers who allegedly have discriminated against their employees because of race, sex or age are winning judgments on the basis of after-acquired evidence of employee misconduct. The evidence is “after-acquired” in the sense that the misconduct was unknown to the employer at the time the alleged discrimination occurred but was acquired later, often through the use of discovery devices in the employee\u27s discrimination action. Lower courts have accepted the proposition that if the employer would have discharged the plaintiff on the basis of the after-acquired evidence, then the defendant is not liable for employment discrimination, and the plaintiff, accordingly, is entitled to no relief. This Article criticizes the approach to the after-acquired evidence defense that is emerging in the lower courts. The Article rejects the premise that a plaintiff must be “fire proof” in order to prevail in an employment discrimination action. It argues that after-acquired evidence of a plaintiff\u27s misconduct should have no impact on an employer\u27s liability for discrimination. In liability determinations, the focus should be on what the employer actually did and not on what the employer might have done had it not discriminated. Discriminatory conduct causes harm and deserves legal condemnation even when the conduct would have been justifiable on other grounds

Ohio\u27s Public Employee Bargaining Law: Can It Withstand Constitutional Challenge?

Public employees in Ohio are now statutorily entitled to bargain collectively with their government employers. This controversial right was obtained on July 6, 1983, when Ohio Governor Richard Celeste fulfilled a major campaign promise by signing into law Senate Bill 133. This bill, which took effect April 1, 1984, has been labeled one of the most pro-labor public employee bargaining statutes in the nation. As with any legislation that provides sweeping social and economic changes, challenges to the bill\u27s legitimacy can be expected. Experience in other states teaches that constitutional attacks on the statute will be mounted swiftly, attacks that undoubtedly will allege the bill contains an unconstitutional delegation of legislative authority, does not comply with the requisites of procedural due process, and is a violation of the home rule provisions of the state constitution. This Article analyzes the ways these issues have been handled by out-of-state courts and suggests their proper resolution by the courts of Ohio. It begins by tracing the development of public employee bargaining and by detailing the checkered history such bargaining efforts have had in Ohio. It next provides an overview of Senate Bill 133, focusing on those provisions likely to come under constitutional attack. It then examines out-of-state authority for guidelines on how Ohio can and should deal with these constitutional questions. On an issue-by-issue basis, a framework for resolving these questions is supplied

Time for a New Approach: Why the Judiciary Should Disregard the Law of the Circuit When Confronting Nonaquiescence by the National Labor Relations Board

The National Labor Relations Board has been criticized for its nonacquiescence policy, under which the Board interprets the national Labor Relations Act, issues an order, and then defends this order before a circuit court that previously had rejected the Board\u27s interpretation of the Act. In this Article, Professor Rebecca White begins by stating that the NLRB\u27s nonacquiescence policy is both lawful and proper. From this basic premise, White then argues that courts of appeals should abandon the law of the circuit doctrine when confronting Board nonacquiescence. She contends the policy concerns that justify application of the law of the circuit -- which include providing guidance and certainty to district courts, lawyers, and parties -- are not applicable when a court of appeals confronts a Board order that conflicts with a prior circuit decision. White concludes that a retreat from a rigid application of circuit law in this area would decrease forum shopping and increase uniformity of federal labor law