Workplace Law Publications
New in Print from the Workplace Law Program faculty at Denver Law
Dean Martin Katz critiques the Supreme Court’s rejection, in Gross v. FBL Financial Services, of the idea that different employment discrimination statutes using identical language impose identical requirements. That identical requirements standard, Dean Katz argues, guided the Court’s statutory interpretation for many years and made sense, for legal efficiency and as a guide to Congress’ intent. The rejection in Gross might indicate the Court’s reaction to congressional redefinition of discrimination, and it unwisely does away with the burden-shifting mechanism in ADEA cases where the plaintiff seeks to prove but-for causation. The correct course is for Congress to clearly state its intent that a unified standard should be applied. Gross Disunity, 114 PENN. ST. L. REV. 857
Rachel Arnow-Richman, Director of the Workplace Law Program, argues that current organization of market work, embodied in the 4/40 work week, does not serve the interests of caregivers and results from employers’ failure to recognize and implement accommodations benefiting caregivers that might also be cost-effective, benefiting employers as well. A statutory “right to request” would protect workers seeking accommodation from retaliation by requiring employers to consider such requests in good faith. Such a law, she writes, may inspire beneficial changes to work structure not achieved absent legal intervention. Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Family Balance, 42 Conn. L. Rev. 1081
A forty-year consensus among employee advocates and worklaw scholars proposes an end to employment at will in favor of a rule requiring just cause for termination. Professor Arnow-Richman argues this change in the law would be outdated and unwise in current times, and would grant too many workers too little protection. In today’s economy, termination law should seek to provide assistance to the great numbers of workers facing inevitable job loss for economic reasons. A “pay-or-play” system of employment termination, requiring employers to provide advance notice of termination or offer wages and benefits for the duration of the notice period, facilitates job transition by granting workers a window of income security during which they can comfortably search for the next opportunity. Just Notice: Re-Reforming Employment at Will, 58 UCLA L. Rev.
Nantiya Ruan identifies and finds troubling a trend in collective litigation brought by low-wage workers: As wage theft claims involving numerous plaintiffs precipitously rise, employers attem
to avoid liability by using “Rule 68” offers. They “pick off” named plaintiffs and avoid compensating all workers to whom they have failed to pay correct wages. Though federal case law denies applying Rule 68 in class actions, courts routinely permit the offers in collective action. Professor Ruan argues that in workplace cases this subverts judicial oversight of aggregate litigation and makes legal remedies unavailable for underrepresented groups. Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers. 63 Vand. L. Rev. 727 (2010).
In many Title VII religious discrimination cases, Roberto Corrada writes, there is good reason to integrate disparate treatment and accommodation cases. Where cases straddle the two frameworks, it is unwise and unnecessary to force each case into one or the other. To merge the two frameworks in a meaningful way would result in fewer negative consequences for plaintiffs in individual cases and would enhance uniformity and coherence of Title VII religion case doctrine. Professor Corrada’s analysis of the legislative history and EEOC regulations of the 1964 statute and the 1972 accommodation amendments supports this view. Toward an Integrated Disparate Treatment and Accommodation Framework for Title VII Religion Cases. 77 U. Cin. Law R. 1411 (2009)
Lawyering Process Professor and Director, Workplace Law Program
Writing Adviser, DU Bar Success Program
- The Second-Class Class Action: How Courts Thwart Wage Rights by Misapplying Class Action Rules, co-authored with Scott Moss, 61 American University Law Review 523 (2012).
- Experiential Learning in the First-Year Curriculum: The Public Interest Partnership, 8 Legal Comm. & Rhetoric: JALWD 191 (2011).
- Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers, 63 Vand. L. Rev. 727 (2010).
- The Justices Find Religion: Why the Supreme Court Ought to Expand Religious Accommodation Rights, 92 Marquette Law Review (2008).
- When Good Deeds are Punished: The Legal Landscape of Retaliation and Whistleblowing, co-authored with Larry Moy, 745 PLI/Lit. 581 (2006).
- Bringing Sense to Incentives: Harmonizing Courts' Chaotic Caselaw on Class Action Incentive Payments, 10 Employee Rights and Employment Policy Journal 101 ( 2006).
- Advanced Litigation Issues Under the Fair Labor Standards Act, co-authored with Adam Klein, American Bar Association Conference for Section on Labor & Employment (Summer 2003).
- Marshalling the Evidence in Employment Discrimination Cases: A Perspective from the Plaintiff's Bar, Practising Law Institute PLI Order No. H0-00AL June 2001 Litigating Employment Discrimination Cases 2001 Wayne N. Outten Parisis G. Filippatos Scott Moss.
- Overview of Workplace Claims in New York: Perspective of Employees', Practising Law Institute PLI Order No. H0-00AP October 2001 30th Annual Institute on Employment Law COUNSEL Wayne N. Outten Anne Golden Parisis G. Filippatos Jack A. Raisner Scott Moss.
- Practice Pointers on Opposeing the Affirmative Defense that the Employer Took Reasonable Steps to Prevent Sexual Harassment: Perspective of a Plaintiff's Attorney, Practising Law Institute PLI Order No. H0-00BA June 2001 Avoiding & Litigating Sexual Harassment Claims 2001 Wayne N. Outten Scott Moss.
- Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination, Florida Law Review, forthcoming.
- From Just Cause to Just Notice in Reforming Employment Termination Law, chapter in Research Handbook on the Economics of Labor and Employment Law, Cynthia Estlund and Michael Wacter, eds., Edward Elgar Publishing (2012).
- Employment Law: Private Ordering and Its Limitations, New York, NY: Wolters Kluwer Law & Business. (2011).
- Author Meets Reader, Scholar Meets Worker: An Introduction to the Section on Labor Relations and Employment Law 2011 AALS Panel Presentation, 15 Emp. Rts. Emp. Pol. J. 443 (2011).
- Just Notice: Re-Reforming Employment at Will, 58 UCLA L. Rev. 2010.
- Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Family Balance, 42 Conn. L. Rev. 1081 (2010).
- Employment as Transaction, 39 Seton Hall L. Rev. 447 (2009).
- Response: Putting the Restatement in its Place, 13 Emp. Rts. Emp. Pol. J. 143 (2009).
- Public Law And Private Process: Toward an Incentivized Organizational Justice Model of Equal Employment Quality for Caregivers, 2007 UTAH L. REV. 25.
- Cubewrap Contracts: The Rise of Delayed Term, Standard Form Employment Agreements, 49 Ariz. L.Rev. 637 (2007).
- Employment Law: Private Ordering and Its Limitations, co-authored with with Timothy Glynn & Charles Sullivan, (Aspen 2006). Rev. 637 (2007).
- Cubewrap Contracts and Worker Mobility: The Dilution of Employee Bargaining Power Via Standard Form Noncompetes, 2006 MICH. STATE L. REV. 963 (symposium issue).
- Accommodation Subverted: The Future of Work/Family Initiatives in a ‘Me, Inc.’ World, 12 TEXAS J. WOM. & L. 345 (2003) (symposium issue).
- Foreword: The Role of Contract in the Modern Employment Relationship, 10 TEXAS WES. L. REV. 1 (2003).
- Non-Competes, Human Capital, and Contract Formation: What Employment Law Can Learn from Family Law, 10 TEXAS WES. L. REV. 155 (2003) (symposium issue).
- Bargaining for Loyalty in the Information Age: A Reconsideration of the Role of Substantive Fairness in Enforcing Employee Non-Competes, 80 OR. L. REV. 1163 (2001).
- A Cause Worth Quitting For? The Conflict Between Professional Ethics And Individual Rights In Discriminatory Treatment Of Corporate Counsel, 75 Ind. L.J. 963 (2000).
- Ask, Don’t Tell: Ethical Issues Surrounding Undocumented Workers’ Status in Employment Litigation, 61 Stan L. Rev. 355 (2008).
- Principles of Non-Arbitrariness: Lawlessness in the Administration of Welfare, 57 Rutgers L. Rev. 451 (2005).
- Poverty and Social Welfare in America: An Encyclopedia, Editors, Gwendolyn Mink and Alice O'Connor, forthcoming 2004 (contributed a chapter to the book on Legal Aid/Legal Services).
- The New Contract: Private Law Implications of Welfare Reform, 61 Md. L. Rev. 246 (2002).
- Welfare Entitlements in the Era of Devolution, 9 Geo. J. On Poverty L & Pol'y 89 (2002).
- Kathleen A. Sullivan: A True Teacher's Teacher, 8 Clinical L. Rev. 13 (2001).
- The United States Policy on HIV Infected Aliens: Is Exclusion an Effective Solution?, 7 Conn. J. Int'l L. 367 (1992).
Sturm College of Law Chair in Modern Learning and Professor
- 2012 Update for Employment Discrimination Law: Cases and Materials on Equality in the Workplace, co-authored with Dianne Avery, Maria Ontiveros, Michael Selmi and Melissa Hart, American Casebook Series, Thomson West (August 2012).
- 2012 Update for Labor Law in the Contemporary Workplace, co-authored with enneth Dau-Schmidt, Martin Malin, Christopher Cameron-Ruiz and Catherine Fisk, Thomson West (August 2012).
- Ricci’s Dicta: Signaling A New Standard for Affirmative Action Under Title VII?, forthcoming WAKE FOREST L. REV. 2011.
- Synecdochic Perils and Opportunities for Latina/os in the Academy, 14 Harvard Latino Law Review 257 (2011).
- Administrative Law: A Casebook, co-authored with Bernard Schwartz & Jay Brown, (7th ed. 2010, Aspen Law & Business).
- Employment Discrimination Law: Cases And Materials On Equality In The Workplace, co-authored with Dianne Avery, Maria Ontiveros, Michael Selmi & Melissa Hart, (8th edition, Thomson-Reuters, 2010).
- Teachers Manual for Labor Law in the Contemporary Workplace, co-authored with Kenneth G. Dau-Schmidt, Martin H. Malin, Christopher David Ruiz Cameron, and Catherine L. Fisk, Thomson-West Publishing 2009.
- Working Group on Chapter 4 of the Proposed Restatement of Employment Law: The Tort of Wrongful Discipline in Violation of Public Policy, co-authored with Joseph R. Grodin, Paul M. Secunda, Richard A. Bales, Catherine L. Fisk, and Pauline T. Kim, 13 EMP. RTS. & EMPLY. POL’Y J. 159 (2009).
- 2009 Casebook Supplement for EMPLOYMENT DISCRIMINATION LAW: CASES AND MATERIALS ON EQUALITY IN THE WORKPLACE, co-authored with Dianne Avery, Maria Ontiveros, and Michael Selmi, August, 2009.
- United States Labor and Employment Law, co-authored with Alvin Goldman, VOLUME 5 (590 pp.) in INTERNATIONAL ENCYCLOPEDIA OF LABOUR AND EMPLOYMENT LAW (Roger Blanpain, ed.)(Kluwer International: 2009).
- Toward an Integrated Disparate Treatment and Accommodation Framework for Title VII Religion Cases, 77 University of Cincinnati Law Review 1411 (2009).
- 2008 Casebook Supplement for EMPLOYMENT DISCRIMINATION LAW: CASES AND MATERIALS ON EQUALITY IN THE WORKPLACE, co-authored with Dianne Avery, Maria Ontiveros, and Michael Selmi, (July, 2008).
- 2006 Casebook Supplement for EMPLOYMENT DISCRIMINATION LAW: CASES AND MATERIALS ON EQUALITY IN THE WORKPLACE, co-authored with Dianne Avery, Maria Ontiveros, and Michael Selmi, (July, 2006).
- ADMINISTRATIVE LAW: A CASEBOOK (and Teacher’s Manual), co-authored with Bernard Schwartz & Jay Brown, 6th ed. 2006, Aspen Law & Business.
- Introduction: Toward an Ethic of Teaching: Class, Race, and a Pedagogy of Community Engagement, Villanova Law Review, 50 VILLANOVA LAW REVIEW 837 (2005).
- Toward an Ethic of Teaching: Class, Race and the Promise of Community Engagement, 50 Vill. L. Rev. 837 Villanova Law Review 2005.
- Employment Discrimination Law: Cases And Materials on Equality in the Workplace, (Robert Belton, Dianne Avery, Maria Ontiveros & Roberto Corrada (7th edition, West Publishing: 2004).
- Update, Fall 2004, Administrative Law: A Casebook, (Bernard Schwartz & Roberto Corrada, 5th ed.). (2004).
- Osmotic Borders: Thinking Locally, Thinking Globally About the Causes and Effects of Labor Migration, 13 BERKELEY LA RAZA LAW JOURNAL 311 (2003).
- The Supreme Court and Title VII's Religion Provision, Liberty Magazine (Seventh Day Adventists' Magazine) January/February 2003.
- Comment on The Ethics of Comparison: A Statistician Wrestles with the Orthodoxy of a Control Group, by John P. Holcomb, Jr., in Ethics of Inquiry: Issues in the Scholarship Of Teaching And Learning, (Carnegie Foundation for the Advancement of Teaching: 2002).
- Using Technology to Support Active Learning in a Labor Law Classroom, in WAYFARER: CHARTING ADVANCES IN SOCIAL SCIENCES AND HUMANITIES COMPUTING, (CD-Rom, University of Illinois Press: 2002).
- Proceedings of the 2000 Annual Meeting of the Association of American Law Schools Section on Law and Religion: Religion in the Workplace, 4 Employee Rights and Employment Policy Journal 89 (2000).
- Familiar Connections: A Personal Re/View of Latino/a Identity, Gender, and Class Issues in the Context of the Labor Dispute Between Sprint and La Conexion Familiar, 53 U. Miami L. Rev. 1065 University of Miami Law Review July, 1999.
- The Arbitral Imperative iIn Labor and Employment Law, 47 Cath. U. L. Rev. 919 Catholic University Law Review Spring 1998 Taft-Hartley Symposium: The First Fifty Years.
- A Simulation of Union Organizing in a Labor Law Class, 46 J. Legal Educ. 445 Journal of Legal Education September, 1996 Development.
- Claiming Private Law for the Left: Exploring Gilmer's Impact and Legacy, 73 Denv. U. L. Rev. 1051 Denver University Law Review 1996 Labor/Employment Law.
- Religious Accommodation and the National Labor Relations Act, 17 Berkeley J. Emp. & Lab. L. 185 Berkeley Journal of Employment and Labor Law 1996.
- Justifying A Search for s Unifying Theory of Unconstitutional Conditions, 72 Denv. U. L. Rev. 1011 Denver University Law Review 1995 Symposium.
- Of Heterosexism, National Security, and Federal Preemption: Addressing the Legal Obstacles to a Free Debate About Military Recruitment at Our Nation's Law Schools, 29 Hous. L. Rev. 301 Houston Law Review Summer, 1992.
- Director, Office of Workers' Compensation Programs v. Perini North River Associates: Judicial Dilution of the Longshoremen's and Harbor Workers' Compensation Act's `Status' Requirement, 33 Catholic University Law Review 245 (1983), reprinted in 1984 National Insurance Law Review 163 (Spring 1984).
José R. (Beto) Juárez, Jr.
Martin J. Katz
- Facilitating Better Law Teaching – Now, EMORY L.J. (forthcoming).
- Analyzing Carnegie's Reach: The Contingent Nature of Innovation, co-authored with Stephen Daniels and William M. Sullivan, The Journal of Legal Education, forthcoming.
- Hoisted by their Own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable, http://worklaw.jotwell.com/ (January 21, 2011).
- Gross Disunity, 114 PENN. ST. L. REV. 857 (2010).
- Boumediene, Guantanamo and Jurisdiction Stripping: The Imperial President Meets the Imperial Court, 25 Constitutional Commentary 377(2009) (peer reviewed).
- Unifying Disparate Treatment (Really), 59 Hastings Law Journal 643 (2008).
- No Intent, No Foul? Unconscious Bias in Employment Decisions, 30 Legal Times, No. 21, p.35 (May 21, 2007).
- Reclaiming McDonnell Douglas, 83 Notre Dame Law Review 109 (2007).
- The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 Georgetown Law Journal 489 (2006).
- Reconsidering Attraction in Sexual Harassment, 79 Indiana Law Journal 101 (2004).
- Just When You Thought it was Safe . . . Nannygate II: The Sequel, 23 Colo. Lawyer 581 (March 1994).
- The Economics of Discrimination: The Three Fallacies of Croson, 100 Yale Law Journal 1033 (1991).
- Insurance and the Limits of Rational Discrimination, 8 Yale Law & Policy Review 436 (1990).
- The 'Plus One' Clinic: Adding (Political) Value to the Clinical Experience by Representing Landlords Alongside Tenants, 18 Clinical L. Rev. 245 (2012).
- A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison? , W18 Wm. & Mary Bill Rts. J. 395 (2009).
- Stacking the Deck: Privileging “Employer Free Choice” over Industrial Democracy in the Card Check Debate, 87 Neb. L. Rev. 329 (2008).
Ronald V. Yegge Clinical Director and Associate Professor
Law School Clinical Program
- Preferring Order to Justice, co-authored with Jeanne Theoharis, 61 American University Law Review 1331 (2012).
- The Unforeseen Ethical Ramifications of Classroom Faculty Participation in Law School Clinics, 75 U. CIN. L. REV. 1113 (2007).
- Disability, Equality & Identity, 55 Alabama L. Rev. 1043 (2004) (reprinted in part in EMPLOYMENT DISCRIMINATION LAW: CASES, PROBLEMS AND CRITICAL PERSPECTIVES (Prentice Hall 2005)).
- Perpetuating Stigma: Client Identity in Disability Rights Litigation, 247 Utah Law Review (2001).
Catherine E. Smith
Assoc Dean of Institutional Diversity and Inclusiveness, Associate Professor
- Equal Protection for Children of Same-Sex Parents, Washington University Law Review, forthcoming 2012.
- Foreword to Social Class, Race and Legal Education, co-authored with Joyce Sterling, 88 Denv. U. L. Rev. (2012).
- Seven Principles: Increasing Access to Law School Among Students of Color, 96 Iowa Law Review 1677 (2011).
- The Rights of the Child, 88 Denv. U. L. Rev. Online (2011).
- Equal Protection for Children of Gay and Lesbian Parents: Challenging the Three Pillars of Exclusion - Legitimacy, Dual-Gender Parenting, and Biology, 28 Law and Inequality 307 (2010).
- A Cautionary Tale: Obama’s Coalition, Anti-Subordination Principles and Proposition 8, 86 DENV. UNIV. L. REV. 819 (2008-2009).
- Unconscious Bias and “Outsider” Interest Convergence, 40 CONN. L. REV. 1077 (2008).
- John Calmore’s America, co-authored with Robert Chang, 86 N.C. L. REV. 739 (2008).
- Queer as Black Folk?, 2007 Wis. L. Rev.
- Peace and Protest: Can city officials force protesters to identify themselves by name?, INTELLIGENCE REPORT, No. 121, Spring 2006.
- The Group Dangers of Race-Based Conspiracies, 59 Rutgers Law Review 55 (2006).
- Citizens' Unrest: In Arizona, a county prosecutor opens the door for vigilante justice, INTELLIGENCE REPORT, No. 120, Winter 2005.
- (Un)masking Race-Based Intra-Corporate Conspiracies Under the Ku Klux Klan Act, 11 Va. J. Soc. Pol'y & L. 129 (2004).
- Intentional Infliction of Emotional Distress: An Old Arrow Targets the New Head of the Hate Hydra, 80 Denv. U. L. Rev. 1 (2002).