Labor and Employment Law News - April 1998

Labor and the Law:
News and Current Events from the IRRA Section on Labor and Employment Law (LEL)

On March 30, the Supreme Court heard oral argument in a case that may provide guidance in interpreting the Americans with Disabilities Act (ADA) as to asymptomatic HIV positive workers. To be protected by the ADA, an employee must be disabled. This means that the individual must show she has or is perceived to have a physical or mental impairment that substantially limits a major life activity.

In Bragdon v. Abbott, No.97-155 (US S. Ct.), plaintiff sued under the public accommodation provision of the ADA when her dentist denied her treatment because her medical form stated that she was HIV+. The key issue is whether an asymptomatic HIV+ individual is substantially impaired in a major life activity. The First Circuit Court of Appeals held that she was disabled because she was impaired in the major life activity of reproduction.

This is not a simple issue, either practically or in terms of legislative interpretation. A person who is HIV+ can still physically engage in sexual relations and can still reproduce but might decide not to. Reproduction is not among the interpretative regulations listed major life activities. (These include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.") On the other hand, the Senate Committee Report on the ADA, however, stated that persons infected with HIV are covered under the ADA definition of disability.

Although Bragdon v. Abbott interprets Title III of the ADA, its interpretation on this issue is likely to be applied to employment cases which fall under Title I of the ADA. A decision should issue before the Supreme Court term ends at the end of June.

Research in Progress

Lorraine Schmall, Northern Illinois University College of Law lschmall@niu.edu

Lorraine Schmall is co-author, with LEL Section officer Maria Hylton, of the newly published Cases and Materials on Employee Benefits Law (West). She is currently deviating into death penalty and women’s issues. In the near future is continued work on employee benefits issues. She is also doing a survey of companies and unions who have negotiated concerning plant relocation.

Lorraine Schmall

Northern Illinois University College of Law

270 Swen Parson Hall

Normal Road

DeKalb, IL 60015

(815) 753-1067

Recent Labor Law Publications

Robert Aalberts & Lorne Seidman, Employee Notice Requirements under the Family and Medical Leave Act: Are They Manageable? 24 Pepp. L. Rev. 1209 (1997)

Michelle Alamo, Note: Public Sector Labor Law (Michigan AFL-CIO v. Michigan Civil Serv. Comm'n, 566 N.W.2d 258 (Mich. 1997)), 75 U. Det. Mercy L. Rev. 441 (1998)

James Allen, Employment and Labor Law, 43 Wayne L. Rev. 851 (1997)

Cheryl Anderson, "Nothing personal:" Individual Liability Under 42 U.S.C. § 1983 for Sexual Harassment as an Equal Protection Claim, 19 Berkeley J. Emp. & Lab. L. 60 (1998)

Gordon Anderson, Interpreting the Employments Contracts Act: Are the Courts Undermining the Act? 28 Cal. W. Int'l L.J. 117 (1997)

Claire Apodaca, Measuring Women's Economic and Social Rights Achievement, 20 Hum. Rts. Q. 139 (1998)

Richard Bales, The Discord Between Collective Bargaining and Individual Employment Rights: Theoretical Origins and a Proposed Solution, 77 B.U. L. Rev. 687 (1997)

Brian Baugh, Note: Workers' Compensation: Temporary Employees and the Exclusiveness-of-remedy Provision, 86 Ky. L.J. 163 (1997-98)

Kevin Baum, Comment: E-mail in the Workplace and the Right of Privacy, 42 Vill. L. Rev. 1011 (1997)

Theresa Beiner & John DiPippa, with Commentary by Charlotte Elizabeth Parsons, Colloquy on Hostile Environments and the Religious Employee, 19 U. Ark. Little Rock L.J. 577 (1997)

Mark Berger, Unjust Dismissal and the Contingent Worker: Restructuring Doctrine for the Restructured Employee, 16 Yale L. & Pol'y Rev. 1 (1997)

Lisa Bingham, Employment Arbitration: The Repeat Player Effect, 1 Employee Rts. & Employment Pol'y J. 189 (1997)

Jeremy Blumenthal, The Reasonable Woman Standard: A Meta-Analytic Review of Gender Differences in Perceptions of Sexual Harassment, 22 Law & Hum. Behav. 33 (1998)

Alfred Blumrosen & Ruth Blumrosen, Preview of an Essay on Legal Challenges to Downsizing. 1 Employee Rts. & Employment Pol'y J. 173 (1997)

Anne Boyd, The Freedom of Association in the Employment Contracts Act 1991: What Has it Meant for Trade Unions and the Process of Collective Bargaining in New Zealand? 28 Cal. W. Int'l L.J. 65 (1997)

Anita Brown-Graham & Michael William, Board of County Commissioners of Bryan County, Oklahoma v. Brown: Virtual Reality in Single-incident Municipal Liability Cases? 29 Urb. Law. 749 (1997)

Judith Brown, et alia, Some Thoughts about Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening the Judicial Dialogue, 46 Emory L.J. 1487 (1997)

Daniel Burg, Workers' Disability Compensation, 43 Wayne L. Rev. 1267 (1997)

Robert Cavallaro, Note: Corporate Buyer Beware: Deficiencies in Directors' and Officers' Insurance for Employment Practices Liability, 26 Hofstra L. Rev. 217 (1997)

Frank Cavico, Fraudulent, Negligent, and Innocent Misrepresentation in the Employment Context: the Deceitful, Careless, and Thoughtless Employer, 20 Campbell L. Rev. 1 (1997)

Lisa Chang, Remedial purpose and Affirmative Action: False Limits and Real Harms, 16 Yale L. & Pol'y Rev. 59 (1997)

David Charny & G. Mitu Gulati, Efficiency Wages, Tournaments, and Discrimination: A Theory of Employment Discrimination Law for "High-level" Jobs. 33 Harv. C.R.-C.L. L. Rev. 57 (1998)

Kaija Clark, Note: School Liability and Compensation for Title IX Sexual Harassment Violations by Teachers and Peers, 66 Geo. Wash. L. Rev. 353 (1998)

Mark Clawson & Thomas Klein, Indexed Stock Options: a Proposal for Compensation Commensurate with Performance, 3 Stan. J.L. Bus. & Finance 31 (1997)

e. christi cunningham, The Rise of Identity Politics I: The Myth of the Protected Class in Title Vii Disparate Treatment Cases, 30 Conn. L. Rev. 441 (1998)

Ellen Dannin, Introduction: Confronting the Employment Contracts Act, 28 Cal. W. Int'l L.J. 1 (1997)

Kenneth Dau-Schmidt, Laboring in the Academic Marketplace: The Case for Tenure. (Reviewing The Case for Tenure, Matthew W. Finkin, ed.) 1 Employee Rts. & Employment Pol'y J. 293 (1997)

Chris Dickerson, Note: The Nonstatutory Exemption from Antitrust Liability Becomes a Management Weapon, 1997 Wis. L. Rev. 1047

John Donohue, Executive Compensation, 3 Stan. J.L. Bus. & Finance 1 (1997).

Brian Easton, The Economic Impact of the Employment Contracts Act, 28 Cal. W. Int'l L.J. 209 (1997)

Richard Epstein, Employment Law: Courts and Contracts, 28 Cal. W. Int'l L.J. 13 (1997)

Cynthia Farina, The Consent of the Governed: Against Simple Rules for a Complex World, 72 Chi.-Kent L. Rev. 987 (1997)

Matthew Finkin, Discharge and Disgrace: A Comment on the "Urge to Treat People as Objects", 1 Employee Rts. & Employment Pol'y J. 1 (1997)

Susan FitzGibbon, Reflections on Gilmer and Cole, 1 Employee Rts. & Employment Pol'y J. 221 (1997)

Maxine Gay & Malcolm MacLean, Six Years Hard Labor: Workers and Unions under the Employment Contracts Act, 28 Cal. W. Int'l L.J. 45 (1997)

Daniel Gifford, Labor Policy in Late Twentieth Century Capitalism: New Paradoxes for the Democratic State, 26 Hofstra L. Rev. 85 (1997)

Clive Gilson & Terry Wagar, The Impact of the New Zealand Employment Contracts Act on Individual Contracting: Measuring Organizational Performance, 28 Cal. W. Int'l L.J. 221 (1997)

Chief Judge T.G. Goddard, Curial Institutions under the Employment Contracts Act: 1991 to 1997, 28 Cal. W. Int'l L.J. 103 (1997)

Mark Hager, Harassment as a Tort: Why Title VII Hostile Environment Liability Should Be Curtailed, 30 Conn. L. Rev. 375 (1998)

Raymond Harbridge, & Aaron Crawford, The Impact of New Zealand's Employment Contracts Act on Industrial Relations, 28 Cal. W. Int'l L.J. 235 (1997)

Julie Heintz, Mediating Instead of "Mediating," 75 U. Det. Mercy L. Rev. 333 (1998)

John Hughes, The Employment Court, "Judicial Activism," and the Coalition Agreement, 28 Cal. W. Int'l L.J. 167 (1997)

Rosemary Hunter &Elaine Shoben, Disparate Impact Discrimination: American Oddity or Internationally Accepted Concept? 19 Berkeley J. Emp. & Lab. L. 108 (1998)

Peter Jurgeleit, Note: Physician Employment under Managed Care: Toward a Retaliatory Discharge Cause of Action for Hmo-affiliated Physicians. 73 Ind. L.J. 255 (1997)

Katrina Kelly, Comment: Marital Status Discrimination in Washington: Relevance of the Identity and Actions of an Employee's Spouse, 73 Wash. L. Rev. 135 (1998)

Jane Kelsey, Employment and Union Issues in New Zealand, 12 years on, 28 Cal. W. Int'l L.J. 253 (1997)

Roger Kerr, The New Zealand Employment Contracts Act: Its Enactment, Performance, and Implications, 28 Cal. W. Int'l L.J. 89 (1997)

Albert Kim, Comment: Arbitrating Statutory Rights in the Union Setting: Breaking the Collective Interest Problem Without Damaging Labor Relations, 65 U. Chi. L. Rev. 225 (1998)

Pauline Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-will World, 83 Cornell L. Rev. 105 (1997)

Anne Knowles, The Employment Contracts Act 1991: An Employer History, 28 Cal. W. Int'l L.J. 75 (1997)

Lundy Langston, Affirmative Action, a Look at South Africa and the United States: A Question of Pigmentation or Leveling the Playing Field? 13 Am. U. Int'l L. Rev. 333 (1997)

David Linowes, & Ray Spencer, How Employers Handle Employee Personal Information: Report of a Recent Survey, 1 Employee Rts. & Employment Pol'y J. 153 (1997)

Erik Luna, Welfare Fraud and the Fourth Amendment, 24 Pepp. L. Rev. 1235 (1997)

Catharine MacKinnon, Oncale v. Sundowner Offshore Services, Inc., 96-568 -- Amici Curiae Brief in Support of Petitioner, 8 UCLA Women's L.J. 9 (1997)

Edwin McPherson, The Talent Agencies Act: Time for a Change, 19 Hastings Comm/Ent L.J. 899 (1997)

Dane Marrazzo, Athletes and Drug Testing: Why Do We Care If Athletes Inhale? 8 Marq. Sports L.J. 75 (1997)

Michele Maryott, Comment: Participate at Your Peril: The Need for Resolution of the Conflict Surrounding Employee Participation Programs by the Team Act of 1997, 24 Pepp. L. Rev. 1291 (1997)

Michael Matheson, Note: Have Michigan Public School Teachers Lost Their Ability to Strike under 1994 PA 112? 75 U. Det. Mercy L. Rev. 415 (1998)

Jon Mills, Sex, Lies, and Genetic Testing: What Are Your Rights to Privacy in Florida? 48 Fla. L. Rev. 813 (1996)

Paul Mollica, Employment Discrimination Cases in the Seventh Circuit, 1 Employee Rts. & Employment Pol'y J. 63 (1997)

Andrew Morriss, Specialized Labor and Employment Law Institutions in New Zealand and the United States, 28 Cal. W. Int'l L.J. 145 (1997)

Scott Moss & Daniel Malin, Note: Public Funding for Disability Accommodations: A Rational Solution to Rational Discrimination and the Disabilities of the ADA, 33 Harv. C.R.-C.L. L. Rev. 197 (1998)

Grace-Marie Mowery, Comment: Creating Equal Opportunity for Female Coaches: Affirmative Action under Title IX, 66 U. Cin. L. Rev. 283 (1997)

Sandra Mullings, Warn: Judicial Treatment of Exemptions, Exclusions, and Excuses, 39 Ariz. L. Rev. 1209 (1997)

New Zealand Labor Law: A Bibliography of New Zealand Labor Law under the Employment Contracts Act, 28 Cal. W. Int'l L.J. 297 (1997)

Julie Northup, Comment: The "Same Actor Inference" in Employment Discrimination: Cheap Justice? 73 Wash. L. Rev. 193-221 (1998)

Gaby Oré-Aguilar, Sexual Harassment and Human Rights in Latin America, 66 Fordham L. Rev. 631 (1997)

Proceedings of the Annual Meeting, Association of American Law Schools, Sections on Employment Discrimination Law and Alternative Dispute Resolution, Carol L. Izumi, Chair; Participants: Herbert Bernhardt, Catherine Hagen, Paul Tobias, Marion Zinman & Theodore St. Antoine, 1 Employee Rts. & Employment Pol'y J. 269 (1997)

Ramona Paetzold, Same-sex Sexual Harassment: Can It Be Sex-related for Purposes of Title VII? 1 Employee Rts. & Employment Pol'y J. 25 (1997)

Erling Rasmussen & John Deeks, Contested outcomes: assessing the impacts of the Employment Contracts Act, 28 Cal. W. Int'l L.J. 275 (1997)

Josh Schopf, Note: Religious Activity and Proselytization in the Workplace: The Murky Line Between Healthy Expression and Unlawful Harassment, 31 Colum. J.L. & Soc. Probs. 39 (1997)

Steven Scott, Note: The Status Quo Doctrine: An Application to Salary Step Increases for Teachers, 83 Cornell L. Rev. 194 (1997)

Kim Sheehan, Comment. Has Employment-at-will Outlived its Usefulness? A Comparison of U.S. and New Zealand Employment Law, 28 Cal. W. Int'l L.J. 323 (1997)

Chester Spell, The Evolution of Rights Disputes and Grievance Procedures: A Comparison of New Zealand and the U.S., 28 Cal. W. Int'l L.J. 199 (1997)

Julie Spohn, Note: The Legal Implications of Graphology, 75 Wash. U. L.Q. 1307 (1997)

Symposium: Executive Compensation, 3 Stan. J.L. Bus. & Finance 1 (1997)

Symposium on New Zealand's Employment Contracts Act 1991, 28 Cal. W. Int'l L.J 1 (1997)

Corey Taylor, Comment: Same-sex Sexual Harassment in the Workplace Under Title VII: The Legal Dilemma and the Tenth Circuit Solution, 46 U. Kan. L. Rev. 305 (1998)

Randall Thomas & Kenneth Martin, Should Labor Be Allowed to Make Shareholder Proposals? 73 Wash. L. Rev. 41 (1998)

Holly Thompson, & Jon Werner, The Family and Medical Leave Act: Assessing the Costs and Benefits of Use, 1 Employee Rts. & Employment Pol'y J. 125 (1997)

Paul Tobias, et alia, NERI's Position on Mandatory Arbitration of Employment Disputes, 1 Employee Rts. & Employment Pol'y J. 263 (1997)

Ronald Turner, Same-sex Sexual Harassment: A Call for Conduct-based and Gender-based Application of Title VII. 5 Va. J. Soc. Pol'y & L. 151 (1997)

J. Hoult Verkerke, Legal Regulation of Employment Reference Practices, 65 U. Chi. L. Rev. 115 (1998)

Richard Wagner & Catherine Wagner, Recent Developments in Executive, Director, and Employee Stock Compensation Plans: New Concerns for Corporate Directors, 3 Stan. J.L. Bus. & Finance 5 (1997)

Nick Wailes, Professor Richard Epstein and the New Zealand Employment Contracts Act: A Critique, 28 Cal. W. Int'l L.J. 27 (1997)

Craig Waldo, et alia, Are Men Sexually Harassed? If So, By Whom? 22 Law & Hum. Behav. 59 (1998)

Kathryn Webber, Comment: The Economic Future of Afghan Women: the Interaction Between Islamic Law and Muslim Culture, 18 U. Pa. J. Int'l Econ. L. 1049 (1997)

Richard Wiener & Linda Hurt, Social Sexual Conduct at Work: How Do Workers Know When it Is Harassment and When it Is Not? 34 Cal. W. L. Rev. 53 (1997)

Randi Wolkenbreit, Note: In Order to Form a More Perfect Union: Applying No-spouse Rules to Employees Who Meet at Work, 31 Colum. J.L. & Soc. Probs. 119 (1997)

David Yamada, Voices from the Cubicle: Protecting and Encouraging Private Employee Speech in the Post-industrial Workplace, 19 Berkeley J. Emp. & Lab. L. 1 (1998)

Future Newsletters

To include your news related to legal issues and developments affecting labor and employment, contact Ellen Dannin (ejd@cwsl.edu) or California Western School of Law, 225 Cedar Street, San Diego, CA 92101 or (619) 525-1449 or fax: (619) 696-9999.

The IRRA LEL Section Newsletter, Labor and the Law, is available via the IRRA discussion group (to subscribe send an email to listserver@relay.doit.wisc.edu, leave the subject line blank.