Labor and Employment Law News - May 2011

 The full text of many cases is now available free on-line. Where that is the case, links are provided

Shortening Deadlines to File Legal Claims by Contract

            After the U.S. Supreme Court decided the Gilmer case, many employers began creating private legal processes to handle workplace disputes. They tend to use arbitration rather than courts and often make other procedural changes. A recent Family and Medical Leave Act (FMLA) case discusses whether a private agreement that reduces the time to file a legal claim to six months and that shifts the employer’s litigation costs, if the plaintiff loses, to the plaintiff employee should be upheld. The FMLA’s statute of limitations is two years or three years if the violation is willful. Madry v. Gibraltar Nat'l Corp. d/b/a Quikrete of Mich., Case No.10-cv-13886 ( E.D. Mich. Apr. 25, 2011).

            In this case, the plaintiff’s 2004 employment application included this language: “I agree that any action or suit against the firm arising out of my employment or termination of employment, including but not limited to claims arising under the State or federal civil rights statutes, must be brought within 180 days of the event giving rise to the claims or be forever barred. I waive any limitations periods to the contrary. I further agree that if I should bring any action or claim arising out of my employment against the firm in which the firm prevails, I will pay to the firm any and all costs incurred by the firm in defense of said claims, including attorney fees.”

            In general, people may agree to shorten a statute of limitations, unless the statute’s policy or regulations forbid it. However, the FMLA’s regulations prohibit employers from interfering with employees’ FMLA rights, and employees may not waive their FMLA rights.

            The employer argued that since statutes of limitations are intended to protect defendants, they can be shortened.  The court found that, that statutes of limitations do protect defendants. However, in this case the regulation prevents employers from interfering with FMLA relief and cutting the statute of limitations interferes with a plaintiff’s ability to bring a claim. The court also found that shortened time and the requirement that the employee pay all the defendant’s costs if the plaintiff loses were “designed to deter employees from exercising their rights and insulate the Defendant from its obligations under the FMLA.” In other words, they had a purpose other than simply protecting defendants.

The New Labor Law Preemption

            The Supremacy Clause, Article VI, Clause 2 of the U.S. Constitution, says that "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

            This year has seen a trend in states’ considering or enacting laws that conflict with federal labor law. The recent state Save Our Secret Ballot amendments in Arizona, South Carolina, South Dakota, and Utah are one example. Limiting employee expression of choice for or against  union representation to secret ballot elections conflicts with NLRA § 9(a), which says, “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment”. other words, the NLRA does not limit employees to secret ballot elections to choose a collective bargaining representative. A state law in any form that limits employees to a secret ballot conflicts with the NLRA and, therefore, would be preempted.

            Another form of conflict may be found in other state laws or bills, including privatization legislation. For example, a recent Ohio privatization bill contained language that appears intended to limit the rights of employees who perform work that has been privatized to engage in collective bargaining and to apply prevailing wage provisions. The wording was ambiguous, so it is difficult to know whether that was its intent. It may be that the drafters were not aware of that privatization has these results and thought state law would still apply.

            If it was intended to impose those limits and was enacted, it would be preempted. Once state work is privatized, the employees' rights to collective bargaining and prevailing wages are controlled by federal law, not state law, and their collective bargaining and representation rights are covered by the National Labor Relations Act. In addition, the NLRA’s successorship doctrine would apply to the new private employer and would mean that the employees' union could have enforceable rights to continue to represent the employees. If the employees were not represented by a union at the time their work was privatized, they would have NLRA rights to choose union representation. Preemption also means that federal law applies, so the cases can be filed in federal court.

            A couple recent cases illustrate how the courts have handled privatization and preemption issues.

            In Local 727, International Brotherhood of Teamsters v. Metropolitan Pier & Exposition Authority, Case No. 10 C 3484 (N.D. Ill. Mar.31, 2011), the court found that a new Illinois law that limited overtime and collectively bargained pay rates was struck down, essentially because it was preempted by the NLRA. Examples of other recent activity may be found in this law firm newsletter under part D. Administrative & Court Decisions

            Another recent case found that a different sort of state law was not preempted by the NLRA – Rhode Island Hospitality Ass'n v. Providence, Case No. 09-cv-527 (D. R.I. Mar.31, 2011). The law required new owners of an ongoing hospitality business to retain employees for at least 90 days after the change in ownership. The court found the law not to be preempted:

[T]he Ordinance in this case provides employees of certain hospitality businesses the protective benefit of temporary employment in the event of a change in employer. It also carries with it the potential for additional and continuing obligations to new employers, e.g. to engage in collective bargaining. As such, it cannot be simply characterized as a “minimum labor standard.” However, the Ordinance does not preclude an employer from making its own hiring decisions after the initial 90-day retention period,nor does it compel a successor employer to honor the terms of a CBA negotiated by its predecessor. Instead, the Ordinance, which applies to all qualifying employees of affected hospitality businesses, regardless of whether they are members of a union, merely provides such employees with 90 days’ continued employment after a change in their employer. Such continuing employment is at the terms set by their new employer and is subject to termination, should their services not be required to keep the business fully operational and to dismissal for cause. As such, the Ordinance is primarily designed to provide temporary job protection to both unionized and nonunionized employees which does not constitute a ignificant intrusion into the equitable collective bargaining process established by the NLRA.

We seem to be in an era of volatile change. As a result, we are likely to see many issues involving federal preemption for the foreseeable future.

Child Labor Law and Education Involving a “Practical Training Component”

            A recent case from the Sixth Circuit Court of Appeals involved a training program through a nonprofit corporation that applied the teaching of the Seventh Day Adventist Church to provide education by including “practical training”. Students in the program spent four hours of each school day in the classroom and four hours learning practical skills. The students received no pay for the work they perform. After closely examining the facts of the case, the court found that the practice did not violate child labor laws because the students were not“employees” as defined by the Fair Labor Standards Act. Solis v. Laurelbrook Sanitarium & School, Inc., Case No.09-6128 (6th Cir. Apr. 28, 2011).

When is a “Volunteer” an Employee?

            The outcome of a workers compensation case recently decided by the Montana Supreme Court turns on whether a person injured by a grizzly bear attack at a private bear park was an employee. The court’s discussion of the facts of the relationship between the injured worker and the owner, as well as the law on employee status is interesting. In addition, at this time, many readers may be thinking about summer vacations. While on your travels, you may want to consider whether the working conditions in this case exist at parks and amusement sites you see during your travels. Hopkins v. Uninsured Employers’ Fund, Case No.2011-49 (Mont. Mar. 22, 2011).

                                                                                    Web Links

Driving Change: Greening the Automotive Workforce,

Driving Change: Greening the Automotive Workforce Conference, May 3-4, 2011 links to presentations

Driving Workforce Change: Regional Impact and Implications of Auto Industry Transformation to a Green Economy

Jacob Meyer & Robert Greenleaf, Enforcement of State Wage and Hour Laws: A Survey of State Regulators April 2011

EBRI, The Impact of the 2007–2009 Recession on Workers’ Health Coverage April 2011

EBRI Notes – Innovations in Employment-Based Health Benefits,” and “Retirement Income Adequacy: Alternative Thresholds and the Importance of Future Eligibility in Defined Contribution Retirement Plans  April 2011

Mine Safety and Health Administration, RIN 1219-AB73 Pattern of Violations Regulation

NIOSH, Current Intelligence Bulletin 64: Coal Mine Dust Exposures and Associated Health Outcomes - A Review of Information Published Since 1995, April 2011

Transport Workers Union of America, AFL-CIO, Aircraft Maintenance in America: Who Is Fixing My Plane? April 6, 2011

US DOL, FAQs About Affordable Care Act Implementation Part II - Grandfathered Health Plans

US DOL, FAQs About Affordable Care Act Implementation Part III - Exemption for Group Health Plans with Less than Two Current Employees

US DOL, FAQs About Affordable Care Act Implementation Part IV - Three Frequently Asked Questions (FAQs) regarding implementation of the market reform provisions of the Affordable Care Act

US DOL, FAQs About Affordable Care Act Implementation Part V and Mental Health Parity Implementation

US DOL, FAQs About Affordable Care Act Implementation Part VI - Grandfathered Health Plans

US DOL, OSHA, Severe Violator Enforcement Program (SVEP)

US DOL, OSHA Enforcement: Committed to Safe and Healthful Workplaces 2010

US DOL, Bureau of Labor Statistics, Beyond Bad Tipping: Workplace Hazards of Food and Beverage Servers 2003-2008

Occupational Safety and Health Administration, Field Operations Manual (2011)

Out of Work? Out of Luck: EEOC Examination of Treatment of Unemployed Job Seekers February 16, 2011
Meeting Transcript

Nick Bunker, David Madland, Karla Walter, Interactive Map: Stronger Unions Create A Stronger Middle Class

David Madland, Karla Walter, and Nick BunkerUnions Make the Middle Class: Without Unions, the Middle Class Withers

AFL-CIO, Trends in CEO Pay 2011

Government Accountability Office, Nursing Home Quality: Implementation of the Quality Indicator Survey  GAO-11-403R, Apr 6, 2011

Government Accountability Office, Veterans' Education Benefits: Enhanced Guidance and Collaboration Could Improve Administration of the Post-9/11 GI   Bill Program  GAO-11-356R, May 5, 2011

Government Accountability Office, Military and Veterans Disability System: Worldwide Deployment of Integrated System Warrants Careful Monitoring   GAO-11-633T, May 4, 2011

Government Accountability Office, Private Pensions: Some Key Features Lead to an Uneven Distribution of Benefits   GAO-11-333, Mar 30, 2011

Government Accountability Office, VA Health Care: Need for More Transparency in New Resource Allocation Process  and for Written Policies on Monitoring Resources   GAO-11-426, Apr 29, 2011

Government Accountability Office, Performance Management: DOD Is Terminating the National Security Personnel System, but Needs a Strategic Plan to Guide Its Design of a New System  GAO-11-524R, Apr 28, 2011

Government Accountability Office,Bureau of the Public Debt: Areas for Improvement in Information Systems Controls  GAO-11-528R, Apr 27, 2011

Government Accountability Office,Multiple U.S. Agencies Provided Billions of Dollars to Train and Equip Foreign Police Forces  GAO-11-402R, Apr 27, 2011

Government Accountability Office,Contingency Contracting: Observations on Actions Needed to Address Systemic Challenges  GAO-11-580, Apr 25, 2011

Government Accountability Office, Border Security: DHS's Visa Security Program Needs to Improve Performance Evaluation and Better Address Visa Risk Worldwide  GAO-11-315, Mar 31, 2011

Government Accountability Office, Criminal Alien Statistics: Information on Incarcerations, Arrests, and Costs  GAO-11-187, Mar 24, 2011

Government Accountability Office, Deepwater Horizon Oil Spill: Update on Federal Financial Risks and Claims Processing GAO-11-397R, Apr 18, 2011

Government Accountability Office, Management Report: Improvements Are Needed in Internal Control Over Financial Reporting for the Troubled Asset Relief Program GAO-11-434R, Apr 18, 2011

Government Accountability Office, Southwest Border: Border Patrol Operations on Federal Lands GAO-11-573T, Apr 15, 2011

Government Accountability Office, Davis-Bacon Act: Methodological Expertise Critical for Improving Survey Quality GAO-11-486T, Apr 14, 2011

Government Accountability Office, Employment and Training Administration: More Actions Needed to Improve Transparency and Accountability of Its Research Program GAO-11-285, Mar 15, 2011

Government Accountability Office, Employment Verification: Agencies Have Improved E-Verify, but Significant Challenges Remain GAO-11-522T, Apr 14, 2011

Government Accountability Office, Opportunities to Reduce Potential Duplication in Federal Teacher Quality Programs GAO-11-510T, Apr 13, 2011

Government Accountability Office, Transportation Worker Identification Credential: Mailing Credentials to Applicants' Residences Would Not Be Consistent with DHS Policy GAO-11-542R, Apr 13, 2011

Government Accountability Office, Information Technology: Continued Improvements in Investment Oversight and Management Can Yield Billions in Savings  GAO-11-511T, Apr 12, 2011

Government Accountability Office, Intercity Passenger Rail: Recording Clearer Reasons for Awards Decisions Would Improve Otherwise Good Grantmaking Practices GAO-11-283, Mar 10, 2011

Government Accountability Office, Surface Transportation: Competitive Grant Programs Could Benefit from Increased Performance Focus and Better Documentation of Key Decisions GAO-11-234, Mar 30, 2011

Government Accountability Office, Bureau of Prisons: Evaluating the Impact of Protective Equipment Could Help Enhance Officer Safety  GAO-11-410, Apr 8, 2011

Government Accountability Office, Employment and Training Programs: Opportunities Exist for Improving Efficiency GAO-11-506T, Apr 7, 2011

Government Accountability Office, Indian Issues: Observations on Some Unique Factors that May Affect Economic Activity on Tribal Lands GAO-11-543T, Apr 7, 2011

Government Accountability Office, Recovery Act: Energy Efficiency and Conservation Block Grant Recipients Face Challenges Meeting Legislative and Program Goals and Requirements GAO-11-379, Apr 7, 2011

Government Accountability Office, 2010 Census: Preliminary Lessons Learned Highlight the Need for Fundamental Reforms GAO-11-496T, Apr 6, 2011

Government Accountability Office, Davis-Bacon Act: Methodological Changes Needed to Improve Wage Survey GAO-11-152, Mar 22, 2011

Government Accountability Office, Opportunities to Reduce Fragmentation, Overlap, and Potential Duplication in Federal Teacher Quality and Employment and Training Programs GAO-11-509T, Apr 6, 2011

Government Accountability Office, State and Local Governments' Fiscal Outlook: April 2011 Update GAO-11-495SP, Apr 6, 2011

Government Accountability Office, Medicaid and CHIP: Reports for Monitoring Children's Health Care Services Need Improvement GAO-11-293R, Apr 5, 2011

Government Accountability Office, Factors for Evaluating the Cost Share of Manufacturing Extension Partnership Program to Assist Small and Medium-Sized Manufacturers GAO-11-437R, Apr 4, 2011

Government Accountability Office, Overview of GAO’s Long-Term Federal Budget Model

Government Accountability Office, Long-Term Federal Budget Simulations January 2011 Update

Department of Health & Human Services, Centers for Medicare & Medicaid Services,

Updated Sensitivity Testing of the Employer Assumption in the Office of the Actuary’s Health Reform Model, Based on the President’s 2012 Budget, March 11, 2011

National Telework Week and Telework Information

Ariane Hegewisch, Cynthia Deitch, Evelyn Murphy, Institute for Women's Policy Research, Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope (March 2011)

Ariane Hegewisch, Claudia Williams and Amber Henderson, The Gender Wage Gap by Occupation (April 2011)

Claudia Williams, et alia, Access to Paid Sick Days in the States, 2010 (March 2011)

Ken Jacobs, Dave Graham-Squire & Stephanie Luce, Living Wage Policies and Big-box Retail: How a Higher Wage Standard Would Impact Walmart Workers and Shoppers April 2011

Organization for International Investment, Building Competitiveness: American Jobs, American Infrastructure, American Global Competitiveness

Christopher J. Goodman & Steven M. Mance, Employment Loss and the 2007–09 Recession: An Overview, Monthly Labor Review April 2011 Http://

Catherine A. Wood, Employment in Health Care: a Crutch for the Ailing Economy During the 2007–09 Recession, Monthly Labor Review April 2011

Brian Davidson, Mining Employment Trends of 2007–09: A Question of Prices, Monthly Labor Review April 2011

Adam Hadi, Construction Employment Peaks Before the Recession and Falls Sharply Throughout It, Monthly Labor Review April 2011

Megan M. Barker, Manufacturing Employment Hard Hit During the 2007–09 Recession, Monthly Labor Review April 2011

Frank Conlon, Professional and Business Services: Employment Trends in the 2007–09 Recession, Monthly Labor Review April 2011

George Prassas, Employment in Financial Activities: Double Billed by Housing and Financial Crises, Monthly Labor Review April 2011

Michael D. McCall, Deep Drop in Retail Trade Employment During the 2007–09 Recession, Monthly Labor Review April 2011

Eliot Davila, Employment in Leisure and Hospitality Departs from Historical Trends During 2007–09 Recession, Monthly Labor Review April 2011

Steven Kroll, The Decline in Work Hours During the 2007–09 Recession, Monthly Labor Review April 2011

Recent Labor and Employment Law Articles

Bonnie Allen, et alia, Community Recovery Lawyering: Hard-Learned Lessons from Post-Katrina Mississippi, 4 Depaul J. for Soc. Just. 97 (2010)

Rose-Marie Antoine, Rethinking Labor Law in the New Commonwealth Caribbean Economy: A Framework for Change, 32 Comp. Lab. L. & Pol'y J. 343 (2011)

Diamond Ashiagbor, Embedding Trade Liberalization in Social Policy: Lessons from the European Union? 32 Comp. Lab. L. & Pol'y J. 373 (2011)

Susan Bisom-Rapp, Puzzling Evidence from a Troubled Time: Rethinking State Promotion of Safe Work During the Bush Administration, 14 Employee Rts. & Emp. Pol'y J. 295 (2010)

Derek Black, Cultural Norms and Race Discrimination Standards: A Case Study in How the Two Diverge, 43 Conn. L. Rev. 503 (2010)

Adelle Blackett, Beyond Standard Setting: A Study of ILO Technical Cooperation on Regional Labor Law Reform in West and Central Africa, 32 Comp. Lab. L. & Pol'y J. 443 (2011)

Adelle Blackett, Introduction: Labor Law and Development: Perspectives on Labor Regulation in Africa and the African Diaspora, 32 Comp. Lab. L. & Pol'y J. 303 (2011)

Alvin Blyer, Some Current Thinking at the Board from Brooklyn and Beyond, 28 Hofstra Lab. & Emp. L.J. 175 (2010)

Connie Choi, et alia, Shining a Spotlight on the Invisible: How an Amicus Brief Helped Organize the Asian American Community to Support Undocumented Asian Students, 15 UCLA Asian Pac. Am. L.J. 43 (2009-2010)

Michael Costello, Comment. Crawford's Expansive Definition of "Oppose" Breathes New Life into Pure Third-party Retaliation Claims under Title VII, 34 Seattle U. L. Rev. 553 (2011)

Cynthia Estlund, Just the Facts: The Case for Workplace Transparency. 63 Stan. L. Rev. 351 (2011)

Suzanne Goldberg, Discrimination by Comparison, 120 Yale L.J. 728 (2011)

Jarod Gonzalez, A Pot of Gold at the End of the Rainbow: An Economic Incentives-based Approach to OSHA Whistleblowing. 14 Employee Rts. & Emp. Pol'y J. 325 (2010)

Matthew Green, Express Yourself: Striking a Balance Between Silence and Active, Purposive Opposition under Title VII's Anti-retaliation Provision, 28 Hofstra Lab. & Emp. L.J. 107 (2010)

Jamison Grella, Comment: From Corporate Express to Fedex Home Delivery: A New Hurdle for Employees Seeking the Protections of the National Labor Relations Act in the D.C. Circuit, 18 Am. U. J. Gender Soc. Pol'y & L. 877 (2010)

Melissa Hart, Business-like: The Supreme Court's 2009-2010 Labor and Employment Decisions. 14 Employee Rts. & Emp. Pol'y J. 207 (2010)

Margaret Hobday, Protecting Economic Stability: The Washington Supreme Court Breathes New Life in the Public-Policy Exception to At-will Employment for Domestic Violence Victims, 17 Wm. & Mary J. Women & L. 87 (2010)

Grayson Holmes, Note. The New Employment Verification Act: The Functionality and Constitutionality of Biometrics in the Hiring Process, 43 Conn. L. Rev. 673 (2010)

John Howard, OSHA Standards-Setting: Past Glory, Present Reality and Future Hope, 14 Employee Rts. & Emp. Pol'y J. 237 (2010)

Katie Johnson, Note. A Practical Solution to the Courts' Broad Interpretation of the Lilly Ledbetter Fair Pay Act, 71 Ohio St. L.J. 1245 (2010)

Wilma Liebman, Labor Law During Hard Times: Challenges on the 75th Anniversary of the National Labor Relations Act, 28 Hofstra Lab. & Emp. L.J. 1 (2010)

Michael Lightner, Winds of Change Are Blowing from the Obama NLRB, 28 Hofstra Lab. & Emp. L.J. 163 (2010)

Celeste Mattina, The NLRB's Deferral Policy under Fire: The D.C. Circuit's Criticism and the Future of the Deferral Policy, 28 Hofstra Lab. & Emp. L.j. 155 (2010)

Martha Minow, Confronting the Seduction of Choice: Law, Education, and American Pluralism. 120 Yale L.J. 814 (2011)

Vivek Mittal, Comment. Using Iqbal in Iqbal: Exploiting Arabs, Muslims, and South Asians after September 11, 15 UCLA Asian Pac. Am. L.J. 114 (2009-2010)

John Mulligan, Note: Huppert, Reilly, and the Increasing Futility of Relying on the First Amendment to Protect Employee Speech, 19 Wm. & Mary Bill Rts. J. 449 (2010)

Daniel O'Gorman, Solomon and Strikes: Labor Activity, the Contract Doctrine of Impossibility or Impracticability of Performance, and Federal Labor Policy, 28 Hofstra Lab. & Emp. L.J. 47 (2010)

Nicole Orozco, Note. Pumping at Work: Protection from Lactation Discrimination in the Workplace, 71 Ohio St. L.J. 1281 (2010)

Todd Palo, Minimum Wage, Justifiably Unenforced? 35 Seton Hall Legis. J. 36 (2010)

Panel: Reviving Employee Rights? Recent and Upcoming Employment Discrimination Legislation: Proceedings of the 2010 Annual Meeting of the Association of American Law Schools Section on Employment Discrimination Law, 14 Employee Rts. & Emp. Pol'y J. 355 (2010)

Matthew Parlow, Revolutions in Local Democracy? Neighborhood Councils and Broadening Inclusion in the Local Political Process, 16 Mich. J. Race & L. 81 (2010)

Thomas Perez, Advancing Justice Conference: Asian Americans & Pacific Islanders Building New Foundations for Civil Rights, 15 UCLA Asian Pac. Am. L.J. 36 (2009-2010)

Darcy Pottle, Note. Federal Employer Sanctions as Immigration Federalism, 16 Mich. J. Race & L. 99 (2010)

Citadelle Priagula, Comment: Examining Race-Conscious Remediation Through the Pilipino/a American Experience, 15 UCLA Asian Pac. Am. L.J. 135 (2009-2010)

Jayesh Rathod, Beyond the "Chilling Effect": Immigrant Worker Behavior and the Regulation of Occupational Safety & Health, 14 Employee Rts. & Emp. Pol'y J. 267 (2010)

Jaime Rigel & Alexi Poulianos, Note. Take Your Paws off Me: an Argument in Favor of Revising the Occupational Safety and Health Act and the Protecting America's Workers Act, 28 Hofstra Lab. & Emp. L.J. 183 (2010)

Hina Shah, Broadening Low-wage Workers' Access to Justice: Guaranteeing Unpaid Wages in Targeted Industries, 28 Hofstra Lab. & Emp. L.J. 9 (2010)

Angela Schnell, Note: But I Love Him! Why the Sixth Circuit Erred in Thompson v. North American Stainless, Lp by Denying a Third Party Retaliation Claim under Title Vii, 18 Am. U. J. Gender Soc. Pol'y & L. 909 (2010)

Gary Spring, A New Methodology for Testing Permissible Political Communications in the Workplace, 2008 Mich. St. L. Rev. 1023

Symposium: Labor Law and Development: Perspectives on Labor Regulation in Africa and the African Diaspora, 32 Comp. Lab. L. & Pol'y J. 303 (2011)

Symposium: The Future of OSHA Reform, 14 Employee Rts. & Emp. Pol'y J. 231 (2010)

Chantal Thomas, Convergences and Divergences in International Legal Norms on Migrant Labor, 32 Comp. Lab. L. & Pol'y J. 405 (2011)

Dzodzi Tsikata, Toward a Decent Work Regime for Informal Employment in Ghana: Some Preliminary Considerations, 32 Comp. Lab. L. & Pol'y J. 311 (2011)

Lynne Woundy, Comment: No Protection for Fiances under Thompson v. North American Stainless, LP: How the Sixth Circuit Wrongly Denied Third Party Retaliation Claims under Title VII, 45 New Eng. L. Rev. 283 (2010)








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