Abstracts

Volume 31, Number 3, Spring 2016

The Editor's Page
By Katlyn J. Lynch
The student editor-in-chief recalls one of the highlights of the 2015–16 academic year: the October 2015 question-and-answer session with Justice Antonin Scalia, who described his friendly relationship with Justice Ruth Bader Ginsburg, his religious values, and diversity on the Court. He defended originalism, as expected, with conviction and persuasiveness. Why should a group of nine justices appointed for life terms get to decide normative questions of law, pondered Justice Scalia—his answer: such questions should be left to Congress, and Supreme Court justices should strictly enforce the letter of the law and the Constitution.

The NLRB and Supervisor Status: A Board Member's Perspective on the Self-Driving Workplace
By Philip A. Miscimarra
NLRB Member Miscimarra observes that the Board's treatment of supervisor status has become "out of touch with the practical realities" of many work settings. He calls for and defends three common sense factors he believes the Board should use when applying the NLRA supervisor provision: (1) the nature of the employer's operations, (2) the work performed by undisputed statutory employees, and (3) whether it is plausible to conclude that all supervisory authority is vested in persons other than those whose supervisory status is in dispute.

What's the Relationship Between Labor Arbitrators' Backgrounds and Outcomes of Discipline and Discharge Awards? An Empirical Analysis
By Laura J. Cooper, Stephen F. Befort, and Mario F. Bognanno
Professors Cooper and Befort, the Journal’s Faculty Co-Editors, and Professor Emeritus Bognanno analyzed 2,055 labor arbitration awards issued over twenty-four years—the largest, and likely most representative, collection of awards ever studied—and coded data on more than 100 variables from each award. They report their findings on arbitrator characteristics and the relationship between case outcomes and arbitrators’ gender, occupation, education, caseload size, and arbitration experience.

Workplace Rumors About Women's Sexual Promiscuity as Gender-Based Insults Under Title VII
By Wendy N. Hess
The author notes that the sexual double standard, which punishes women, but not men, for being promiscuous, negatively affects women who are deemed a "slut" by their co-workers. She argues that rumors about a female employee's promiscuity meet the "because of" sex requirement in a Title VII sexual harassment lawsuit because they uniquely disadvantage women by undermining their workplace credibility and achievements.

Ethical Implications of Document Use in Whistleblower and Retaliation Litigation
By Jennifer Cobb & Myra L. McKenzie-Harris
The authors discuss the whistleblower's dilemma of abiding by strict common law fiduciary duties to the employer and engaging in "self-help" discovery to document a company's unlawful conduct. They also analyze potential employer liability for retaliating against a whistleblower for disclosing company wrongdoing to law enforcement and government agencies and offer helpful guidance to attorneys representing companies and whistleblowers.

Mach Mining v. EEOC: Will the Supreme Court's Decision Reduce or Increase Court Oversight of EEOC Administrative Practices?
By Gary R. Siniscalco, Erin M. Connell, & Michael W. Disotell
The authors explain why there is more to Mach Mining than meets the eye. Mach Mining addressed judicial review of the Equal Employment Opportunity Commission's (EEOC) Title VII conciliation duty only. The authors argue that fundamental differences between the investigation and conciliation prerequisites do not warrant extending Mach Mining's deferential judicial review standard beyond the conciliation context and advise management attorneys to scrutinize EEOC pre-litigation conduct for statutory compliance.

Born in the Bandwidth: "Digital Native" As Pretext for Age Discrimination in Hiring
By Jessica K. Sink & Richard Bales
Many high-profile employers, particularly in technology and media industries, use the term "digital native" in job postings to attract technologically adept applicants. The authors assert that using the term in job advertising constitutes unlawful disparate treatment because it connotes a preference for a younger generation and signals older "digital immigrants" not to apply.

Unipolar Panel Effects and Ideological Commitment: An Analysis of U.S. Courts of Appeals Free Speech Decisions Involving K–12 Public Education Employees
By Lewis M. Wasserman & John P. Connolly
Ideological voting on federal appellate courts is well documented. However, ideological manifestation depends on the law and context of the case, including the judicial panel's political configuration, or "panel effects." The authors present their research on panel effects in K–12 public education free speech cases and demonstrate "unipolar" panel effects: panel composition in these cases significantly affected voting by Republican-appointed judges, but had no similar effect on Democratic-appointed judges.

Screening for Integrity: What's Missing from Integrity Staffing Solutions, Inc. v. Busk?
By Stephanie Richards
The author, who was winner of the Section's Annual Law Student Writing Competition, argues that in Integrity Staffing, the Supreme Court misinterpreted the Portal-to-Portal Act (PPA), contrary to both the Fair Labor Standard Act's (FLSA) purpose of broadly construing FLSA rights and case law defining FLSA exemptions narrowly.