Disparate Treatment Research Articles

Capital Controls as Migrant Controls

The disparate treatment of capital and labor reflects one of globalization’s central asymmetries: the law often allows financial capital, but not people, to move freely across borders. Yet scholars have largely neglected the intersection of these two regimes, the legal restrictions on migrants’ capital, particularly when the migrants themselves are deemed illegal. These restrictions on migrants’ capital abound even while migratory capital generally faces few such restrictions. As such, capital controls may operate as migrant controls. This Article canvasses established and emerging examples of capital controls as migrant controls and the pressing legal questions these controls raise. Capital is guarded when remittances are taxed, particularly when the taxation is explicitly conditioned on immigration status. Capital is expelled when capital receipts, such as Social Security benefits, are made contingent on departure and non-residency. And capital is marginalized when financial laws require particular identity and immigration documents on penalty of exclusion from key financial services. As I describe, such taxation, receipt contingencies, and identity requirements often distinguish on the basis of immigration status and implicate core questions in constitutional and immigration law. These questions include the scope of traditional state powers such as taxation; how such controls create unconstitutional choices and conditions; and how statutory and administrative ambiguities in banking law may marginalize migrants. More generally, these controls contribute to our understanding of who—Congress, federal agencies, municipalities and states, or social movements outside the law—controls, and who may legally control, American migration.

Treating anxiety and depression in inflammatory bowel disease: a systematic review

Objective Inflammatory Bowel Disease (IBD) is associated with higher rates of clinically significant anxiety and depression than in healthy populations. Psychosocial interventions targeting anxiety and depression in IBD have variable efficacy and disparate treatment approaches, making treatment recommendations difficult. The current study aimed to identify effective treatment components across psychosocial treatment approaches for anxiety and depression in IBD. Design A systematic review of psychosocial treatments for anxiety and depression in IBD was conducted. Based on the Distillation and Matching Model, treatments were coded and data aggregated by intervention components, or practice elements (PE), to elucidate replicable clinical techniques. Main Outcome The percentage of studies utilizing a given PE was the primary outcome. Measures Among all included studies, as well as among those finding favorable, significant effects on anxiety or depression, the percentage utilizing each PE and number of PEs utilized was determined. Results The most utilized PEs among included interventions were relaxation, IBD psychoeducation, cognitive restructuring, distraction, and social skills. Examining only interventions with favorable differences on specified outcomes (HRQoL, Anxiety, Depression, and/or Coping) indicated that relaxation, education, cognitive restructuring, and mindfulness were most utilized. Conclusion Implications for clinical practice are discussed, including the development and dissemination of treatment recommendations.

Male or female genital cutting: why ‘health benefits’ are morally irrelevant

The WHO, American Academy of Pediatrics and other Western medical bodies currently maintain that all medically unnecessary female genital cutting of minors is categorically a human rights violation, while either...

Uptake of Breast Cancer Clinical Trials at Minority Serving Cancer Centers.

Most minorities receive cancer care at minority-serving hospitals (MSHs) that have been associated with disparate treatment between Black and White patients. Our aim was to examine the uptake of clinical trials that have changed axillary management in breast cancer patients at MSH and non-MSH cancer centers. The National Cancer Database was used to identify patients eligible for the American College of Surgeons Oncology Group Z0011 and Z1071 trials, and mastectomy patients fulfilling the European AMAROS trial. Uptake of trial results (omission of axillary lymph node dissection) was analyzed between patients treated at MSHs and non-MSHs and adjusted for patient, tumor, and facility factors. MSHs were defined as the top decile of hospitals according to the proportion of Black and Hispanic patients treated. Of 7167 patients eligible for Z0011, 4546 for Z0171, and 9433 for AMAROS from 2015 to 2016, clinical trial uptake was seen in 1195 (74.6%) MSH and 4056 (72.9%) non-MSH patients (p = 0.173) for Z0011, 588 (41.9%) MSH and 1366 (43.5%) non-MSH patients for Z1071 (p = 0.302), and 272 (11.7%) MSH and 996 (14.0%) non-MSH patients (p = 0.005) for AMAROS. On adjusted analyses, MSH status was not significant for uptake of any of the three trials. Black race, socioeconomic status, and insurance were not associated with clinical trial uptake. The uptake of three landmark clinical trials of axillary management in breast cancer was not different at MSH and non-MSH centers despite adjustment for social determinants of health. At the Commission on Cancer-accredited centers in this analysis, MSH status did not affect the uptake of evidence-based care.

The Americans with Disabilities Act and the Constitution of the United States (Dissertation)

This dissertation seeks to answer whether the Constitution of the United States prohibits government entities from committing various types of discrimination against people with disabilities: (1) disparate treatment (2) failure to make reasonable accommodations, alterations, and modifications and (3) failure to properly integrate persons with disabilities, which includes an unjustified institutionalization component. To answer this question, this dissertation will use various well accepted modalities of constitutional analysis first solidified by the constitutional pluralist, Professor Phillip Bobbitt, and continuously used throughout American jurisprudence. As such, the methodology of this dissertation can be said to be socio-legal and legal-historical. Using the various modalities of constitutional pluralism, this dissertation shows that the Ninth Amendment provides protection for various unwritten rights; and that these rights can be protected under the following rubric: (1) A plaintiff identifies a putative right with varying degrees of specificity depending on how widely protected or respected the putative right is in the nation; (2) The plaintiff must then show that the right is generally accepted by the nation—either in its customs or statutes; and (3) That right must reflect some other principles found in the Constitution or jurisprudence associated with those clauses. It will be shown that the concepts of discrimination discussed above meet each of these elements. To fully discuss this thesis, this dissertation will be divided into three books. Book I discusses the history of disability rights. This is done to place disability rights in its proper constitutional and legal-historical context. It will discuss, inter alia, eugenics, institutionalization, and certain views about the concept of “disability” more generally. Book II will discuss the law, the Constitution, and legal interpretation. It will begin with a discussion on analytical jurisprudence and offer a definition of “law” for purposes of this dissertation. It will then conduct an overview of constitutional law; and will examine why courts should interpret the Ninth Amendment the way I suggest above. Book III will discuss disability rights laws in general, with a heavy focus on the federal Americans with Disabilities Act, which has been replicated throughout the nation. Book III will also apply my Ninth Amendment analysis to the three theories of discrimination discussed above—disparate treatment, reasonable accommodation, and integration. Book III will then offer a discussion as to why these three theories should be constitutionalized through the Ninth Amendment. The first main reason why conditionalization would be beneficial is that while the ADA binds the states and local entities, only a small fraction of the federal government is bound by it. The other two most important reasons why courts should constitutionalize these three theories of disability discrimination relate to congressional power. First, recognizing that these theories are protected by the Constitution, would mean that they cannot be undermined by Congress. This is especially poignant because of recent congressional attempts to undermine certain parts of the ADA. Constitutionalizing these rights, however, would not undermine Congressional power to protect those with disabilities. Rather, such constitutionalizing would actually expand Congressional power under Section 5 of the Fourteenth Amendment. Related to Section 5, constitutionalizing these three theories of disability discrimination would greatly assist in the abrogation of sovereign immunity. Currently, the easiest way to abrogate state sovereign immunity is to find that state action has violated both a federal statute (like the ADA that is based on section 5 of the Fourteenth Amendment) and some constitutional right. At present, disability rights plaintiffs are only protected by rational basis scrutiny, which means abrogation is often difficult, because state action against those with disabilities is likely to pass constitutional muster. Lastly, Book III will acknowledge that “what the courts give the courts can take away.” Thus, even recognizing that the courts should interpret the Ninth Amendment to protect the three theories of disability discrimination listed above, the same courts could overrule such interpretation. As such, the last portion of Book III will discuss the need for a Constitutional Amendment that explicitly protects people with disabilities, as an alternative to my Ninth Amendment theory.

A Scalar Conception of Tax Residence for Individuals

Residence is one of the fundamental concepts in international taxation. As a rule, residents are taxed on their worldwide income while nonresidents are taxed only on their domestic-source income. The criteria for residence vary from country to country. Some countries look to physical presence. Other rely upon more obtuse concepts such as domicile, permanent home, ordinary residence, habitual abode, connections, or ties. Many countries use a variety of tests. Tax treaties typically employ a series of tie-breaking provisions to determine residency when each of the two signatories views an individual as a resident in accordance with its own domestic rules. Despite the wide variety of tests for determining individual residence, all share a common underlying premise, namely that residence is a binary attribute. An individual either is or is not a resident. There are no shades of grey. An individual who barely satisfies the relevant test is classified as a resident, while an individual who just fails to do so is classified as a nonresident. This structure is not normatively justifiable. The most persuasive explanation for the disparate tax treatment of residents and nonresidents is that from the perspective of distributive justice, individuals have qualitatively different rights and obligations vis-a-vis other members of the society to which they belong than they have vis-a-vis others. However, it is difficult to defend the proposition that, for those on the margin, an infinitesimally small change in circumstance could affect such a significant change in moral obligations. It is more reasonable to posit that the intensity of these rights and obligations varies along a continuum: that the closer one’s connection to a country, the more intense are one’s societal rights and obligations. An alternative explanation for the disparate tax treatment of residents and nonresidents is that the former benefit from government services in a manner in which the latter do not. This explanation, too, cannot ground a binary conception of residence. Presumably individuals who maintain varying degrees of connection with a country will procure varying degrees of benefit from public expenditures. The thesis of this Article is that residence should be viewed on a continuum, from complete absence of association with a particular country on the one extreme to exclusive association (that is, lack of association with any other country) on the other. The extent to which an individual is subject to tax on foreign-source income should be a function of that individual’s degree of connectedness to the country, in accordance with whatever criteria the country concerned considers relevant. Thus, where residency is determined by physical presence, the more days an individual is physically present in the country during the tax year (or during a succession of tax years), the greater the tax burden that would be imposed on that individual’s foreign-source income. As opposed to the current binary definition, a scalar conception of individual residence would more accurately represent real-world connections between individuals and countries, would better accord with the principle of horizontal equity, and would be less manipulable. After making the normative and practical case for a scalar conception of residence, the Article goes on to address a number of possible challenges to its adoption. It also considers the role of citizenship as a determinant of subjectivity to taxation. It argues that in the current context citizenship and residence are commensurable values and that the tax law should assign each an appropriate weight when determining the extent of an individual’s association with the country.

Dimensional Disparate Treatment

Last year’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Supreme Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the panoply of disparate-treatment questions for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come. What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions but transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of a disparate-treatment statute—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.

The Road to Bostock

On June 15, 2020, the Supreme Court of the United States announced its opinion in the landmark case Bostock v. Clayton County, Ga., in which the Court ruled 6-3—crossing conceived ideological lines—that the statutory prohibition against discrimination “because of sex” set forth in the Civil Rights Act of 1964 (the “Act”) extends to prohibit discrimination because of sexual orientation or gender identity or expression. Bostock—a consolidated case —involved the plight of three employees who had been terminated because of their sexual orientation or gender identity and expression. Writing for the majority, Justice Neil M. Gorsuch succinctly explained: “An employer who fires an individual merely for being gay or transgender defies the law.” The Court’s decision here has significant societal implications for millions of American workers. By some counts, eight million people (or approximately four percent of the American workforce) identify as gay, lesbian, bisexual, or transgender. “Sexual orientation-based and gender identity discrimination is a common occurrence in many workplaces across the country.” “Research conducted over the past four decades yields compelling evidence that employment discrimination against LGBT people exists and that it has a range of negative effects on LGBT employees.” Studies conducted in the 1980s and 1990s revealed that 16% to 68% of self-identifying lesbian, gay, and transgender respondents “reported experiencing employment discrimination at some point in their lives.” Since the mid-1990s, at least fifteen studies found that 15 percent to 43 percent of lesbian, gay, and transgender respondents experienced discrimination in the workplace. Forms of discrimination varied, ranging from being fired or denied employment, being overlooked for promotions, receiving unequal pay or benefits, receiving negative performance evaluations, and being victimized by vandalism or verbal or physical abuse. Those who identify as transgender are particularly susceptible to workplace discrimination and disparate treatment. Studies conducted between 1996 and 2006 revealed that 20% to 57% of transgender individuals had been subject to mistreatment, including termination, being refused employment, harassment, and denial of promotion. As recently as 2011, 90 percent of respondents to the largest survey of transgender people to date reported having experienced harassment or mistreatment at work, or had taken actions to avoid it, and 47 percent reported having been discriminated against in hiring, promotion, or job retention because of their gender identity. Evidence demonstrates that such workplace discrimination and harassment can have a negative impact on the wages and mental and physical health of those who identify as LGBT people. A significant body of empirical data suggests that the fear of discrimination, in and of itself, is associated with poor workplace performance and negative health outcomes. A 1999 study indicated that LGBT employees who had experienced discrimination suffered from higher rates of psychological distress and other health-related problems. Likewise, they reported lower job satisfaction and were more likely to be absent from work, or quit altogether. Now, these workers may avail themselves through remedies under Title VII, not because of who they are not, but because of who they are. This moment in our legal history is the result of a remarkable and fascinating journey and should be characterized by celebration and foresightfulness. This article will attempt to concisely capture where we have been, assess where we are, and anticipate where we might be going. Part I will briefly review the history of civil rights law in the United States, with a particular focus on the “federalization” of civil rights protections and the suspect history of the inclusion of the term “sex” in Title VII of the Act. Part II will then survey the development of law relating to discrimination because of sexual orientation or gender identity or expression and will evaluate the roots of the legal arguments for such anti-discrimination prohibitions on the alternative grounds of textualism and stare decisis. Part III will consider how the Court resolved the question in favor of textualism. Finally, Part IV will anticipate the legacy of Bostock, including its impact on matters of statutory interpretation, social change, and the now-heightened tension between the statutory prohibition against employment discrimination and the First Amendment right to freedom of religion.

Critical Race Theory, Wrongful Convictions and Disparate Exonerations of Minority and White Youths in the United States

Race is central to every aspect of the criminal justice system in the United States. According to the U.S. Bureau of Justice Statistics (BJS), in 2013, black males accounted for 37 percent of the total male prison population in the United States with white males accounting for only 32 percent followed by Hispanic males at 22 percent respectively. In the general population, however, Black males comprise only 6 percent of the total males population while White males constitute 31 percent of the total males population in the U.S. followed by Hispanic males who make up 8.4 percent of the total male population. The conviction of innocent defendants is quite disturbing regardless of race or ethnicity. Nothing is more glaring of this phenomenon than when one considers that African American males make up only 6 percent of the total males population but are reported as committing 52 percent of the murders. It is widely known that the lack of formal processes and constitutional due process in the juvenile justice system and the potential for substantial deprivations of children’s liberty through extensive periods of incarceration has been pervasive, persistent, and ongoing in this country (Juvenile Justice Center, 2020). Critical Race Theory has done nothing less than shed more light on the predictability of youth treatment landing them behind bars for lengthy prison sentences for crimes in which they frequently did not commit. Critical Race Theory falls short, however, of offering any plausible explanations for why so many minority youths are falsely imprisoned. Other theories must be considered as plausible explanations for this phenomenon of disparate treatment between the races whether it be police shooting, disparate convictions and incarceration or racial profiling. These theories include Racial Conflict Theory, Racial Threat Theory and Petit Apartheid Theory. The core idea of Critical Race Theory is that racism does not stop at the individua level, but it is systemic or system-wide and ingrained in our policies, in our legal systems and institutions. Critical Race Theory has absolutely nothing to do with “punishing kids for their skin color or making young white kids feel guilty for being white no more than critical thinking is criticizing someone for well thinking. Critical Race Theory is a dialogue for raising awareness of policies and practices that have had a disproportionately negative impact on racial minorities in particular and youth in general irrespective of race. There were 2,310 people serving life-without-parole sentences for crimes committed as juveniles (known as JLWOP) at the end of 2016. This study examines the data extracted from the national registry of exonerations in the United States on every known exoneration from 1989 to 2020. Contributing factors to such disparate convictions among young African American males such as false confessions, mistaken identity, false accusations, witness tampering, perjury or false statements under oath particularly by police officers, prosecutorial misconduct, inadequate legal defense, and mistaken witness identification are highlighted and discussed as major contributing factors to the exoneree’s eventual release. This study assumes the position that, although all lives matter, it appears that African American Male Youths are more disproportionate among the population of those exonerated for crimes that they did not commit. The study proffers policy implications and policy changes that appear to be viable solutions to this egregious and tragic abuse of humankind.

Penises, Nipples, and Bums, Oh My!: An Examination of How Freedom of Expression Applies to Public Nudity

Penises, Nipples, and Bums, Oh My!:An Examination of How Freedom of Expression Applies to Public Nudity Clara Gutwein (bio) Introduction How do you solve a problem like the nipple? A woman's nipples are both erotic and utilitarian, obscene and maternal. She must never show them in public. She must show them to feed her child. Nipples are for men. Nipples are for babies. Nipples, it seems, are for everyone except a woman herself. The law, too, has something to say about nipples. It is completely constitutional for the government to prevent women from publicly showing their nipples in order to protect morality and public order.1 Thus, the law assumes an inversely proportional relationship between the number of publicly exposed nipples and the strength of a community's moral standards. Despite the First Amendment's deep concern for protecting counter-majoritarian speech and minority points of view,2 recent cases have [End Page 349] shown that the full freedom of speech does not extend to women who wish to repossess the nipple's narrative.3 By exposing their breasts in public, these women attempted to use their nipples as a form of symbolic speech and communicate their antipathy towards laws that sexualize the female body.4 But the laws that sexualized their breasts also silenced their nipples, and these cases both ended in courts denying First Amendment protection to topless protests. America is not the only jurisdiction that does not have an answer to the legal conundrum of public nudity as protest speech. One man recently challenged the United Kingdom and European Union through his single-minded determination to undermine centuries worth of custom and convince people to embrace public nudity. Steven Gough, the so-called "naked rambler," has made it his mission to use his own naked body as an instrument of protest against inherited social norms hostile to public nudity.5 His assertion that his public nudity is a form of expression that merits protection under Article 10 of the European Convention on Human Rights (officially called the Convention for the Protection of Human Rights and Fundamental Freedoms) raises critical questions about how legal systems ought to treat civil liberties that challenge social norms and traditional standards of morality.6 The two US cases that challenged the First Amendment's treatment of the female nipple, Tagami v. City of Chicago and Free the Nipple v. City of Fort Collins, were instructive in their absolute failure.7 The courts in both cases applied long-established tests to determine whether topless protests amounted to symbolic speech with full First Amendment protection. The specifics of the tests themselves, as well as how the courts applied them, demonstrated the predetermined futility of the plaintiffs' plight. Within the context of symbolic speech, the female nipple uniquely challenges existing legal standards by both its multifaceted cultural identity and its physical limitations. Yet, instead of acknowledging that existing standards of symbolic speech do not account for the nipple's particular limitations, the courts in both cases allowed the law to trap the nipple in a self-perpetuating cycle of unprotected speech. [End Page 350] This note will begin by exploring the two recent legal challenges to the First Amendment's treatment of the female nipple. Both cases emerged out of the plaintiffs' reactions to local public-nudity ordinances and their dissatisfaction with laws that legalized disparate treatment of male and female bodies. The courts' treatment of both cases only validated the plaintiffs' arguments that the law does not treat female bodies with careful and unbiased consideration.8 Second, this note will examine two legal tests cited by the courts in their rejection of the plaintiffs' claims that topless protests are constitutionally protected symbolic speech. These are the Spence test, which controls what expression counts as symbolic speech,9 and the O'Brien test, which controls whether the government may suppress symbolic speech.10 This note will also consider the legal struggles of Steven Gough and his unwavering commitment to changing general attitudes towards public nudity. The third section will consider two cases involving Gough: one in which the United Kingdom sought to impose criminal sanctions against him, and another which Gough brought...

Negligent Algorithmic Discrimination

The use of machine learning algorithms has become ubiquitous in hiring decisions. Recent studies have shown that many of these algorithms generate unlawful discriminatory effects in every step of the process. The training phase of the machine learning models used in these decisions has been identified as the main source of bias. For a long time, discrimination cases have been analyzed under the banner of disparate treatment and disparate impact, but these concepts have been shown to be ineffective in the context of AI. This paper examines the possibility of studying algorithmic discrimination from the perspective of negligence law. Negligent selection and validation of datasets and classifiers is a salient cause of improper training in machine learning. It is a breach of an employer’s duty to protect others, a failure of its exercise of due care in the manner of choosing employees. Adopting negligence to algorithmic discrimination requires a reformulation of what is foreseeable and reasonable within the context of black box algorithms, and a shift in the burden of proof to the employer, who must present evidence of its efforts to avoid bias.

How Much Does Racial Bias Affect Mortgage Lending? Evidence from Human and Algorithmic Credit Decisions

We compare mortgage lenders’ credit decisions to algorithmic recommendations – on the same set of loan applications – from widely used Automated Underwriting Systems (AUS) to assess discrimination. In 2018-19, lenders were more likely to deny minority applicants than non-Hispanic white applicants. This paper is the first to document that “color-blind” AUS also recommend higher denial rates for minorities. Controlling for AUS recommendation, credit score, debt-to-income ratio, and loan-to-value ratio explains most of the racial and ethnic gaps in denials, although not the entirety. We show that lenders with the largest unexplained racial and ethnic denial gaps tend to also have the largest unexplained denials for non-Hispanic white applicants, suggesting that tight standards on unobservables might explain part of the remaining gaps. Additionally, our analysis of lenders’ reported denial reasons suggests that the remaining gaps could partially reflect differences by race and ethnicity in the successful completion of the final stages of loan approval (e.g. documentation of income). Overall, this evidence suggests a much more limited role for disparate treatment by lenders in the approval process than has been suggested in recent research.

Do Body-Worn Cameras Change Law Enforcement Arrest Behavior? A National Study of Local Police Departments

Controlling police officers’ discretionary behavior during public encounters has been an important issue in U.S. policing, especially following several high-profile police-involved deaths of racial minorities. In response, body-worn cameras (BWCs) were introduced to enhance police accountability by providing police managers an opportunity to monitor police–public encounters. Although many U.S. local police departments have now implemented BWC programs, evidence of program effects on daily police behavior has been limited. This study therefore focuses on whether officers’ arrest behavior changes when they perceive that BWCs are recording their interactions with the public. By conducting a difference-in-differences analysis using 142 police departments, I found that BWCs have negative and small treatment effects on arrest rates and null effects on the racial disparity between numbers of Black and White arrests. These findings imply that officers may become slightly more cautious in the use of arrests after wearing BWCs, but BWCs do not change their overall disparate treatment of Black versus White suspects. The results further indicate that the effects of BWCs on arrests are prominent in municipalities with high crime rates or a high proportion of non-White residents, which suggests that BWC programs demonstrate different effects according to the characteristics of communities served.

“Try Not to Make Waves”: Managing Gender Discrimination in Outdoor Recreation

The presence of women in male-dominated settings, such as outdoor adventure recreation, is received with suspicion, whereby they must demonstrate competence before they are accepted and treated as being equal to men. This multiple case study examined four female professional outdoor athletes to explore experiences of gender discrimination in their professional interactions and their response to those experiences. The athletes experienced disparate treatment and each articulated distinct and clear examples of overt discrimination. In response to this discrimination, the athletes downplayed their experiences and indicated they could or should have managed these situations better and described how they took it upon themselves to adapt to the “reality” of being a woman in the professional ranks of outdoor recreation. While the athletes’ responses conform to broad cultural expectations, they warrant additional investigation and exploration.

“The Arab Room”: Detention, disorientation, and displacement in Palestinian airport narratives

ABSTRACT This article examines recent Palestinian airport narratives, with a specific emphasis on depictions of Ben Gurion/Lydda airport in Israel, a site where Palestinians often receive extra scrutiny and disparate treatment. Focusing on works by Adania Shibli, Raba’i al-Madhoun, and Randa Jarrar, it argues that such narratives reveal airports to be, for Palestinians, sites of stasis, displacement, and detention, and offers a counter-reading of the popular imaginary of airports as facilitators of unfettered global mobility. The narratives depict this stasis through the spatial and temporal distortions experienced at the airport by individuals and groups excluded from global networks of free movement, tourism, and travel, but they also use moments of suspension and immobility to imagine and stage various forms of collective, shared experiences. This suggests that the stasis of the airport can unexpectedly be a catalyst for acts of solidarity and protest.

Documenting Current Practices of Accommodating Linguistic Needs of Deaf Defendants

Deaf defendants are an underexamined population in criminal justice research, and very few studies have examined their involvement in the criminal justice system. In addition, research on accommodating the linguistic needs of deaf defendants is sparse. Failure to accommodate the linguistic needs of deaf defendants presents several concerns, including disparate treatment and violations of ADA-guaranteed rights that may lead to inadmissible evidence, dismissals of cases, and not-guilty verdicts, as well as lawsuits and litigation, all of which create additional strain on an already overburdened system. The current study combines previous research on deaf defendants with the findings of data gathered from courtroom practitioners nationwide to gain an understanding of the current practices used to facilitate communication during criminal trials involving deaf defendants.

Effects and Prerequisites of Self-Generation in Inquiry-Based Learning

The goal of this study is to investigate the effect of self-generation in inquiry-based learning and to identify the role of feedback. While open-ended inquiry-based learning with a high degree of self-generation requirements has long been considered optimal for facilitating effective learning, its long-run effects have been critically challenged. This study employed a 3 (learning condition) × 2 (retention interval) mixed factorial design (N = 98). An inquiry activity involving the self-generation of content knowledge with or without subsequent feedback was compared to an inquiry task in which students simply read hypotheses and data interpretations. Self-generation without feedback was subject to rereading and self-generation with feedback. However, no differences were found under the two latter conditions. An additional analysis of individual learners’ abilities revealed that different abilities (e.g., cognitive load, self-generation success) served as predictors of performance in the disparate treatments.

What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic

In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.” If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment. This article provides an early look at how the courts have interpreted the “essential” Free Exercise Clause during the pandemic. This ongoing story can be told in six phases. In Phase 1, during the early days of the pandemic, the courts split about how to assess these measures. And for the first three months of the pandemic, the Supreme Court stayed out of the fray. In Phase 2, the Supreme Court provided its early imprimatur on the pandemic. In South Bay Pentecostal Church v. Newsom, the Court declined to enjoin California’s restrictions on religious gatherings. Chief Justice Roberts wrote a very influential concurring opinion that would become a superprecedent. Over the following six months, more than one hundred judges would rely on Roberts’s opinion in cases that spanned across the entire spectrum of constitutional and statutory challenges to pandemic policies.In Phase 3, the Roberts Court doubled-down on South Bay. A new challenge from Nevada, Calvary Chapel Dayton Valley Church v. Sisolak, upheld strict limits on houses of worship. Once again, the Court split 5 - 4. Justice Kavanaugh wrote a separate dissent. He treated the Free Exercise of Religion as a “most-favored” right. Under Justice Kavanaugh’s approach, the free exercise of religion is presumptively “essential,” unless the state can rebut that presumption. South Bay and Calvary Chapel would remain the law of the land through November.Phase 4 began when Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. The new Roberts Court would turn the tide on COVID-19 cases in Roman Catholic Diocese of Brooklyn v. Cuomo. Here, a new 5 - 4 majority enjoined New York’s “cluster initiatives,” which limited houses of worship in so-called “red” zones to ten parishioners at a time. Now, Chief Justice Roberts dissented. Roman Catholic Diocese effectively interred the South Bay superprecedent.Phase 5 arose in the wake of Roman Catholic Diocese. Over the course of five months, the Court consistently ruled in favor of the free exercise of religion. South Bay II and Harvest Rock II enjoined California’s prohibitions on indoor worship. And Tandon v. Newsom recognized the right of people to worship privately in their homes. We are now in the midst of Phase 6. States are beginning to recognize that absolute executive authority cannot go unchecked during ongoing health crises. Going forward, states should impose substantive limits on how long emergency orders can last, and establish the power to revoke those orders.The COVID-19 pandemic will hopefully soon draw to a close. But the precedents set during this period will endure.

S0452 Impact of EndoFLIP in an Esophageal Clinical Practice

INTRODUCTION: High resolution manometry (HRM) with Chicago Classification (CC) interpretation is the gold standard for defining esophageal motility disorders. However, HRM may reveal abnormalities that do not meet CC criteria, or may be normal in patients with esophageal symptoms. Also, EGJ outflow obstruction (EGJOO) comprises a heterogeneous group of disorders that may require disparate treatments. We have utilized EndoFLIP for suspected dysmotility, and have reviewed our experience to explore the impact of EndoFLIP on management. METHODS: We reviewed medical records for patients in our Center for Esophageal Disease with EndoFLIP performed November 2018-March 2020. We recorded EGJ diameter (D) and distensibility index (DI) at the 60 mL volume, and topography contraction patterns [repetitive antegrade (RACs), repetitive retrograde, disorganized diminished, hypercontractile, and sustained esophageal contractions (SECs), or absent contractility] at the 40 and 60 mL volumes. We also recorded CC diagnosis, symptoms [Eckardt score and Brief Esophageal Dysphagia Questionnaire (BEDQ)], working diagnosis, and EndoFLIP-guided change of therapy (botulinum injection, pneumatic dilation, or myotomy). RESULTS: We performed EndoFLIP on 249 patients with esophageal symptoms who had HRM and no prior foregut surgery. Table 1 shows D, DI, symptom scores, and EndoFLIP impact on diagnosis and therapy. Endoflip confirmed the diagnosis in all patients with achalasia by HRM and did not alter management. Among 97 patients with EGJOO, 50/97 (52%) of EGJOO patients had low DI (mean 1.3) with abnormal patterns on FLIP in all cases and were considered to have a primary EGJOO dysmotility disorder. These cases were also less likely to have any RACs compared to those with normal DI (12% v 32%, P < 0.05). In 2 (18%) of 11 patients with absent contractility and IRP <15 mmHg, a low DI on Endoflip suggested a diagnosis of achalasia. Among 49 patients with ineffective esophageal motility (IEM), 12 (24%) had low DI (mean 1.4) and 6 (12%) had SECs. In 37 patients with a normal HRM, 9 (24%) had SECs. CONCLUTION: We found EndoFLIP especially useful in evaluation of patients with EGJOO, IEM and absent contractility in whom it supported dysmotility on the achalasia spectrum in 52%, 24%, and 18% of patients respectively. Overall, we found Endoflip guided escalation of therapy in 9% of patients. The clinical implications of the FLIP topography in these cases requires further investigation.Table 1.: Endoflip characteristics and Clinical Impact by HRM associated Diagnosis

Substantive Pay Equality: Tips, Commissions, and How to Remedy the Pay Disparities They Inflict

Empirical evidence demonstrates that racial and ethnic minorities tend to earn less in tips than their white coworkers and racial and ethnic minorities and women tend to earn less in commissions than their white, male coworkers. Moreover, a growing body of research suggests that neither tipping nor commissions are always a business necessity. However, neither courts nor litigants have recognized a disparate impact cause of action under Title VII of the Civil Rights Act of 1964 alleging that customer preference-based pay schemes like tipping and commissions cause employees to earn less because of their race or sex and cannot be justified as job related and consistent with business necessity. This Article articulates a novel litigation strategy for combating pay disparities wrought by tipping and commissions. First, it explains why the overwhelming majority of tipping and commission schemes that cause race- or sex-based pay disparities evidence a prima facie case of disparate impact under Title VII notwithstanding the commonly-held beliefs that Wal-Mart Stores, Inc. v. Dukes forecloses disparate impact review of policies that afford discretion over pay and cases like AFSCME v. Washington foreclose disparate impact scrutiny of policies that set pay based on multiple, complex factors (e.g., market forces, customer preferences). Second, because of a circuit split in defining the business necessity defense, this Article argues that employers in some jurisdictions would be unable to carry their burden of proving that tipping and commission schemes are a literal business necessity, as arguably required under Title VII by the Civil Rights Act of 1991. Third, this Article contends that Title VII’s defenses to disparate impact caused by merit systems or production-based earnings systems do not apply to tipping and commission schemes as they exist today because such schemes do not materially reflect employees’ merit or measure earnings based on the production of tangible things. Finally, this Article presents original, non-litigation alternatives to attacking such pay disparities. Most notably, it reconceptualizes Ricci v. DeStefano — an opinion regarded in much scholarship as a material roadblock to substantive workplace equality — as offering employers the option of ensuring substantive pay equality by offsetting race- or sex-based disparities in tips or commissions via disparate treatment (i.e., affirmative action). For instance, this Article contends that employers do not violate Title VII by offering pay or preferential treatment to racial and ethnic minorities who earn less in tips than their white coworkers because of race (e.g., more-desirable shifts or customers) as a “Ricci offset” to cure the disparate impact that the employer caused in the first place. For generations, employers have maintained tipping and commissions as facially-neutral, customer preference-based pay schemes which afford employees formal pay equality, but fail to guarantee pay untethered to customers’ racist and sexist preferences. This Article provides a litigation road-map and non-litigation alternatives to employees subjugated and discriminated against by such pay schemes. In doing so, it lays the groundwork for those employees to secure not just facially-neutral pay policies, but substantive pay equality.