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Professor Bornstein selected to present at Stanford/Yale/Harvard Junior Faculty Forum

UF Law Professor Stephanie Bornstein has been selected to participate in the 2020 Stanford/Yale/Harvard Junior Faculty Forum. Professor Bornstein’s paper, Disclosing Discrimination, is forthcoming in the Boston University Law Review. The forum will take place virtually over the summer.

Below is the abstract of Professor Bornstein’s article:

In the United States, enforcement of legal prohibitions against workplace discrimination or harassment rests almost entirely on the shoulders of employee victims, who must file charges with a government agency and then, themselves, pursue litigation. While the law prohibits retaliation against employees who file charges, this does little to prevent it. Employees are also primarily responsible for reporting and pursuing any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to pursue complaints, and their justified fear of retaliation if they do so, results in dramatic under-enforcement of the law and an inability to identify and redress the underlying structural causes of sex and race discrimination. By statutory design, government enforcement agencies play a crucial, but limited role in initiating and litigating discrimination lawsuits, making any significant expansion of the agencies’ roles politically infeasible.

This Article considers compelled disclosure of employer information as a means of better enforcing antidiscrimination law. Information-forcing mechanisms have long been a part of securities law. Recent social movements #MeToo and Time’s Up have brought the power of public exposure to the issues of discrimination and harassment at work. Drawing on lessons from both contexts, this Article argues for imposing affirmative public disclosure requirements on employers on issues of pay, promotion, and sexual and racial harassment. It documents emerging disclosure models in some state and international laws meant to target workplace discrimination and highlights where existing U.S. federal law opens the door to such an approach. It also considers counterarguments, including privacy and free speech concerns raised by compelled disclosure. Requiring public disclosures on equality measures is an incremental, yet important untapped mechanism that can shift some of the enforcement burden for U.S. antidiscrimination law off of employees and onto employers and responsible government agencies.

Published: June 2nd, 2020

Category: News

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The Florida Constitutional Law Endowment in memory of Justice Ben F. Overton was created by Judge Karen Miller in 2013. This fund supports lectures and presentations by Justices of the Florida Supreme Court at the Fredric G. Levin College of Law.

HISTORY

Justice Overton, who earned his B.S. in 1951 and his Juris Doctor in 1952 from the University of Florida, was the first merit appointment to the Florida Supreme Court. Throughout his career he was active in legal education and served as an Adjunct Professor at the Levin College of Law through December 2012, the month of his death. Although he resided at Oak Hammock at the University of Florida, a continuing care retirement community developed in cooperation with UF, he also considered the Florida Supreme Court “home.” Among the high points of his later years was hosting Justices of the Florida Supreme Court in Gainesville and taking his class to Tallahassee to hear oral arguments at the Florida Supreme Court.
Judge Miller, who earned her B.S. cum laude from New York University in 1974 and her Juris Doctor from New York Law School in 1977, served as Chief Administrative Law Judge of the New York City Department of Consumer Affairs, New York City’s business regulatory agency, before she retired to Oak Hammock at the University of Florida. Having accompanied Justice Overton on his excursions to Tallahassee and joined him in welcoming guests to Oak Hammock at the University of Florida, she created the endowment in memory of Justice Overton to ensure that the Levin College of Law continues to have the funding necessary to continue and enhance the interaction between its students and the Florida Supreme Court.

 

Judge Miller remembered the event that motivated the endowment.

 

Prior to a dinner at the home of Dean Robert Jerry and Lisa Jerry shortly after Justice Overton’s death, Justice Barbara Pariente and I were discussing a suitable memorial. Justice Pariente, who had been Justice Overton’s colleague on the Florida Supreme Court and who understood the importance to him of the interaction between his students and the Court, suggested the outline of what has become the Overton lectures. Dean Jerry, who has since retired, as has Dean Emeritus Jon Mills, who assumed responsibility for implementing the Overton lectures, were very supportive from the beginning. Since Dean Mills’ retirement, Professor Timothy McClendon, who assisted both Justice Overton and Dean Mills teaching Florida Constitutional Law and who co-authored the recent Florida Constitutional Law casebook, has continued the Overton lectures with the support of Interim Dean Merritt McAlister and CGR director, Professor Danaya Wright.

Justice Overton was a devoted jurist, educator, and ethical leader of the Florida legal profession. The Overton Lecture Series brings Florida Supreme Court Justices to the University of Florida, Levin College of Law, and serves to introduce students to the inner workings of the Court. CGR and the students of the College of Law extend our deepest gratitude to Judge Karen Miller for making the Overton Lectures possible in perpetuity.

You can watch an interview for the Florida Historical Society by Mary Adkins, professor emeritus of the UF Levin College of Law, with Justice Overton here.

Justice Overton was also interviewed for the Samuel Proctor Oral History Project and a transcript of his interview is available at the Smathers Library, and here.
Justice Overton sat on the Constitution Revision Commission of 1977-78 that proposed a right to privacy in the Florida Constitution. Although it failed as part of the Constitution Revision Commission recommendations, it passed in 1980 when proposed by the legislature. The bill was co-sponsored by our very own Jon Mills. The privacy provision prevailed by greater than 60%. Justice Overton then wrote a concurrence in a critical reproductive rights case in 1989 affirming that the privacy provision of the Florida Constitution included the right to obtain an abortion. That decision was overruled in Planned Parenthood of SW and Central Florida v. Florida. You can read about the role of Justice Overton, Jon Mills – director emeritus of CGR, and the history of the 1989 case here.