Faculty Scholarship Digest

January 2016

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


L. Camille Hébert

L. Camille Hébert, Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement, 24 AM. U. J. GENDER & SOC. POL'Y & L. 107 (2015).

Do employers have a legal duty to accommodate women affected by pregnancy or childbirth? As Camille explains in this wide-ranging article, two recent developments have strengthened the claims of women seeking that accommodation. Two years ago, the Equal Employment Opportunity Commission (EEOC) revised its Enforcement Guidance to expand the circumstances under which accommodation is required. Then in Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1354 (2015), the Supreme Court clarified the prima facie standard for a woman challenging a refusal-to-accommodate as intentional discrimination under Title VII. A woman may meet that burden by showing “that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’” Id. at 1354.

These developments are welcome changes for women seeking workplace accommodations for pregnancy, childbirth, and related conditions. As Camille demonstrates, however, the advances may promise more than they deliver. The EEOC’s revised guidance and the Supreme Court’s recent decision both rely upon a disparate treatment theory of discrimination, which will fail some employees seeking accommodation. Camille recommends turning to a disparate impact theory of discrimination to establish a surer ground for pregnancy-related accommodations. To overcome some limits in that theory, Camille then calls for the EEOC to “play a greater role” in developing and enforcing rules based on a disparate impact theory of pregnancy-related accommodation. That approach, she concludes, is the key to empowering “women who want nothing more than what men already have, to be able ‘to have families without losing their jobs.’” (Quoting California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272, 289 (1987).

Douglas Rogers, Obvious Confusion Over Properties Discovered After a Patent Application, 43 AM. INTELL. PROP. L. ASS'N Q.J. 489 (2015).

“The great question of patent law,” is obviousness; for its patent to be valid, an invention must be “nonobvious.” But “nonobvious” when? At the time of the invention? At the time of the patent registration? At the time of the alleged infringement? The law (depending on the era of the patent) chooses one of the first two. However, the Federal Circuit has continued to consider (in an inconsistent fashion) unexpected properties of pharmaceuticals discovered after patent registration in resolving the patent inquiry. As a result, more patents are enforced than would be if these later discovered properties were not considered in judging the obviousness of the patent. In this article, Doug argues forcefully for the rule that such evidence not be considered.

The article begins with careful consideration of the Federal Circuit decisions in question and the Supreme Court case law that would seem to support Doug’s position. The article then considers other uses of later-discovered properties, and distinguishes them from use in obviousness disputes. In Doug’s words, “surprising properties of a product are not the key to determining obviousness; the key is predictability of achieving ready solutions.” Thus, properties discovered “after the patent application [should not be considered] when determining whether a claim is obvious.”