Michael Harper

Michael C. Harper

Professor of Law Emeritus

Barreca Labor Relations Scholar

AB magna cum laude, Harvard University
JD magna cum laude, Harvard University


Biography

Michael Harper is a leading authority in the areas of labor law, employment law, and employment discrimination law. Professor Harper has been engaged by the study of these fields since joining the faculty in 1978. He stresses that the law governing employment is critical to the organization of society and the setting of social priorities. He notes that students are both motivated by the human narratives in litigated employment cases and also challenged by the complex laws and regulations governing the field.

Professor Harper has co-authored several major casebooks, both in Employment Discrimination and Employment Law and in Labor Law. Professor Harper is the author of many law review articles and book chapters on a broad variety of labor and employment law topics, including the definition of the employment relationship, age discrimination in employment, the scope of bargaining and bargaining responsibilities, consumer boycotts, antitrust and labor law, and the allocation of decision making authority between federal and state courts and between the Labor Board and private arbitrators. He has published in a wide array of journals, including the Harvard Law Review, the Yale Law Journal, the Virginia Law Review, the Pennsylvania Law Review, the Cornell law Review, and the Michigan Law Review. One of his major recent articles, “Judicial Control of the National Labor Relations Board’s Lawmaking” was published in the Boston University Law Review. His current developing research interests include aggregate employment discrimination litigation, employment regulation and collective bargaining in a world of franchising and subcontracting, and comparative employment and labor law. His most recent major article compared aspects of British and American employment law.

Professor Harper served as a reporter for the American Law Institute’s Restatement of Employment Law Third. He was the primary author of chapters that clarify the boundaries of the employment relationship regulated by federal and state law, specify principles of employer liability for the actions or omissions of their agents, and articulate standards for a range of employment torts. Early in his career, Professor Harper clerked for Judge J. Skelly Wright of the US Court of Appeals for the District of Columbia Circuit and served as staff attorney and director of the Student Internship Program at the Center for Law and Social Policy in Washington, DC.

In addition to teaching classes in labor law, employment law and civil procedure, Professor Harper offers a popular seminar examining law and sports and is now teaching civil procedure. He is co-author of the leading teaching text for Sports Law courses. A life-long connoisseur of American and English literature, he also has an interest in law and literature.

Publications

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  • Michael C. Harper, Samuel Estreicher & Zachary Fasman, Cases and Materials on Employment Discrimination and Employment Law, the Field as Practiced, 6th ed. (2022)
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  • Michael C. Harper, Escaping the Allure of Joint Employment: Using Fault-Based Principles to Impose Liability for the Denial of Employee Statutory Rights 36 ABA Journal of Labor and Employment Law (2022)
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  • Michael C. Harper, Samuel Estreicher & Kati Griffith, Labor Law: Cases and Materials, 9th ed. (2021)
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  • Michael C. Harper, Samuel Estreicher & Kati Griffith, Labor Law: Selected Statutes, Forms, and Agreements, 2021 (2021)
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  • Michael C. Harper, The Respondeat Superior Principle and Interest Alignment: Assigning Responsibility for Worker Statutory Benefits and Protections, in Sharing the Gains of the U.S. Global Economy: Proceedings of the New York University 70th Annual Conference on Labor (Charlotte Garden & Samuel Estreicher,2021)
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  • Michael C. Harper, Clarifying the Default for Anti-Discrimination Statutes The Regulatory Review (2020)
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  • Michael C. Harper, Using the Anglo-American Respondeat Superior Principle to Assign Responsibility for Worker Statutory Benefits and Protections 18 Washington University Global Studies Law Review (2019)
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  • Paul C. Weiler, Gary R. Roberts, Roger I. Adams, Michael C. Harper, Jodi S. Balsam & William W. Berry III, Sports and the Law, 6th ed. (2019)
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  • Michael C. Harper, The Restatement of Employment Law's "Independent Business Person-Entrepreneurial Control" Test for Employee Status, in Who is an Employee and Who is the Employer?: Proceedings of the New York University 68th Annual Conference on Labor (Samuel Estreicher & Kati Griffith,2017)
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  • Michael C. Harper, Samuel Estreicher & Elizabeth Tippett, Cases and Materials on Employment Discrimination: The Field as Practiced, 5th ed. (2016)
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  • Michael C. Harper, Samuel Estreicher & Elizabeth Tippett, Cases and Materials on Employment Discrimination and Employment Law: The Field as Practiced, 5th ed. (2016)
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  • Samuel Estreicher, Michael C. Harper & Elizabeth Tippett, Cases and Materials on Employment Law, the Field as Practiced, 5th ed. (2016)
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  • Michael C. Harper, A more fundamental distinction for the contemporary economy between employee and independent contractor status 107 Amicus Curiae (2016)
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  • Michael C. Harper, Distinguishing Disparate Treatment from Disparate Impact; Confusion on the Court No. 15-52 Boston University School of Law, Public Law Research Paper (2015)
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  • Michael C. Harper, Explaining the Blurred Line Between Employment and Independent Contracting JOTWELL (2015)
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  • Michael C. Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Foreword: The Restatement of Employment Law Project 100 Cornell Law Review (2015)
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  • Michael C. Harper, Class-Based Adjudication of Title VII Claims in the Age of the Roberts Court No. 15-09 Boston University School of Law, Public Law Research Paper (2015)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law (2015)
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  • Michael C. Harper, Samuel Estreicher & Kati Griffith, Labor Law: Cases, Materials, and Problems, 8th ed. (2015)
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  • Michael C. Harper, Fashioning a General Common Law for Employment in an Age of Statutes No. 14-64 Boston University School of Law, Public Law Research Paper (2014)
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  • Michael C. Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law, Employment Law (Proposed Final Draft) (2014)
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  • Michael C. Harper, Internalizing The Costs Of Employment Law Violations JOTWELL (2014)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 6 (2013)
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  • Michael C. Harper, Retaliatory Capital Allocation or Defensive Dual Sourcing: the Boeing Dreamliner Case, in Proceedings of the New York University Annual Conference of Labor (2013)
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  • Michael C. Harper, First Amendment Protection for Union Appeals to Consumers 27 Wisconsin Journal of Law, Gender & Society (2012)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 5 (2012)
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  • Michael C. Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, 4th ed. (2012)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination Law, 4th ed. (2012)
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  • Michael C. Harper, Reforming the Age Discrimination in Employment Act: Proposals and Prospects 16 Employee Rights and Employment Policy Journal (2012)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 4 (2011)
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  • Michael C. Harper, A Gap in the Agenda: Enhancing the Regulation of Age Discrimination in Employment, in Proceedings of New York University Annual Conference of Labor (2011)
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  • Michael C. Harper, Eliminating the Need for Caps on Title VII Damage Awards: The Shield of Kolstad v. American Dental Association 14 New York University Journal of Legislation and Public Policy (2011)
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  • Samuel Estreicher & Michael C. Harper, 2011 Supplement to Cases and Materials on Employment Discrimination and Employment Law (2011)
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  • Michael C. Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems, 7th ed. (2011)
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  • Samuel Estreicher & Michael C. Harper, 2010-11 Supplement to Cases and Materials on Employment Discrimination and Employment Law, 3rd ed. (2011)
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  • Michael C. Harper, Conceptualizing Disability Discrimination JOTWELL (2010)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 3 (2010)
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  • Michael C. Harper, A New Board Policy on Deferral to Arbitration: Acknowledging and Delimiting Union Waiver of Employee Statutory Rights 5 FIU Law Review (2010)
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  • Michael C. Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991 58 Buffalo Law Review (2010)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper, Andrew P. Morriss & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 2 (2009)
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  • Michael C. Harper, Judicial Control of the National Labor Relations Board's Lawmaking in the Age of Chevron and Brand X 89 Boston University Law Review (2009)
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  • Samuel Estreicher, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 1 (2008)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination Law, 3rd ed. (2008)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination and Employment Law (2008)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Law, 3rd ed. (2008)
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  • Michael C. Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials, and Problems, 6th ed. (2007)
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  • Michael C. Harper & Joan Flynn, Federal Common Lawmaking for the Modern Age, in Employment Discrimination Stories (Joel William Friedman,2006)
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  • Michael C. Harper, William R. Corbett & E. Dannin, Bush Labor Board Decisions: Pendulum Shift of Permanent Changes? 56 Labor Law Journal (2005)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination and Employment Law, 2nd ed. (2004)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination Law (2004)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Law (2004)
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  • Michael C. Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials, and Problems, 5th ed. (2003)
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  • Michael C. Harper, A Framework for the Rejuvenation of the American Labor Movement 76 Indiana Law Journal (2001)
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  • Michael C. Harper, Answering the Title VII Agency Question: A Policy Basis for Faragher and Ellerth, in Proceedings of the New York University 51st Annual Conference on Labor (2000)
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  • Samuel Estreicher & Michael C. Harper, Statutory Supplement to Cases and Materials on Employment Discrimination and Employment Law (2000)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination and Employment Law (2000)
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  • Michael C. Harper, Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth 36 San Diego Law Review (1999)
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  • Michael C. Harper, The Provision of Capital and Collective Bargaining Responsibilities, in Proceedings of New York University 50th Annual Conference on Labor (1999)
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  • Michael C. Harper, The Continuing Relevance of Section 8 (a) (2) to the Contemporary Workplace 96 Michigan Law Review (1998)
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  • Michael C. Harper, Defining the Economic Relationship Appropriate for Collective Bargaining 39 Boston College Law Review (1998)
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  • Michael C. Harper, Multiemployer Bargaining, Antitrust Law, and Team Sports: The Contingent Choice of a Broad Exemption 38 William & Mary Law Review (1997)
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  • Michael C. Harper, ADEA Doctrinal Impediments to the Fulfillment of the Wirtz Report Agenda 31 University of Richmond Law Review (1997)
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  • Michael C. Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems, 4th ed. (1996)
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  • Michael C. Harper, Comment on the Tort/Crime Distinction: A Generation Later 76 Boston University Law Review (1996)
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  • Samuel Estreicher & Michael C. Harper, 1994 Supplement to Cases and Materials on the Law Governing the Employment Relationship, 2nd ed. (1994)
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  • Michael C. Harper, Age-Based Incentives, Coercion, and the Prospective Waiver of ADEA Rights: The Failure of the Older Workers' Benefit Protection Act 79 Virginia Law Review (1993)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on the Law Governing the Employment Relationship, 2nd ed. (1992)
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  • Samuel Estreicher & Michael C. Harper, 1991 Supplement to Cases and Materials on the Law Governing the Employment Relationship (1991)
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  • Michael C. Harper, Limiting Section 301 Preemption: Three Cheers for the Trilogy, Only One for Lingle and Lueck 66 Chicago-Kent Law Review (1990)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on the Law Governing the Employment Relationship (1990)
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  • Samuel Estreicher & Michael C. Harper, Statutory Supplement to Cases and Materials on the Law Governing the Employment Relationship (1990)
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  • Michael C. Harper, Reconciling Collective Bargaining with Employee Supervision of Management 137 University of Pennsylvania Law Review (1988)
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  • Michael C. Harper, The Scope of the Duty to Bargain Concerning Business Transformations, in Labor Law and Business Change: Theoretical and Transactional Perspectives (Daniel G. Collins & Samuel Estreicher,1988)
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  • Michael C. Harper, The Case for Limiting Judicial Review of Labor Board Certification Decisions 55 George Washington Law Review (1987)
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  • Michael C. Harper & Ira C. Lupu, Fair Representation as Equal Protection 98 Harvard Law Review (1985)
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  • Michael C. Harper, The Consumer's Emerging Right to Boycott: NAACP v. Claiborne Hardware and its Implications for American Labor Law 93 Yale Law Journal (1984)
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  • Michael C. Harper, Leveling the Road from Borg-Warner to First National Maintenance: The Scope of Mandatory Bargaining 68 Virginia Law Review (1982)
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  • Michael C. Harper, Exercise of Executive Discretion: A Study of a Regional Office of the Department of Labor 34 Administrative Law Review (1982)
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  • Michael C. Harper, Union Waiver of Employee Rights Under the National Labor Relations Act 4 Industrial Relations Law Journal (1981)
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  • Michael C. Harper, Union Waiver of NLRA Rights: Part 2-- A Fresh Approach to Board Deferral to Arbitration 4 Industrial Relations Law Journal (1981)
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In the Media

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  • Law360 June 1, 2023

    3 Lessons For Employers From Judge’s Fitness-For-Duty Suit

    Michael Harper is quoted.
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  • TLNT April 21, 2023

    The Job Ad That Was Too Much of a ‘Hit’; IT Workers Refuse to Implement Staff Monitoring

    Michael Harper is quoted.
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  • HR Grapevine April 20, 2023

    Religious Freedom? Supreme Court Case Could Set Precedence for Worker Rights

    Michael Harper provides insight.
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  • Conservative Brief April 18, 2023

    Big Supreme Court News on Case Involving Christian Worker’s Refusal to Work Sundays

    Michael Harper is quoted.
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  • Reuters Events April 16, 2023

    US Supreme Court Considers Christian Mail Carrier’s Refusal to Work Sundays

    Michael Harper is quoted.
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  • Boston Globe March 31, 2023

    ‘This Has Been Devastating’: Wayland Is Divided over Racism Allegations after Black Superintendent Is Placed on Leave

    Michael C. Harper is quoted.
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  • Law360 February 17, 2023

    Unions Split over Massachusetts Gig Worker Benefits Plan

    Michael Harper is quoted.
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  • BU News Service September 28, 2022

    Low Stipends, Labor Rights and a New Hope: Into the Formation of the BU Graduate Workers Union

    Michael C. Harper is quoted.
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  • Yahoo! Finance February 14, 2022

    Why Tesla Could End Up Paying a ‘Huge Settlement’ in Racial Bias Case

    Michael Harper is quoted.
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  • NBC 4 News September 11, 2021

    Biden’s Vaccine Rules to Set Off Barrage of Legal Challenges

    Michael Harper is quoted.
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  • Poynter August 6, 2021

    Getting Fired Over a Vaccine Mandate May Cost You Unemployment Aid

    Michael Harper is quoted.
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  • Law360 June 25, 2021

    5 Ways House Age Bias Bill May Change Discrimination Cases

    Michael Harper is quoted.
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  • Bloomberg Law June 14, 2021

    Vaccine Incentives Guidance From EEOC Leaves Employers Guessing

    Michael Harper is quoted.
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  • Law 360 April 21, 2021

    McDonald’s Anti-Harassment Push Brings Joint Employer Risk

    Michael Harper is quoted.
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  • Washington Post August 27, 2020

    How College Football Players Discovered Their Power and Why It’s Just the Beginning

    Michael Harper quoted.
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