He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Davidson Hotel Co., LLC v. National Labor Relations Board

Docket: 19-1235

Opinion Date: October 23, 2020

Judge: Arthur Raymond Randolph

Areas of Law: Labor & Employment Law

The DC Circuit granted Davidson's petition for review of the Board's decision determining that Davidson committed unfair labor practices by refusing to bargain with a union in two Board-certified units. The court concluded that neither the Regional Director nor the Board distinguished contrary Board precedents or the Regional Director’s first decision in this case. The court explained that the previous unit decision by the same Regional Director was sufficiently analogous that it should have been distinguished or otherwise addressed – at least when the Regional Director and Board were presented with the argument that the first decision required rejection of the union's later petitions. However, the Regional Director never mentioned the prior decision beyond incorporating the record and stating that "the petitioned-for unit in the instant case is different[.]" Furthermore, the Board must explain why the balance of factors differed from the factors considered in the Regional Director's first decision, and the Board failed to cite – let alone distinguish – a single contrary precedent even though Davidson cited several Board precedents that rejected separate units of hotel employees under similar circumstances.