Whether, under federal principles of claim preclusion and issue preclusion, an unsecured creditor of a debtor in bankruptcy is in privity with the Chapter 7 bankruptcy

Whether defense counsel has an obligation to develop and present mitigating evidence in a capital case when the defendant actively thwarts counsel's efforts.

Whether a judgment on the merits and a court-ordered consent decree are the only form of relief that meet the "judicial imprimatur" requirement for the award of attorney's fees.

Whether a defendant may "willfully" violate Section 616 of the Fair Credit

Whether a defendant may "willfully" violate Section 616 of the Fair Credit

Whether a defendant may "willfully" violate Section 616 of the Fair Credit

Whether a non-lawyer parent of a disabled child may file a lawsuit, without a lawyer, to enforce the child's rights under the Individuals with Disabilities Education Act (IDEA). (Note: case was CVSG'd; see post here)

Whether software object code can be a component of a patented invention and whether foreign-made copies of such a component are to be considered "supplied" from the United States.  (Note: case was CVSG'd; see post here)

Whether a defendant's Sixth Amendment right to effective counsel was violated because his counsel participated in a no-contest plea hearing by speakerphone.

Whether a law enforcement officer violates a fleeing suspect's Fourth Amendment rights by using deadly force to terminate a dangerous high-speed pursuit.

Whether the standard for imposing liability under section 1983 in child abuse should be the "professional judgment" standard or the "deliberate indifference" standard.

Whether federal courts have authority to enjoin federal prosecutors from breaching a promise "not to bring any criminal prosecution" against a company and its executives. (Note: Lyle has written extensively on previous developments in this case.   Search SCOTUSblog for "Stolt")

Whether Michigan laws that restrict inmates to only a prison bank account impose a burden on a private pension plan when the plan is required to send an inmate-pensioner's payments to the prison for deposit into the inmate's account.

Whether it violates the Ex Post Facto doctrine and due process for the judiciary to allow a state statute that eliminates limitations periods for certain offenses to apply to criminal acts conducted before the enactment of the statute. (This case is the feature case in this week's edition of "Conference Call.")

Whether, when police use the fruits of an illegal search to secure a search warrant, evidence seized pursuant to the warrant is admissible under the "good faith exception" to the exclusionary rule (more briefs here). [Disclosure: Akin Gump and Howe & Russell represent the petitioners]

Whether a retiree's health care benefits are "vested," and thus must be fully funded by the employer for the rest of the retiree's life because the collective bargaining agreement providing the benefits does not expressly limit their duration. [Consol. below]

Whether the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the FDA.

Whether the Ninth Circuit violated the Supreme Court’s directive in Rogers v. Tennessee when it failed to defer to a state court’s analysis of a new criminal statute.

Whether the Ninth Circuit erred in reviewing de novo a benefit decision by an administrator of an ERISA-regulated plan that grants the administrator discretion in making benefit decisions.

Whether a court reviewing a state professional regulatory board's decision that prohibits allegedly misleading commercial speech should review the record de novo to determine whether the speech is misleading and the prohibition constitutional.

Whether, when deciding if part of a literary work is "substantially similar" to protected expression in a previously copyrighted literary work, a court should look to the two works alone or also consider expert affidavits.  Note: this is the feature case in this week's edition of "Conference Call."

Whether McMillian v. Monroe County should be construed as raising a presumption that states exercise effective control over such autonomous officials as county sheriffs in order to categorize them as "arms of the State" for purposes of determining liability under 42 U.S.C. 1983.

Whether production of privileged documents to federal law enforcement authorities in the course of federal investigations and pursuant to written confidentiality agreements waives the attorney-client privilege and the protections afforded to attorney work product with respect to  private litigants in separate proceedings.

Whether the Fourth Amendment requires a police officer, during a lawful traffic stop, to have reasonable suspicion that contraband is present before asking the motorist questions related to contraband.

Whether this Court's summary disposition in Hutto v. Davis stands as a precedential bar to a lower court otherwise concluding that a sentence violates the Eighth Amendment's ban on cruel and unusual punishment under the Solem-Harmelin analysis articulated after Davis.

Whether the bank fraud statute, 18 U.S.C. sec. 1344, requires only an act that could put the bank at risk of loss or requires proof of intent to harm the bank.

Whether government officials acting pursuant to their regulatory authority can be guilty under RICO of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.

Whether the Establishment Clause prohibits a public school policy stating that year-end holiday celebrations may feature certain Jewish and Islamic religious symbols but bans the use of Christian religious symbols, namely the nativity scene.  This case is featured in "Conference Call" on 11/20.

Whether a canine sniff does not constitute a search because it is limited in scope and only reveals the presence or absence of contraband which does not compromise any legitimate interest in privacy.

Whether a federal habeas court may grant relief by reviewing a state prisoner's claim de novo on the basis of a federal evidentiary hearing record, without considering whether the state court's adjudication of the claim had been reasonable.

Determining the standard for who can be a relevant "decisionmaker" and agent for an employer in a suit under Title VII of the Civil Rights Act of 1964 for wrongful termination in the context of discriminatory enforcement of disciplinary procedures.

Whether a federal statute's conferral of "jurisdiction" over Indian lands, but not over the Tribe as sovereign, impliedly abrogates the tribal government's sovereign immunity and thus empowers a state judge to authorize state police to execute a search warrant and arrest tribal officials acting in their official capacities.

Whether the Federal Circuit has violated its constitutional authority by rendering moot 35 U.S.C. sec. 112, para. 2 in holding that "[patent] claims cannot be of broader scope than the invention that is

set forth in the specialization."

Whether a negotiated Federal Trade Commission consent order operates, as a matter of federal law, as a safe harbor immunizing non-parties to the consent order from liability under otherwise applicable state law for conduct similar to that permitted under the order.

Whether taxpayers have standing under Article III of the Constitution to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order.

Whether documents obtained by a qui tam relator pursuant to the Freedom of Information Act constitute public disclosures within the meaning of the False Claims Act's jurisdictional bar.

Whether, when an employee who is dismissed as the result of the intentionally discriminatory actions of an official who exerted substantial influence over the employment decision, the employer may avoid liability by showing that a different official was the ultimate decisionmaker.

Whether Fed. R. Civ. P. 60 enables a federal district court to manufacture jurisdiction to enforce a settlement by entering a new judgment months after it dismissed a lawsuit without retaining jurisdiction to enforce the settlement.

Whether the rule adopted by the New York courts, that they may adjudicate an Indian tribe's interests in its federally approved gaming compact in the tribe's absence because the tribe could waive sovereign immunity and appear as a party in the suit, is preempted by federal law.

Whether federal law preempts local ordinances prohibiting tow-banner aircraft operations approved by the Federal Aviation Administration, and whether a total ban on this form of expression violates the First Amendment.  This case is featured in "Conference Call" on 11/27.

05-85:  Whether an entity that is wholly and beneficially owned by a foreign state's instrumentality, and whose sole purpose is to perform international treaty and trade agreement obligations for the benefit of the foreign state's citizens, may nonetheless be denied status as an "organ of a foreign state" under the Foreign Sovereign Immunities Act of 1976, based on an analysis of sovereignty that ignores the circumstances surrounding the entity's creation, conduct, and operations on behalf of its government.  See the SG's invitation brief here.  Other filings in 05-85: Reliant's Brief in Support; Plaintiffs and Respondents in Opposition; Canada's amicus; British Columbia's amicus; Reply of Powerex; Supp. of Plaintiffs and Respondents.

Whether an antitrust complaint predicated on alleged collusive activity in the securities markets must, in order to survive a motion to dismiss on grounds of implied antitrust immunity, set forth allegations sufficient to support a reasonably grounded expectation that the plaintiff's claims do not rest on collaborative activities that are either permitted under the securities laws or inextricably intertwined with such permissible activities.  See the SG's invitation brief here.  This case is featured in "Conference Call" on 12/4.

Since an employer is strictly liable for sexual harassment by a supervisor if that harassment involved a "tangible employment action," whether that is defined as "a significant change in employment status" or "an official act" taken by a supervisor.

Whether a Montana state agency's sovereign immunity deprives the New York state courts of jurisdiction to hear a breach of contract case

Whether vertical minimum resale price maintenance agreements should be deemed per se illegal under Section 1 of the Sherman Act.

Whether the application of res judicata in a bankruptcy case is limited to issues whose resolution "explicitly becomes an essential part of the bankruptcy plan," or whether res judicata can be applied to preclude all claims, defenses, and issues arising from a common nucleus of facts that were or could have been asserted in a bankruptcy case.

Whether the Uniformed Services Former Spouses' Protection Act authorizes the division of retirement pay but not the portion of retirement pay waived in favor of disability benefits.

Whether, where counsel's action at trial is objectively reasonable, the conviction may nonetheless be reversed on the ground that counsel's subjective thought process is found deficient. [Note:  This case was previously known as "Varner v. Thomas."]

Whether the Contract Disputes Act of 1978 impliedly repeals the independent grant of jurisdiction in statutes providing that governmental entities may sue or be sued in federal district court. [Note: Both Akin Gump and Howe & Russell represent the petitioner; BIO here.]

Whether an order denying "state action" antitrust immunity asserted by a state agency under Parker v. Brown is immediately appealable under the collateral order doctrine.

Under what circumstances an employer is liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee. [BIO here]

What is the standard of review under the Administrative Procedure Act in evaluating whether the Forest Service had complied with the National Environmental Policy Act of 1969 and the National Forest Management Act of 1976. [Note: the link is to the government's response; petition coming soon]

Whether the Ninth Circuit erred by not deferring to the trial judge's observations and by not applying the statutory presumption of correctness in ruling that a state court decision to remove a juror was contrary to clearly established federal law.

Whether the Sixth Circuit correctly held that a secondary school athletic association violated the First Amendment and Due Process rights of a high school when it imposed contractual penalties for violations of the recruiting rule that said high school agreed to follow. [BIO here; reply here.  Thanks to the team at Latham, including Scott Ballenger and Alexander Maltas, for supplying the documents].

Whether the Federal Aviation Administration Authorization Act of 1994 preempts states from exercising their historic public health police powers to regulate carriers that deliver contraband such as tobacco and other dangerous substances to children.

Whether, considering the federal rules of procedure, a district court may decline to give any weight to reliance on the normal time for delivery of mail and instead place the risk of late delivery by the postal service entirely on the mailer.

Whether, and to what extent, a court must consider or weigh competing inferences in determining whether a complaint asserting a claim of securities fraud has alleged facts sufficient to establish a "strong inference" that the defendant acted with scienter, as required under the Private Securities Litigation Reform Act of 1995. [BIO here; reply here.  Thanks to Kevin Pecoraro at Sidley for supplying the documents].

Whether the 11th Circuit is correct in holding that a preliminary injunction is relief on the merits, or whether a preliminary injunction is not a ruling on the merits and thus cannot be the basis for prevailing party status. [Note: petition coming soon]

Whether the Endangered Species Act of 1973, which requires each federal agency to insure that its actions do not jeopardize the continued existence of a listed species or modify its critical habitat, overrides statutory mandates or constraints placed on an agency's discretion by other Acts of Congress.

Whether the Second Circuit erred in refusing to give Chevron deference to a thirty-year-old Department of Labor regulation that has twice been upheld by the Tenth Circuit on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed "Interpretations." [Note: petition coming soon.]

Whether the Carmack Amendment applies to the inland leg of a multimodal shipment to a place in the United States from a place in a territory of the United States even if the inland carrier does not issue a separate bill of lading for the inland leg.

Whether the district court correctly dismissed Apellants' Elections Clause claim, where Appellants lack standing to bring this claim and the claim is barred under Colorado law of issue preclusion. [Note: this is a jurisdictional statement on direct appeal; motion to affirm here.]

Whether a federal common law rule should be fashioned that requires a pension plan administrator to recognize a post-retirement waiver by petitioner's former spouse of her right to survivor annuity. (Link is to SG brief; petition coming soon)

Whether the Federal Trade Commission's role in preventing deceptive advertising by tobacco companies is sufficient to establish that a tobacco company was "acting under" a federal officer for purposes of 28 U.S.C. 1442(a)(1), when the tobacco company marketed cigarettes as "light." (SG brief here)

Whether early retirement payments made to tenured public school teachers, who gave up tenure and other rights upon resigning from their positions, were "wages" subject to Federal Insurance Contributions Act taxes.

Whether the concept of "materially adverse employment action," as applied in claims alleging discrimination or retaliation under federal workplace legislation containing protections against retaliation, covers such adverse employment actions as constructive discharges or forced early retirements.  (Petition coming soon)

Whether the National Environmental Policy Act ("NEPA") requires a federal agency to consider, as part of its NEPA review of an agency action, the environmental impact of potential sabotage of a nuclear plant whenever the possibility of sabotage is anything more than "remote and highly speculative."
(Note: this case was part of our post spotlighting environmental cases before the Court; see here.  Other documents in this case are here: Resp. Mothers for Peace, et al. in Opp., Federal Respondents, Reply, Amicus: Chamber of Commerce Supporting Pet., Amicus: Nuclear Energy Inst. Supporting Pet.  Thanks to Amar Sarwal at the Chamber for his assistance with these.)

Whether the police officers involved in a search with the assistance of a police canine dog are entitled to qualified immunity when the dog unexpectedly bolts from the handler's control and attacks an innocent bystander.  (Note: this case is featured in Legal Times on 1/8/07.)

Whether a bankruptcy court may not interpret a confirmed plan of reorganization in a way that would violate the Bankruptcy Code, thereby depriving such a plan of finality and allowing parties to challenge its legality at any time. (Bank of NY BIO, Unsec. Creditors BIO, Reply.  Thanks to Chris Landau at Kirkland for the docs.)

Whether a party that is potentially responsible for the cost of cleaning up property contaminated by hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), but that does not satisfy the requirements for bringing an action for contribution under Section 113(f) of CERCLA, may bring an action against another potentially responsible party under Section 107(a), 42 U.S.C. 9607(a).  (Note: the SG responded in 05-1323 and recommended a HOLD; see here.  The brief in support in 06-562 can also be found here).

Whether an employer that sponsors and administers a single-employer defined benefit plan has a fiduciary obligation under ERISA to consider merger as a way to implement the employer's decision to terminate the plan. (SG recommends GRANT; see here.)

Whether a suit to recover unpaid property taxes imposed on property owned by a foreign sovereign and to declare the validity of a tax lien arising out of those unpaid taxes falls within the immovable property exception to the general rule of immunity in the Foreign Sovereign Immu- nities Act of 1976. (SG recommends GRANT; see here.)

Whether trying a prominent African-American politician tried in a foreign venue where the jury pool was virtually devoid of African-Americans violates the defendant's fundamental right to due process of law.

Whether a federal statute that creates no cause of action for the injured party can provide a basis for federal jurisdiction and removal of a state tort claim filed in state court under the doctrine of complete preemption. (See BIO, reply.  Thanks to Paul Levy for the docs.)

Whether the Sixth Amendment's Confrontation Clause permits a prosecutor to introduce a state forensic examiner's crime laboratory report against the accused as a substitute for the forensic examiner's live testimony, so long as the accused is left with the ability to subpoena the forensic examiner as part of his defense.

In employment discrimination cases, what standard should govern pretext claims based on superior qualifications? (Update: petition now available).

Whether a 200-year prison sentence for possessing twenty images of child pornography violates the Eighth Amendment.  (Also available: BIO, Reply - thanks to counsel on both sides for sending).

Whether the Fifth Amendment requires the suppression of post-Miranda warning statements because they cover the same information as pre-Miranda warning statements even when there is no police strategy to intentionally avoid Miranda. (Also available: BIO, Reply - thanks to Jason Desiderio for sending).  [Note: Howe & Russell represent the respondent.]

Whether a claim for relief exists under Sec. 2 of the Sherman Antitrust Act where a party with monopoly power in one market has improperly exploited its dominant position to establish or enhance a monopoly in a secondary market. (Also available: BIO, Reply - thanks to counsel on both sides).

In light of the settlement a civil lawsuit against the petitioner tobacco manufacturers for reimbursement of health care costs attributed to tobacco: whether legislation that impairs a state's proprietary contract violates the Contracts Clause only when the contract contains an unmistakable promise by the state not to alter the terms of the contract through subsequent legislation. (Also available: 06-633 BIO - thanks to the folks at Arnold & Porter)

Whether federal law precludes recognition under state law of private ownership of federally defined "navigable airspace" that is less than 500 feet above a landowner's property and that the landowner never used before it became part of the navigable airspace.

In determining that a transaction may be disregarded for tax purposes, whether a federal court of appeals should review the trial court's findings that the transaction had economic substance de novo or for clear error.

Whether a state violates the dormant Commerce Clause by providing an exemption from its income tax for interest income derived from bonds issued by the state and its political subdivisions, while treating interest income realized from bonds issued by other states and their political subdivisions as taxable to the same extent, and in the same manner, as interest earned on bonds issued by commercial entities, whether domestic or foreign. (BIO, via TaxProf Blog).

Whether the District of Columbia Court of Appeals erred in holding that the prohibition in the Congressionally-enacted Home Rule Act barring "any tax" on nonresidents does not apply to the D.C. Council's application of the unincorporated business tax to nonresidents.

Whether the forum defendant exception to removal jurisdiction is inapplicable whenever a plaintiff seeking remand fails to raise it within thirty days of removal. [Note: Howe & Russell represents the petitioner]

Whether Title I of the Americans with Disabilities Act establishes a duty upon employers to engage in an interactive process with a disabled employee to identify and seek reasonable accommodations and, if so, if the process triggered upon notice of the disability and a desire for accommodations.

Whether, when an employee covered by the Federal Employers' Liability Act ("FELA") settles a claim for occupational injury with an employer, section 5 of FELA imposes special restrictions on the freedom of the parties to include in the settlement a release of other potential occupational injury claims, or do "the releases of [FELA] employees stand on the same basis of the releases of others?"  (UPDATE: Also available: BIO, Reply - thanks to Paul Cunningham and others at Harkins Cunningham.)

Whether the Second Circuit run afoul of American Party of Texas v. White by mandating a primary in lieu of a party convention for the nomination of candidates for New York State trial judge. [Note: Akin Gump represents the petitioners].

Whether under Fed. R. Civ. P. 15(c), the plaintiff's lack of knowledge of the identity of the proper defendant was intended to constitute a "mistake" that would allow an amended complaint substituting the name of the proper defendant after the expiration of the statute of limitations to relate back to the date of the original complaint and avoid being time barred by the statute of limitations. (Also available: BIO, Reply - thanks to Justin Cincola, a law student who worked on the case for petitioner, for sending)

Whether the amount in controversy requirement of 28 U.S.C. sec. 1332 should be determined solely from the plaintiffs' perspective or from the perspective of both parties to the controversy.

Whether the deferential standard for habeas corpus review under 28 U.S.C. sec. 2254(d) allows a federal court to grant relief on an insufficient-evidence claim by accepting the expert testimony of defense experts over the contrary opinionsof prosecution experts believed by the jury and found sufficient by the state appellate court.

Whether Title II of the ADA applies to termination of parental rights proceedings initiated by state agencies and prosecuted in state courts.

Whether a court of appeals may entertain an appeal filed by a capital defendant's discharged counsel when that defendant has been determined to be competent, has waived his right to federal habeas corpus review, and objects to such an appeal.

Whether the First Amendment prohibits top-two election systems that allow a candidate to disclose on the ballot the name of the party he or she personally prefers. (Also available in 06-730: Response of Democratic Party, Response of Republican Party, Response of Grange, Reply of Wash.)

Whether the New Mexico Supreme Court's decision has created a zone where no federal or state criminal jurisdiction may be invoked because certain lands within the original exterior boundaries of a Pueblo land grant are effectively prosecution-free. [Note: this case will be considered at the Conference of 3/2/07]

Whether sec. 502(a)(2) of ERISA permits a participant to bring an action to recover losses attributable to his account in a "defined contribution plan" that were caused by fiduciary breach. (Also available: BIO, Reply, Amicus of Seven Law Profs)

Whether a federal district court that lacks subject-matter matter jurisdiction over a removed action must dismiss rather than remand the action when the state court also lacks jurisdiction. (This is the feature case in Legal Times this week).

Whether a corporation and its agents can constitute an association-in-fact RICO enterprise and whether a company's hiring of its own employees may constitute participation in the conduct of an enterprise that is distinct from the company itself.

Whether a secondary actor may be primarily liable under Section 10(b) of the Securities Exchange Act of 1934 for engaging in a "scheme to defraud" with the issuer, even where that secondary actor did not itself participate in making the challenged misstatements or omissions or engage in any act of "manipulation." (Also available in 06-560: BIO, Reply)

Whether requiring courts to apply the interest rate set in the Declaration of Taking Act to determine the compensation due when the government delays payment of just compensation for private property taken under the Act violates the Just Compensation Clause and the separation of powers when applying the statutory interest rate would materially undercompensate the landowner.  (Also available: BIO, Reply)

Whether a crop bailout payment received by a debtor pursuant to legislation enacted by Congress after the debtor's filing for bankruptcy, but predicated entirely upon pre-petition events, is property of the bankruptcy estate.  (Also available: BIO, Reply)

Whether a preliminary injunction should have been ordered when the court relied on declarations filed by parties in the district court, or should it have confined its review to the administrative record in determining whether respondents had shown a likelihood of success on the merits. (Also available: Resp. Sierra Pacific Industries in Support)

Whether the prohibition against bias on the part of judicial and quasi-judicial officers applies to a court-appointed special master and experts whose findings of noncompliance with a consent decree are adopted and whose proposed remedial measures are provisionally ordered by the district court.  (Also available: BIO, Reply)

Whether ERISA permits a pension plan, when calculating an employee's accrued pension benefit at retirement, to apply an offset for the benefits the employee receives before reitrement from other sources by valuing those benefits in the same way as benefits due at retirement.  (Also available: BIO, Reply, American Benefits Council Amicus)

Whether "manifest disregard of the law" is the only acceptable non-statutory ground for federal courts to use in vacating National Association of Securities Dealers public investor arbitration awards, or whether other non-statutory grounds, such as "unconscionable results" are acceptable as independent grounds for vacatur. (Also avialble: BIO, Reply)

Whether the Fourth Amendment prohibits a policy that requires a strip search of all juveniles brought to a juvenile detention facility without regard to individualized considerations, such as the individual's circumstances, the alleged offense, or whether individualized suspicion exists to believe that the juvenile is carrying or concealing weapons or contraband. (Also available: BIO, Reply, Juvenile Law Center as Amicus)

Whether it violates Equal Protection and Title IX to have different seasons for boys and girls high school sports.  (Also available: BIO, Reply, Michigan High School Tennis Coaches Assoc., et al. amicus,  Alabama, et al. amicus,  Nat'l Federation of State High School Assocations amicus, Michigan Assoc. of School Boards amicus,  Equity in Athletics amicus)

Whether Title VII of the Civil Rights Act of 1964 supports a female prison guard's action for sexual harassment against a state prison when the action is based on an allegedly hostile work environment caused by prisoners' lewd sexual misconduct. (Also available: BIO, Reply)

Whether the Military Commissions Act of 2006, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay; whether the petitioners' habeas corpu petitions demonstrante unlawful confinement requiring the grant of haveas relief or, at least, a hearing on the merits.  The initial top-side filings in these cases can be found here, the government's opposition is here, and the petitioners' replies and Senator Specter's amicus breif are here.  Note that 06-1196, Hamdan v. Gates, may now also be considered with these (see here).

Whether California's regulation of noncoercive employer speech about union organizing, California Assembly Bill 1889, Cal. Gov't Code secs. 16645.2, 16645.7, is preempted by federal labor law.  (Also available: BIO, Reply)

Whether the courts below erred in denying a petitioner sentenced to death an opportunity to develop a gateway claim of actual innocence through which he seeks collateral review of his first federal habeas petition that has never been reviewed on the merits.  (Also available: BIO, Reply)

Whether, where an employee promptly complains about an incident of harassment, the employer can lawfully retaliate for that complaint until the point that there were so many other incidents of harassment that the employee could reasonably conclude that an unlawful hostile work environment has been created.  (Also available: BIO, NELA Amicus)