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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Stand Back and stand by. You may remember that line

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Speaker 1: from former President Donald Trump during the presidential debates in Well.

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Speaker 1: It's now part of the prosecution sedition case against Proud

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Speaker 1: Boys leader Enrique Tario and four other members of the

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Speaker 1: far right group accused of leading the attack on the

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Speaker 1: Capitol on January six. Prosecutors say the Proud Boys were

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Speaker 1: part of every critical breach on the day of the attack,

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Speaker 1: from knocking down the First Street barricades to smashing a

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Speaker 1: window with a stolen police shield letting the rioters into

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Speaker 1: the building. And they're giving the jury plenty of visuals

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Speaker 1: of the attack, showing videos shot by documentary filmmaker Nick

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Speaker 1: quest Ed, who also testified at the January six committee hearings.

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Speaker 1: For anyone that really didn't think that there was extreme violence,

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Speaker 1: not day um. I filmed it, I saw it, I

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Speaker 1: was subject to it. The violence was real and it

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Speaker 1: was exceptionally powerful. Defense attorneys argue that the defendants are

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Speaker 1: being made scapegoats and that evidence will show there was

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Speaker 1: no plan by them to stop the transfer of power.

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Speaker 1: Joining me as former federal prosecutor Jimmy Garula, a professor

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Speaker 1: at Notre Dame Law School. Jimmy tell us about the

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Speaker 1: Proud Boys. Who are they. The Proud Boys were formed

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Speaker 1: in two thousand and sixteen by Vice Media co founder

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Speaker 1: Gavin McGinnis, who's a Canadian. The group is described as

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Speaker 1: the far right neo fascist group that engages in political violence.

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Speaker 1: While the actual membership number of members of the group

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Speaker 1: is unknown, it's believed to be in the thousands, and

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Speaker 1: the group has as many as forty four active chapters

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Speaker 1: across the country, and it has a history of engaging

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Speaker 1: in political violence. The first a prominent appearance of the

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Speaker 1: Proad Boys on the national stage was the summer of

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Speaker 1: two thousand and seventeen during the Unite the Right rally

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Speaker 1: in Charlotte's, Virginia. One of the organizers of the event

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Speaker 1: was a member of the Proud Boys. And then in

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Speaker 1: June two thousand eighteen, the Proad Boys attended the Freedom

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Speaker 1: Encourage rally in Portland, Oregon, where they engaged in violent

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Speaker 1: clashes with members of the Black Lives Matter group and protesters.

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Speaker 1: And then, of course, they were involved in the January

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Speaker 1: six attack on the U S Capitol Building. The attorney

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Speaker 1: for Enrique Tario said, they're basically a drinking club. The

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Speaker 1: Proud Boys aren't a sexist, racist, homophobic organization. Well, I

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Speaker 1: think there's at least two countries that would beg to differ,

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Speaker 1: and one of those is Canada and the other is

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Speaker 1: in New Zealand, and the governments of both of those

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Speaker 1: countries have designated the Proud Boys as the terrorist organization,

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Speaker 1: and that designation carries substantial financial and economic consequences. And

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Speaker 1: the police can see the property of the Proud Boys

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Speaker 1: you know in their country, and banks can see their assets,

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Speaker 1: and they can be denied entry into the country. And

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Speaker 1: then additionally, the Southern Poverty Law Center has designated them

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Speaker 1: as a hate group, so they have a reputation well

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Speaker 1: beyond simply being a good old, you know, boys club.

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Speaker 1: What's the prosecution's theory of the case. There are a

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Speaker 1: number of charges that have been brought in the in

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Speaker 1: the formal indictment against these five members of the Proud Boys,

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Speaker 1: but the most important, the most significant, is the seditious

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Speaker 1: conspiracy charge and that carries a twenty year sentence. And

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Speaker 1: the government's theory is that the members of the Proud

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Speaker 1: Boys engage in a conspiracy to prevent the execution of

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Speaker 1: any law of the United States, specifically being the certification

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Speaker 1: of the electoral College votes that Congress was undertaking on

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Speaker 1: January six prior to the attack on the U. S. Capitol.

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Speaker 1: What does the prosecution have to prove there A couple

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Speaker 1: of points. You know. One, it's been estimated that as

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Speaker 1: many as one members of the Proud Boys were in Washington,

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Speaker 1: d C. On January six and participated either in planning, directing,

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Speaker 1: or executing the attack on the U. S. Capitol. So

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Speaker 1: it's the agreement. You know, it's the planning. It's a conspiracy.

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Speaker 1: And you know, the conspiracy charge does not require that

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Speaker 1: each member of the conspiracy himself participated in acts of violence.

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Speaker 1: It's enough if a member of the conspiracy, any member

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Speaker 1: of the conspiracy, participated in acts of violence. Again, all

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Speaker 1: the members of conspiracy agreed and they agreed to delay

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Speaker 1: to prevent the counting of the electoral votes, and they

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Speaker 1: did that with the use of force or violence. And

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Speaker 1: so again, any member of the conspiracy could have participated

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Speaker 1: in the assault on the Capitol using force. But it's

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Speaker 1: not necessary that every member of the conspiracy participated. You know,

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Speaker 1: by using force in the attack on the capitol. I

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Speaker 1: think it's probably worth highlighting that, you know, one of

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Speaker 1: the defendants is Dominic Pozzola, and we've seen literally, you know,

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Speaker 1: multiple pictures of him using the stolen police right shield

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Speaker 1: and using it to break a window into the capitol

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Speaker 1: and apparently that was the first entry points where the

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Speaker 1: rioters and entered into the capitol building following Pazzola's lead.

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Speaker 1: Does it make any difference that Tario wasn't even in

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Speaker 1: d C on January six? He'd been arrested two days

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Speaker 1: earlier for burning a Black Lives Matter flag and so

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Speaker 1: he was not in d C. No, it really doesn't matter,

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Speaker 1: because again, this is a conspiracy charge, and what's critical here.

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Speaker 1: The critical element of conspiracy is the agreement. So the

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Speaker 1: it's agreement between two or more individuals, you know, to

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Speaker 1: violate US law and in this case, you know, the uh,

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Speaker 1: the insurrection, and so he doesn't have to be present,

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Speaker 1: he doesn't have to be there. He doesn't actually himself

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Speaker 1: have to be participating in the riot or in the

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Speaker 1: attack on the U S Capitol. It's enough that he

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Speaker 1: agreed to participate in the planning, the directing, the organizing

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Speaker 1: of the attack. Federal prosecutors just want a conviction of

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Speaker 1: four of the oath Keepers on seditious conspiracy charges on Monday.

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Speaker 1: Is the prosecution's plan here sort of similar? It seems

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Speaker 1: to me that the prosecution is following the same kind

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Speaker 1: of blueprint of prosecution that they followed in the Oath

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Speaker 1: Keeper's trial. And so what we're going to see in

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Speaker 1: terms of evidence being presented to the jury is going

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Speaker 1: to be statements made by the various, you know, five

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Speaker 1: members of the Proud Boys that are being prosecuted, Statements

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Speaker 1: that they made in text messages and other social media

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Speaker 1: messages that demonstrated their intent to attack the Capitol Building

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Speaker 1: to prevent the peaceful transfer of power. So they're going

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Speaker 1: to be prosecuted based on their own words, and that

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Speaker 1: was the case with the Oath Keepers. And then there's

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Speaker 1: also some members of the Proud Boys previously convicted. They've

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Speaker 1: endered a guilty plea, they've agreed to cooperate with the government,

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Speaker 1: and they're going to testify at trial against the members

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Speaker 1: of the Proud Boys. And we also saw that in

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Speaker 1: the Oath Keepers prosecution. So that's going to be the

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Speaker 1: critical evidence. It's going to be their own words used

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Speaker 1: against them. It's going to be members of the Proud

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Speaker 1: Boys that were on the inside that are going to

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Speaker 1: testify as to what these five defendants intended and what

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Speaker 1: they did with respect to the seditious conspiracy. And then lastly,

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Speaker 1: it's going to be you know, photos of them at

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Speaker 1: the scene, breaking into the building, knocking down you know,

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Speaker 1: police barriers, perhaps even assaulting police officers. So I think

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Speaker 1: that's going to be the crux of the prosecution's case.

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Speaker 1: The prosecution also has text messages from an encrypted channel

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Speaker 1: which they set up I think Terrio set up called

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Speaker 1: Ministry of Self Defense. Yeah, that's interesting, Yeah, it's interesting. Right.

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Speaker 1: So then the question is, well, why was it necessary

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Speaker 1: to set up this encrypted messaging in a system of communication,

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Speaker 1: and so obviously they did not want the FBI and

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Speaker 1: law enforcement officers to be able to capture these messages

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Speaker 1: to then be able to use them against them. And why,

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Speaker 1: I mean, I think it demonstrates consciousness of guilt that

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Speaker 1: they were engaged in the wrongdoing. They knew that what

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Speaker 1: they were doing, what was was criminal and prosecutable, and

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Speaker 1: therefore they sought to conceal it from federal law enforcement officers.

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Speaker 1: Why do you think the judge allowed the prosecution to

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Speaker 1: play that clip of former President Trump saying, Proud Boys

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Speaker 1: stand back and stand by. Well, it goes to the intent,

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Speaker 1: you know, what was the intent and the purpose of

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Speaker 1: the conspiracy. And one could argue that this statement and

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Speaker 1: this apparent relationship or connection between former President Trump and

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Speaker 1: the Proud Boys demonstrates that the Proud Boys were acting

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Speaker 1: on behalf of the President Trump and that they were

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Speaker 1: again seeking to keep him in power and seeking to

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Speaker 1: prevent the peaceful transfer of power of the president like Biden.

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Speaker 1: And again that goes to the heart and the purpose

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Speaker 1: and the intent of the conspiracy. So I think this

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Speaker 1: is evidence of that intent and that relationship between former

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Speaker 1: President Trump and the Proud Boys. Some of the defense attorneys,

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Speaker 1: including the attorney for Tario, are trying to blame Trump,

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Speaker 1: saying Trump unleashed the mob that breached the capital. You know,

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Speaker 1: I don't know that it's much of a defense, and

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Speaker 1: I don't think that the defense statements are inconsistent with

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Speaker 1: the execution's theory. So it could very well be the

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Speaker 1: former president Trump unleashed this violent mob to attack the capital,

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Speaker 1: but it could equally be the case that in doing so,

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Speaker 1: the members of the Proud Boys participated in that assault

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Speaker 1: and helped organize and plan that assault, which is the

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Speaker 1: basis of the seditious conspiracy charge. Before the riot, the

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Speaker 1: FBI had placed informants in the Proud Boys, and now

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Speaker 1: some of those informants are being called as witnesses by

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Speaker 1: the defense who say they were privy to the Proud

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Speaker 1: Boy chats and even marched alongside them. Is that a

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Speaker 1: great help to the defense, Well, it'll be interesting to

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Speaker 1: see how that testimony plays out. And so apparently the

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Speaker 1: defense lawyers believe that these particular informants have evidence that's

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Speaker 1: going to contradict the government's theory that they're involved in

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Speaker 1: this planning to attack the US capital. And it'll be

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Speaker 1: interesting to see once those informants or on the witness

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Speaker 1: stand exactly what evidence that they possess and whether it's

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Speaker 1: truly exculpatory or maybe there's some aspects of their of

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Speaker 1: their testimony to exculpatory. But then other aspects that are

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Speaker 1: incriminating with the statements about Trump and with the informants.

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Speaker 1: Are some of the defense attorneys pointing in different directions,

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Speaker 1: you know, sort of don't look here, look there. Yeah, well,

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Speaker 1: that's a common strategy by defense lawyers. They want to

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Speaker 1: distract the jury's attention. They want to deflect and draw

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Speaker 1: attention away from their clients to other individuals or to

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Speaker 1: other participants or two other persons that may have been

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Speaker 1: involved or have a motive to be involved in the

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Speaker 1: criminal activity. And in my experience as a prosecutor for

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Speaker 1: nine years, that tactic, that strategy is is rarely effective

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Speaker 1: and rarely successful. So hopefully for their clients they have

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Speaker 1: something more, something beyond that as a strategy to defend

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Speaker 1: their clients. I found this really interesting. This is according

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Speaker 1: to the Wall Street Journal, that some of the defendants

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Speaker 1: offered to plead guilty to the obstruction count, which carries

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Speaker 1: a twenty year max sentence, but prosecutors insisted that they

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Speaker 1: plead guilty to seditious conspiracy. Yeah. Yeah, so that's interesting too,

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Speaker 1: I mean, but at the same time, prosecutors typically require

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Speaker 1: I mean, especially if they have a strong case. The

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Speaker 1: prosecutors feel that they have a very strong case, they're

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Speaker 1: not going to accept anything less than a guilty plead

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Speaker 1: to the most serious charge. And the fact that some

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Speaker 1: other accounts in the indictment carry the same maximum sense,

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Speaker 1: doesn't mean that those are the most serious charges. Here,

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Speaker 1: clearly the seditious conspiracy charges the most serious charge, and

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Speaker 1: the prosecutors are holding out for a plea guilty plate

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Speaker 1: of that charge. Now, if the prosecutors thought that there

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Speaker 1: were some weaknesses, maybe there's some question about the credibility

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Speaker 1: of some of their witnesses, Yeah, then they might have

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Speaker 1: some motive and interest in uh in agreeing to have

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Speaker 1: the defendants flee to the to a lesser charge. But

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Speaker 1: I think this demonstrates again the prosecutor's confidence in the

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Speaker 1: in the government's case. Are the Proud Boys considered more

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Speaker 1: threatening than the oath Keepers or more dangerous? I think

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Speaker 1: a couple of things. One. I think that their their

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Speaker 1: membership is larger. As I stated, they believed to have

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Speaker 1: members total numbers in the thousands. We don't know exactly

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Speaker 1: how many, but in the thousands have at least forty

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Speaker 1: plus over forty different chapters. So they appear to be

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Speaker 1: more organized. They appear to be a larger in number,

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Speaker 1: they appear to be again a nationwide organization. And I

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Speaker 1: think all of the those factors could suggest again that

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Speaker 1: they pose a greater threat to national security than perhaps

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Speaker 1: the oathkeepers. Thanks Jimmy. That's Jimmy Grule, a professor at

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Speaker 1: Notre Dame Law School. The Supreme Court is going to

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Speaker 1: revisit a decades old precedent that sets the standard for

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Speaker 1: businesses to deny workers religious accommodation requests. The Justices have

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Speaker 1: agreed to reevaluate that legal test in a case involving

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Speaker 1: a Christian letter carriers religious objection to delivering packages for

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Speaker 1: Amazon on Sundays. A divided Third Circuit affirmed a lower

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Speaker 1: court ruling in favor of the U S Postal Service,

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Speaker 1: but the Court's conservative super majority has resulted in a

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Speaker 1: greater tendency to credit allegations of religious liberty violations, suggesting

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Speaker 1: that a more employee friendly interpretation of religious accommodation requirements

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Speaker 1: is on the way. Joining me is Harold Krent, a

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Speaker 1: professor at the Chicago Kent College of Law. We'll tell

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Speaker 1: us what the standard is now for businesses denying workers

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Speaker 1: religious accommodation requests. Title seven protects against the discrimination on

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Speaker 1: the basis of religion, just as it protects against discrimination

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Speaker 1: on the basis of gender and race, but differently with

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Speaker 1: respect to religion. Title seven also requires employers to make

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Speaker 1: a reasonable accommodation to all religious practice of its employees,

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Speaker 1: unless in so doing the employer would face an undue burden,

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Speaker 1: And this particular case questions the precedent of t w

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Speaker 1: A versus Hardison, where the Court held that in order

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Speaker 1: to assess what an undue burden is, the question is

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Speaker 1: whether the employer faces more than a diminimous amount of

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Speaker 1: costs and trying to accommodate the request, such as not

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Speaker 1: having to work on Sunday as in this case, or

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Speaker 1: not having to wear a particular guard in the office,

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Speaker 1: not wearing a yamaka, or not wearing a headscarf, something

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Speaker 1: along these lines. So what that means would be that

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Speaker 1: if a court is satisfied that the employer have to

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Speaker 1: pay over time, higher additional personnel or inconvenience other employees,

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Speaker 1: that that would constitute more than a dominimous burden and

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Speaker 1: therefore the accommodation need not be made. So the case

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Speaker 1: before the Supreme Court now will determine whether it is

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Speaker 1: twenty five year old President tw A versus Hardison articulated

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Speaker 1: the standard too leniently and the fact there needs to

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Speaker 1: be a heavier burden placed upon employers to go out

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Speaker 1: of their way and try to arrange for an accommodation

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Speaker 1: so that their employees can maintain their religious practices whatever

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Speaker 1: they are. So that's the first part of the case,

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Speaker 1: but the second part is perhaps even more troubling because

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Speaker 1: what the court is signaled that it wants to consider

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Speaker 1: whether the impact on them other employees can give rise

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Speaker 1: to a undue burden because again in the case, as

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Speaker 1: in the Graph case which is before the court, when

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Speaker 1: a employee says I can't work on Sunday, well, somebody

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Speaker 1: has to work on Sunday, And does that mean that

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Speaker 1: an employer can take into account that their seniority rights

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Speaker 1: of other employees and they want to be home on Sunday,

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Speaker 1: or if they make everybody else works Sundays and they'll

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Speaker 1: have less time with their family and the religious employee

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Speaker 1: enjoys more time with family than the rest of employees.

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Speaker 1: Are these considerations that come within the contemplation of what

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Speaker 1: an undue burden is. So it has a very important

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Speaker 1: sort of overtones for the employer employee relationship and whether

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Speaker 1: the employer can take into accounts seniority rules can take

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Speaker 1: into account the fact that another employee has sick kids

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Speaker 1: at home, and so forth and so on. Until now,

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Speaker 1: the Supreme Court has been reluctant to review the hardest

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Speaker 1: in standard, hasn't it. There have been challenges under Title seven,

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Speaker 1: but this tw A versus Hardsman standard has been around

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Speaker 1: for over thirty years, and individual justices such as Gorsuch,

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Speaker 1: Thomas and Alito in the past have called for re

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Speaker 1: examining the Hardison president and so it's no surprise that

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Speaker 1: they took this case. But the real issue I don't

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Speaker 1: think is whether they keep Hartisan because I think that

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Speaker 1: the standard should be adjusted. But how far will the

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Speaker 1: court go? And if the Court says an employer can't

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Speaker 1: pay attention to the impact on his other employees, that's

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Speaker 1: going to put employers in a real bind. Well, the

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Speaker 1: Court is obviously taking the case to change the standard

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Speaker 1: right and with this court most likely to broaden it

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Speaker 1: in favor of religious liberty. Unquestionably, the Court is looking

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Speaker 1: to broaden the individual religious right at stake here, and

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Speaker 1: the question is to what extent will put the burden

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Speaker 1: on the employer to make that accommodations. Now, according the

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Speaker 1: prior cases, particularly courts of appeals have been clear that

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Speaker 1: the employer doesn't have to accept the accommodation offered by

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Speaker 1: the plaintiffs, that as long as the employer finds a

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Speaker 1: reasonable accommodation, the employer can pick and choose amongst those

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Speaker 1: that satisfy that threshold. I don't think the court is

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Speaker 1: going to re examine that president, which I think is important.

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Speaker 1: But I do think that the key here is if

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Speaker 1: the court would come out and say, you know, we

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Speaker 1: don't care about seniority rights, even if it's in the

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Speaker 1: collective bargaining agreement, you have to accommodate this person's interest.

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Speaker 1: It does elevate the interests of religious ability beyond collective bargaining,

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Speaker 1: beyond seniority, beyond having the kids at home, and that

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Speaker 1: just would suggest that sort of a really distorted view

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Speaker 1: I think of what Congress had in mind when it

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Speaker 1: created Title seven. So this case involved a Christian letter

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Speaker 1: carrier who objected to delivering packages for Amazon on Sunday.

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Speaker 1: But in the case, the postal service showed that it

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Speaker 1: offered instead to let him swap Sunday shifts with others

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Speaker 1: and helped to find someone for him to do that with.

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Speaker 1: Would you consider that a reasonable accommodation. The court is

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Speaker 1: suggesting that it's unlikely to find that that's a reasonable accommodation.

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Speaker 1: That in that case, it was a rural post office,

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Speaker 1: there was only sometimes for employees there, and it's very

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Speaker 1: difficult to allow someone to get a Sunday off when

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Speaker 1: you're in that kind of atmosphere. And the employer tried

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Speaker 1: to help people swap ships. The supervisor himself did some

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Speaker 1: Sunday deliveries to alleviate the burden on this employee, but

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Speaker 1: in that kind of environment simply couldn't without hiring a

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Speaker 1: new person, completely accommodate the interests of the employee. So

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Speaker 1: that's the context of the case that's before the court

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Speaker 1: on this term, and most commentators think the court is

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Speaker 1: going to find that that either is simply and reasonable accommodation,

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Speaker 1: that the employer would have had to mandate that another

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Speaker 1: employee take over the Sunday duties or hire a part

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Speaker 1: time employee in order to ensure to accommodate the religious

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Speaker 1: interests of this one employee. So is the court likely

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Speaker 1: to raise the standard the burden on the employer. Yeah,

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Speaker 1: I think the court is for sure going to say

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Speaker 1: that in order to satisfy Title seven, the employer must

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Speaker 1: make at least substantial efforts to accommodate the interests of

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Speaker 1: the employee, and that an undue burden arises only if

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Speaker 1: there is a significant impact upon the employer was viewed

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Speaker 1: in terms of financial or organizational or other kinds of

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Speaker 1: employment costs. But the second question which is inbedded in

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Speaker 1: that is whether in thinking about those costs can employer

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Speaker 1: take into account seniority? Can the employer take into account

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Speaker 1: fairness to the other employees. And that's a tricky question,

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Speaker 1: and the court may create more divisive workplaces, which is

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Speaker 1: something we don't need them right now, by saying that

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Speaker 1: we're going to elevate one person's religious interests over somebody

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Speaker 1: else's family interests, somebody else's interest in taking care of

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Speaker 1: sick kids, somebody else's different religious interests, etcetera, etcetera. So

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Speaker 1: it becomes a real sort of potential powder keg at

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Speaker 1: the office if an employer has to go to great

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Speaker 1: length to accommodate only religious interests as opposed to those

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Speaker 1: of family and so forth. So the plaintiff is advocating

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Speaker 1: a standard more like that. In the American with Disabilities Act.

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Speaker 1: What standard is that? What standard is that you have

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Speaker 1: to make reasonable efforts to accommodate any kind of disciploying

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Speaker 1: the workplace in order to be inclusive. Um. And that's

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Speaker 1: the standard that's been followed for a while. And I

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Speaker 1: think that the idea of taking reasonab efforts to accommodate

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Speaker 1: is really what the test is all about. I think

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Speaker 1: the hires in court just articulated it, perhaps uh poorly uh.

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Speaker 1: And I think that if it's just a reasonable commodation,

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Speaker 1: that's fine. The question is what is a reasonable combination

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Speaker 1: and do you have to in the questions of Americans

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Speaker 1: with Disability Act, do you have to make the new

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Speaker 1: kind of duties alter duties gifted by technology to what

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Speaker 1: extent you have to buy new technology to help somebody adapt?

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Speaker 1: And so in the religion case, the question again will

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Speaker 1: be similar, will be what is a reasonab accommodation changing shifts,

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Speaker 1: maybe hiring part time personnel, Maybe do you have to

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Speaker 1: ignore collective bartain agreements on seniority. So those are some

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Speaker 1: unanswered questions that the court probably will give us guidance

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Speaker 1: on in deciding this upcoming case. And employers need that guidance.

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Speaker 1: The plantiffs being represented by a religious public interest group

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Speaker 1: First Liberty Institute, and it's also taken on similar federal cases.

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Speaker 1: One involves a suit filed against cv S on behalf

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Speaker 1: of a Christian nurse who allegedly refused to prescribe contraceptive

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Speaker 1: or abortifacient drugs because of her faith. That seems to

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Speaker 1: go much further than this case involving the letter carrier,

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Speaker 1: because anytime a woman comes in requesting contraceptive advice, etcetera,

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Speaker 1: you have to have a totally different nurse helping her,

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Speaker 1: right And so in that case, the question is, you

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Speaker 1: know what the personnel situation in the office. Are there

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Speaker 1: many people so it's not too difficult to have somebody say, well,

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Speaker 1: you know, you have to go to counter three to

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Speaker 1: ask this, or they say just a minute, I'll go

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Speaker 1: get somebody to help you. If that's the answer, then

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Speaker 1: the accommodation would be reasonable. But if it goes to

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Speaker 1: the question of having to hire somebody else, um, if

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Speaker 1: it goes to the issue of making somebody have a

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Speaker 1: different job entirely just so this person's religious views can

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Speaker 1: be accommodated, it's a question. I mean think about out

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Speaker 1: whether a police officer can say, you know, I can't

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Speaker 1: protect the abortion clinic because it's just against my religion.

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Speaker 1: You have to find somebody else to go there, or

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Speaker 1: somebody who's a firefighter at the same thing. Or think

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Speaker 1: about even worse today, a teacher says, what's against my

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Speaker 1: religion to teach anybody who's gay, you'll have to switch

396
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Speaker 1: make them switch classes. Right, I mean, this kind of

397
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Speaker 1: religious objection can be articulated in so many diverse ways.

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Speaker 1: We haven't even contemplated that. You have to draw up

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Speaker 1: pretty clear lines about how many steps going backwards can

400
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Speaker 1: an employer take, can undermine educational values, can undermine the

401
00:25:37,200 --> 00:25:39,680
Speaker 1: safety of the citizens, or do you just is it

402
00:25:39,760 --> 00:25:43,359
Speaker 1: just a huge economic burden or does it make a

403
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Speaker 1: workforce become unruly because of such divisiveness. So that's why

404
00:25:48,920 --> 00:25:51,200
Speaker 1: this could be a powder take of the case. Well,

405
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Speaker 1: this is the court that said it was a high

406
00:25:53,760 --> 00:25:58,879
Speaker 1: school football coaches constitutional right to pray at the fifty

407
00:25:58,960 --> 00:26:03,360
Speaker 1: yard line right after games, despite other accommodations that were

408
00:26:03,400 --> 00:26:06,679
Speaker 1: offered to him. And it's it's hard to understand how

409
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Speaker 1: the court could have decided the Bremerton case with those

410
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Speaker 1: facts and I think that the courts sort of change

411
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Speaker 1: the facts a little bit just to make their um

412
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Speaker 1: their claim a little bit more palatable. But it's clear

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Speaker 1: that this court cares a lot about religious liberty. Some

414
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Speaker 1: people think they only care about Christian religious liberty. But

415
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Speaker 1: even if they are much more open than that, the

416
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Speaker 1: question still is, how do you accommodate the religious views

417
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Speaker 1: of the few to the demands of employment, whether it

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Speaker 1: be the nurse, the firefighter, or the postal carrier. Do

419
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Speaker 1: you have a suggestion for what kind of tests the

420
00:26:44,920 --> 00:26:49,800
Speaker 1: court could use here that wouldn't interfere so much in

421
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Speaker 1: employer employee relations. So if the court decides to discard

422
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Speaker 1: the Harderson tests, but nonetheless to maintain the duty on

423
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Speaker 1: the employer to make a reasonable accommodation, and then just

424
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Speaker 1: articulates four or five factors so that lower courts can

425
00:27:09,440 --> 00:27:12,840
Speaker 1: determine what is a reasonable accommodation, I think that would

426
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Speaker 1: be consistent with the spirit of Title seven. UM. Some

427
00:27:15,960 --> 00:27:20,080
Speaker 1: of those factors would be um cost. Another factor would

428
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Speaker 1: be impact on other legitimate interests of employees, such as

429
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Speaker 1: seniority rights. And then at the court articulate a couple

430
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Speaker 1: more these factors than I think would give guidance to

431
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Speaker 1: the lower courts to sort through these cases and without

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Speaker 1: having too much of a delatary's impact on the workplace.

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Speaker 1: Thanks so much for your insights, how that Professor Harold

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Speaker 1: Crent of the Chicago Kent College of Law. And that's

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Speaker 1: it for this edition of the Bloomberg Law Show. Remember

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Speaker 1: you can always get the latest legal news by listening

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Speaker 1: to our Bloomberg Law podcast. You can find them on

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Speaker 1: Apple Podcasts, Spotify, and at www dot bloomberg dot com

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Speaker 1: Flash podcast Flash Law. I'm June Brawlso when you're listening

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Speaker 1: to Blue Star