WEBVTT - Proud Boys on Trial for Sedition 0:00:03.160 --> 0:00:09.959 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.760 --> 0:00:14.280 Stand Back and stand by. You may remember that line 0:00:14.320 --> 0:00:19.760 from former President Donald Trump during the presidential debates in Well. 0:00:19.840 --> 0:00:23.760 It's now part of the prosecution sedition case against Proud 0:00:23.800 --> 0:00:27.240 Boys leader Enrique Tario and four other members of the 0:00:27.280 --> 0:00:30.159 far right group accused of leading the attack on the 0:00:30.280 --> 0:00:36.519 Capitol on January six. Prosecutors say the Proud Boys were 0:00:36.600 --> 0:00:39.519 part of every critical breach on the day of the attack, 0:00:39.920 --> 0:00:43.360 from knocking down the First Street barricades to smashing a 0:00:43.440 --> 0:00:46.760 window with a stolen police shield letting the rioters into 0:00:46.760 --> 0:00:49.880 the building. And they're giving the jury plenty of visuals 0:00:49.880 --> 0:00:54.200 of the attack, showing videos shot by documentary filmmaker Nick 0:00:54.320 --> 0:00:58.760 quest Ed, who also testified at the January six committee hearings. 0:00:58.800 --> 0:01:02.400 For anyone that really didn't think that there was extreme violence, 0:01:02.480 --> 0:01:06.560 not day um. I filmed it, I saw it, I 0:01:06.720 --> 0:01:10.160 was subject to it. The violence was real and it 0:01:10.280 --> 0:01:14.840 was exceptionally powerful. Defense attorneys argue that the defendants are 0:01:14.840 --> 0:01:18.160 being made scapegoats and that evidence will show there was 0:01:18.240 --> 0:01:21.040 no plan by them to stop the transfer of power. 0:01:21.400 --> 0:01:25.200 Joining me as former federal prosecutor Jimmy Garula, a professor 0:01:25.240 --> 0:01:28.120 at Notre Dame Law School. Jimmy tell us about the 0:01:28.160 --> 0:01:31.479 Proud Boys. Who are they. The Proud Boys were formed 0:01:31.520 --> 0:01:34.880 in two thousand and sixteen by Vice Media co founder 0:01:34.880 --> 0:01:38.600 Gavin McGinnis, who's a Canadian. The group is described as 0:01:38.640 --> 0:01:43.560 the far right neo fascist group that engages in political violence. 0:01:43.720 --> 0:01:47.120 While the actual membership number of members of the group 0:01:47.200 --> 0:01:49.680 is unknown, it's believed to be in the thousands, and 0:01:49.720 --> 0:01:54.040 the group has as many as forty four active chapters 0:01:54.080 --> 0:01:57.760 across the country, and it has a history of engaging 0:01:57.800 --> 0:02:01.960 in political violence. The first a prominent appearance of the 0:02:01.960 --> 0:02:04.480 Proad Boys on the national stage was the summer of 0:02:04.480 --> 0:02:08.480 two thousand and seventeen during the Unite the Right rally 0:02:08.639 --> 0:02:12.240 in Charlotte's, Virginia. One of the organizers of the event 0:02:12.320 --> 0:02:14.800 was a member of the Proud Boys. And then in 0:02:15.200 --> 0:02:18.400 June two thousand eighteen, the Proad Boys attended the Freedom 0:02:18.680 --> 0:02:23.080 Encourage rally in Portland, Oregon, where they engaged in violent 0:02:23.120 --> 0:02:27.359 clashes with members of the Black Lives Matter group and protesters. 0:02:27.520 --> 0:02:29.880 And then, of course, they were involved in the January 0:02:30.040 --> 0:02:33.120 six attack on the U S Capitol Building. The attorney 0:02:33.120 --> 0:02:37.960 for Enrique Tario said, they're basically a drinking club. The 0:02:38.000 --> 0:02:43.080 Proud Boys aren't a sexist, racist, homophobic organization. Well, I 0:02:43.120 --> 0:02:45.400 think there's at least two countries that would beg to differ, 0:02:45.639 --> 0:02:47.959 and one of those is Canada and the other is 0:02:47.960 --> 0:02:50.400 in New Zealand, and the governments of both of those 0:02:50.440 --> 0:02:53.600 countries have designated the Proud Boys as the terrorist organization, 0:02:54.000 --> 0:03:00.320 and that designation carries substantial financial and economic consequences. And 0:03:00.360 --> 0:03:02.959 the police can see the property of the Proud Boys 0:03:03.000 --> 0:03:06.360 you know in their country, and banks can see their assets, 0:03:06.400 --> 0:03:09.760 and they can be denied entry into the country. And 0:03:09.800 --> 0:03:14.079 then additionally, the Southern Poverty Law Center has designated them 0:03:14.120 --> 0:03:17.440 as a hate group, so they have a reputation well 0:03:17.480 --> 0:03:19.960 beyond simply being a good old, you know, boys club. 0:03:20.360 --> 0:03:24.040 What's the prosecution's theory of the case. There are a 0:03:24.160 --> 0:03:27.080 number of charges that have been brought in the in 0:03:27.120 --> 0:03:30.120 the formal indictment against these five members of the Proud Boys, 0:03:30.120 --> 0:03:34.040 but the most important, the most significant, is the seditious 0:03:34.120 --> 0:03:38.400 conspiracy charge and that carries a twenty year sentence. And 0:03:38.520 --> 0:03:42.080 the government's theory is that the members of the Proud 0:03:42.160 --> 0:03:46.560 Boys engage in a conspiracy to prevent the execution of 0:03:46.600 --> 0:03:51.480 any law of the United States, specifically being the certification 0:03:51.600 --> 0:03:56.560 of the electoral College votes that Congress was undertaking on 0:03:56.760 --> 0:04:00.800 January six prior to the attack on the U. S. Capitol. 0:04:01.040 --> 0:04:04.520 What does the prosecution have to prove there A couple 0:04:04.520 --> 0:04:07.600 of points. You know. One, it's been estimated that as 0:04:07.680 --> 0:04:11.400 many as one members of the Proud Boys were in Washington, 0:04:11.480 --> 0:04:17.800 d C. On January six and participated either in planning, directing, 0:04:18.120 --> 0:04:21.880 or executing the attack on the U. S. Capitol. So 0:04:22.160 --> 0:04:25.960 it's the agreement. You know, it's the planning. It's a conspiracy. 0:04:26.200 --> 0:04:29.440 And you know, the conspiracy charge does not require that 0:04:29.560 --> 0:04:34.440 each member of the conspiracy himself participated in acts of violence. 0:04:35.120 --> 0:04:38.440 It's enough if a member of the conspiracy, any member 0:04:38.480 --> 0:04:42.240 of the conspiracy, participated in acts of violence. Again, all 0:04:42.279 --> 0:04:45.600 the members of conspiracy agreed and they agreed to delay 0:04:45.720 --> 0:04:48.800 to prevent the counting of the electoral votes, and they 0:04:48.880 --> 0:04:52.680 did that with the use of force or violence. And 0:04:52.720 --> 0:04:56.200 so again, any member of the conspiracy could have participated 0:04:56.360 --> 0:04:59.520 in the assault on the Capitol using force. But it's 0:04:59.560 --> 0:05:04.200 not necessary that every member of the conspiracy participated. You know, 0:05:04.240 --> 0:05:07.720 by using force in the attack on the capitol. I 0:05:07.760 --> 0:05:10.320 think it's probably worth highlighting that, you know, one of 0:05:10.360 --> 0:05:14.080 the defendants is Dominic Pozzola, and we've seen literally, you know, 0:05:14.440 --> 0:05:19.000 multiple pictures of him using the stolen police right shield 0:05:19.000 --> 0:05:21.600 and using it to break a window into the capitol 0:05:21.640 --> 0:05:25.080 and apparently that was the first entry points where the 0:05:25.240 --> 0:05:29.600 rioters and entered into the capitol building following Pazzola's lead. 0:05:30.520 --> 0:05:34.320 Does it make any difference that Tario wasn't even in 0:05:34.400 --> 0:05:37.760 d C on January six? He'd been arrested two days 0:05:37.760 --> 0:05:41.920 earlier for burning a Black Lives Matter flag and so 0:05:42.000 --> 0:05:46.080 he was not in d C. No, it really doesn't matter, 0:05:46.120 --> 0:05:50.840 because again, this is a conspiracy charge, and what's critical here. 0:05:50.880 --> 0:05:53.760 The critical element of conspiracy is the agreement. So the 0:05:53.839 --> 0:05:56.760 it's agreement between two or more individuals, you know, to 0:05:56.880 --> 0:06:00.799 violate US law and in this case, you know, the uh, 0:06:00.960 --> 0:06:03.719 the insurrection, and so he doesn't have to be present, 0:06:03.960 --> 0:06:06.760 he doesn't have to be there. He doesn't actually himself 0:06:06.800 --> 0:06:10.279 have to be participating in the riot or in the 0:06:10.320 --> 0:06:13.159 attack on the U S Capitol. It's enough that he 0:06:13.279 --> 0:06:17.720 agreed to participate in the planning, the directing, the organizing 0:06:18.080 --> 0:06:23.159 of the attack. Federal prosecutors just want a conviction of 0:06:23.560 --> 0:06:28.080 four of the oath Keepers on seditious conspiracy charges on Monday. 0:06:28.480 --> 0:06:32.120 Is the prosecution's plan here sort of similar? It seems 0:06:32.120 --> 0:06:35.760 to me that the prosecution is following the same kind 0:06:35.760 --> 0:06:39.960 of blueprint of prosecution that they followed in the Oath 0:06:40.080 --> 0:06:43.640 Keeper's trial. And so what we're going to see in 0:06:43.760 --> 0:06:46.960 terms of evidence being presented to the jury is going 0:06:47.000 --> 0:06:51.159 to be statements made by the various, you know, five 0:06:51.200 --> 0:06:54.640 members of the Proud Boys that are being prosecuted, Statements 0:06:54.680 --> 0:06:58.600 that they made in text messages and other social media 0:06:58.680 --> 0:07:03.920 messages that demonstrated their intent to attack the Capitol Building 0:07:03.960 --> 0:07:06.960 to prevent the peaceful transfer of power. So they're going 0:07:07.000 --> 0:07:10.320 to be prosecuted based on their own words, and that 0:07:10.440 --> 0:07:13.559 was the case with the Oath Keepers. And then there's 0:07:13.720 --> 0:07:18.200 also some members of the Proud Boys previously convicted. They've 0:07:18.280 --> 0:07:21.640 endered a guilty plea, they've agreed to cooperate with the government, 0:07:21.840 --> 0:07:25.239 and they're going to testify at trial against the members 0:07:25.280 --> 0:07:28.560 of the Proud Boys. And we also saw that in 0:07:28.720 --> 0:07:32.360 the Oath Keepers prosecution. So that's going to be the 0:07:32.400 --> 0:07:35.280 critical evidence. It's going to be their own words used 0:07:35.280 --> 0:07:37.720 against them. It's going to be members of the Proud 0:07:37.760 --> 0:07:40.320 Boys that were on the inside that are going to 0:07:40.480 --> 0:07:44.440 testify as to what these five defendants intended and what 0:07:44.520 --> 0:07:49.000 they did with respect to the seditious conspiracy. And then lastly, 0:07:49.040 --> 0:07:51.880 it's going to be you know, photos of them at 0:07:51.880 --> 0:07:55.640 the scene, breaking into the building, knocking down you know, 0:07:55.680 --> 0:07:59.520 police barriers, perhaps even assaulting police officers. So I think 0:07:59.520 --> 0:08:02.480 that's going to be the crux of the prosecution's case. 0:08:03.360 --> 0:08:08.520 The prosecution also has text messages from an encrypted channel 0:08:08.560 --> 0:08:11.160 which they set up I think Terrio set up called 0:08:11.200 --> 0:08:15.680 Ministry of Self Defense. Yeah, that's interesting, Yeah, it's interesting. Right. 0:08:15.680 --> 0:08:19.400 So then the question is, well, why was it necessary 0:08:19.440 --> 0:08:25.480 to set up this encrypted messaging in a system of communication, 0:08:25.600 --> 0:08:29.800 and so obviously they did not want the FBI and 0:08:29.920 --> 0:08:34.920 law enforcement officers to be able to capture these messages 0:08:35.040 --> 0:08:38.040 to then be able to use them against them. And why, 0:08:38.080 --> 0:08:41.720 I mean, I think it demonstrates consciousness of guilt that 0:08:41.800 --> 0:08:44.360 they were engaged in the wrongdoing. They knew that what 0:08:44.400 --> 0:08:48.520 they were doing, what was was criminal and prosecutable, and 0:08:48.559 --> 0:08:53.319 therefore they sought to conceal it from federal law enforcement officers. 0:08:54.000 --> 0:08:57.320 Why do you think the judge allowed the prosecution to 0:08:57.480 --> 0:09:01.840 play that clip of former President Trump saying, Proud Boys 0:09:02.440 --> 0:09:05.680 stand back and stand by. Well, it goes to the intent, 0:09:05.880 --> 0:09:08.640 you know, what was the intent and the purpose of 0:09:08.640 --> 0:09:13.320 the conspiracy. And one could argue that this statement and 0:09:13.440 --> 0:09:17.160 this apparent relationship or connection between former President Trump and 0:09:17.160 --> 0:09:20.560 the Proud Boys demonstrates that the Proud Boys were acting 0:09:20.640 --> 0:09:23.640 on behalf of the President Trump and that they were 0:09:23.679 --> 0:09:27.760 again seeking to keep him in power and seeking to 0:09:27.840 --> 0:09:31.360 prevent the peaceful transfer of power of the president like Biden. 0:09:31.600 --> 0:09:34.400 And again that goes to the heart and the purpose 0:09:34.559 --> 0:09:37.880 and the intent of the conspiracy. So I think this 0:09:38.000 --> 0:09:43.439 is evidence of that intent and that relationship between former 0:09:43.520 --> 0:09:46.720 President Trump and the Proud Boys. Some of the defense attorneys, 0:09:46.800 --> 0:09:50.720 including the attorney for Tario, are trying to blame Trump, 0:09:50.920 --> 0:09:54.520 saying Trump unleashed the mob that breached the capital. You know, 0:09:54.559 --> 0:09:56.480 I don't know that it's much of a defense, and 0:09:56.520 --> 0:09:59.600 I don't think that the defense statements are inconsistent with 0:09:59.679 --> 0:10:03.000 the execution's theory. So it could very well be the 0:10:03.040 --> 0:10:07.200 former president Trump unleashed this violent mob to attack the capital, 0:10:07.480 --> 0:10:10.839 but it could equally be the case that in doing so, 0:10:11.480 --> 0:10:14.960 the members of the Proud Boys participated in that assault 0:10:15.360 --> 0:10:18.280 and helped organize and plan that assault, which is the 0:10:18.320 --> 0:10:22.440 basis of the seditious conspiracy charge. Before the riot, the 0:10:22.600 --> 0:10:26.800 FBI had placed informants in the Proud Boys, and now 0:10:26.960 --> 0:10:30.520 some of those informants are being called as witnesses by 0:10:30.559 --> 0:10:34.320 the defense who say they were privy to the Proud 0:10:34.360 --> 0:10:38.080 Boy chats and even marched alongside them. Is that a 0:10:38.120 --> 0:10:40.960 great help to the defense, Well, it'll be interesting to 0:10:41.080 --> 0:10:45.120 see how that testimony plays out. And so apparently the 0:10:45.240 --> 0:10:50.480 defense lawyers believe that these particular informants have evidence that's 0:10:50.520 --> 0:10:54.800 going to contradict the government's theory that they're involved in 0:10:54.840 --> 0:10:59.040 this planning to attack the US capital. And it'll be 0:10:59.080 --> 0:11:03.959 interesting to see once those informants or on the witness 0:11:03.960 --> 0:11:09.080 stand exactly what evidence that they possess and whether it's 0:11:09.080 --> 0:11:12.240 truly exculpatory or maybe there's some aspects of their of 0:11:12.280 --> 0:11:15.280 their testimony to exculpatory. But then other aspects that are 0:11:15.280 --> 0:11:20.360 incriminating with the statements about Trump and with the informants. 0:11:20.400 --> 0:11:24.120 Are some of the defense attorneys pointing in different directions, 0:11:24.640 --> 0:11:27.720 you know, sort of don't look here, look there. Yeah, well, 0:11:27.760 --> 0:11:31.679 that's a common strategy by defense lawyers. They want to 0:11:31.679 --> 0:11:36.000 distract the jury's attention. They want to deflect and draw 0:11:36.040 --> 0:11:40.000 attention away from their clients to other individuals or to 0:11:40.120 --> 0:11:44.320 other participants or two other persons that may have been 0:11:44.360 --> 0:11:46.640 involved or have a motive to be involved in the 0:11:46.679 --> 0:11:50.840 criminal activity. And in my experience as a prosecutor for 0:11:50.920 --> 0:11:55.559 nine years, that tactic, that strategy is is rarely effective 0:11:55.760 --> 0:12:01.520 and rarely successful. So hopefully for their clients they have 0:12:01.920 --> 0:12:06.240 something more, something beyond that as a strategy to defend 0:12:06.240 --> 0:12:09.559 their clients. I found this really interesting. This is according 0:12:09.559 --> 0:12:12.599 to the Wall Street Journal, that some of the defendants 0:12:12.800 --> 0:12:16.360 offered to plead guilty to the obstruction count, which carries 0:12:16.400 --> 0:12:20.720 a twenty year max sentence, but prosecutors insisted that they 0:12:20.760 --> 0:12:25.640 plead guilty to seditious conspiracy. Yeah. Yeah, so that's interesting too, 0:12:25.679 --> 0:12:29.959 I mean, but at the same time, prosecutors typically require 0:12:29.960 --> 0:12:32.160 I mean, especially if they have a strong case. The 0:12:32.200 --> 0:12:35.760 prosecutors feel that they have a very strong case, they're 0:12:35.800 --> 0:12:39.040 not going to accept anything less than a guilty plead 0:12:39.160 --> 0:12:43.360 to the most serious charge. And the fact that some 0:12:43.600 --> 0:12:48.000 other accounts in the indictment carry the same maximum sense, 0:12:48.640 --> 0:12:51.640 doesn't mean that those are the most serious charges. Here, 0:12:51.679 --> 0:12:55.720 clearly the seditious conspiracy charges the most serious charge, and 0:12:55.760 --> 0:12:59.600 the prosecutors are holding out for a plea guilty plate 0:13:00.000 --> 0:13:03.640 of that charge. Now, if the prosecutors thought that there 0:13:03.679 --> 0:13:08.280 were some weaknesses, maybe there's some question about the credibility 0:13:08.320 --> 0:13:11.480 of some of their witnesses, Yeah, then they might have 0:13:11.640 --> 0:13:17.520 some motive and interest in uh in agreeing to have 0:13:17.679 --> 0:13:20.480 the defendants flee to the to a lesser charge. But 0:13:20.600 --> 0:13:24.160 I think this demonstrates again the prosecutor's confidence in the 0:13:24.880 --> 0:13:28.680 in the government's case. Are the Proud Boys considered more 0:13:28.720 --> 0:13:33.079 threatening than the oath Keepers or more dangerous? I think 0:13:33.120 --> 0:13:35.480 a couple of things. One. I think that their their 0:13:35.520 --> 0:13:38.880 membership is larger. As I stated, they believed to have 0:13:39.080 --> 0:13:43.120 members total numbers in the thousands. We don't know exactly 0:13:43.120 --> 0:13:45.760 how many, but in the thousands have at least forty 0:13:46.160 --> 0:13:50.240 plus over forty different chapters. So they appear to be 0:13:51.080 --> 0:13:54.320 more organized. They appear to be a larger in number, 0:13:54.440 --> 0:13:59.040 they appear to be again a nationwide organization. And I 0:13:59.080 --> 0:14:03.840 think all of the those factors could suggest again that 0:14:03.920 --> 0:14:08.040 they pose a greater threat to national security than perhaps 0:14:08.120 --> 0:14:12.600 the oathkeepers. Thanks Jimmy. That's Jimmy Grule, a professor at 0:14:12.600 --> 0:14:16.640 Notre Dame Law School. The Supreme Court is going to 0:14:16.720 --> 0:14:20.200 revisit a decades old precedent that sets the standard for 0:14:20.280 --> 0:14:25.800 businesses to deny workers religious accommodation requests. The Justices have 0:14:25.840 --> 0:14:29.600 agreed to reevaluate that legal test in a case involving 0:14:29.640 --> 0:14:34.080 a Christian letter carriers religious objection to delivering packages for 0:14:34.160 --> 0:14:39.160 Amazon on Sundays. A divided Third Circuit affirmed a lower 0:14:39.160 --> 0:14:42.040 court ruling in favor of the U S Postal Service, 0:14:42.440 --> 0:14:45.920 but the Court's conservative super majority has resulted in a 0:14:46.000 --> 0:14:51.640 greater tendency to credit allegations of religious liberty violations, suggesting 0:14:51.640 --> 0:14:56.480 that a more employee friendly interpretation of religious accommodation requirements 0:14:56.600 --> 0:14:59.440 is on the way. Joining me is Harold Krent, a 0:14:59.480 --> 0:15:03.400 professor at the Chicago Kent College of Law. We'll tell 0:15:03.440 --> 0:15:07.000 us what the standard is now for businesses denying workers 0:15:07.080 --> 0:15:12.800 religious accommodation requests. Title seven protects against the discrimination on 0:15:12.840 --> 0:15:15.960 the basis of religion, just as it protects against discrimination 0:15:16.040 --> 0:15:20.840 on the basis of gender and race, but differently with 0:15:20.840 --> 0:15:25.040 respect to religion. Title seven also requires employers to make 0:15:25.640 --> 0:15:30.560 a reasonable accommodation to all religious practice of its employees, 0:15:31.000 --> 0:15:34.920 unless in so doing the employer would face an undue burden, 0:15:35.840 --> 0:15:40.520 And this particular case questions the precedent of t w 0:15:40.680 --> 0:15:43.640 A versus Hardison, where the Court held that in order 0:15:43.680 --> 0:15:47.280 to assess what an undue burden is, the question is 0:15:47.280 --> 0:15:51.160 whether the employer faces more than a diminimous amount of 0:15:51.200 --> 0:15:55.240 costs and trying to accommodate the request, such as not 0:15:55.280 --> 0:15:58.120 having to work on Sunday as in this case, or 0:15:58.400 --> 0:16:02.120 not having to wear a particular guard in the office, 0:16:02.480 --> 0:16:06.120 not wearing a yamaka, or not wearing a headscarf, something 0:16:06.160 --> 0:16:09.600 along these lines. So what that means would be that 0:16:09.800 --> 0:16:14.520 if a court is satisfied that the employer have to 0:16:14.840 --> 0:16:20.800 pay over time, higher additional personnel or inconvenience other employees, 0:16:21.240 --> 0:16:24.440 that that would constitute more than a dominimous burden and 0:16:24.480 --> 0:16:28.640 therefore the accommodation need not be made. So the case 0:16:28.680 --> 0:16:31.480 before the Supreme Court now will determine whether it is 0:16:31.800 --> 0:16:35.440 twenty five year old President tw A versus Hardison articulated 0:16:35.440 --> 0:16:38.280 the standard too leniently and the fact there needs to 0:16:38.280 --> 0:16:41.440 be a heavier burden placed upon employers to go out 0:16:41.440 --> 0:16:44.360 of their way and try to arrange for an accommodation 0:16:44.640 --> 0:16:48.520 so that their employees can maintain their religious practices whatever 0:16:48.560 --> 0:16:51.080 they are. So that's the first part of the case, 0:16:51.240 --> 0:16:54.760 but the second part is perhaps even more troubling because 0:16:54.760 --> 0:16:57.080 what the court is signaled that it wants to consider 0:16:57.480 --> 0:17:00.560 whether the impact on them other employees can give rise 0:17:00.600 --> 0:17:05.040 to a undue burden because again in the case, as 0:17:05.080 --> 0:17:07.800 in the Graph case which is before the court, when 0:17:08.160 --> 0:17:11.760 a employee says I can't work on Sunday, well, somebody 0:17:11.760 --> 0:17:14.000 has to work on Sunday, And does that mean that 0:17:14.040 --> 0:17:17.720 an employer can take into account that their seniority rights 0:17:17.720 --> 0:17:20.400 of other employees and they want to be home on Sunday, 0:17:20.520 --> 0:17:23.080 or if they make everybody else works Sundays and they'll 0:17:23.119 --> 0:17:26.800 have less time with their family and the religious employee 0:17:26.880 --> 0:17:29.679 enjoys more time with family than the rest of employees. 0:17:29.840 --> 0:17:33.240 Are these considerations that come within the contemplation of what 0:17:33.640 --> 0:17:36.719 an undue burden is. So it has a very important 0:17:36.760 --> 0:17:41.560 sort of overtones for the employer employee relationship and whether 0:17:41.760 --> 0:17:45.160 the employer can take into accounts seniority rules can take 0:17:45.480 --> 0:17:48.520 into account the fact that another employee has sick kids 0:17:48.560 --> 0:17:51.760 at home, and so forth and so on. Until now, 0:17:51.800 --> 0:17:56.200 the Supreme Court has been reluctant to review the hardest 0:17:56.240 --> 0:18:01.399 in standard, hasn't it. There have been challenges under Title seven, 0:18:01.440 --> 0:18:04.960 but this tw A versus Hardsman standard has been around 0:18:05.040 --> 0:18:11.520 for over thirty years, and individual justices such as Gorsuch, 0:18:11.960 --> 0:18:14.760 Thomas and Alito in the past have called for re 0:18:14.880 --> 0:18:19.119 examining the Hardison president and so it's no surprise that 0:18:19.200 --> 0:18:21.520 they took this case. But the real issue I don't 0:18:21.520 --> 0:18:24.080 think is whether they keep Hartisan because I think that 0:18:24.119 --> 0:18:27.720 the standard should be adjusted. But how far will the 0:18:27.800 --> 0:18:31.680 court go? And if the Court says an employer can't 0:18:31.840 --> 0:18:35.560 pay attention to the impact on his other employees, that's 0:18:35.560 --> 0:18:38.560 going to put employers in a real bind. Well, the 0:18:38.600 --> 0:18:42.440 Court is obviously taking the case to change the standard 0:18:42.560 --> 0:18:46.040 right and with this court most likely to broaden it 0:18:46.080 --> 0:18:50.480 in favor of religious liberty. Unquestionably, the Court is looking 0:18:50.520 --> 0:18:54.720 to broaden the individual religious right at stake here, and 0:18:54.760 --> 0:18:57.000 the question is to what extent will put the burden 0:18:57.000 --> 0:19:00.800 on the employer to make that accommodations. Now, according the 0:19:00.840 --> 0:19:04.560 prior cases, particularly courts of appeals have been clear that 0:19:04.640 --> 0:19:10.240 the employer doesn't have to accept the accommodation offered by 0:19:10.440 --> 0:19:13.919 the plaintiffs, that as long as the employer finds a 0:19:14.000 --> 0:19:17.640 reasonable accommodation, the employer can pick and choose amongst those 0:19:17.680 --> 0:19:21.000 that satisfy that threshold. I don't think the court is 0:19:21.000 --> 0:19:24.359 going to re examine that president, which I think is important. 0:19:24.840 --> 0:19:26.760 But I do think that the key here is if 0:19:26.760 --> 0:19:29.080 the court would come out and say, you know, we 0:19:29.119 --> 0:19:31.000 don't care about seniority rights, even if it's in the 0:19:31.000 --> 0:19:34.679 collective bargaining agreement, you have to accommodate this person's interest. 0:19:35.080 --> 0:19:39.840 It does elevate the interests of religious ability beyond collective bargaining, 0:19:40.119 --> 0:19:44.520 beyond seniority, beyond having the kids at home, and that 0:19:44.880 --> 0:19:48.080 just would suggest that sort of a really distorted view 0:19:48.119 --> 0:19:50.320 I think of what Congress had in mind when it 0:19:50.400 --> 0:19:54.639 created Title seven. So this case involved a Christian letter 0:19:54.800 --> 0:20:00.440 carrier who objected to delivering packages for Amazon on Sunday. 0:20:00.600 --> 0:20:04.199 But in the case, the postal service showed that it 0:20:04.400 --> 0:20:08.920 offered instead to let him swap Sunday shifts with others 0:20:08.960 --> 0:20:11.800 and helped to find someone for him to do that with. 0:20:12.440 --> 0:20:15.879 Would you consider that a reasonable accommodation. The court is 0:20:15.920 --> 0:20:19.520 suggesting that it's unlikely to find that that's a reasonable accommodation. 0:20:20.000 --> 0:20:22.679 That in that case, it was a rural post office, 0:20:22.720 --> 0:20:27.080 there was only sometimes for employees there, and it's very 0:20:27.119 --> 0:20:30.840 difficult to allow someone to get a Sunday off when 0:20:30.880 --> 0:20:34.200 you're in that kind of atmosphere. And the employer tried 0:20:34.240 --> 0:20:38.680 to help people swap ships. The supervisor himself did some 0:20:38.720 --> 0:20:42.399 Sunday deliveries to alleviate the burden on this employee, but 0:20:42.600 --> 0:20:46.080 in that kind of environment simply couldn't without hiring a 0:20:46.080 --> 0:20:50.520 new person, completely accommodate the interests of the employee. So 0:20:50.560 --> 0:20:52.760 that's the context of the case that's before the court 0:20:53.080 --> 0:20:57.159 on this term, and most commentators think the court is 0:20:57.200 --> 0:21:01.320 going to find that that either is simply and reasonable accommodation, 0:21:01.680 --> 0:21:03.959 that the employer would have had to mandate that another 0:21:04.160 --> 0:21:08.040 employee take over the Sunday duties or hire a part 0:21:08.040 --> 0:21:13.120 time employee in order to ensure to accommodate the religious 0:21:13.160 --> 0:21:17.440 interests of this one employee. So is the court likely 0:21:17.760 --> 0:21:22.440 to raise the standard the burden on the employer. Yeah, 0:21:22.440 --> 0:21:25.240 I think the court is for sure going to say 0:21:25.400 --> 0:21:29.120 that in order to satisfy Title seven, the employer must 0:21:29.160 --> 0:21:33.439 make at least substantial efforts to accommodate the interests of 0:21:33.720 --> 0:21:37.720 the employee, and that an undue burden arises only if 0:21:37.760 --> 0:21:41.480 there is a significant impact upon the employer was viewed 0:21:41.480 --> 0:21:45.239 in terms of financial or organizational or other kinds of 0:21:45.640 --> 0:21:49.119 employment costs. But the second question which is inbedded in 0:21:49.119 --> 0:21:53.200 that is whether in thinking about those costs can employer 0:21:53.640 --> 0:21:57.600 take into account seniority? Can the employer take into account 0:21:58.040 --> 0:22:02.399 fairness to the other employees. And that's a tricky question, 0:22:02.720 --> 0:22:06.520 and the court may create more divisive workplaces, which is 0:22:06.520 --> 0:22:09.120 something we don't need them right now, by saying that 0:22:09.160 --> 0:22:12.280 we're going to elevate one person's religious interests over somebody 0:22:12.320 --> 0:22:14.879 else's family interests, somebody else's interest in taking care of 0:22:15.000 --> 0:22:18.919 sick kids, somebody else's different religious interests, etcetera, etcetera. So 0:22:18.960 --> 0:22:21.639 it becomes a real sort of potential powder keg at 0:22:21.640 --> 0:22:23.960 the office if an employer has to go to great 0:22:24.040 --> 0:22:27.880 length to accommodate only religious interests as opposed to those 0:22:28.040 --> 0:22:32.560 of family and so forth. So the plaintiff is advocating 0:22:33.119 --> 0:22:37.160 a standard more like that. In the American with Disabilities Act. 0:22:37.320 --> 0:22:39.480 What standard is that? What standard is that you have 0:22:39.560 --> 0:22:44.480 to make reasonable efforts to accommodate any kind of disciploying 0:22:44.520 --> 0:22:47.160 the workplace in order to be inclusive. Um. And that's 0:22:47.200 --> 0:22:51.399 the standard that's been followed for a while. And I 0:22:51.400 --> 0:22:54.200 think that the idea of taking reasonab efforts to accommodate 0:22:54.760 --> 0:22:56.640 is really what the test is all about. I think 0:22:56.720 --> 0:23:02.720 the hires in court just articulated it, perhaps uh poorly uh. 0:23:02.760 --> 0:23:05.120 And I think that if it's just a reasonable commodation, 0:23:05.200 --> 0:23:07.840 that's fine. The question is what is a reasonable combination 0:23:08.400 --> 0:23:11.400 and do you have to in the questions of Americans 0:23:11.440 --> 0:23:13.760 with Disability Act, do you have to make the new 0:23:13.840 --> 0:23:19.520 kind of duties alter duties gifted by technology to what 0:23:19.600 --> 0:23:22.720 extent you have to buy new technology to help somebody adapt? 0:23:23.080 --> 0:23:25.640 And so in the religion case, the question again will 0:23:25.680 --> 0:23:29.840 be similar, will be what is a reasonab accommodation changing shifts, 0:23:30.600 --> 0:23:35.280 maybe hiring part time personnel, Maybe do you have to 0:23:35.359 --> 0:23:39.159 ignore collective bartain agreements on seniority. So those are some 0:23:39.400 --> 0:23:43.040 unanswered questions that the court probably will give us guidance 0:23:43.080 --> 0:23:46.520 on in deciding this upcoming case. And employers need that guidance. 0:23:46.960 --> 0:23:50.880 The plantiffs being represented by a religious public interest group 0:23:50.960 --> 0:23:55.880 First Liberty Institute, and it's also taken on similar federal cases. 0:23:56.400 --> 0:24:01.120 One involves a suit filed against cv S on behalf 0:24:01.119 --> 0:24:05.880 of a Christian nurse who allegedly refused to prescribe contraceptive 0:24:06.359 --> 0:24:10.679 or abortifacient drugs because of her faith. That seems to 0:24:10.720 --> 0:24:15.080 go much further than this case involving the letter carrier, 0:24:15.640 --> 0:24:21.040 because anytime a woman comes in requesting contraceptive advice, etcetera, 0:24:21.560 --> 0:24:23.640 you have to have a totally different nurse helping her, 0:24:24.320 --> 0:24:25.960 right And so in that case, the question is, you 0:24:26.000 --> 0:24:30.040 know what the personnel situation in the office. Are there 0:24:30.160 --> 0:24:33.080 many people so it's not too difficult to have somebody say, well, 0:24:33.119 --> 0:24:35.080 you know, you have to go to counter three to 0:24:35.440 --> 0:24:37.879 ask this, or they say just a minute, I'll go 0:24:37.960 --> 0:24:41.240 get somebody to help you. If that's the answer, then 0:24:41.280 --> 0:24:45.040 the accommodation would be reasonable. But if it goes to 0:24:45.080 --> 0:24:48.760 the question of having to hire somebody else, um, if 0:24:48.760 --> 0:24:52.919 it goes to the issue of making somebody have a 0:24:52.960 --> 0:24:57.560 different job entirely just so this person's religious views can 0:24:57.600 --> 0:25:00.160 be accommodated, it's a question. I mean think about out 0:25:00.400 --> 0:25:03.359 whether a police officer can say, you know, I can't 0:25:03.400 --> 0:25:06.600 protect the abortion clinic because it's just against my religion. 0:25:06.920 --> 0:25:09.280 You have to find somebody else to go there, or 0:25:09.440 --> 0:25:12.080 somebody who's a firefighter at the same thing. Or think 0:25:12.119 --> 0:25:14.520 about even worse today, a teacher says, what's against my 0:25:14.600 --> 0:25:18.000 religion to teach anybody who's gay, you'll have to switch 0:25:18.240 --> 0:25:21.600 make them switch classes. Right, I mean, this kind of 0:25:21.760 --> 0:25:25.920 religious objection can be articulated in so many diverse ways. 0:25:25.960 --> 0:25:29.240 We haven't even contemplated that. You have to draw up 0:25:29.240 --> 0:25:33.520 pretty clear lines about how many steps going backwards can 0:25:33.560 --> 0:25:37.159 an employer take, can undermine educational values, can undermine the 0:25:37.200 --> 0:25:39.680