WEBVTT - Employment Cases From Reverse Discrimination to RICO 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:10.240 --> 0:00:13.280 The Supreme Court has at least five cases on its 0:00:13.360 --> 0:00:17.520 dock at this term that could potentially reshape the employment 0:00:17.600 --> 0:00:21.720 law landscape. The cases cover a broad range of issues, 0:00:22.120 --> 0:00:25.400 from a failed drug test by a truck driver suing 0:00:25.520 --> 0:00:30.200 CBD makers using the Rico statute to an Ohio public 0:00:30.280 --> 0:00:34.879 employees claim that she was denied promotion and demoted because 0:00:34.880 --> 0:00:38.760 she's a heterosexual. The first case that Justice has heard 0:00:38.800 --> 0:00:43.400 this term on Monday involve workers suing Alabama over unemployment 0:00:43.479 --> 0:00:46.800 benefits who are stuck in a sort of catch twenty two. 0:00:47.280 --> 0:00:50.800 Here's how Justice Sonya Sotomayor put it. See it really 0:00:50.920 --> 0:00:54.440 stuck in a state process with a loop that you 0:00:54.480 --> 0:00:56.800 can't get out of. Joining me is an expert in 0:00:56.840 --> 0:01:02.080 employment law, Anthony Ancidi, a partner scour Tony. The Justices 0:01:02.280 --> 0:01:05.119 kicked off the term with an employment law case tell 0:01:05.200 --> 0:01:05.760 us about it. 0:01:06.240 --> 0:01:09.920 This case involves residents of Alabama who had applied for 0:01:10.920 --> 0:01:17.480 unemployment benefits during the COVID pandemic, and they challenged the 0:01:17.480 --> 0:01:20.959 way that the State of Alabama had handled their claims. 0:01:21.280 --> 0:01:25.440 They sought to bring claims under a federal Statute Section 0:01:25.520 --> 0:01:29.959 nineteen eighty three, and that allows individuals to sue the 0:01:30.000 --> 0:01:33.360 state government and officials of the state government for violating 0:01:33.400 --> 0:01:37.000 the civil rights under federal law. They alleged that the 0:01:37.080 --> 0:01:40.720 state's policies and its practices and its procedures related to 0:01:40.800 --> 0:01:45.479 unemployment compensation applications violated the Social Security Act of nineteen 0:01:45.520 --> 0:01:49.200 thirty five, which is obviously a federal statute. They also 0:01:49.240 --> 0:01:52.400 claimed that they had suffered a violation of their due 0:01:52.400 --> 0:01:56.320 process rights under the Constitution. This case comes to the 0:01:56.480 --> 0:01:59.960 US Supreme Court from the Alabama Supreme Court, which said 0:02:00.120 --> 0:02:03.880 that state law requires that the plaintiffs in the case 0:02:04.480 --> 0:02:07.520 first bring their claims to the state's Department of Labor 0:02:07.840 --> 0:02:12.280 and exhaust all administrative remedies that are available under state law, 0:02:12.480 --> 0:02:16.120 and according to the Alabama Court, that is supported by 0:02:16.240 --> 0:02:20.399 Supreme Court precedents, saying that that requirement does exist with 0:02:20.480 --> 0:02:23.760 respect to these claims. So the issue is whether these 0:02:24.080 --> 0:02:27.440 workers who are seeking unemployment benefits need to exhaust state 0:02:27.440 --> 0:02:30.720 administrative remedies before they can bring a claim under a 0:02:30.760 --> 0:02:34.160 federal civil rights law. The reason why this is going 0:02:34.200 --> 0:02:36.440 to be important, I think probably in these cases is 0:02:36.440 --> 0:02:39.760 because they didn't do that, and if it is determined 0:02:39.760 --> 0:02:44.960 that they were required to exhaust state administrative remedies, that 0:02:44.960 --> 0:02:48.400 that could jeopardize the federal claims that they're seeking to 0:02:48.440 --> 0:02:50.480 make under Section nineteen eighty three in this case. 0:02:50.720 --> 0:02:53.600 And tell us about the Supreme Court's prior rulings in 0:02:53.680 --> 0:02:57.120 this area in the cases of Patsy versus Board of 0:02:57.200 --> 0:03:01.359 Regents and Felder versus Casey, and. 0:03:00.840 --> 0:03:04.720 That's exactly what the Alabama Supreme Court relied upon. And 0:03:04.800 --> 0:03:07.320 the fact that the US Supreme Court then took this 0:03:07.480 --> 0:03:10.080 case up may mean that there has been a shift 0:03:10.160 --> 0:03:12.920 or a change in the Supreme Court's point of view 0:03:12.960 --> 0:03:16.040 with respect to this because the US Supreme Court has, 0:03:16.200 --> 0:03:20.519 of course complete discretion as to what cases it does 0:03:20.600 --> 0:03:22.640 or does not take, and it takes obviously a very 0:03:22.680 --> 0:03:26.040 small handful of cases every year. And the fact that 0:03:26.080 --> 0:03:30.080 they have granted sorcherai that is the Latin word for 0:03:30.120 --> 0:03:32.920 the review that is granted in this case and in 0:03:32.960 --> 0:03:36.040 these cases generally, may suggest that there is a different 0:03:36.080 --> 0:03:36.680 point of view. 0:03:36.840 --> 0:03:42.080 During the oral arguments, Justice Sonia Sotomayor told the plaintiff's 0:03:42.120 --> 0:03:45.960 lawyer that he was really stuck in a state process 0:03:46.040 --> 0:03:47.720 with a loop that you can't. 0:03:47.400 --> 0:03:51.160 Get out of right. And I think again, this is 0:03:51.240 --> 0:03:55.240 one of those situations where it may seem like a technicality, 0:03:55.560 --> 0:03:58.320 but there is a lot of law with respect to 0:03:58.360 --> 0:04:02.800 these issues in the ployment context and in the administrative 0:04:02.840 --> 0:04:05.560 context that does exist. We see this all the time, 0:04:06.240 --> 0:04:11.600 where these administrative filings and processes, although they do sometimes 0:04:11.960 --> 0:04:15.080 take on somewhat of a pro forma status, meaning that 0:04:15.320 --> 0:04:19.400 the lawyer representing the claimant simply has to file something 0:04:20.080 --> 0:04:23.680 and often can do it online. And in California, where 0:04:23.680 --> 0:04:28.000 I'm most familiar with administrative filings and the employment context, 0:04:28.200 --> 0:04:33.159 the state administrative agency California Civil Rights Department, will open 0:04:33.240 --> 0:04:36.400 and close the administrative file the very same day, and 0:04:36.760 --> 0:04:40.359 in almost every single case, the administrative apparatus is not 0:04:40.440 --> 0:04:44.359 triggered and they don't get involved. But if the plaintiff 0:04:44.400 --> 0:04:47.719 has not done that first and proceeds directly to court 0:04:47.800 --> 0:04:51.960 without having exhausted those remedies, that's a means by which 0:04:52.040 --> 0:04:54.320 the defense can then say you can't proceed in the 0:04:54.320 --> 0:04:57.240 case because you should have at least given the administrative 0:04:57.279 --> 0:05:01.920 apparatus or the agency some opportunity to prosecute this. I 0:05:02.000 --> 0:05:04.760 think some of this is a result of just the 0:05:04.760 --> 0:05:07.760 passage of time, because many of these civil rights statutes, 0:05:07.800 --> 0:05:10.520 for example, when they were first passed, they were not 0:05:10.560 --> 0:05:15.320 intended to directly lead to litigation or court cases or 0:05:15.520 --> 0:05:17.720 jury trials or any of this. They were supposed to 0:05:17.760 --> 0:05:20.240 be and they were often designed to be decided by 0:05:20.279 --> 0:05:25.160 administrative agencies, which is obviously a somewhat lesser formal proceeding 0:05:25.440 --> 0:05:27.839 than having a case go to court. In the way 0:05:27.880 --> 0:05:30.520 in which the laws developed, though, and procedures have developed, 0:05:30.560 --> 0:05:34.440 and I think really administrative agencies have just been overwhelmed 0:05:34.440 --> 0:05:37.880 with the number of claims. The administrative apparatus is kind 0:05:37.920 --> 0:05:40.480 of atrophied in these cases, and so as a result 0:05:40.520 --> 0:05:43.880 of that, it may seem again like a technicality that 0:05:43.880 --> 0:05:45.640 that has to be done. But the law has not 0:05:45.760 --> 0:05:48.400 been changed in most places. And that's I think what 0:05:48.839 --> 0:05:51.760 is probably at the root of what Justice Sodomayer was 0:05:51.800 --> 0:05:52.600 talking about. 0:05:53.000 --> 0:05:55.560 So you think that the court is going to uphold 0:05:55.720 --> 0:05:59.080 the requirement of exhausting administrative remedies. 0:05:58.760 --> 0:06:02.040 It seems like they should probably is something that ultimately 0:06:02.040 --> 0:06:05.200 would have to be decided or probably better decided and 0:06:05.200 --> 0:06:07.880 a remedied. If a remedy is going to be obtained 0:06:07.920 --> 0:06:10.599 from a legislative body that would look at something like 0:06:10.640 --> 0:06:13.000 this and make the determination that, as I said, some 0:06:13.040 --> 0:06:16.640 of these administrative agencies have atrophied, and there's really not 0:06:16.760 --> 0:06:18.919 as much of a reason today as there might have 0:06:18.960 --> 0:06:22.480 been thirty or forty years ago to require those processes. 0:06:23.360 --> 0:06:25.359 Next week, the court is going to hear the case 0:06:25.360 --> 0:06:29.880 of medical marijuana versus Horn. This case intrigues me because 0:06:29.880 --> 0:06:34.080 it involves a truck driver, medical marijuana and the RICO Act. 0:06:36.680 --> 0:06:41.560 Walked into a bar. Yeah, it's a group of unlikely 0:06:41.880 --> 0:06:45.239 entities and parties I suppose that are involved in this case, 0:06:45.279 --> 0:06:48.240 and the set of circumstances is somewhat unique. This was 0:06:48.279 --> 0:06:52.640 a commercial truck driver who was required to pass periodic 0:06:52.720 --> 0:06:56.840 drug screen and he was fired when he tested positive 0:06:56.920 --> 0:07:01.080 for THHC, which of course is the psychoactive compound that 0:07:01.520 --> 0:07:05.120 is part of the cannabis plant and that is triggered 0:07:05.120 --> 0:07:08.279 in the event that one consumes or smokes cannabis. The 0:07:08.400 --> 0:07:15.040 driver claimed that he had not intentionally ingested THHC, but 0:07:15.120 --> 0:07:18.520 that he had used an elixir an interesting word for 0:07:18.680 --> 0:07:23.040 severe pain that was marked as containing only CBD, which 0:07:23.080 --> 0:07:27.560 is another compound that comes from marijuana. But which is 0:07:27.600 --> 0:07:32.640 not psychoactive and is not illegal. It's generally legal to 0:07:32.680 --> 0:07:38.520 consume CBD. So his argument was I essentially consume something 0:07:38.640 --> 0:07:41.840 that was mislabeled and by the way that mislabeling then 0:07:41.920 --> 0:07:45.120 led to his being fired. He has now made this 0:07:45.280 --> 0:07:49.320 claim in the form of a assertion of fraud under 0:07:49.360 --> 0:07:53.800 the RICO the Racketeer Influenced in Corrupt Organizations Act, which 0:07:53.840 --> 0:07:57.320 typically originally was I think intended to reach mafia members 0:07:57.440 --> 0:07:59.960 but often gets thrown around these days in different types 0:08:00.080 --> 0:08:03.440 of cases. But it's known by the acronym RICO riico, 0:08:03.880 --> 0:08:07.920 and he's claiming that the CBD maker slash. I guess 0:08:07.960 --> 0:08:11.760 the thhc CBD maker in this case has conducted itself 0:08:11.760 --> 0:08:14.640 in a way that it has violated. The RICO statute, usually, 0:08:14.640 --> 0:08:18.320 as I say, was typically used for targeting organized crime, 0:08:18.720 --> 0:08:22.240 but it does allow plaintiffs to bring certain civil cases 0:08:22.240 --> 0:08:25.800 for fraud and potentially collect triple damages. So in this case, 0:08:25.840 --> 0:08:28.080 the damages that he'll be seeking presumably will be the 0:08:28.120 --> 0:08:32.760 lost wages and benefits that flowed from his loss of employment. 0:08:32.800 --> 0:08:34.920 I suppose there may be other damages that he's going 0:08:34.960 --> 0:08:37.920 to seek as well. This case found itself to the 0:08:38.000 --> 0:08:41.920 Second Circuit Court of Appeals in New York, and that 0:08:42.000 --> 0:08:44.760 court allowed the driver to proceed with his claim. But 0:08:44.880 --> 0:08:48.240 other appeals courts have tossed similar lawsuits where there was 0:08:48.400 --> 0:08:52.720 an attempt to seek monetary damages under RICO for personal injuries. 0:08:52.760 --> 0:08:55.280 I don't know that it's arisen previously in the context 0:08:55.320 --> 0:08:59.040 of CBD THCHC, but that happens to be the factual 0:08:59.040 --> 0:09:02.400 scenario in this case. And so in this case, the 0:09:02.440 --> 0:09:06.200 CBD manufacturer wants the Supreme Court to dismiss the RICO claim, 0:09:06.480 --> 0:09:10.400 asserting that it's merely a garden variety products liability suit 0:09:10.600 --> 0:09:13.120 and that it should not be able to proceed under 0:09:13.320 --> 0:09:14.520 the Rico statute. 0:09:14.720 --> 0:09:16.600 There's a split in the circuits on this. Do you 0:09:16.600 --> 0:09:20.080 think the Supreme Court took the case to overturn the 0:09:20.120 --> 0:09:20.920 Second Circuit? 0:09:21.400 --> 0:09:23.800 It sounds like they might. Again. You never can tell, 0:09:24.200 --> 0:09:26.120 because it certainly is not the case that every time 0:09:26.160 --> 0:09:29.160 the US Supreme Court, or really any appellate court takes 0:09:29.320 --> 0:09:32.479 a case when they have discretion that they are accepting 0:09:32.559 --> 0:09:35.840 review to affirm. I guess the inclination is, why not 0:09:35.960 --> 0:09:37.960 just leave well enough alone? If they're just going to 0:09:38.040 --> 0:09:41.080 affirm the lower court. You typically think that they will 0:09:41.120 --> 0:09:44.360 do something different, but they obviously don't always affirm the 0:09:44.440 --> 0:09:47.679 lower court. And in this situation, as I said, there 0:09:47.800 --> 0:09:51.120 is a conflict among the circuits, and that's typically when 0:09:51.160 --> 0:09:53.640 the US Supreme Court does get involved. So they may 0:09:53.720 --> 0:09:57.560 grant a review in a case in which one of 0:09:57.640 --> 0:10:02.760 seven circuits rules one and the other sixth rule another way. 0:10:02.800 --> 0:10:05.400 It doesn't necessarily mean they're going to affirm or reverse 0:10:05.480 --> 0:10:08.480 that one circuit. It just means they're trying to resolve 0:10:08.559 --> 0:10:11.439 whether the other six were right and this one was wrong, 0:10:11.520 --> 0:10:14.079 or vice versa. And I guess we're not going to 0:10:14.120 --> 0:10:16.640 really know for a time. We should also say these 0:10:16.679 --> 0:10:19.520 are all cases that are in the current term of 0:10:19.600 --> 0:10:22.960 the US Supreme Court, which begins every year on the 0:10:22.960 --> 0:10:27.160 first Monday of October, and the term then usually concludes 0:10:27.200 --> 0:10:31.560 with a great degree of drama and fireworks in late 0:10:31.640 --> 0:10:34.480 June early July. I've often said that the Supreme Court 0:10:34.520 --> 0:10:38.960 has an unerring sense of drama and of entertainment in 0:10:39.000 --> 0:10:42.160 some ways, I suppose because they saved the biggest cases 0:10:42.720 --> 0:10:44.960 for the last as they did the last term when 0:10:45.000 --> 0:10:47.920 they had a number of very significant opinions that came 0:10:47.960 --> 0:10:50.040 out in late June. They're almost all out, I think, 0:10:50.120 --> 0:10:52.679 without exception before the fourth of July holiday. 0:10:52.840 --> 0:10:53.560 Absolutely. 0:10:54.120 --> 0:10:54.360 See. 0:10:54.400 --> 0:10:57.040 My theory is they're not saving the best for a last, 0:10:57.400 --> 0:11:00.640 They're saving the most controversial for last, and then they 0:11:00.679 --> 0:11:02.319 take off on their three month vacation. 0:11:02.640 --> 0:11:07.520 But you know that's perhaps and avoid any demonstrations some 0:11:07.640 --> 0:11:09.080 of their opinions. 0:11:09.240 --> 0:11:12.160 On November fifth, there will be oral arguments in a 0:11:12.200 --> 0:11:15.640 case involving Overton exemptions, of. 0:11:15.520 --> 0:11:17.440 Course, I know, you know, and we should mention that 0:11:17.480 --> 0:11:20.920 November fifth, something else is happening that day, really election 0:11:21.040 --> 0:11:25.600 den Yes, So this this case involves Again it sounds 0:11:25.600 --> 0:11:27.679 like somewhat of a dry issue, but I think it's 0:11:27.679 --> 0:11:31.080 an extremely important one, especially for employers and employees. That's 0:11:31.120 --> 0:11:34.160 the context in which it arises, and it arises under 0:11:34.240 --> 0:11:36.800 a statute known as the Fair Labor Standards Act, which 0:11:36.840 --> 0:11:41.600 is a federal law that protects wage an hour practices 0:11:42.240 --> 0:11:47.040 of employees and employers that governs those situations. And the 0:11:47.160 --> 0:11:50.239 question here has to do with the preponderance of evidence 0:11:50.559 --> 0:11:53.760 standard of proof versus what's called the clear and convincing 0:11:53.800 --> 0:11:56.560 standard of evidence. And I should say that there are 0:11:56.720 --> 0:12:01.319 at least three differing standards of proof that typically arise 0:12:01.360 --> 0:12:04.720 in the case. In most civil cases, you have the 0:12:04.720 --> 0:12:08.360 preponderance of evidence standard. Law students are taught that that 0:12:08.440 --> 0:12:12.320 means that the plaintiff has to prove basically about fifty 0:12:12.360 --> 0:12:15.559 one percent of the evidence in their favorite that's kind 0:12:15.559 --> 0:12:17.200 of a rough way of saying it. But it doesn't 0:12:17.240 --> 0:12:19.440 have to be a huge amount in the favor of 0:12:19.440 --> 0:12:21.600 the plaintiff, meaning that the burden of proof is not 0:12:21.760 --> 0:12:25.120 that particularly burden some but the preponderance means that more 0:12:25.200 --> 0:12:27.480 than not the evidence needs to point in the favor 0:12:27.480 --> 0:12:29.120 of the plaintiff in order for the plaintiff to win. 0:12:29.400 --> 0:12:32.040 The other standard that we're all pretty familiar with just 0:12:32.040 --> 0:12:35.200 from watching TV shows is the beyond the reasonable doubt standard, 0:12:35.400 --> 0:12:38.200 which is a much higher burden of proof. That is 0:12:38.400 --> 0:12:41.640 the criminal standard of evidence that is required to get 0:12:41.679 --> 0:12:44.440 a criminal conviction, So the prosecution needs to prove that 0:12:44.480 --> 0:12:48.000 the defendant in a criminal case violated the law beyond 0:12:48.080 --> 0:12:51.720 the reasonable doubt. Somewhere floating between those two standards is 0:12:51.720 --> 0:12:54.880 the clear and convincing evidence standard, meaning it's got to 0:12:54.920 --> 0:12:57.200 be a little bit more than half, but a lot 0:12:57.320 --> 0:13:00.000 less than what you would need for beyond a reasonable doubt, 0:13:00.080 --> 0:13:03.040 their floats somewhere in between. And that's the very question 0:13:03.080 --> 0:13:05.560 that that issue in this case, as comes out of Richmond, Virginia, 0:13:05.600 --> 0:13:08.480 the Fourth Circuit Court of Appeals, The question is does 0:13:08.520 --> 0:13:11.000 an employer have to prove, because the employee does have 0:13:11.040 --> 0:13:14.960 the burden of proof on these cases, that when an 0:13:14.960 --> 0:13:19.199 employee claims that they've been misclassified, meaning that they didn't 0:13:19.200 --> 0:13:21.800 get overtime and they should have, they were misclassified for 0:13:21.840 --> 0:13:24.920 some reason as exempt from overtime, does the employer have 0:13:25.000 --> 0:13:29.240 to prove that the employee was properly classified by the 0:13:29.679 --> 0:13:33.080 clear and convincing standard, which is that medium proof standard, 0:13:33.559 --> 0:13:36.480 or just the preponderance of the evidence standard, which is 0:13:36.520 --> 0:13:40.360 an easier burden to meet. Obviously, the plaintiffs in a 0:13:40.440 --> 0:13:42.560 case like this are going to be pushing for clear 0:13:42.600 --> 0:13:44.319 and convincing because that would mean it's going to be 0:13:44.360 --> 0:13:47.840 harder for the employer to win, and in this case, 0:13:48.040 --> 0:13:50.439 that's going to be the issue. A number of federal 0:13:50.480 --> 0:13:52.960 circuit Courts of Appeals have already weighed in on this, 0:13:53.080 --> 0:13:56.000 including the Fifth, sixth, seventh, ninth, ten to eleven, and 0:13:56.040 --> 0:13:59.600 they've all applied the lower standard of preponderance of the evidence. 0:14:00.000 --> 0:14:02.400 In this case, the Fourth Circuit Court said that the 0:14:02.400 --> 0:14:05.280 clear and convincing standard is the one that applies. 0:14:05.760 --> 0:14:09.720 I'm betting on the fifth, sixth, seventh, ninth, tenth, and 0:14:09.800 --> 0:14:11.640 eleventh Circuits in this case. 0:14:12.120 --> 0:14:15.160 Yes, If the number of courts is the deciding factor, 0:14:15.200 --> 0:14:17.400 then I think you're probably right. The Fourth seems to 0:14:17.440 --> 0:14:21.520 be standing alone in connection with its determination on this case. 0:14:21.640 --> 0:14:26.320 Coming up next a case claiming reverse discrimination. I'm June Grosso. 0:14:26.320 --> 0:14:29.320 When you're listening to Bloomberg, the Supreme Court is scheduled 0:14:29.320 --> 0:14:33.200 to hear at least five cases involving employment law and 0:14:33.280 --> 0:14:36.600 a range of issues. I've been talking to Anthony on CD, 0:14:36.880 --> 0:14:39.520 a partner at Prosskauer. Next, we have a case with 0:14:39.880 --> 0:14:45.160 six circuits split on former employees suing under the Americans 0:14:45.160 --> 0:14:46.360 with Disabilities Act. 0:14:46.800 --> 0:14:49.800 This is an interesting case and it could affect obviously 0:14:50.440 --> 0:14:55.440 many many employees, former employees, retired employees, in particular, as 0:14:55.480 --> 0:14:58.480 the population continues to age. I saw statistic the other 0:14:58.520 --> 0:15:00.640 day it said that more people are are reaching their 0:15:00.680 --> 0:15:03.320 sixty fifth birthday this year. Then I guess has ever 0:15:03.360 --> 0:15:07.360 occurred on planet early or certainly in the United States. 0:15:07.400 --> 0:15:09.200 You know, it's sort of the tail end of the 0:15:09.240 --> 0:15:13.000 Baby Boomers have now reached retirement age in many instances, 0:15:13.040 --> 0:15:15.520 and that's really what's that issue. In this particular case, 0:15:15.560 --> 0:15:19.400 this was a plaintiff a former firefighter for the City 0:15:19.440 --> 0:15:25.320 of Sanford, Florida, and she retired due to Parkinson's disease 0:15:25.400 --> 0:15:28.800 in twenty eighteen. She had served as a firefighter for 0:15:28.840 --> 0:15:32.160 about nineteen years when she joined the fire department in 0:15:32.240 --> 0:15:35.040 nineteen ninety nine. The city's policy was that it would 0:15:35.040 --> 0:15:38.880 provide free health insurance until age sixty five from employees 0:15:38.880 --> 0:15:41.560 who were retiring due to a disability. In two thousand 0:15:41.600 --> 0:15:44.560 and three, the city changed its plan and it limited 0:15:44.560 --> 0:15:49.680 the health insurance subsidy that disability retirees would get to 0:15:49.840 --> 0:15:52.880 twenty four months post retirement, meaning it wouldn't go until 0:15:52.880 --> 0:15:54.560 the age of sixty five. It would only go for 0:15:54.560 --> 0:15:57.840 twenty four months. In this case, former firefighter who did 0:15:57.880 --> 0:16:01.720 retire due to a disability out suit before her subsidy 0:16:01.800 --> 0:16:04.720 was set to expire, and she said that this change 0:16:04.760 --> 0:16:07.400 in policy was a violation of the Americans with Disabilities Act, 0:16:07.520 --> 0:16:12.440 the Rehabilitation Act, and then some statutory provisions under Florida law, 0:16:12.480 --> 0:16:14.840 as well as the Equal Protection clause under the Constitution. 0:16:15.440 --> 0:16:19.000 The district court dismissed and granted some re judgment on 0:16:19.080 --> 0:16:22.600 other claims, but otherwise disposed of her case and ruled 0:16:22.640 --> 0:16:25.240 in favor of the city. And the reason they did 0:16:25.280 --> 0:16:27.960 that again sound somewhat like a technicality, but obviously a 0:16:28.080 --> 0:16:31.120 very important one. They ruled that the statutes that she 0:16:31.280 --> 0:16:35.400 was proceeding under only applied to plaintiffs who quote hold 0:16:35.600 --> 0:16:39.440 or desire an employment position with the defendant at the 0:16:39.440 --> 0:16:42.920 time of the defendants allegedly wrongful act, and of course 0:16:43.200 --> 0:16:46.040 she neither held nor did she desire to hold, which 0:16:46.080 --> 0:16:49.440 really is a different word for saying an applicant unemployment 0:16:49.480 --> 0:16:53.200 position at the time of the alleged wrongful act. And 0:16:53.240 --> 0:16:56.760 so the precise question is ken a retiree such as 0:16:56.800 --> 0:16:59.800 the plaintiff in this case, sue for discrimination under the 0:17:00.000 --> 0:17:04.119 Americans with Disabilities Act over post employment fringe benefits that, 0:17:04.160 --> 0:17:07.080 had she said, been taken away on the basis of 0:17:07.160 --> 0:17:08.800 a discriminatory policy. 0:17:09.000 --> 0:17:12.359 Does this come up often, Tony, that a retiree is 0:17:12.400 --> 0:17:14.720 trying to sue over the ADA. 0:17:15.240 --> 0:17:16.960 You know, I don't think so. It's not something that 0:17:16.960 --> 0:17:18.800 I've seen a lot of. But again, since we're having 0:17:18.840 --> 0:17:24.040 a lot more retirees who are moving into that status. 0:17:24.040 --> 0:17:26.760 I would not be surprised if there are not other 0:17:26.840 --> 0:17:30.640 cases like this in the very near future where policies 0:17:30.640 --> 0:17:33.200 have been changed, because what is common, I can tell you, 0:17:33.320 --> 0:17:37.920 is the pairing down and in some cases eliminating the 0:17:37.960 --> 0:17:41.760 actual benefits that employees have received. There was a period 0:17:41.760 --> 0:17:45.360 of time when retirees, you know of the our companies 0:17:45.400 --> 0:17:47.960 and many other industries in the United States, would receive 0:17:47.960 --> 0:17:50.800 what's called a defined benefit plan, meaning they knew that 0:17:50.880 --> 0:17:53.560 when they retired they would get x hundred or thousand 0:17:53.600 --> 0:17:56.439 dollars a month as part of their retirement. Because those 0:17:56.440 --> 0:18:00.240 policies became so expensive due to inflation and and just 0:18:00.280 --> 0:18:03.639 any number of other factors, most employers have long since 0:18:03.680 --> 0:18:06.840 shifted away from what are called defined benefit plans like 0:18:06.880 --> 0:18:09.679 that to what's called a defined contribution plan, which is 0:18:09.680 --> 0:18:12.400 more like a four toh one K, which is there's 0:18:12.440 --> 0:18:16.960 a certain maximum amount you can contribute to those plans, 0:18:17.160 --> 0:18:19.520 or that the employer will contribute on your behalf, but 0:18:19.560 --> 0:18:22.120 there's no guarantee you're going to get x amount at 0:18:22.119 --> 0:18:24.199 the time that you retire. If you invest in the 0:18:24.200 --> 0:18:27.399 stock market, which of course the stock market over the 0:18:27.440 --> 0:18:29.480 last seventy or eighty years has had a fairly good 0:18:29.480 --> 0:18:32.960 track record ten percent plus. I think the returns on 0:18:33.119 --> 0:18:36.440 average over that period of time. You may very well 0:18:36.640 --> 0:18:40.240 be able to sort of ballpark what your retirement benefits are, 0:18:40.320 --> 0:18:42.359 but that's not exactly the same thing as knowing for 0:18:42.400 --> 0:18:45.400 sure what you're going to have plopped into your bank 0:18:45.440 --> 0:18:47.879 account every month. And that's what a defined benefit plan is, 0:18:47.880 --> 0:18:49.600 and those are few and far between these days. 0:18:49.800 --> 0:18:52.720 Just last Friday, the Court agreed to take a case 0:18:53.320 --> 0:18:57.440 challenging a rule by an Ohio public employee who claim 0:18:57.560 --> 0:18:59.800 she's a victim of reverse discrimination. 0:19:00.560 --> 0:19:04.040 Yes, you saved perhaps the most controversial case so far 0:19:04.520 --> 0:19:07.280 this term for last June. As I know, you have 0:19:07.359 --> 0:19:09.760 that unerring sense of drama like the Supreme Court. 0:19:09.960 --> 0:19:11.880 So you've been accused of worse though. 0:19:13.720 --> 0:19:17.480 So as you say, the review petition was granted just 0:19:17.600 --> 0:19:20.399 last Friday. There's no oral argument yet schedule, but it 0:19:20.440 --> 0:19:23.840 will be heard and decided before the fourth of July 0:19:24.000 --> 0:19:29.000 twenty twenty five. And in this case, the employee sues 0:19:29.119 --> 0:19:33.520 the Ohio Department of Youth Services, where she had worked 0:19:33.600 --> 0:19:37.440 for I believe several decades of public service. She had 0:19:37.480 --> 0:19:42.280 been earlier in her employment assigned to a new supervisor 0:19:42.320 --> 0:19:45.800 who was gay. She I should say, is a white, heterosexual, 0:19:46.040 --> 0:19:49.640 female former employee. She was assigned to a new supervisor 0:19:49.760 --> 0:19:53.560 who was gay. In twenty nineteen. She applied to be 0:19:53.680 --> 0:19:57.000 the department's bureau chief of quality, so she was seeking 0:19:57.000 --> 0:19:59.359 a promotion. She did not receive that position. In a 0:19:59.359 --> 0:20:02.040 few days later, she learned that she was being removed 0:20:02.040 --> 0:20:04.600 from her administrator position, the lower position that she had. 0:20:05.000 --> 0:20:07.879 The decision to remove her from the administrator position was 0:20:07.960 --> 0:20:11.639 made by not the gay supervisor, who was the first 0:20:11.880 --> 0:20:16.440 level supervisor above her position, but the second level supervisor 0:20:16.600 --> 0:20:19.280 and the department's director, both of whom were straight. So 0:20:19.320 --> 0:20:22.879 this becomes a somewhat problem issue for her in this 0:20:22.960 --> 0:20:25.520 case because the fact that she's being supervised by a 0:20:25.560 --> 0:20:29.399 gay employee seemingly had no effect at least as the 0:20:29.440 --> 0:20:32.800 case is currently framed upon. The demotion and the failure 0:20:32.840 --> 0:20:37.240 to give her the promotion. The department then awarded her 0:20:37.280 --> 0:20:40.320 former administrator position to a twenty five year old gay 0:20:40.400 --> 0:20:43.639 mad The department then selected a gay woman to serve 0:20:43.720 --> 0:20:47.240 as its bureau chief of quality. She then filed claims 0:20:47.320 --> 0:20:51.919 of discrimination the straight white female employee. She filed claims 0:20:51.920 --> 0:20:55.960 a discrimination based on her sexual orientation and gender against 0:20:55.960 --> 0:20:59.520 the department. She said that she was discriminated against on 0:20:59.640 --> 0:21:04.480 the base of being a heterosexual female. What happens next, 0:21:04.560 --> 0:21:06.960 The district Court, which is the trial court in the 0:21:06.960 --> 0:21:11.239 southern District of Ohio, grants some rey judgment to the 0:21:11.280 --> 0:21:15.000 employer and dismisses the case, and the Sixth Circuit in 0:21:15.080 --> 0:21:19.840 this case, which is based in Cincinnati, Ohio, affirms that dismissal. 0:21:20.400 --> 0:21:22.879 The basis for the dismissal and the affirming of the 0:21:22.920 --> 0:21:26.520 dismissal is as follows. They say that this plaintiff did 0:21:26.520 --> 0:21:32.480 not establish the necessary quote background circumstances close quote to 0:21:32.520 --> 0:21:35.600 sustain her claim of sexual orientation. So what's going on 0:21:35.680 --> 0:21:38.239 in this case? Why is the Supreme Court interested in it? 0:21:38.560 --> 0:21:41.600 The reason the Supreme Court's interested in it is because 0:21:41.680 --> 0:21:45.040 this element that both the district court, the trial court, 0:21:45.080 --> 0:21:48.960 and the appellate court applied, that is, requiring the employee 0:21:49.000 --> 0:21:53.800 to prove these background circumstances only exists if the plaintiff 0:21:53.880 --> 0:21:57.080 happens to be in the majority, meaning if it's a 0:21:57.119 --> 0:22:01.720 white employee, heterosexual employee, or in this case, I guess 0:22:01.720 --> 0:22:04.680 for gender reasons female. I guess there may be more 0:22:04.680 --> 0:22:06.919 females than males. I'm not sure how that's going to 0:22:07.000 --> 0:22:09.800 work out. But the real question is whether or not 0:22:09.880 --> 0:22:13.359 there is an additional burden placed upon a so called 0:22:13.440 --> 0:22:18.440 majority plaintiff that does not exist for a minority plaintiff 0:22:18.520 --> 0:22:20.760 or a plaintiff that is a member of a protected 0:22:20.800 --> 0:22:24.280 class that is a minority. Typically, in a discrimination case 0:22:24.640 --> 0:22:27.760 under Title seven, which is the federal anti discrimination law, 0:22:27.920 --> 0:22:30.399 an employee must show first of all, they belonged to 0:22:30.440 --> 0:22:33.800 a protected class. Two, they did well in their position, 0:22:33.880 --> 0:22:36.359 but were terminated, or they were demoted, or they didn't 0:22:36.359 --> 0:22:39.400 get a promotion, some other adverse action happened, and then 0:22:39.400 --> 0:22:43.720 they were third replaced by or treated worse than someone 0:22:43.800 --> 0:22:47.320 outside of the protected class. But if the person who's 0:22:47.640 --> 0:22:51.879