Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Parents have had a lot to worry about during COVID,
Speaker 1: whether to get their children vaccinated, send them to school
Speaker 1: masked or unmasked. Those worries for parents can turn into
Speaker 1: a laundry list of conflicts for separated or divorced parents
Speaker 1: to fight about. Joining me is Lois Lieberman, a partner
Speaker 1: in the matrimonial and family law practice at Blank Rome.
Speaker 1: I want to start with vaccinations because it is such
Speaker 1: a big issue, such a political issue. How often does
Speaker 1: it come up in custody fights? Well before COVID occurred,
Speaker 1: the time that we would see vaccinations come up is
Speaker 1: when a parent became nervous thinking their child might be
Speaker 1: more prone to autism by virtue of vaccinations. Those were
Speaker 1: few and far between, but those occurred every once in
Speaker 1: a while, and and we would get into a situation
Speaker 1: if the school required a child to be vaccinated and
Speaker 1: the child was going to go to that school. Ultimately,
Speaker 1: the court would usually unless a pediatrician was going to
Speaker 1: come in to give some medical evidence as to why
Speaker 1: that child may be more prone, or there was some
Speaker 1: evidence regarding same, the court if in love would give
Speaker 1: the one parent medical decision making authority over that quote decision.
Speaker 1: We had some other custodial site regarding religious exemptions, but
Speaker 1: those changed a bit when it became I think there
Speaker 1: was a change in the public health law, which again
Speaker 1: the schools were requiring and we're not agreeing to this
Speaker 1: religious exemption. But COVID has opened up a whole new
Speaker 1: kind of hotbed of discussions with respect to vaccinating young children.
Speaker 1: So let's start with the basic the mother. Let's say
Speaker 1: the mother, the mother wants the child to be vaccinated,
Speaker 1: the father doesn't want the child to be vaccinated. Does
Speaker 1: the court usually get involved in that, and what kind
Speaker 1: of factors does the judge way? If the court gets involved,
Speaker 1: they're looking at the best interests of the child. That's
Speaker 1: what's supposed to be the basis upon the court's decision.
Speaker 1: And if mom wants to get the child vaccinated and
Speaker 1: dad doesn't, the court is going to want to delve
Speaker 1: into what's the reasoning behind dad not wanting the child
Speaker 1: to be vaccinated. So if we talk about COVID most recently,
Speaker 1: there was a decision in December that Judge Dollinger and
Speaker 1: Monroe County rendered. And this was a father who was
Speaker 1: a scientist, somebody who was a professor at Rochester Institute
Speaker 1: of Technology, who was vaccinated did himself. His older daughters
Speaker 1: were vaccinated, and all he wanted to do was to
Speaker 1: wait a bit since he was concerned about his eleven
Speaker 1: year old daughter being vaccinated, wanted to see a bit
Speaker 1: more data. In that particular decision, the court made a
Speaker 1: determination that that the CDC was recommending that the child
Speaker 1: should be vaccinated, and therefore there was no point of waiting,
Speaker 1: and that it was in the best interests of the
Speaker 1: child to become vaccinated, and therefore gave the mom the
Speaker 1: decision making authority to make that important decision for the
Speaker 1: child's health, safety and welfare. Do these decisions vary based
Speaker 1: on whether you're in a blue state where you know,
Speaker 1: vaccination rates are high and there's less political pressure to
Speaker 1: be unvaccinated, or in a red state where vaccination rates
Speaker 1: are low. You know, that's a very interesting question, June.
Speaker 1: I've seen decisions in Chicago, I've seen decisions in l
Speaker 1: a retrospect to this, so I can't tell you that
Speaker 1: in like West Virginia or in you know, Texas, whether
Speaker 1: or not this conflict, whether the judges are getting involved more,
Speaker 1: you know, as a political measure, because clearly you can
Speaker 1: see that there is a feeling that this is obviously
Speaker 1: decision is kind of politicized. What to a certain extent,
Speaker 1: you're kind of recognizing from the language in the decisions
Speaker 1: that the courts are going kind of beyond while I'm
Speaker 1: just following with the CDC says that's many jurists are
Speaker 1: getting kind of on their soapbox a bit to talk
Speaker 1: about the greater good or the need for us to
Speaker 1: all be able to commit to getting vaccinated, to blow
Speaker 1: back this pandemic, so to speak. But it's a really
Speaker 1: good question. So I can't tell you whether or not
Speaker 1: in the Red States are we seeing a difference of
Speaker 1: opinion which the respect to this conflict. Let's talk about
Speaker 1: the situation where the vaccinated parent one to stop visitation
Speaker 1: with the unvaccinated parent. How does that work? So what
Speaker 1: we're seeing is that the court is limiting and sometimes
Speaker 1: suspending the unvaccinated parents parental access under the guise of
Speaker 1: saying they are protecting the child's health, safety, and welfare.
Speaker 1: In the Chicago case, the jurist went so far as
Speaker 1: to say that parent had to be vaccinated. Yet in
Speaker 1: New York we've seen decisions where, while the judges language
Speaker 1: may have been a little bit more political, they basically said,
Speaker 1: you can see the kid if you take a test.
Speaker 1: Even if you don't want to get vaccinated, you need
Speaker 1: to take a negative COVID test to show that you
Speaker 1: are not going to potentially harm this child, especially when
Speaker 1: you're dealing with cases where the children are younger. Then
Speaker 1: they recommended vaccination status. In the case in again New
Speaker 1: York County Judge Cooper, the child was three, obviously couldn't
Speaker 1: be vaccinated, and gave the mother the right to limit
Speaker 1: the father's access, providing that unless he got vaccinated or
Speaker 1: submitted to a negative test. It is a difficult situation
Speaker 1: for parents because this is a new vaccine. I mean,
Speaker 1: the measles mom's rebella you already know, but this is new.
Speaker 1: So I can imagine that a lot of parents do
Speaker 1: have trepidation about getting their child vaccinated. And I think
Speaker 1: that's where we almost have gotten caught up in the
Speaker 1: wave of politicism, because normally with a kind of a
Speaker 1: new vaccine, a parent who wanted to wait or to
Speaker 1: get a little bit more data and to kind of
Speaker 1: sift through the noise of what people were saying, would
Speaker 1: potentially take a little bit more of a beat before
Speaker 1: making the decision to get their child vaccinated. But interestingly enough,
Speaker 1: by virtue of the fact that the BDC has made
Speaker 1: this recommendation, because the school, because there have been such
Speaker 1: a surge of children who became sick, especially in the
Speaker 1: omacrom variants in recent intens in September, there seems to
Speaker 1: be more of a, you know, an urgency that the
Speaker 1: court is feeling that it's the parent who said get
Speaker 1: the child back, and if the other parents says nowhere
Speaker 1: wants to wait, I'm going to let the parents who
Speaker 1: wants to get through child vacimate. I'm going to let
Speaker 1: them make the decision. I take it. When we had
Speaker 1: COVID lockdown, there were there were a lot more problems.
Speaker 1: What other kinds of problems about custody came up or
Speaker 1: about schooling, Wow, we had quite a bit. So let's go.
Speaker 1: Let's start. So first, you had just finish of schooling, right,
Speaker 1: especially in New York County where I practice, and there's
Speaker 1: a lot of children who are in private school. There
Speaker 1: was the choice certain schools gave the choices whether or
Speaker 1: not your child wanted to go remote or go in person.
Speaker 1: So we had issues between parents as to whether or
Speaker 1: not they wanted their kids to be in school or
Speaker 1: taking the classes remote, maybe because of the nervousness, maybe
Speaker 1: because of the concern that the child may have some
Speaker 1: sort of underlying health issue. The next issue had to
Speaker 1: do with just where the child if they went promote,
Speaker 1: right where the kids took their remote classes, right where
Speaker 1: they all in their houses, you know, their vacation homes,
Speaker 1: or they were somewhere different, and whether or not that
Speaker 1: impacted the other parents parental access because if they were
Speaker 1: doing you know, and every other day or every you know, Monday, Tuesday, Wednesday,
Speaker 1: Thursday schedule and one parent is in the city and
Speaker 1: the other parents is in you know, the Hampton's, that
Speaker 1: wasn't gonna work kind of situation. Gosh. We had issues
Speaker 1: with respect of just allowing kids to travel. I know
Speaker 1: of one case where whether or not they could fly
Speaker 1: out private or apply commercially, and what kind of precautions
Speaker 1: need to need it to be taken. We had issues
Speaker 1: of whether or not parents didn't want to give children
Speaker 1: over to the other parents because they didn't think that
Speaker 1: they were following protocols. I mean, sadly, COVID truly was
Speaker 1: like a hot set of issues that arose from that
Speaker 1: when you have parents who don't you agree. It provided
Speaker 1: a whole host of issues for parents to fight about
Speaker 1: and then per have judges to get involved in. How
Speaker 1: often do judges get involved in these kinds of decisions
Speaker 1: which it seems like they should be able to be
Speaker 1: solved between the parents. So a really good question, and
Speaker 1: I mean again, I can't tell you statistically, but unfortunately,
Speaker 1: when you have custodial issues where the court has to
Speaker 1: make a determination as to really which parents is better
Speaker 1: suited to make a decision, normally you don't have the
Speaker 1: kind of significant issues that arise. It's usually, well, who's
Speaker 1: going to make the best decision about where the kid
Speaker 1: goes to school and who's going to make a determination
Speaker 1: as to what kind of extracurricular activities. Very often, prior
Speaker 1: to COVID, the most significant medical issue we really dealt
Speaker 1: with when it came to having jurors having to intervene
Speaker 1: with if prescriptions about a d h D or whether
Speaker 1: a child actually had those problems and how to address
Speaker 1: them right very often. It was not uncommon if you
Speaker 1: had one parent who said, you know, my kid doesn't
Speaker 1: need to be medicated, and another parent saying, well, you know,
Speaker 1: the school was recommending, the psychiatrist is recommending, why not,
Speaker 1: and then courts had to get involved. But it would
Speaker 1: seem that it almost during this period of the last
Speaker 1: two years, it's almost as if people's anxieties have gotten
Speaker 1: even greater, and there seems to be even more situations
Speaker 1: where parties cannot agree and I just have to get
Speaker 1: involved in some way, which has been problematic because the
Speaker 1: court system has kind of been broken and really been
Speaker 1: so overloaded by virtue of the problems that COVID has caused.
Speaker 1: So a lot of parents have been in kind of
Speaker 1: no win situations where either you know, they haven't been
Speaker 1: able to get the attention for for some period of
Speaker 1: time courts, unless it was an emergency, you couldn't come in,
Speaker 1: and the question was what was an emergency? So um,
Speaker 1: and we're kind of still dealing with the ramifications the
Speaker 1: backload of all this. But you know, now the custodial
Speaker 1: issues are the first ones that are not really getting attention,
Speaker 1: so it depends, you know, So the question now is
Speaker 1: in the vaccination world. I think you're seeing a lot
Speaker 1: of litigation in all sorts of states. But really, if
Speaker 1: one was making a guess, most of the jurists are
Speaker 1: going to pick and say, if the CDC, if the
Speaker 1: FDA has approved that vaccine. I'm going to tell the
Speaker 1: parent who wants to get the child vaccinated that they
Speaker 1: are entitled to do so unless I get some medical
Speaker 1: professionals who's going to provide me a reason why that
Speaker 1: child shouldn't vaccinate. Let's switch to today's Valentine's Day. Does
Speaker 1: this mean there are a lot of engagements and are
Speaker 1: more people getting pre nups than in the past. Well,
Speaker 1: for sure. What we've seen June during this lockdown is
Speaker 1: that if there were fissures in a relationship, it definitely
Speaker 1: caused you know, major upheople. But those who were stuck
Speaker 1: together who really liked end up being together. We've seen
Speaker 1: a great influx of engagement and prenup. So we're definitely
Speaker 1: a prenup season usually around Valentine's Day. This is another
Speaker 1: search so to speak, of times when we see engagements
Speaker 1: and therefore we see a lot of prenups. I don't
Speaker 1: know if there's more prenups now than there has been.
Speaker 1: But we do a great deal of um of of
Speaker 1: prenups and those who have you know, assets, or if
Speaker 1: they've been in a relationship previously that broke up in divorce.
Speaker 1: It's clear that people are doing a lot of them.
Speaker 1: We have a great influx of of prenups right now
Speaker 1: in the last few weeks, and I'm sure as after
Speaker 1: today we're going to have even more. I mean, how
Speaker 1: much does it cost to get a prenup if you
Speaker 1: have I'm not talking about you know, the mega millions,
Speaker 1: but the average person. Again another great question, Not trying
Speaker 1: to be evasive, but lawyers are animals of time, right.
Speaker 1: We all build you know, per six minute increments, So
Speaker 1: if somebody takes a lot of time, they're calling us
Speaker 1: a great deal that we're basically doing therapy before the wedding.
Speaker 1: Freedups that should be simple are costing, you know, on
Speaker 1: godly thumps because we're spending a lot of time. Those
Speaker 1: who just want to make things simple, like what I
Speaker 1: come into the marriagement, what I inherit or gifted by
Speaker 1: my family, or that comes from trust distributions, those are
Speaker 1: going to be separate and everything else you know is
Speaker 1: going to be marital or you know, we'll deal with
Speaker 1: it based upon the law. Shouldn't cost a lot of money.
Speaker 1: It's just that, as you know, especially in my world,
Speaker 1: there's a lot of emotions that are layered in these
Speaker 1: decisions and in these negotiations, So it's not just those
Speaker 1: simple most of the time, and sometimes it takes a
Speaker 1: little bit more time to kind of flush out the
Speaker 1: issues and therefore costs a little bit more than one
Speaker 1: would have hoped. Thanks Lois, that's Lois Lieberman of Blank Rome.
Speaker 1: The US Senate delivered a major legislative victory for them
Speaker 1: two Movement, passing a bill in a by partisan voice
Speaker 1: vote that will end forced arbitration at companies for victims
Speaker 1: of sexual assault or harassment. Senator Kirsten Gillibrand of New
Speaker 1: York was one of the early sponsors of the bill.
Speaker 1: No longer will survivors of sexual assault or harassment in
Speaker 1: the workplace come forward and be told that they are
Speaker 1: legally forbidden to see their employer because somewhere buried in
Speaker 1: their employment contracts was this forced arbitration clause. The measure
Speaker 1: of freeze victims of workplace sexual harassment or assault to
Speaker 1: pursue lawsuits in court. Joining me is Anthony On cd CO,
Speaker 1: chair of the Labor and Employment Law Department at Prostcauer,
Speaker 1: describe for us the kinds of arbitration clauses that are
Speaker 1: often in employee's contracts. They're sometimes referred to as pre
Speaker 1: dispute arbitration provisions, and what that means is that they
Speaker 1: are documents that are usually given to employees and sometimes
Speaker 1: even applicants before they've begun employment. And essentially what they
Speaker 1: say is that any sort of dispute arises, or any
Speaker 1: claims arise. That is, if an employee has a claim
Speaker 1: against an employer, or employer has a claim against the employee,
Speaker 1: they both agree in advance that they will not go
Speaker 1: to court and that instead they will have their issue
Speaker 1: or claim resolved by an independent arbitrator, usually from one
Speaker 1: of the well known alternate dispute resolution entities, and there
Speaker 1: are three or four of them that are extremely well known.
Speaker 1: So now what does this new Act do? So this
Speaker 1: new Act that came out rather suddenly, I don't think
Speaker 1: there was a lot of warning. It passed the House
Speaker 1: and then almost instantaneously passed the Senate, and President Biden
Speaker 1: has already indicated that he will sign it. This act
Speaker 1: would essentially prohibit any such agreements that is pre dispute
Speaker 1: arbitration agreements that involves either sexual harassment or sexual assault
Speaker 1: in any of the states. So it's a federal law
Speaker 1: that will essentially lift all of those types of claims,
Speaker 1: that is, sexual harassment and sexual assault claims from arbitration
Speaker 1: and um put them into court at the option of
Speaker 1: the employee. By the way, that's not automatically done. It's
Speaker 1: something the employee will have the option to do. It
Speaker 1: was a bipartisan bill. It passed with a voice vote
Speaker 1: in the Senate. The sponsors of the bill say that
Speaker 1: it's important because workers are vulnerable and the disparity of power,
Speaker 1: and if you have arbitration, it's secretive. It's not in
Speaker 1: an open court room you can appea of the decision.
Speaker 1: So they say this is a really good thing for workers.
Speaker 1: That's true. I have a little bit more of a
Speaker 1: cynical view of that point of view, not necessarily from
Speaker 1: the people in Congress who voted for it, but from
Speaker 1: the plaintiff side lawyers who advocate laws like this, what
Speaker 1: they rarely say, but which they all are really quite
Speaker 1: aware of is that juries tend to be more sympathetic
Speaker 1: to employees full stop, regardless of what the claim is,
Speaker 1: and juries tend to give higher awards two employees than
Speaker 1: do arbitrators. And because of that, many, most, maybe all,
Speaker 1: plaintiff lawyers would prefer their cases to be heard by
Speaker 1: juries because they believe they're more likely to get a
Speaker 1: higher award. What about the allegations that arbitration clauses are
Speaker 1: in fine print in legal clauses, which employees aren't even
Speaker 1: aware of, so when they're signing, they don't know what
Speaker 1: they're signing. I think there's something to that. They're they're
Speaker 1: sometimes referred to in the law that hesion contracts, meaning
Speaker 1: that they are rarely negotiated, they're rarely specifically called out
Speaker 1: by the employer. There's usually very little, if any discussion
Speaker 1: about them. But I would also point out that the
Speaker 1: next time you go to the dentist, the next time
Speaker 1: you go to your doctor, the next time you go
Speaker 1: and park in many facilities in parking structures around the country,
Speaker 1: you will find that if you have a dispute with
Speaker 1: any or all of those entities, you also have waived
Speaker 1: your right to go to trial with a jury, and
Speaker 1: you will end up in arbitration. I would especially point
Speaker 1: that out with respect to medical providers. I probably signed
Speaker 1: dozens of these um arbitration provisions, as has everybody listening
Speaker 1: to this program. And there also has been no discussion
Speaker 1: about that. There's been no there's been no attempt to
Speaker 1: repeal those, and all the same reasons apply. Doctors don't
Speaker 1: want to be brought in front of juries, and they
Speaker 1: would rather in hospitals the same They would rather not
Speaker 1: have to defend claims like those that arise malpractice claims,
Speaker 1: for example, in front of juries. They'd rather be in
Speaker 1: front of arbitrators. So let me ask you this, as
Speaker 1: far as this bill, do you think that it will
Speaker 1: lead to more litigation, more settlements, higher settlements. What do
Speaker 1: you think the effect of it will be? If you
Speaker 1: define litigation as court litigations, then the answer would be yes.
Speaker 1: I think that what this essentially means is that employees
Speaker 1: with sexual harassment and sexual assault claims, and I believe
Speaker 1: fortunately sexual all claims are still relatively rare, they do occur,
Speaker 1: but it's sexual rasment claims are really quite frequently filed
Speaker 1: UM those will no longer be before an arbitrator, and
Speaker 1: that means that they will be filed. It doesn't mean
Speaker 1: that each and every one of them will go to trial.
Speaker 1: Many of them will, as your question suggests, end up
Speaker 1: getting settled. But importantly, because the case is pending in
Speaker 1: court or is threatened to be filed in court and
Speaker 1: cannot be sent to arbitration, the settlement values will go
Speaker 1: up significantly. I can tell you that many, many forms
Speaker 1: of litigation go through a process not as mediation, which
Speaker 1: is a again a voluntary process that the parties go through.
Speaker 1: We usually with a retired judge or retired practitioner and
Speaker 1: they try to settle the case. If the mediator knows
Speaker 1: that there's an arbitration provision that is likely to be enforced,
Speaker 1: that the case is usually settled for less money than
Speaker 1: if there is no mediation provision, because once again the
Speaker 1: threat of a jury is such that any potential award
Speaker 1: is going to be probably a lot higher. It's also
Speaker 1: a lot more expensive to defend the case on the
Speaker 1: part of the employer if it's pending in court, as
Speaker 1: opposed to in arbitration, where things tend to be more
Speaker 1: streamlined and there's less process. Typically, so from all you've said,
Speaker 1: it sounds like advocates for workers would say, yea, this
Speaker 1: is going to be to their benefit. Oh yes, this
Speaker 1: is bald holla for them. It's actually partial fall halla.
Speaker 1: I'll tell you what they really want. And I suspect
Speaker 1: now that this has happened, it may not be far
Speaker 1: from materializing. They want to have arbitration go away with
Speaker 1: respect not just the sexual harassment and sexual assault claims.
Speaker 1: They wanted to go away entirely with respect to all
Speaker 1: employment related claims. And I hesitate to make the famous
Speaker 1: slippery slope argument, but I think it truly does apply
Speaker 1: in this situation, because what this legislation does is that
Speaker 1: it suggests that there's something wrong with arbitration. That's how
Speaker 1: arbitration is inferior, at least with respect to the employee's
Speaker 1: rights to what the employee could expect in a court proceeding. So, now,
Speaker 1: what Congress has done has said, if you are sexually harassed,
Speaker 1: you no longer have to go to arbitration. You can
Speaker 1: go to court and you can have your day in court.
Speaker 1: As Senator Graham said, and many of the supporters said,
Speaker 1: what does Congress say that those employees who were harassed
Speaker 1: on the basis of their race. What does Congress say
Speaker 1: to those employees who were harassed on the basis of
Speaker 1: their age, or their disability, or their sexual orientation. Does
Speaker 1: Congress say they don't deserve their day in court? Also,
Speaker 1: because there's really no principal way to distinguish between the
Speaker 1: harassment that comes under the rubric of sexual harassment and
Speaker 1: harassment of any other form, all of which are equally
Speaker 1: abhorrent and all of which are equally illegal. So if
Speaker 1: Congress has decided to alleviate employees were sexually harassed from
Speaker 1: the obligation to go to arbitration, it's one short stop
Speaker 1: away from saying, well, actually, no one now who is
Speaker 1: claiming any form of illegal harassment under Title seven, for example,
Speaker 1: or the state equivalent, must go to arbitration and everyone
Speaker 1: can go to court. That, by the way, has been
Speaker 1: the path that most of the private companies that have
Speaker 1: gone down this road have taken. They started out after
Speaker 1: the Harvey Weinstein headlines with sexual harassment and soon realized
Speaker 1: there was no principal way of distinguishing between sexual harassment
Speaker 1: and other forms of illegal harassment, and then open the
Speaker 1: floodgates and said we will no longer enforce arbitration agreements
Speaker 1: with respect to any form of illegal harassment. Well, from
Speaker 1: what I understand, language was changed so that, for example,
Speaker 1: discrimination would be eliminated, so that the focus would only
Speaker 1: be on a sexual assault and harassment. So that was
Speaker 1: perhaps the reason why it got a voice vote in
Speaker 1: the Senate. Yes, you're you're correct about that, But harassment
Speaker 1: is different from from discrimination. So there are two further
Speaker 1: stuffs I guess down this line. One is the one
Speaker 1: I just mentioned, which is other forms of illegal harassment.
Speaker 1: Those are not included in this bill, and those still
Speaker 1: are subject to arbitration. Beyond that are forms of discrimination.
Speaker 1: But you can have discrimination based upon sex, you can
Speaker 1: have discrimination based upon race, you can have discrimination based
Speaker 1: on age, disability, sexual orientation. All of those are illegal also,
Speaker 1: and all of those remains subject to arbitration. It's a
Speaker 1: very difficult argument to make, certainly with respect to different
Speaker 1: forms of harassment, but even between harassment and discrimination, to
Speaker 1: say why some should be permitted to go to court
Speaker 1: and others must go too arbitration. It's also unclear what
Speaker 1: courts are going to do with the following scenario. What
Speaker 1: happens when an employee claims, for example, that she has
Speaker 1: been sexually harassed and also harassed on the basis of
Speaker 1: her race. Which claims go to court, Which claims go
Speaker 1: to arbitration? Or are they split to some of the
Speaker 1: claims go to court and some go to arbitration. It
Speaker 1: sounds like that's probably what would happen. The employer could
Speaker 1: compel arbitration with respect to the race harassment claims, but
Speaker 1: not with respect of the sexual harassment claims, even if
Speaker 1: it's the same employee, even if it's the same harass er,
Speaker 1: even if it's the same employer. So, if you agree
Speaker 1: with me, it seems like the Me Too movement is
Speaker 1: the reason why this bill went through at this particular time.
Speaker 1: I absolutely agree. I think that is true. And the
Speaker 1: concern I have about this is and I'm certainly sympathetic
Speaker 1: to the Me Too movement and the many horrendous stories
Speaker 1: that we've heard in lawsuits that have been filed. What
Speaker 1: we're saying here, however, is that if there is a
Speaker 1: differentiation between different forms of harassment based upon the Me
Speaker 1: Too movement, I guess that's a way of distinguishing, but
Speaker 1: from a legal standpoint, from a principal standpoint, it really
Speaker 1: doesn't make a lot of sense. Uh, And and Congress
Speaker 1: has now gone down the road of suggesting there's, as
Speaker 1: I said before, something wrong with arbitration, and if there's
Speaker 1: something wrong with arbitration with respect to me to harassment claims,
Speaker 1: then there should perhaps be analysis done as to whether
Speaker 1: there's something wrong with our portration in other forms of
Speaker 1: employment harassment and discrimination. This precisely is the plaints point
Speaker 1: of view. They are saying there is something wrong with
Speaker 1: arbitration and it should be junk entirely. That's that is
Speaker 1: what the plaintiffs bar would tell you now that the
Speaker 1: reason that I think the employers, on the other hand,
Speaker 1: are mostly concerned about initiatives like this, have to do
Speaker 1: with jurisdiction like the one most near and dear to me, California.
Speaker 1: We have had within the last ninety days two gargantuan
Speaker 1: single plaintive verdicts in the state of California that makes
Speaker 1: many people's head spent. One came in December, and it
Speaker 1: was a verdict in favor of an employee who claimed
Speaker 1: that he was a whistleblower. This was against Farmers Insurance
Speaker 1: and a jury in Los Angeles County awarded that employee
Speaker 1: one hundred and fifty five million dollars one hundred and
Speaker 1: fifty five million dollars to a single employee before that.
Speaker 1: In October, in a federal court in San Francisco, one
Speaker 1: employee who claimed racial harassment was awarded one hundred and
Speaker 1: thirty seven million dollars against Tesla. If any, all or
Speaker 1: some employees who are terminated or harassed can get amounts
Speaker 1: of money from juries that get close to a fifth
Speaker 1: of a billion dollars per employee, the system will collapse.
Speaker 1: And it's verdicts like that, and and many other verdicts
Speaker 1: that are in the ten and fifty million dollar range
Speaker 1: that happened on a regular basis that are causing employers
Speaker 1: to look for some solution. The solution that has come
Speaker 1: most frequently and and that is adopted is arbitration. Those
Speaker 1: days may soon be numbered for arbitration in any of
Speaker 1: these times? Is there any role for the Supreme Court
Speaker 1: at all? The only thing the US Supreme Court could
Speaker 1: do is determined whether a statute like this is violative
Speaker 1: of the US Constitution. And I don't think that the
Speaker 1: Supreme Court would would find that to be the case.
Speaker 1: What the Supreme Court has been very active in interpreting
Speaker 1: anti arbitration statutes, but almost all of them have been
Speaker 1: at the state level, because states all over the country
Speaker 1: again including California and New York and several other states,
Speaker 1: have been trying to do this for a very long time,
Speaker 1: not just with respect to sexual harassment and sexual assault,
Speaker 1: but with respect to all forms of employment related clients.
Speaker 1: Each and every time, for the most part, that has happened,
Speaker 1: those claims gets the Supreme Court, and the Supreme Court
Speaker 1: says AHA state law must fall because it conflicts with
Speaker 1: a federal statue which is over a hundred years old,
Speaker 1: called the Federal Arbitration Act. What this new law does
Speaker 1: is it changes federal law, and so those challenges that
Speaker 1: have been successful in the Supreme Court will no longer
Speaker 1: be successful in because now federal law has changed in
Speaker 1: a way that state legislatures around the country have been
Speaker 1: trying to change it for at least the last decade.
Speaker 1: Thanks Tony, that's Anthony on CD of Prostcauer. Former Miami
Speaker 1: Dolphins head coach Brian Flores has accused the National Football
Speaker 1: League of pervasive racial bias, claiming discrimination denied him the
Speaker 1: top job at the new York Giants. Flores filed proposed
Speaker 1: class action against the league, naming the Giants, Dolphins, and
Speaker 1: Denver Broncos as co defendants. Joining me is Sadartha Row,
Speaker 1: a partner Romano Law. This is not your typical I
Speaker 1: was fired due to racial discrimination lawsuit tell us how
Speaker 1: it goes way beyond that. So there are a couple
Speaker 1: of things that I found kind of interesting about this lawsuit.
Speaker 1: The fact that it's filed as a class action obviously
Speaker 1: creates pressure on the NFL in the league to address
Speaker 1: this issue in a broader way than an individualized claim
Speaker 1: like maybe the covernext settlements. Class actions obviously put settlement
Speaker 1: pressure on defendants, but maintaining a class action also means
Speaker 1: threading that needle of rule the Federals of Civil Procedure
Speaker 1: and meeting all the requirements of the class action. And
Speaker 1: so when you're talking about a class action claim as
Speaker 1: opposed to, you know, just an individualized claim, really the
Speaker 1: anatomy of the case is a little bit different. Um
Speaker 1: the plaintiff here, Mr. Flayers, is going to have to
Speaker 1: overcome a class certification hurdle before the claim really sort
Speaker 1: of uh is off to the races. So what that
Speaker 1: means is that the court's going to be evaluating whether
Speaker 1: this pleading uh and the the evidence that sometimes sometimes
Speaker 1: there's even some evidence that douced at the class certification stage,
Speaker 1: whether that will be enough to meet the requirements of
Speaker 1: Rule three. And just keeping in mind, the purpose of
Speaker 1: the class action is to remedy through pervasive problems that
Speaker 1: may be more efficiently dealt with at the class level
Speaker 1: as opposed to an individual claims basis. And it's why
Speaker 1: do you see a lot of products liability class toward
Speaker 1: class and of course discrimination um class actions. So, just
Speaker 1: right off the bat, I think the class action clearly
Speaker 1: is a message to send a message. And if I
Speaker 1: may just echo that point with another point which I
Speaker 1: think is very much related. This complaint as I read
Speaker 1: it is clearly intended for a larger audience than just
Speaker 1: the court or even frankly the opposing counsels who may
Speaker 1: be considering their responses anywhere from litigation to settlement. So
Speaker 1: several features about the complaint are striking. I mean, number one,
Speaker 1: it's filed in the first day of Black History Month.
Speaker 1: It begins with quotes from Martin Luther King. The very
Speaker 1: first paragraph has a recitation of civil rights figures going
Speaker 1: back to the nineteenth century, the eight hundreds, and the
Speaker 1: rhetoric of the complaint is clearly pitched at this republic
Speaker 1: discussion of race. What is he alleging in his lawsuit?
Speaker 1: What are the allegations he's making. Fundamentally, he's alleging a
Speaker 1: pervasive discrimination on the basis of race as to employment
Speaker 1: opportunities in the NFL. If we look at the numbers,
Speaker 1: he's pointing out that the players are black, but currently
Speaker 1: of the thirty two league teams, only one head coach
Speaker 1: is African American or black, and that there is a
Speaker 1: pervasive kind of discriminatory environment that prevents black candidates from
Speaker 1: being hired for head coaching positions, general manager positions, and
Speaker 1: the like. Ultimately, what the complaints purpose, as I read,
Speaker 1: is is to support that allegation by really digging into
Speaker 1: the culture of the NFL and trying to present a
Speaker 1: narrative that supports this conclusion that there really is a
Speaker 1: discrimination on the basi of race that is creating an
Speaker 1: artificial feeling for for potential black candidates for coaching position.
Speaker 1: Let's say it goes to trial, and how far does
Speaker 1: he get to that just by the numbers alone. It's
Speaker 1: really interesting there. There's actually two aspects of the complaint.
Speaker 1: There's the aspects personal to to Mr Flora's right. So
Speaker 1: he says that he would called in for a coaching
Speaker 1: interview with the Giants, but by accidental disclosure, he found
Speaker 1: out three days before the interview that a white candidate
Speaker 1: had already been selected, that it was a sham interview. Um.
Speaker 1: This is even more significant because the NFL has committed
Speaker 1: since two thousand three to something called the Rooney Rule,
Speaker 1: which requires the interviewing of an ethnic minority candidate for
Speaker 1: any head coaching position, and as amended, actually requires considering
Speaker 1: too candidates. And I think the idea is that if
Speaker 1: they sort of make the process more inclusive, the results
Speaker 1: would be more inclusivity in the coaching positions. But that
Speaker 1: hasn't happened. So that's where the complaint is personal to
Speaker 1: Flora's But where he's hitting more broadly is on the statistics.
Speaker 1: You know, the point that sevent the players are black
Speaker 1: is not lost, and there's very striking imagery and the
Speaker 1: complaint about the NFL being essentially a plantation where it's
Speaker 1: the or to fight African American labor, but not adequate
Speaker 1: representation in the coaching and ownership areas. So I think
Speaker 1: that that presentation is certainly very dramatic, and from a
Speaker 1: legal point, it's also somewhat required. So typically in an
Speaker 1: employment discrimination case, a plaintiff is required to go first
Speaker 1: to the e e o C or in New York
Speaker 1: to the Division of Human Rights to file an agency claim.
Speaker 1: It's part of what's called the exhaustion of remedies doctrine
Speaker 1: and settle courts simply don't entertain filings until the plaintiff
Speaker 1: has shown compliance with that exhaustion of remedies that has
Speaker 1: gone to the agency. You know, under fairly recent Supreme
Speaker 1: Court precedent, the defendant can defend claim simply by saying
Speaker 1: plaintiff field to go to the e o C. So
Speaker 1: what immediately jumped out of me reading the complaint is
Speaker 1: that Flora's says that he will go to the e
Speaker 1: o C and the d h R, but has not
Speaker 1: yet done. So why I think that has happened is
Speaker 1: he's bringing his claim under Section and not under Title seven.
Speaker 1: And Section one is a purely uh it's a statue
Speaker 1: of purely dealing with racial discrimination. Going back to eighteen
Speaker 1: sixty six and the civil rights laws in the nineteenth
Speaker 1: century UM as opposed to the broader scope of Title seven,
Speaker 1: which encomes a race, gender, you know, ethnic, national origin
Speaker 1: and like. So, right out of the bat, he's fled
Speaker 1: a claim that confers jurisdiction of the federal court, does
Speaker 1: not require an administrative proceeding, and is using that essentially
Speaker 1: to generate supplemental jurisdiction on state state discrimination claims. It's
Speaker 1: an interesting pleading strategy. It allows him, I think, to
Speaker 1: file the complaints in federal court before approaching the agencies
Speaker 1: UM and obtaining what's called the right to see letter.
Speaker 1: It creates, I think from a timing perspective is very um,
Speaker 1: very intentional. Again, it's Black History Month, the super Bowl
Speaker 1: is approaching. It creates a sort of public lends and
Speaker 1: a public scrutiny of the NFL that I think is
Speaker 1: very strategic here as a litigation perspective. And then, you know, essentially,
Speaker 1: in parallel, while his class certification determination is pending, he
Speaker 1: can approach the agencies and and escalate ultimately to a
Speaker 1: Title a Title seven claim which he would he could,
Speaker 1: I think, could easily mend his pleading to include once
Speaker 1: he obtains the right to suit. So it's very unusual
Speaker 1: way of pleading this claim. But how do you force
Speaker 1: individual teams within an organization to hire minorities? It's a
Speaker 1: really good question. So so two aspects here. One is procedural.
Speaker 1: The Flora's complaint does name several league teams and also
Speaker 1: states that you know, with further discovery, he may name
Speaker 1: essentially every team in the league. So essentially there's John
Speaker 1: Doe defendants, so he's he's holding open the possibility of
Speaker 1: expanding is defendant list to include all of the league teams.
Speaker 1: But to answer your question more substantively, this goes back
Speaker 1: to that Title seven issue I raised earlier, which is
Speaker 1: in a section claim a butt for causation requirement, you
Speaker 1: need to be able to prove as a plaintiff that
Speaker 1: the adverse action would not have occurred but for your race,
Speaker 1: whereas in the alternative claims Title seven you can look
Speaker 1: at disparate impact. And that's ultimately I think where the
Speaker 1: Florist suit will go after he files with the e
Speaker 1: o C and the DHRS is to use this disparate
Speaker 1: impact data to infer that the policies and procedures of
Speaker 1: the NFL are discriminatory. Now under the Walmart decision Screme
Speaker 1: Court issued was a school a decision and it denied
Speaker 1: class certification of something like one point five million women.
Speaker 1: There is a problem with that strategy. Still have to
Speaker 1: identify a policy or practice that results in the disparate impact.
Speaker 1: You can't simply say that there's disparate impact ipso facto
Speaker 1: there's discrimination. I think that we're really getting to standards
Speaker 1: of proof, and from again from a technical point of view,
Speaker 1: I do believe that Floors will be in ending a
Speaker 1: complaint to include um claims where the evidence can be
Speaker 1: a little bit more inferential and circumstantial, rather than a
Speaker 1: strict buffalo causation anality. But your question is very, very
Speaker 1: perceptive because obviously we're dealing with the league that consists
Speaker 1: of multiple teams with many owners, and that's where the
Speaker 1: evidence of culture becomes really important, of a pervasive culture
Speaker 1: of discrimination, and that is I think why the complaints
Speaker 1: spends so much time discussing what might appear to be
Speaker 1: ancillary issues about prejudices and the tolerance of prejudice at
Speaker 1: the management level. He says the interviews were sham interviews.
Speaker 1: How do you prove that well, ordinarily you can't without discovery, right,
Speaker 1: So what's really fascinating about this case. What's kind of
Speaker 1: extraordinary is that Floor has got a text from Bill
Speaker 1: Belichick's basically saying congratulations, you've got the job. But it
Speaker 1: is sent two. It was meant for the other recipient.
Speaker 1: It was not meant for Flora. It was meant for
Speaker 1: the white candidate who ultimately was hired. And what's fairly
Speaker 1: extraordinary about that text is that Flores receives it three
Speaker 1: days before his actual interview. So his evidence, which really
Speaker 1: he puts right at the top of his complaint before
Speaker 1: he even gets into the paragraph, he quotes this text
Speaker 1: from Bill Belichick and he says that Belichick basically let
Speaker 1: the cat out of the bag, that he was being
Speaker 1: called infant an interview when the organization had already UM
Speaker 1: had already settled on Brian uh to Ball, not Brian Flora.
Speaker 1: So that's that's really striking. Normally, you wouldn't see that
Speaker 1: kind of documentary evidence at the pleading stage of the case.
Speaker 1: You would see that coming out and discovery. But here UM,
Speaker 1: the plaintiff actually has has essentially written admission. Let's talk
Speaker 1: about this allegation that the owner of the Dolphins offered
Speaker 1: him a hundred thousand dollars a game for each loss.
Speaker 1: How does that fit into this complaint about the league. Yeah,
Speaker 1: you know, it's it's a fairly interesting point. Um. Number one,
Speaker 1: there was this explanation given for Flores's firing from the Dolphins,
Speaker 1: that he was sort of uncooperative or that there were
Speaker 1: issues between him and and management. And that explanation was
Speaker 1: given in part because Um, he performed well as a
Speaker 1: coach the Dolphins, and so part of his allegation really
Speaker 1: is to give more color into what really happened. And
Speaker 1: what he's saying is that I refused to essentially tank
Speaker 1: games to optimize our draft position, and because of that
Speaker 1: I was punished. Now it seems a little bit ancillary
Speaker 1: to the UM. It certainly seems a little b answer
Speaker 1: to claim. But it let's get to several other issues,
Speaker 1: which one it I think it's an attempt to rebut
Speaker 1: the Dolphins position that he was terminated due to some
Speaker 1: kind of interpersonal issue or inability to work with UM,
Speaker 1: with owners and management. I think that's really where that's
Speaker 1: getting at. But number two obviously raises a whole host
Speaker 1: of other issues, um in terms of you know, the
Speaker 1: NFL has has times and deals with draft Kings and
Speaker 1: several other sports betting sites, and if if there's a pattern,
Speaker 1: or if there's some allegation that owners are trying to
Speaker 1: tank games for for draft optimization, it certainly affects the
Speaker 1: betting markets. And I think that there's other issues that
Speaker 1: are totally ant to complaints. But really what it does
Speaker 1: is it completely cast a new light on his termination
Speaker 1: from the Dolphins. This seems to be way way larger
Speaker 1: than just as you've mentioned a termination and you know
Speaker 1: you fired me wrongfully. Lawsuits agree with that. I think
Speaker 1: that this lawsuit when you when you consider what they're
Speaker 1: actually asking for at the end of the day, in
Speaker 1: terms of their relief. This is not your typical employment
Speaker 1: discrimination claim for a plaintiff is speaking back pay and
Speaker 1: and you know, wages and compensation. This complaint is seeking
Speaker 1: sweeping relief in terms of systemic change at the NFL.
Speaker 1: And I just as a litigator, when I read this complaint,
Speaker 1: what I see is a complaint that is as much
Speaker 1: pitch that the federal court as it is to the public.
Speaker 1: And I may be going on a little bit out
Speaker 1: on the limear, but I think win or lose, the
Speaker 1: point of this litigation was simply to make that point.
Speaker 1: And when you examine how this complaint is really kind
Speaker 1: of a walkthrough of the history of the NFL going back,
Speaker 1: you know, there's references to to Plus the versus ferguson
Speaker 1: the Supreme Court case. There's references to the first black
Speaker 1: players in the league. It's clear that what this complaint
Speaker 1: is trying to do is not just adjudicate an employment
Speaker 1: dispute between Flores and a team. It's really trying to
Speaker 1: put the NFL under the lens and say that we
Speaker 1: need systomach change. I'm not saying I necetarily agree with
Speaker 1: the plaint or disagree. I'm just saying that is what
Speaker 1: the complaint is saying that that explains so much of
Speaker 1: this complaint, why it is led as a class action,
Speaker 1: you know, and why it takes the rhetorical pitch that
Speaker 1: it does, and also the timing of the filing and
Speaker 1: the technicalities pleading. All of it is consistent with the
Speaker 1: same general point, which is that this is the case
Speaker 1: about change. It's a case I think motivated more by
Speaker 1: a desire to write some historic injustice and the principle,
Speaker 1: rather than a typical employment dispute, which may have some
Speaker 1: of that, but it is also usually on a painted
Speaker 1: on a much smaller canvas, and is focused on compensation
Speaker 1: and and a more simpler remedy for the plaintiff. Might
Speaker 1: the NFL file emotion to dismiss here? I suspect the
Speaker 1: league is going to be you thinking more about class certification, frankly,
Speaker 1: than um emotion to dismiss, although who's to say that
Speaker 1: they may move to dismiss, But I suspect they're going
Speaker 1: to be attacking the idea that you could certify a
Speaker 1: class here, and you know, just speculating they might try
Speaker 1: to produce evidence or create a narrative that even if
Speaker 1: you could somehow identify a class, that the individual's claims
Speaker 1: would be so different and rest on such a different
Speaker 1: pattern of effects that it would be inefficient to adjudicate
Speaker 1: under Rule twenty three class action. And that probably takes
Speaker 1: some of the window of the stales of this case.
Speaker 1: I certainly think that Flores has made a point, you know,
Speaker 1: in terms of the media spotlight that he's put on
Speaker 1: his case, and what he's alleging is a more pervasive
Speaker 1: pattern discrimination here that will need to be dealt with
Speaker 1: some fashion by the NFL simply, frankly, to contain reputational
Speaker 1: damage was really a referendum on, you know, a history
Speaker 1: of segregation and the history of prejudice, and that this
Speaker 1: specific incident was Floras. They don't want to student isolation.
Speaker 1: I also think they're responding to this but for causation
Speaker 1: problem the Supreme Court. The Supreme Court clarified that the
Speaker 1: standard one claims you have to show that race is
Speaker 1: the cost that there isn't, you know, the but for
Speaker 1: your race, you would have been hired or you wouldn't
Speaker 1: have suffered some adverse actions. So it's a fairly high
Speaker 1: threshold um and I think that's why they're bringing some
Speaker 1: ammunition to the table on this. Thanks for being on
Speaker 1: the show. That's to Doretha row, a partner Romano Law.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
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Speaker 1: week night at ten pm Wall Street Time, I'm June
Speaker 1: Grosso and you're listening to Bloomberg