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