Employment Cases From Reverse Discrimination to RICO

she's a heterosexual. The first case that Justice has heard this term on Monday involve workers suing Alabama over unemployment benefits who are stuck in a sort of catch twenty two. Here's how Justice Sonya Sotomayor put it. See it really stuck in a state process with a loop that you can't get out of. Joining me is an expert in employment law, Anthony Ancidi, a partner scour Tony. The Justices kicked off the term with an employment law case tell us about it.

the civil rights under federal law. They alleged that the state's policies and its practices and its procedures related to unemployment compensation applications violated the Social Security Act of nineteen thirty five, which is obviously a federal statute. They also claimed that they had suffered a violation of their due

process rights under the Constitution. This case comes to the US Supreme Court from the Alabama Supreme Court, which said that state law requires that the plaintiffs in the case first bring their claims to the state's Department of Labor and exhaust all administrative remedies that are available under state law, and according to the Alabama Court, that is supported by Supreme Court precedents, saying that that requirement does exist with

respect to these claims. So the issue is whether these workers who are seeking unemployment benefits need to exhaust state administrative remedies before they can bring a claim under a

federal civil rights law. The reason why this is going to be important, I think probably in these cases is because they didn't do that, and if it is determined that they were required to exhaust state administrative remedies, that that could jeopardize the federal claims that they're seeking to make under Section nineteen eighty three in this case.

small handful of cases every year. And the fact that they have granted sorcherai that is the Latin word for the review that is granted in this case and in these cases generally, may suggest that there is a different point of view.

and often can do it online. And in California, where I'm most familiar with administrative filings and the employment context, the state administrative agency California Civil Rights Department, will open and close the administrative file the very same day, and in almost every single case, the administrative apparatus is not

triggered and they don't get involved. But if the plaintiff has not done that first and proceeds directly to court without having exhausted those remedies, that's a means by which the defense can then say you can't proceed in the case because you should have at least given the administrative

apparatus or the agency some opportunity to prosecute this. I think some of this is a result of just the passage of time, because many of these civil rights statutes, for example, when they were first passed, they were not intended to directly lead to litigation or court cases or jury trials or any of this. They were supposed to be and they were often designed to be decided by administrative agencies, which is obviously a somewhat lesser formal proceeding

than having a case go to court. In the way in which the laws developed, though, and procedures have developed, and I think really administrative agencies have just been overwhelmed with the number of claims. The administrative apparatus is kind of atrophied in these cases, and so as a result of that, it may seem again like a technicality that that has to be done. But the law has not

been changed in most places. And that's I think what is probably at the root of what Justice Sodomayer was talking about.

in the event that one consumes or smokes cannabis. The driver claimed that he had not intentionally ingested THHC, but that he had used an elixir an interesting word for severe pain that was marked as containing only CBD, which is another compound that comes from marijuana. But which is not psychoactive and is not illegal. It's generally legal to consume CBD. So his argument was I essentially consume something that was mislabeled and by the way that mislabeling then

led to his being fired. He has now made this claim in the form of a assertion of fraud under the RICO the Racketeer Influenced in Corrupt Organizations Act, which typically originally was I think intended to reach mafia members but often gets thrown around these days in different types of cases. But it's known by the acronym RICO riico, and he's claiming that the CBD maker slash. I guess the thhc CBD maker in this case has conducted itself

in a way that it has violated. The RICO statute, usually, as I say, was typically used for targeting organized crime, but it does allow plaintiffs to bring certain civil cases for fraud and potentially collect triple damages. So in this case, the damages that he'll be seeking presumably will be the lost wages and benefits that flowed from his loss of employment. I suppose there may be other damages that he's going

to seek as well. This case found itself to the Second Circuit Court of Appeals in New York, and that court allowed the driver to proceed with his claim. But other appeals courts have tossed similar lawsuits where there was an attempt to seek monetary damages under RICO for personal injuries. I don't know that it's arisen previously in the context of CBD THCHC, but that happens to be the factual

scenario in this case. And so in this case, the CBD manufacturer wants the Supreme Court to dismiss the RICO claim, asserting that it's merely a garden variety products liability suit and that it should not be able to proceed under the Rico statute.

lower court. And in this situation, as I said, there is a conflict among the circuits, and that's typically when the US Supreme Court does get involved. So they may grant a review in a case in which one of seven circuits rules one and the other sixth rule another way. It doesn't necessarily mean they're going to affirm or reverse that one circuit. It just means they're trying to resolve whether the other six were right and this one was wrong, or vice versa. And I guess we're not going to

really know for a time. We should also say these are all cases that are in the current term of the US Supreme Court, which begins every year on the first Monday of October, and the term then usually concludes with a great degree of drama and fireworks in late

June early July. I've often said that the Supreme Court has an unerring sense of drama and of entertainment in some ways, I suppose because they saved the biggest cases for the last as they did the last term when they had a number of very significant opinions that came out in late June. They're almost all out, I think, without exception before the fourth of July holiday.

of employees and employers that governs those situations. And the question here has to do with the preponderance of evidence standard of proof versus what's called the clear and convincing standard of evidence. And I should say that there are at least three differing standards of proof that typically arise in the case. In most civil cases, you have the

preponderance of evidence standard. Law students are taught that that means that the plaintiff has to prove basically about fifty one percent of the evidence in their favorite that's kind of a rough way of saying it. But it doesn't have to be a huge amount in the favor of the plaintiff, meaning that the burden of proof is not that particularly burden some but the preponderance means that more than not the evidence needs to point in the favor of the plaintiff in order for the plaintiff to win.

The other standard that we're all pretty familiar with just from watching TV shows is the beyond the reasonable doubt standard, which is a much higher burden of proof. That is the criminal standard of evidence that is required to get a criminal conviction, So the prosecution needs to prove that the defendant in a criminal case violated the law beyond

the reasonable doubt. Somewhere floating between those two standards is the clear and convincing evidence standard, meaning it's got to be a little bit more than half, but a lot less than what you would need for beyond a reasonable doubt,

their floats somewhere in between. And that's the very question that that issue in this case, as comes out of Richmond, Virginia, the Fourth Circuit Court of Appeals, The question is does an employer have to prove, because the employee does have the burden of proof on these cases, that when an employee claims that they've been misclassified, meaning that they didn't get overtime and they should have, they were misclassified for some reason as exempt from overtime, does the employer have

to prove that the employee was properly classified by the clear and convincing standard, which is that medium proof standard, or just the preponderance of the evidence standard, which is an easier burden to meet. Obviously, the plaintiffs in a case like this are going to be pushing for clear and convincing because that would mean it's going to be harder for the employer to win, and in this case,

that's going to be the issue. A number of federal circuit Courts of Appeals have already weighed in on this, including the Fifth, sixth, seventh, ninth, ten to eleven, and they've all applied the lower standard of preponderance of the evidence. In this case, the Fourth Circuit Court said that the clear and convincing standard is the one that applies.

and that's really what's that issue. In this particular case, this was a plaintiff a former firefighter for the City of Sanford, Florida, and she retired due to Parkinson's disease in twenty eighteen. She had served as a firefighter for about nineteen years when she joined the fire department in nineteen ninety nine. The city's policy was that it would provide free health insurance until age sixty five from employees

who were retiring due to a disability. In two thousand and three, the city changed its plan and it limited the health insurance subsidy that disability retirees would get to twenty four months post retirement, meaning it wouldn't go until the age of sixty five. It would only go for

twenty four months. In this case, former firefighter who did retire due to a disability out suit before her subsidy was set to expire, and she said that this change in policy was a violation of the Americans with Disabilities Act, the Rehabilitation Act, and then some statutory provisions under Florida law, as well as the Equal Protection clause under the Constitution. The district court dismissed and granted some re judgment on other claims, but otherwise disposed of her case and ruled

in favor of the city. And the reason they did that again sound somewhat like a technicality, but obviously a very important one. They ruled that the statutes that she was proceeding under only applied to plaintiffs who quote hold or desire an employment position with the defendant at the time of the defendants allegedly wrongful act, and of course she neither held nor did she desire to hold, which really is a different word for saying an applicant unemployment

position at the time of the alleged wrongful act. And so the precise question is ken a retiree such as the plaintiff in this case, sue for discrimination under the Americans with Disabilities Act over post employment fringe benefits that, had she said, been taken away on the basis of a discriminatory policy.

actual benefits that employees have received. There was a period of time when retirees, you know of the our companies and many other industries in the United States, would receive what's called a defined benefit plan, meaning they knew that when they retired they would get x hundred or thousand

dollars a month as part of their retirement. Because those policies became so expensive due to inflation and and just any number of other factors, most employers have long since shifted away from what are called defined benefit plans like that to what's called a defined contribution plan, which is more like a four toh one K, which is there's a certain maximum amount you can contribute to those plans, or that the employer will contribute on your behalf, but

there's no guarantee you're going to get x amount at the time that you retire. If you invest in the stock market, which of course the stock market over the last seventy or eighty years has had a fairly good track record ten percent plus. I think the returns on average over that period of time. You may very well be able to sort of ballpark what your retirement benefits are, but that's not exactly the same thing as knowing for sure what you're going to have plopped into your bank

account every month. And that's what a defined benefit plan is, and those are few and far between these days.

female former employee. She was assigned to a new supervisor who was gay. In twenty nineteen. She applied to be the department's bureau chief of quality, so she was seeking a promotion. She did not receive that position. In a few days later, she learned that she was being removed from her administrator position, the lower position that she had.

The decision to remove her from the administrator position was made by not the gay supervisor, who was the first level supervisor above her position, but the second level supervisor and the department's director, both of whom were straight. So this becomes a somewhat problem issue for her in this case because the fact that she's being supervised by a gay employee seemingly had no effect at least as the case is currently framed upon. The demotion and the failure

to give her the promotion. The department then awarded her former administrator position to a twenty five year old gay mad The department then selected a gay woman to serve as its bureau chief of quality. She then filed claims of discrimination the straight white female employee. She filed claims a discrimination based on her sexual orientation and gender against the department. She said that she was discriminated against on

the base of being a heterosexual female. What happens next, The district Court, which is the trial court in the southern District of Ohio, grants some rey judgment to the employer and dismisses the case, and the Sixth Circuit in this case, which is based in Cincinnati, Ohio, affirms that dismissal. The basis for the dismissal and the affirming of the dismissal is as follows. They say that this plaintiff did not establish the necessary quote background circumstances close quote to

sustain her claim of sexual orientation. So what's going on in this case? Why is the Supreme Court interested in it? The reason the Supreme Court's interested in it is because this element that both the district court, the trial court, and the appellate court applied, that is, requiring the employee to prove these background circumstances only exists if the plaintiff happens to be in the majority, meaning if it's a white employee, heterosexual employee, or in this case, I guess

for gender reasons female. I guess there may be more females than males. I'm not sure how that's going to work out. But the real question is whether or not there is an additional burden placed upon a so called majority plaintiff that does not exist for a minority plaintiff or a plaintiff that is a member of a protected class that is a minority. Typically, in a discrimination case under Title seven, which is the federal anti discrimination law, an employee must show first of all, they belonged to

a protected class. Two, they did well in their position, but were terminated, or they were demoted, or they didn't get a promotion, some other adverse action happened, and then they were third replaced by or treated worse than someone outside of the protected class. But if the person who's challenging the adverse action, as this plaintiff is, is a member of the traditional majority, for example, a white employee bringing a race discrimination claim or a male employee bringing

a sex discrimination claim, that does not apply. We've seen in this case that plaintiff must prove an additional element, and that is they must demonstrate background circumstances which proves that their employer is the unusual one. That's the language of the court, unusual one who discriminates against the majority to sustain their claims. And this is another example, as you mentioned earlier, of all kinds of courts at the

appellate level ruling in different ways. There again, is there very much a circuit split on this question of whether there really needs to be this additional factor proven by the plaintiff if they are a member of a majority group.

twenty twenty three with respect to college admissions. Everybody who does represent employers and employees in the employment bar throughout the United States is waiting for the US Supreme Court to take further action with respect to both affirmative action in the workplace and now in this case, discrimination claims

in the workplace. And my suspicion is that there will be a split in the Supreme Court, and I suspect it will be probably either a six y three or a five to four, depending on the Chief Justice rules in favor of abandoning the background circumstances test and saying, as some circuits have said, and indeed, as one of the concurring judges said in this case, that discrimination is discrimination, and if a white employee, or a male employee, or

anybody who's member of a quote majority group is discriminated against on the basis of their being a part of that group, they have a right to proceed with an anti discrimination claim irrespective of whether they have these so called background circumstances, in addition to the other things that a member of a minority group would have to show.

a bipartisan coalition of attorneys general. The lawsuits claim that TikTok design features that addict children to the platform, such as the ability to scroll endlessly through content, push notifications that come with built in buzzes, and face filters that create unattainable appearances for users. A TikTok spokesman said they strongly disagree with the claims, many of which they believed

to be inaccurate and misleading. Joining me is Eric Goldman, a professor at Santa Clara University Law School and co director of the school's High Tech Law Institute. What are the claims here against TikTok?

wish that wasn't part of the human condition. However, it's easy enough for the regulators to point to specific actions that they don't like, but it's harder to talk about how TikTok might design a service that would prevent those actions from ever taking place, and some of the solutions that might prevent it would have other collateral damage that could to materially degrade the service for everybody, or make it impossible for anyone to talk to each other, And

so it's not really super insightful to talk about the virtual crime scene without contemplating the overall ecosystem.

from the higher courts, the data is noisy. We can't really tell where the line is today legally, and so it's hard to judge the efficacy of these particular suits until we get additional data from the appellate courts.

So basically Bonta is jumping the gun on a statute that's designed to accomplish the exact same goals, which is an unusual and somewhat troubling allocation of prosecutorial resources. Why not wait until the statue comes in ef fact that the legislature is carefully crafted and it believes requires some

compliance time to go into effect. Having said that, you know, I think that all of the lawsuits and the statutes are going to be sort of substantial criticism when they go up on appeal, and so nobody really knows the laws, and I'm the investment in new lawsuits without uncertainty is just in a sense, piling on.

solution that would ameliorate that problem. So, for example, when we talk about this concept of addiction that's not necessarily in a clinical sense, that might be more of a lay term, and so we don't really have a scientifically authorized protocol for how to deal with the clinical condition

of social media addiction. So in that sense, everyone's kind of guessing at what actually will help and what troubles means when the state decides to put its finger on the scale of those guesses and say we're going to side for you, with no clinical evidence to back us up, and then no consideration for how the solution might actually not solve the problem or actually might make things worse.

that directly with their audience. So whether it's framed as a privacy lawsuit or an addiction targeting lawsuit, or a statute that designed to hard code specific operational practices, they're all reflecting this basic underlying impulse that the government's taking over here, and they're going to decide for everyone.

law would be subject to a legal challenge. That legal challenge is currently pending with the DC Circuit Court of Appeals, But the real action is going to come from the Supreme Court. Whatever the DC Circuit says is going to go to the Supreme Court and then we're going to get more of our answer. So until we hear for the Supreme Court, everything is pretty speculative.

claims that have been made elsewhere. So there's an enormous sense of deja vous about this particular stive enforcement actions.