Cases by Issue - Sex Discrimination in Employment

Burlington Northern Santa Fe Railway Co. v. White - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

Burlington Northern Santa Fe Railway Co. v. White

Media File:

05-259_20060417-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Carter G. Phillips

Chief Justice Roberts: We'll hear argument next in Burlington Northern and Santa Fe Railway Company v. White.

Mr. Phillips.

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court--

There is no more vexing set of issues in the employment discrimination context than arise out of issues of retaliation under section 704 of title VII.

As the Solicitor General's brief and a couple of the other amici briefs point out, the number of... the number of these claims has increased by more than 100 percent over the course of the last decade, more than 30 percent of the EEOC's docket is now made up of retaliation claims, and the cost of an average contested retaliation claim exceeds $130,000 per case.

Plainly, this is a fundamentally important question, and the standard to be applied under section 704 is critically important to both employers and employees.

And the respondent has given you truly a choice and not a shadow in this particular case because the respondent's analysis of section 704, based essentially on the language, any discrimination, is that everything that is in any sense against an employee, any act of retaliation, no matter how trivial, is nevertheless a basis for a section 704 lawsuit.

This is a position that's embraced by none of her supporting amici.

It's a position that's been embraced by no court of appeals up until this point, and it is a position that is utterly untethered in the relationship between section 704 and its language and section 703, which is the heart and soul of the antidiscrimination norms in title VII.

Chief Justice Roberts: It has been endorsed by the EEOC, though.

Mr. Phillips: Not... not that broad... no, not even the EEOC in its most aggressive interpretation, which obviously the United States has rejected in this case, ever went to the point of saying any.

And I'll give you a good illustration of that because in the guidelines, the commission always said that in a situation where there was absolutely no question of retaliation, charge filed against a supervisor, supervisor disinvites an employee to lunch, a lunch that's held with all the other employees... it has always been the position of the... of the EEOC that in that circumstance, that would not be enough to raise even a fact issue to go to a jury on.

Under the respondent's theory of this case, it is clear to me that being disinvited to a lunch would, in fact, be a basis for a Federal lawsuit under section 704.

So there is no one, neither governmental nor nongovernmental, that has embraced the extreme position that the respondent has put forward under section 704.

And indeed, it's very difficult for me to understand why Congress would ever have adopted a rule that was more protective of those against whom... against... where retaliation takes place as opposed to the core of who was protected by section 703, which is the people who are in the protected class in the first instance.

To adopt the rule, I think, of the respondent in this case would not only increase the number of claims another 100 percent, at least, in the future, but it seems to me would render completely meaningless the observation of this Court in Weber that management prerogatives are to be left undisturbed to the greatest extent possible.

There are no management prerogatives once an employee has filed a complaint under... and, therefore, is protected under section 704.

At that point, everything becomes essentially a straitjacket problem.

I don't think there's a rationale to support that interpretation, and so therefore the question is, what is the right standard under section 704?

And here, it seems to me the United States and Burlington Northern are on exactly the same page.

We believe that this Court announced the appropriate standard under section 703 in dealing with harassment cases.

That's the Ellerth standard, and we believe that the Ellerth standard is the proper one for defining a tangible employment action.

Justice Scalia: But 703 has the language and 704 doesn't.

I mean, 703 has language limiting it to... to employment, prerogatives of employment.

704 doesn't.

Mr. Phillips: Right.

Justice Scalia, this Court has also said that that negative pregnant has never been used as an overarching interpretive guide.

You have to evaluate 703 and 704 in tandem, and it seems much easier to interpret 704 as simply using discrimination against as a shorthand for the wide range of discriminations that are outlined in 703.

It seems quite cumbersome, at a minimum, and probably worse if Congress were to actually sit down and try to rewrite every aspect of 703 in order simply to say in addition to the protected classes that 703 protects, there is certain conduct under 704 that we protect in exactly the same way that we protect--

Justice Scalia: No.

It wouldn't have to do... I mean, fairly... you know, to be fair, it wouldn't have had to say that.

It would have said any... any act that is discrimination under 703.

Any act that is discrimination under 703.

Seven words it could have said.

Mr. Phillips: --They could have said it that way, but it seems to me quite clear that Congress still intended for 703 and 704 to be interpreted in pari materia.

And... and again, you... you still run into the same problem, Justice Scalia, as to why is it that Congress would want to protect more thoroughly 704 plaintiffs than it would 703 plaintiffs.

And it seems to me there's no--

Justice Scalia: That's a curiosity.

It is.

Justice Breyer: Well, the answer would be because Congress is worried that people won't complain.

That's why.

And there are millions of ways of harassing people.

They start issuing a complaint.

You do all kinds of things.

You freeze them out.

You... you insult them.

You... I mean, it's easy to think of things that don't rise to the level of the... Ellerth.

So, I mean, if I... maybe I'm right, maybe I'm wrong, but if I'm right, why not just take, say, the D.C. Circuit standard?

They... they say that you have to show that the employer's action would have been material, which means the action might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Now, how about that?

That has the virtue of allowing a person not to be harassed, et cetera, who wants to make a complaint, and it also allows the judge to focus on the particular case and see if what the person is doing is reasonable.

It holds the complainant to a standard of reasonableness, which is common in law.

Justice Scalia: And the issue would be, I assume, how much a reasonable person likes a free lunch.

Mr. Phillips: --That would be... that would be the question.

Justice Breyer: Well, in fact, if it turns out to be the power lunch of all time and, in fact, the person can't be at the power lunch because she's a woman, for example, and therefore, her future career is likely to take a real nose dive, why shouldn't that count as a violation?

Mr. Phillips: Well, I will tell you, Justice Breyer, that the... at least one of the problems with that is that the EEOC's guidelines expressly state that that is not a claim that's actionable under section 704.

Justice Ginsburg: They say one lunch, but not if there's a weekly lunch, and the only person who gets left out is the person who filed a charge under title VII.

That's... a one at a time curiosity the EEOC guidelines leave out, but if it's a routine lunch with all the preferred employees and they leave out the one who filed the title VII charge, that would fit within the EEOC's definition.

Mr. Phillips: That would fit under the EEOC's definition, although I don't think it's an answer to Justice Breyer's hypothetical--

Justice Ginsburg: But it wouldn't fit under your--

Mr. Phillips: --that was talking the big power lunch.

Justice Ginsburg: --Under your definition, lunch is lunch, and so there would never be... there couldn't be--

Mr. Phillips: No, not under my... no, that's not necessarily the case, Justice Ginsburg.

In my... you know, there are two standards under... under an adverse employment action.

The first one is whether there's a tangible action, and that's the Ellerth standard.

And then there's always the pervasive and severe standard, so that if you have... you know, being routinely excluded rises to the level of pervasive or severe, that would still be actionable under 704 in exactly the same way that that's actionable under 703.

Justice Ginsburg: --Well, does it or doesn't it?

The... the facts are simply that the manager takes out all the employees, except this one that filed the title VII charge, once a week.

Is that--

Mr. Phillips: And... and does it on a pervasive basis, sustained and pervasive basis.

Justice Ginsburg: --Does it once a week, and I'm not using any adjective to characterize it.

It just happens once a week.

Mr. Phillips: Well, I think you probably have a jury question at some point, depending on how long it went on for because it would become... it would become a pervasive practice.

And under those circumstances, this Court has a rule that allows that to become a jury issue.

But if it's only once or twice, it strikes me that that's not a particular problem.

Justice Kennedy: Well, how excluding from the forklift forever or a year?

You can't work the forklift for a year.

Mr. Phillips: Well, the... the reason why that's not a problem is that there is no economic effect that attaches to not working on the forklift for a year or for 10 years.

The... the proof in this case is absolutely clear.

Justice Kennedy: Well, it has an effect on your back.

Mr. Phillips: But that was not the... but the... but she didn't get hired as a forklift operator.

She was hired as a track laborer, Justice Kennedy.

Justice Kennedy: Yes, but you've got a jury--

Justice Souter: Okay, but if that argument is sound--

Justice Kennedy: --you've got a jury finding here.

You've got a jury finding this was discriminatory.

Mr. Phillips: Well, there's... there's no question that there's a jury finding of retaliation.

The question is whether or not this is a tangible employment action.

Justice Souter: --Yes, but if your... if your argument is sound, Mr. Phillips, then... then any employer is well advised to define job categories by having one really nice job within the category and one really rotten job within the category.

And if anybody who's got the nice job does something like make a title VII complaint, automatically gets, in effect, reassigned to the rotten job, and your answer will be, you know, there's no economic effect.

They're getting the same amount of money each week.

I mean, that would seem to me... asks for an end run around the whole concept of retaliation.

Mr. Phillips: Justice Souter, let me... in the first place, it's not a very practical hypothetical because, one, when you... when you define your job positions--

Justice Souter: Well, isn't... isn't there a big difference between sitting on a seat and running a forklift and... and picking up steel rails with your bare hands?

Mr. Phillips: --Well, one, she wasn't typically picking up steel rails with her bare hands.

All of this stuff is done mechanically.

She was pulling nails out of rails periodically.

So I'm not sure that that's precisely the way to characterize it.

But the... but at the end of the day, it still seems to me that what Ellerth tells you you should look at is primarily whether there is a... a direct economic effect.

And if there is no direct economic effect, then what you ought to be looking for is whether or not the... the conduct is severe or pervasive, and... and if it is--

Justice Souter: Okay, but--

Mr. Phillips: --then, it seems to me, there's a separate action.

But that's not the claim she brought in this case.

Justice Souter: --Okay, but do you... do you agree that direct economic effect cannot be the only criterion here?

Mr. Phillips: No, I don't think it can be the only criterion.

I think that you would have a situation... and a lot of times the... the economic effect will be either immediate or potentially indirect in the sense of the hypothetical the commission uses in its guidelines where a butcher is shifted over to be a cashier.

And in that situation, that's a fundamentally different job with a fundamentally different career path.

And it may not have any economic effects in the short run, but in the long run, it will have.

And that may be an answer in part to your question, Justice Souter, about just one big job classification that--

Justice Stevens: May I ask you this hypothetical?

Supposing people like to work the forklift, but nobody had a... a right to do it, but they traded every day or something like that, and the company put out a notice that said anybody who... who files a claim will not be eligible to ride on the forklift ever again.

Mr. Phillips: --Right.

That's a quid pro quo violation.

Justice Stevens: That would be a violation?

Mr. Phillips: This Court held in... in Ellerth that those kinds of quid pro quos are... are subject to liability.

Justice Stevens: So anytime there's an advance notice that you will... there will be some kind of action in response to a... a claim, that would be retaliation.

Mr. Phillips: Right, because the employer... I mean, employers aren't going to--

Justice Stevens: Even though it was not an adverse job action.

Mr. Phillips: --adopt that kind of a standard.

I'm sorry, Justice Stevens?

Justice Stevens: Even though it did not amount to... did not have any economic effect on the employee.

Mr. Phillips: Well, in that... you know, in... under those circumstances, it seems to me that the standard is slightly different for quid pro quo violations than they are for simply tangible employment actions.

Justice Stevens: So a quid pro quo violation does not have to be an adverse employment action.

Mr. Phillips: It... right, because the... there are... I mean, they are all adverse employment actions.

There's a tangible employment action.

There's a quid pro quo action, and then there's the--

Justice Stevens: It seems to me that... that interpretation requires you to interpret 703 and 704 differently.

Mr. Phillips: --No.

I... I don't believe so because I'm... I'm... what I'm trying to do at least is to apply the Ellerth standard under 703 for each of the three elements in the same way that I'm trying to apply them under 704.

Justice Scalia: But... but are you?

I'm... I'm a little concerned that... that you're trying to persuade us to interpret 704 the same as 703 at the expense of watering down 703.

I don't understand how you can concede that... that refusing to invite somebody to lunch, if it's more than... more than a single lunch, could be a violation of 703.

How does that come within the... with respect to compensation, terms, conditions, or privileges of employment?

Mr. Phillips: Well, I think that if... if you could certainly envision a circumstance... and again, this goes to the pervasiveness of it.

It's... it's a fundamental, sort of constructive adjustment of your employment situation.

Terms and conditions is a fairly capacious term, Justice Scalia, and I could well imagine that if you were being systematically treated differently and differently from every other employee--

Justice Scalia: Not... not by the--

Mr. Phillips: --then at some point it becomes severe or pervasive in a way that... that, it would seem to me, would raise a jury trial issue.

Justice Scalia: --And... and going to lunch is the conditions of employment.

Mr. Phillips: Going to lunch once, no.

Justice Scalia: Privilege.

Mr. Phillips: Going to lunch twice, I'm sure not.

But, you know, if it is a continuous process, at some point it strikes me that it would become somewhat problematic.

Yes.

Justice Ginsburg: But let's get the--

Mr. Phillips: But... and that is why it's important, and it goes back to Justice Breyer's question, if I can go back to that for a second, because he asked about the D.C. Circuit's opinion, which, you know, of course, adopted the EEOC's now discredited theory of this case and, again, untethers 703 from 704.

That's the problem with the D.C. Circuit's interpretation.

Justice Breyer: Why?

Why?

You see, I can think of a million things.

I can't think literally of a million, but it does seem--

Mr. Phillips: I suspect you could.

[Laughter]

Justice Breyer: --to me there are many, many possible ways of really discouraging a worker from complaining that are not quite as tangible as the list under 703.

So the D.C. Circuit... and I think even the SG here, which seems like a variation of the D.C. Circuit... much... the standards seem much... not as different as you might... as it seems to me you're saying.

But... but they're... they're trying to be a little vaguer and a bit broader than the specific Ellerth language because they recognize there are many possible ways of seriously injuring a person with the intent or... to stop them from complaining.

That gives effect to the language differences.

Mr. Phillips: Right.

Justice Breyer: It leaves it up to case by case.

It leaves it up to the administrative agency, all in areas where I frankly don't know one lunch from another.

Mr. Phillips: I'm sorry?

Justice Breyer: I don't know one lunch from another often, but the... the EEOC might and... and so might a judge who hears evidence.

Mr. Phillips: Justice Breyer--

Justice Breyer: And that's the virtue of their standard.

Mr. Phillips: --I mean, you can ask Mr. Garre what his view is with respect to the waiting on the position of the Solicitor General here.

But it still seems to me that there is a fundamental difference between the way the D.C. Circuit is analyzing this case and... and the way this Court analyzed it Ellerth.

And the fundamental difference is... I agree with you.

There are other circumstances that are not tangible employment actions that are, nevertheless, actionable under both 703 and 704, but those are... those are taken care of under the Meritor standards.

The... the assumption is that they are both retaliatory in purpose and that they are severe or pervasive.

Justice Ginsburg: --What about the--

Mr. Phillips: When you reach that standard, then you create a question of fact for the jury.

Justice Ginsburg: --what about the Seventh Circuit case that posed the question of same job, same character of work, except that the employee had flex time, which enabled her to take care of her disabled child when she could leave at 3:00, and she's just changed to... same job except it's got to be 9:00 to 5:00.

Would that fit within your definition?

Mr. Phillips: I doubt it actually, Justice Ginsburg, because I think typically mere inconveniences, even... even significant inconveniences, have traditionally been rejected as bases for taking an issue to the jury.

Justice Ginsburg: Even though the jury has made a finding that the only reason that was done was in retaliation for her having filed a complaint.

Mr. Phillips: Justice Ginsburg, every one of these cases is based on the assumption that the only reason it was done is because of retaliation.

Justice Ginsburg: Right.

Mr. Phillips: The lunch is in exactly the same position.

Justice Ginsburg: But you would say that's outside--

Mr. Phillips: So that can't be the standard.

Justice Ginsburg: --that would be outside 704 if this is done deliberately in retaliation for filing a complaint.

Just switch her from a work routine that she could easily manage and still take care of her family and to one that is impossible for her to manage.

Mr. Phillips: Justice Ginsburg, if you adopt the other approach, what you say is that every change in assignments within the ordinary course of business is subject to claim by a plaintiff--

Justice Ginsburg: Not... not--

Mr. Phillips: --in any situation--

Justice Ginsburg: --not every--

Mr. Phillips: --where he or she thinks she's been retaliated against.

Justice Ginsburg: --Not everyone, but only the ones that would, in fact, deter a reasonable person from filing the charge.

And that would not be every trivial--

Mr. Phillips: And... and again, the problem with that legal standard, Justice Ginsburg, is it is not the same one that applies under section 703, and it seems to me there's no reason to provide greater protections under 704 to plaintiffs than you would have under section 703.

Justice Scalia: Why wouldn't you say that Justice Ginsburg's hypothetical would be covered by the Meritor standard, if in fact this woman couldn't... couldn't really do the job with this... with this new time assignment?

Why wouldn't it qualify as being sufficiently severe or persuasive--

Mr. Phillips: Pervasive.

Justice Scalia: --to alter the conditions of the victim's employment and create an abusive work environment?

Mr. Phillips: I mean, to be sure, that's a possibility... that's a possible answer.

Justice Ginsburg: --But that... this is a peculiar effect on one person, but for most people--

Mr. Phillips: But it could be severe enough.

Justice Ginsburg: --most people it wouldn't matter.

But--

Mr. Phillips: Right, but the question is, is it severe, I think, to that person?

I think that is the Meritor standard, is, is it severe to the individual plaintiff?

Justice Ginsburg: --So you're changing your answer.

You originally told me that, no, that that wouldn't fit because it's the same job.

Mr. Phillips: Right.

Well, that's because that's the tangible employment aspect of it.

Justice Scalia says you're right about... well, I don't know if he said I'm right about the tangible... tangible employment aspect of it.

But he says, you know, as you recognize, there is a second category of claims, and the second category of claims is the Meritor standard, which I've been arguing for.

Justice Alito: Isn't a change in the hours that a person works a change in the terms and conditions?

If change somebody's shift from the day shift to the... to the night shift, isn't that a change under 703?

Mr. Phillips: It... it probably depends on whether or not it was the expectation of the... of the employee that... that he or she would have a certain set of hours, because an awful lot of employees take a job with the expectation that they'll work any hours.

Now, you may get into a particular pattern and... and even set yourself up for that, but if... if the expectation is that you were going to work potentially 24 hours and you shift from one set to another, that I don't think is a change in terms and conditions of employment within the meaning of 703.

If I could just shift slightly to the suspension, pending investigation, part of the case.

And there are two parts, and it's important to recognize that if the Court sets aside either one of those claims, then we're entitled to a new trial because the damages flow directly from both and there was no specific... there was no special verdict in this case to identify what... where the damages come from.

And our argument with respect to the suspension, pending investigation, is that there was simply no final action taken by the employer in this context until 15 days later.

She was suspended for insubordination by her supervisor.

Under the collective bargaining agreement, all she had to do was send in a letter.

If she didn't want to send in a letter, the... the decision would become final and there would be final action that's clearly subject to a claim under section 704.

She did send in a letter.

There was an informal investigation.

The informal investigation concluded that there was no basis for suspending her for insubordination, and she was reinstated with complete back pay.

Justice Scalia: So she was docked in her pay for 2 weeks.

I mean, for some people, this would be a real hardship, no pay for 2 weeks.

I mean, it's... it's final as far as she's concerned, for those 2 weeks.

Mr. Phillips: Except that it was all... it was... it was reinstated.

Justice Scalia: Yes, well, they went back later and... and made up for their mistake.

But... but the... it seems to me the issue is whether a mistake was made that... that was final action that hurt her.

I don't see why... it's certainly official action.

I mean, you can't say--

Mr. Phillips: There is official action.

Justice Scalia: --it's not official just... just because it was decreed by a... you know, a track boss or something.

It... it was an action of the company because the company cut... cut off her pay for 2 weeks.

Right?

Mr. Phillips: Right, but then the question still remains, Justice Scalia, for it to be a tangible employment action, is it... is it available to the employer to cure, when the purpose of this entire statutory scheme is to avoid litigation and to provide informal mechanisms for protecting the rights of the employee.

Justice Ginsburg: But it didn't--

Justice Souter: Yes, but if the employer--

Justice Ginsburg: --it didn't cure.

I mean, it was 37 days, right, that she went without pay?

Mr. Phillips: Right.

Justice Ginsburg: Not just 2 weeks.

And she understandably experienced much stress in that time.

She worried about how she would be able to feed her children, could she get them Christmas presents.

That was... there was nothing that she got, when it was determined that she hadn't been insubordinate, that compensated her for that stress and, indeed, for the medical expense that she incurred because she had that stress.

Mr. Phillips: Justice Ginsburg, there still remains the core question of whether this is a tangible employment action.

It's not a long term action.

It's not an economic effect, and the fact of... of anxiety... that happens all the time in the work place.

It's not actionable.

Justice Ginsburg: But when... when somebody is suspended, it seems to me that is as tangible as it can get.

It gets registered officially.

This person is suspended, and if she doesn't do something about it, she's out.

Mr. Phillips: But she did something about it, and it was corrected, Your Honor.

I'd like to--

Justice Ginsburg: But--

Justice Souter: --Yes, but--

Justice Ginsburg: --official action is... is different from... the problem with Ellerth was that if there's nothing formally that had been done, the employer... this... Ellerth was concerned with vicarious liability, nothing official.

There had been none... the boss wouldn't know about it.

But somebody who is suspended, that is an official... that's a tangible action.

Mr. Phillips: --To be sure.

And the question is, can you cure it?

And that's the fundamental issue we ask you to decide.

Can I reserve the balance of my time?

Argument of Gregory G. Garre

Chief Justice Roberts: Thank you, Mr. Phillips.

Mr. Garre.

Mr. Garre: Thank you, Mr. Chief Justice, and may it please the Court--

Because title VII prohibits an employer from suspending an employee for 37 days without pay because of her sex or from reassigning her from one responsibility that's material different... materially different than another responsibility because of her sex, it prohibits an employer from doing so because she filed an EEOC charge complaining about discrimination.

Title VII's antiretaliation provision creates an additional basis for unlawful discrimination, but it does not create a different or more expansive concept of discrimination in the statute's core prohibitions.

Chief Justice Roberts: Counsel, in... in the absence of any suggestion that the collective bargaining process is also infected with sex discrimination, why can't we rely on that process to give some basis to the job descriptions?

In other words, forklift operator was not a separate job from rail yard employee, and if the union wanted to make them separate jobs, they could negotiate that, but they didn't.

So why... why do we regard that as a material change when you're doing one part of a job as opposed to another part of a job?

Mr. Garre: Well, I think the problem that Justice Souter identified, I believe, where an employer or even a collective bargaining agreement could identify categories that had so many different responsibilities--

Chief Justice Roberts: Well, but the difference there is that's an employer unilaterally.

We don't have that here.

The employer is dealing with the union.

If the jobs really were that different, the union would categorize them differently and negotiate for that.

Mr. Garre: --Here, what we know and what the jury found... and this is actually... it's important to keep in mind.

This is a jury finding.

The jury was instructed properly on what would constitute a material adverse employment action.

The instruction is at page 63 and 64 of the joint appendix.

One of the conditions that a jury could find an adverse action based on was a materially significant change in responsibilities.

The jury heard evidence on the different types of responsibilities that the respondent performed, and it concluded that being changed, being reassigned after 3 months of working the forklift, to manually repairing railroad track was a materially significant change in responsibilities.

That's the language that comes from this--

Chief Justice Roberts: Doesn't your approach require an employer to keep shuffling the employees around so they don't get a sort of adverse possession of particular types of job responsibilities?

Mr. Garre: --I don't think so.

I think it would be ultimately a jury question in this particular category of claims.

As... if... if it were the case that employees typically worked the forklift and then the next day worked the... worked the track, then the next day did something else, then I don't think a jury could find that there was a material... materially significant change in responsibilities.

Justice Scalia: No.

That's his point.

I mean, that's his point, that... that the one way to avoid the problem is to keep shifting people around.

Mr. Garre: Well, that... that--

Justice Ginsburg: That would have been impossible here because there was no one in that entire unit who could operate a forklift except this one employee.

Mr. Garre: --That's right.

And... and if... if employees were shifted around for one reason or the other, then I still think it would be unlikely to be a material change in their responsibilities when they went--

Justice Ginsburg: Is it... is it... was it in this category, this track category?

Because it was something new for the employer.

There hadn't been a forklift operator.

I gather there had only been one before.

Mr. Garre: --There was testimony to that effect, Justice Ginsburg.

Also, when... when respondent was hired, they had just lost their existing forklift operator, someone who had done that.

In any event, I don't think the evidence will permit a court, if it agrees that material adverse employment action is the test, to overturn the jury's finding that the change here was materially adverse.

Chief Justice Roberts: With respect to the suspension, what... what if she had been... during the process of investigation, she had been allowed to stay on the job with pay?

In other words, the facts are the same.

It's just that the... the sort of stay process works the other way and she's not relieved until the end of the company's investigation.

Is the initiation of that an materially adverse employment action?

Mr. Garre: Well, I think most courts have held that where you have suspension with pay, then you don't have material adverse employment action.

Now, at some level, if the suspension is so long, 6 months, a year, then effectively you could have a different type of material adverse action, but where it's a 2-week suspension to investigate, that would not be material adverse action.

In fact, as... as the AFL CIO amicus brief points out, I think, that's the favored practice in the industry.

Now, we... we do think that with respect to the standard, that as this Court recognized in Faragher, it makes good sense to harmonize discrimination standards.

And here, we think that Congress intended the courts to harmonize the standard for section 704, the anti retaliation provision, with the standard for section 03, the act's core prohibitions.

Justice Scalia, it does... the section 704 does omit the phrase, terms, conditions of employment, but as we've explained in our brief, we think it is reasonable to read the discriminate against as a shorthand for the unlawful employment practices identified in section 703.

It's also important to keep in mind that Congress knows how to write a broader antiretaliation statute when it wants to.

Look at the ADA, the Family Medical Leave Act.

These are statutes which, by their terms, prohibit employers from any attempt to intimidate, coerce, threaten, or interfere with the exercise of rights.

Look at the Family Medical Leave Act--

Justice Scalia: I don't know if that hurts you or helps you.

I mean, that... that eliminates what seems to me is the strongest argument of the... of your side, which is that it makes no sense to impose greater sanctions upon somebody who... who files a complaint than it does upon somebody who... who violates somebody's race, religion, or whatever by... by discriminating.

Mr. Garre: --Well, we--

Justice Scalia: You're telling me it does make sense, that we've done it in other areas.

Mr. Garre: --With respect, what I'm telling you is that Congress has determined in some areas it may be important to have a broader provision protecting against intimidation and coercion.

I mean, if the Court interprets discriminate against to include all that kind of conduct, then it renders those provisions redundant.

Justice Ginsburg: Does your test cover the person who's a former employee who complained under title VII, wants a recommendation letter, and isn't given one for retaliation... as retaliation for having complained under title VII?

Mr. Garre: It does, Justice Ginsburg.

As the Government explained in its brief in the Robinson case, post employment references are reasonably viewed as a term, condition, or privilege of employment because it's routine for employees to request them and routine for employers to provide them.

Now, if I could address the--

Justice Breyer: Well--

Mr. Garre: --the reasonably likely to deter test that you referred to, Justice Breyer.

If the Court disagrees with our submission that the statute should be written in pari materia, then as we said in our brief, we think that that is the next best test to adopt.

But... but the Court should... it should be clear to the Court how much broader that test is than the material adverse action test.

Justice Breyer: --It's not... it's not... the... the words of the statute that I think are relevant is it... is it... you can't discriminate with respect to his compensation, terms, conditions, or privileges of employment.

Now, the words I just cited are present in 703.

So that's the substantive offense.

Those words, as Justice Scalia pointed out and others, are missing in 704, and that suggests that you could have a broader definition than those words I just cited as to what counts as harm flowing from a discrimination.

That's the statutory argument.

And then you add, there could be good reason for that.

These people typically are at work and there are lots of subtle forms of harm and some not so subtle.

Mr. Garre: Well, again, we think Congress knows how to write that statute, and it does it differently.

It has a different provision.

For example, in the Family Medical Leave Act, not only included the coercion and intimidation language, it also said in any manner discriminate.

We also think, again, going to our interpretation of discriminate against, it makes sense to read that for a... as a shorthand for the... the unlawful practices spelled out and detailed in section 703.

Justice Breyer: Well, I'd be curious.

In the... in the Seventh Circuit, they have a test, I gather, like the D.C. Circuit, which you've characterized as broader.

Have there suddenly be a flow of these claims towards the Seventh Circuit?

Is there any empirical data that this concern that has been brought up is empirically present in the Seventh Circuit?

Mr. Garre: Two... two points with respect to that.

First, no, I don't know of empirical data in the Seventh Circuit.

Second, we know that retaliation charges are... are rising.

They've more than doubled in the past decade.

And third, the Seventh Circuit test is essentially like the... the test that this Court applies in the First Amendment context to determine when there's retaliation.

This Court in the Rutan case observed that something as trivial as failing to hold a birthday party for an employee could satisfy that test.

Applying this test in the lower courts, courts have held that an officer not being able to see his police dog would be... could go to a jury, that... that a shunning conduct less than hostile work environment could go to a jury, that failing to hold employee feedback meetings could go to a jury--

Justice Alito: But if 704 doesn't incorporate 703 why would the... the EEOC test be the next best test?

If Congress... there's nothing in 704 that refers to the EEOC standard, is there?

Mr. Garre: --That's... that's true.

I mean, at that point, we think it would just be a policy decision.

Again, we think that Congress made the policy decision that the tests should be harmonized.

Justice Alito: Well, Congress could have... could have said... could have thought not only do we not want people who... who file complaints not to suffer those things that would deter a reasonable person from filing a complaint, but we just don't want them to suffer at all for having engaged in this protected activity.

Mr. Garre: That's possible.

That would be--

Justice Alito: What... what basis would there be for deciding that Congress had one policy objective as opposed to the other there?

Mr. Garre: --We think that the balance that Congress struck in title VII was from... between deterring all forms of discrimination and not... not allowing every employee grievance to become a Federal court case.

I think the Court has recognized repeatedly not all work place conduct that's offensive or even harassing violates title VII, and we think that that same compromise should inform the Court's interpretation of section 704 of the statute.

If there are no further questions.

Argument of Donald A. Donati

Chief Justice Roberts: Thank you, Mr. Garre.

Mr. Donati.

Mr. Donati: Mr. Chief Justice, may it please the Court--

When Burlington Northern reassigned Ms. White from the forklift to the track and then removed her without pay for 37 days during Christmas, it, quote, discriminated against Ms. White under any reasonable standard, the EEOC standard, the plain language standard, or the standard that the unanimous en banc court of the Sixth Circuit adopted.

Whatever standard the Court applies, Ms. White should prevail, if it's a reasonable standard, other than that of the... of the petitioner.

Chief Justice Roberts: What if she'd been operating the forklift for only a week and then she was reassigned?

Would that still be discrimination under any standard?

Mr. Donati: With respect to the motivation, if there... if there was a motivation, a retaliatory motivation, according to the proper reading of 704, it would be because what that aims at is motivation.

And the question was asked, and... and a legitimate question was asked.

Why would Congress make 704(a) more expansive than 703?

Well, if you look at the text of 704(a) at the beginning of the caption, it says, discriminate in assisting, participating, or cooperating with enforcement.

This... this provision, as the dissent said in the Jackson case last term, in referring to retaliation, the dissent made this... made this point about the relationship between retaliation and the primary right.

The dissent indicated that the primary right is being protected by the retaliation provision, that without the retaliation provision, the primary right could be impeded, inhibited, and prevented from individuals having access to the remedial mechanisms.

It doesn't take much to intimidate an individual from filing a claim of discrimination if they have an economic interest.

It takes much, much less to intimidate a witness to come and testify when they have no basis.

What 704 was aimed at was allowing the law enforcement agency here, the EEOC, to have access to complaints about discrimination and witnesses, allowing the courts to have access to complaints and witnesses because without that free access and without 704 acting as a guardian around the primary rights, the primary rights would be eviscerated.

This is a perfect example of... of a case where that's the situation.

You have a... a woman here who did exactly what this Court asked her to do in Ellerth.

She complained internally about sexual harassment.

She was hired because of her forklift responsibilities.

She was immediately put on the forklift.

She performed for 90 days competently as a forklift operator.

No complaints about what she did.

Because she complained about sexual harassment, the jury found, and correctly, she was removed from the forklift.

Justice Scalia: I'm... I'm a supervisor, and the employee files a complaint against me as a supervisor.

Thereafter, I am not as friendly to that employee as I used to be.

I don't smile and say, good morning, how are you, as I used to.

All right?

[Laughter]

And you wouldn't expect me to.

This person has, you know, hauled me onto the block.

Now, am... am I discriminating against that person?

Mr. Donati: No, Justice Scalia.

Justice Scalia: I'm not?

I'm not treating her the way I did before.

Mr. Donati: No.

Until there is some use of official authority that affects that individual, you're not discriminating.

That's a... that's a personal matter between you and the individual.

Justice Scalia: Sort of like taking her to lunch.

Mr. Donati: If it's... if it's a blue collar worker and it's... it's not part of their responsibility and they sometimes eat together in the lunchroom or not, that would not be.

However, if it is a--

Justice Scalia: Now, you say it... it has to be part of my... it doesn't have to relate to her terms and conditions of employment, you say--

Mr. Donati: --No--

Justice Scalia: --because it's not the same as 703.

But somehow you say it... it has to.

Does it have to or not have to?

Mr. Donati: --There are situations where it would be broader than 703.

704 would be broader.

An example.

If a CEO of a company came up to an African American male and punched him because he's black, that would not rise to the level of a hostile work environment under your test.

It wouldn't alter that individual's terms and conditions of employment.

However, if the CEO came up to an individual who had filed a charge of discrimination... of discrimination, and said, I don't like you filing charges of discrimination, and pushed that individual, that would have the effect of impeding individuals from complaining.

And that's... that's a situation that's different because Congress anticipated that... that retaliation is only as varied as the human imagination.

Congress could have easily--

Justice Scalia: Yes, I worry about that, as... as varied as the human imagination.

Juries can have wonderful imaginations.

I mean, that... that is the problem.

Is it meant to be this... this uncontrolled, this uncabined?

Mr. Donati: --Your Honor--

Justice Scalia: What... what is your criterion that is going to stop every little thing from... from being deemed a retaliatory measure, such as not saying good morning to this employee?

Mr. Donati: --There are several things that are built into the statute.

First is 701(b).

It has to be an act of the employer, and those trivial matters--

Justice Scalia: Yes, I understand that.

But almost any act of his subordinates will be deemed act of the... of the employer where retaliation is concerned, I'll bet you.

What else besides that?

Mr. Donati: --Plus, you always have to show causation, and many, many cases are dismissed on the basis of summary judgment, even termination cases on the basis of causation.

Justice Scalia: I'll give you causation.

But I'm talking about the triviality... the triviality of the action in question.

Is there no test that eliminates a trivial action from the aggrieved employee who... who wants to litigate?

Mr. Donati: Your Honor, both the EEOC test, as well as our test, is one based upon a reasonable person under all of the circumstances.

And... and the trial courts frequently say under this set of--

Justice Scalia: A reasonable person would what... would what?

Mr. Donati: --Under our standard, it would be--

Justice Scalia: A reasonable person would consider it to be?

Mr. Donati: --Adverse.

Justice Scalia: Adverse.

Mr. Donati: If it was... if it was unfavorable to the plaintiff.

On the EEOC standard, it would be if it deterred an individual from filing a charge.

And, Justice Scalia, we have cited favorably the EEOC standard.

What we were asked to do here--

Justice Scalia: Why is the EEOC standard any more based in the text of the statute than... than the standard proposed by your adversary here?

Mr. Donati: --That's why we proposed one that's based with what the statute means.

And... and the statute is very clear.

The plain language is unambiguous.

That's our first test, which is unfavorable to the employee based upon an objective standard.

But if the Court felt it necessary to... to back to a position that was not quite so expansive, the EEOC standard is... is the one that's most rational because it's based in the purpose of 704(a).

Justice Ginsburg: You won on the basis of the standard that the Sixth Circuit used, which was not your standard and not the EEOC standard.

Why should this Court deal with anything other than that the petitioner's standard is unsatisfactory, that at least the Sixth Circuit standard... why should the Court deal with the universe of cases when it has this case before it, two actions, and a unanimous Sixth Circuit judgment that says these two actions fall within 704?

Mr. Donati: Justice Ginsburg, you're exactly correct.

You don't have to reach the issue about how expansive 704 is here.

You can affirm the Sixth Circuit's decision based upon the material adverse employment action standard that they articulated, that was litigated below, that the defendant did not object to, and which we won on.

Chief Justice Roberts: Counsel, you said earlier that the act... one of the protections against trivial charges was that the act had to be the act of the employer.

If the employer sets up a review system in which the final act of the employer is the decision, why is a preliminary charge, initial suspension, review... why are those also considered acts of the employer?

Mr. Donati: Mr. Chief Justice, I want to answer one question related to that.

The collective bargaining agreement did not cover the forklift.

That's in the trial transcript on page 524.

It was a new position It was not covered by the collective bargaining.

So they--

Chief Justice Roberts: What does that mean, it was not covered by the collective bargaining agreement?

Presumably you paid... the person who did that was paid wages pursuant to the collective bargaining agreement.

Mr. Donati: --It was not a defined job within the collective bargaining agreement.

And if you look at the... the job title, which is part of the joint appendix, forklift is not mentioned, and it was not part of that.

But to answer your question specifically with respect to these facts, the... in this case here, she was discharged.

If you look at the joint appendix, rule 91(b)... and that's found at page 54 and 55 of... I'm sorry.

55 of the joint appendix.

This is the rule under which she requested the, quote, investigation.

By its very terms, it doesn't even apply until an employee is, quote, disciplined or, quote, dismissed.

She was dismissed when she was removed from service.

Then she asked for a hearing under subpart (b), and she was given an investigation.

This Court, in its jurisprudence dealing with statute of limitations, said in the Morgan case that an act of discrimination occurs when it happens.

Well, when she was happened... when this happened, she lost pay, she lost benefits.

She was terminated.

Even... even their own witness, Roadmaster Brown, testified had she not asked for an appeal, she was terminated.

So it was a discrete act at that time.

Chief Justice Roberts: Your position is that it would be an... it would be a covered employment action even if none of that were true, she didn't lose pay, she didn't lose benefits, so long as there was the initiation of the disciplinary action.

You regard that as sufficiently adverse under 704.

Mr. Donati: Well, under these facts, it was sufficiently adverse because she lost pay.

Now, in a... in a theoretical sense, if she had not lost pay, that still could be adverse under 704(a).

It depends upon the effect and the motive.

I don't think that anyone would quarrel under 703 if an African American was suspended without pay because of race, that that would be actionable.

Why would it not be actionable in this context?

There's a difference between damages and whether or not there's actionability under this one little part of... of the claim.

Perhaps if she was... was suspended for a retaliatory motive and 5 days later she was returned, she may have no damages, and... and the claim might... but in terms of--

Chief Justice Roberts: Other than eligibility for punitive damages.

Mr. Donati: --Well, assuming that you could get through the hurdles.

And I don't think punitive damages would necessarily sound there.

In the Kolstad case, the Court indicated one factor to consider would be how quickly the... the defendant corrected the situation.

I mean, if you have a... if there's a legitimate process that's... that's available and a supervisor who has authority to suspend does that for a retaliatory motive and... and that process corrects it, it may be a factor in punitives, but it's not a factor whether a... an act has been taken because the act is a discrete act.

It caused her to lose compensation and... and to lose benefits.

So it could affect the punitive damages.

Now, with respect to the... the statutory construction... well, let me address the... the forklift issue just a... a little bit further.

If you take the position that the... the petitioner has here, Ms. White... it's a jury finding.

Their witnesses testified... went from the most easy or one of the most easy positions to the most difficult position because she complained about sexual harassment.

That's the finding of fact.

They don't dispute the findings of fact.

That's the finding of fact.

So if... if he's correct, tomorrow, if his... his position is affirmed, they could tell everyone who complains about sexual harassment, that if you do that, we're going to transfer you to the most difficult position in the company.

Justice Scalia: Suppose... suppose I disagree with you as to the standard, that is, I think 704 and 703 both require something related to the employment.

Would... what would the outcome be?

Would... would the case have to go back to be submitted to the jury under that standard?

What standard did the jury find--

Mr. Donati: Your Honor, if... if you look at... if you look at the joint appendix at page 63, the trial judge actually instructed the court... instructed the jury, listing six factors.

Those six factors are listed in a footnote in Ellerth, which you cite favorably as what the standard is... or what the standard is for vicarious liability.

So the court... the jury was instructed on material adverse employment action standard.

It was tried on the material adverse employment action standard.

I argued that the forklift position was materially adverse.

The defendant, if you look at the transcript of the closing at pages 48 and 49, didn't even challenge that it was adverse.

Everybody that heard the proof, common sense told you that when you went from a forklift running things around to pulling out railroad ties, it was adverse.

So to answer your question, Justice Scalia, we traveled all the way up to this Court on the material adverse employment action standard, and we won.

Justice Alito: What does... what does material mean?

Mr. Donati: That's a great question, and we--

[Laughter]

--and we... we truly struggled with that.

We found nothing in the statute, the text of the statute to say material.

Where it uses adverse, at... at section 703(a)(2), it uses the term adverse, but it doesn't use it with the term material.

And--

Justice Souter: Well, do... do you think it does anything more than just eliminate clearly de minimis action?

Mr. Donati: --I'm sorry.

I didn't--

Justice Souter: Do... do you think the... the materially modifier here does anything other than eliminate obviously de minimis behavior on the part of the employer?

Mr. Donati: --I don't think it does anything other than that.

It could also be interpreted as... as this Court said in the... in the Wrigley case involving interpretation of statutes, that there's a de minimis rule.

It could... it could also be applied that way, that every... every statute... there's a... that... that construction applies some de minimis level view.

But in terms of this case, this was definitely material.

I mean, it was substantial injury, substantial action to... to Ms. White.

But with respect to the forklift, their witnesses testified... and we cite at pages 2 and 3 of the brief... that they considered it easier.

The supervisor, Mr. Brown, testified that the men considered it easier.

And it clearly was.

Chief Justice Roberts: What... what if she operated the forklift usually 3 out of 5 days, and the other 2 days was pulling up the rail ties and... and the shift was now she does... operates the forklift 2 out of 5 days and 3 out of 5 days she's pulling up rail ties?

Is that materially adverse?

Mr. Donati: That probably would not... I probably could not convince a jury that that was materially adverse.

But--

Justice Scalia: --Well, that isn't the test, I mean, whether you can convince a jury.

I think you... you have to acknowledge that... that before we... we say that these trial instructions were adequate to... to give you your victory, we... we have to find that at least a reasonable jury could conclude under section 703 that... that both of these... both of these adverse actions qualified as discrimination under 703, if... if we're going to use that test.

Right?

You acknowledge that.

Mr. Donati: --I acknowledge and the facts... and the Sixth Circuit unanimously affirmed that... that the facts were there.

And I could... I could go on for 30 minutes about the facts, and they're... they're contained in the first--

Justice Scalia: Okay, but that... that is at least what... what's before us here, that if... if we go the 703 equals 704 route, we would have to conclude, in order to affirm here, that a reasonable jury could find.

This jury did, but we'd have to find that that's reasonable.

Right?

Mr. Donati: --Yes.

You know, I would like to address two things that have been mixed.

Apples and oranges have been mixed here about tangible employment action, and that's the standard this Court has adopted.

What the Court did in Ellerth was apply the rules of vicarious liability in a discrete set of... of cases, harassment cases.

Harassment cases arise out of the word condition.

As you indicated, sexual harassment has to alter the condition, and it has to be severe or pervasive.

And what the... the petitioner is... is saying is that because of your application of tangible employment action to vicarious liability, that you really defined what constitutes discrimination.

Well, that's not what the... the ruling was.

You were strictly limited to whether instances of vicarious liability, when... when employers will be found liable.

At the outset, that needs to be, I think, clarified that it was not a finding of what constitutes discrimination.

And with respect to also the Ellerth situation, any test that this Court adopts should not be a per se test where some things are per se legal, because when you say that an act of retaliation is per se legal, it provides safe harbor for people to do things to individuals.

Most employers are--

Justice Breyer: Am I right in thinking... I just want to clarify this... that in the circuit court, they applied a pretty tough standard, namely, a standard that sounds a lot like Ellerth, the Kocsis, or whatever it is?

Tangible employment actions, a significant change in employment status, hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

And that's basically what the jury was instructed.

Mr. Donati: --That's--

Justice Breyer: And you won under the toughest standard.

Mr. Donati: --That's correct, a very tough standard.

Justice Breyer: So in a sense, you have nowhere to go but up.

[Laughter]

Mr. Donati: Exactly right.

And I find... and I find myself, Justice Breyer, here sort of arguing against the standard that I won under.

Justice Breyer: You don't care what standard--

Mr. Donati: And I don't care what standard it is.

Justice Breyer: --for this case.

Mr. Donati: I don't care what the standard is for this case.

But if you adopt a... a standard that is... is broad... or you have to adopt a national standard or... and you don't have to here.

You don't have to make these... make these findings.

But if you do and you adopt a material adverse employment action standard, there always needs to be a provision that prevents per se rules because... and in the Sixth Circuit, they talk about unique circumstances.

Some other circuits talk about unusual or exceptional circumstances because if you... if you black letter something, that this is legal retaliation, employers who want to will engage in that process.

Justice Scalia: Yes, and the other argument is that if you don't do it, there's no way to... to get a case dismissed before it goes to a jury.

You're saying every claim is going to be a jury trial.

I mean, that... you know, come on.

Mr. Donati: Justice Scalia, every claim would not be a jury trial because you're going to have to show the causation issues and damages issues.

And--

Justice Scalia: But the triviality issue would be out of the case.

No matter how trivial, it goes to a jury.

That's... that's what you want us to say.

Mr. Donati: --No, Your Honor, that's not what I want--

Justice Scalia: Well, then we have to have some per se rules.

Mr. Donati: --Well, the... the rule that you could apply that would not have per se rules and would ferret out any kind of... of trivial matters would be the EEOC standard with a de minimis rule.

Justice Ginsburg: Don't you want us to exclude this ultimate employment decision?

I think that's one thing.

In order to win, you have to say what counts is the suspension and not the ultimate decision.

Mr. Donati: Yes, Your Honor.

Under the ultimate employment action standard of the Fifth Circuit, the... the suspension would be in question.

Justice Ginsburg: So for you to win to preserve your Sixth Circuit victory, that would have to be ruled out.

Mr. Donati: The Court should find that that's not applicable and it's not appropriate under title VII and... and that would be necessary for us to prevail, even though the defendant did not argue ultimate employment action standard at the trial level, didn't ask for such an instruction, didn't raise that issue until subsequent to the... this.

But you're correct.

We would need the Court to say that that does not apply.

And then one other issue about... about bright line rules.

I advise and many lawyers advise women every day that complain about sexual harassment.

And Mr. Phillips is absolutely correct.

There has been a rise in retaliation claims.

And, of course, it's complex what the reasons are, but anecdotally I can tell you a lot of it sits at the foot of Ellerth because employers establish policies, they publish their policies, they educated women and men about those policies.

People use those policies, and women who complain about sexual harassment, such as Ms. White, internally and then are retaliated against, when they go to the EEOC, they file a retaliation claim.

And there's been an increase of those claims.

But if this Court applies a black line rule, a per se rule, where you say something is legal, that you can do what you did to Ms. White, then I'll have to advise individuals to go to the EEOC.

There might be some retaliation and it's legal.

And a woman placed in a situation like that will not complain about sexual harassment.

And the protection, the guardian that rule... that 704(a) has around the primary right will be eliminated, and the primary right will be adversely affected because women will no longer complain.

So whatever rule you apply, don't apply a black letter, per se rule because you're going to cause serious harm to the underlying primary rights.

If there are no more questions.

Chief Justice Roberts: Thank you, counsel.

Mr. Donati: Thank you.

Rebuttal of Carter G. Phillips

Chief Justice Roberts: Mr. Phillips, you have 2 minutes remaining.

Mr. Phillips: Thank you, Mr. Chief Justice.

Let me begin by focusing on the jury instruction in this case.

The jury was not instructed with the Ellerth standard.

There's a variant of the Ellerth standard, and it was not upheld by the court of appeals on the Ellerth standard.

What the court of appeals said was in the Sixth Circuit there is a unique circumstances standard that arises out of its particular way of analyzing these issues, and under that standard, it could be upheld.

And that was the same basis on which the district court at Pet.

App. 118a upheld this particular verdict.

So the question of the right standard to be applied and whether a reasonable jury could find it under these circumstances, Justice Scalia, is clearly presented in this case, and it's an issue that this Court still has to decide.

Second, with respect to the suspension, the... the collective bargaining agreement specifically provides for discipline and then 15 days.

It's not a final decision.

There's nothing in that collective bargaining agreement that says it's a decision of the employer.

To the contrary, the decision at the end of the... of the investigation is the decision of the carrier.

And we don't need a final employer action standard in order to prevail on this.

What we need is the opportunity to cure and a reasonable way under... under section 704, as the D.C. Circuit held specifically in Taylor.

And then finally, with respect to the observation about, you know, don't make any per se rules, well, the truth is there aren't going to be any per se rules.

There will be a lot of cases that get dismissed out under a tangible employment action theory because there aren't tangible employment actions.

But there will always be available the severe and... and pervasive standard, which is always going to constrain any employer from... from adopting those kinds of policies.

And the point that counsel made is that he recommends to every one of his employees... he probably should recommend two things.

One, you show up.

You ought to file a complaint about discrimination in the work place because under his approach, you will, therefore, be super protected under section 704 in a way you wouldn't have been by merely being protected under 703.

That cannot possibly be what Congress intended or what is helpful for the work place. The Court should reject that approach, should reject the Sixth Circuit's view, and remand. Thank you, Your Honors.

Chief Justice Roberts: Thank you, Mr. Phillips. The case is submitted.

Attribution:

The Oyez Project

Featured:

Arbaugh v. Y & H Corp. - Oral Argument

Fri, 09 Jan 2009 14:48:55 +0000

Case:

Arbaugh v. Y & H Corp.

Media File:

04-944_20060111-argument.mp3

Related Transcript:

2005_04_944_argument.xml

Transcript:

Argument of Jeffrey A. Schwartz

Chief Justice Roberts: We'll hear argument first today in Arbaugh v. Y & H Corporation.

Mr. Joseffer.

Mr. Schwartz: Mr. Schwartz.

Chief Justice Roberts: Mr. Schwartz.

Excuse me.

Mr. Schwartz.

Mr. Schwartz: Mr. Chief Justice, and may it please the Court--

A Federal court has subject matter jurisdiction over a claim brought under title VII regardless of whether an employer has 15 employees.

This is so because when Congress enacted title VII, it included a specific jurisdictional grant and that grant provides that jurisdiction will exist in the Federal courts over all claims brought under the act.

This specific grant of jurisdiction is consistent with the more general grant of jurisdiction contained in 28 U.S.C. 1331 wherein Federal question jurisdiction exists over all claims that arise under a Federal law.

Title VII is a Federal law.

The Fifth Circuit erred when it... when it determined that the employer numerosity issue went to subject matter jurisdiction of the court.

Indeed, when title VII was passed, Congress actually expanded jurisdiction, the Federal question issue of title VII, because at that time 28 U.S.C. 1331 had a $10,000 amount in controversy requirement that Congress did away with because the jurisdictional grant contained within title VII made no mention of the $10,000 requirement.

Justice Ginsburg: So you say... so now it's essentially redundant.

Now that 1331 has no jurisdictional amount, no amount in controversy, the jurisdictional provision in title VII is just going over the same territory.

It doesn't add or detract.

Is that so?

Mr. Schwartz: I would agree with that.

Indeed, the question--

Justice Kennedy: In the first sentence, but not in the venue part.

Mr. Schwartz: --Not in the venue part and... and certainly... because it does apply to which district court a case should be brought.

I would say it... it's redundant to the extent of conferring jurisdiction to a Federal court, but not on the venue provision--

Justice Ginsburg: Which is not subject matter jurisdiction, which is what we're concerned with here.

Mr. Schwartz: --Right.

It's not an issue in this case.

Chief Justice Roberts: What about the argument, though, that when you're talking about a threshold question like coverage, who the statute covers, that it's quite different from the cause of action cases, many of which you rely on in your brief?

Mr. Schwartz: Well, we're talking here about a question of whether or not coverage is subject matter jurisdiction, and it's our position that once you go beyond the text and you start evaluating the various aspects of title VII, Mr. Chief Justice, you are going down a... a slippery slope.

An example would be a case perhaps where a... in fact, a case that I'm currently involved in where a plaintiff is alleging that they were discharged discriminatorily.

And the reality is from the employer's perspective, that that person was never terminated.

They're still an active employee.

That is an essential issue of a cause of action.

The coverage of title VII--

Chief Justice Roberts: It's more a question of... of whether or not the... there's been a violation of title VII.

It seems to me that the number of employee issue is whether you're covered at all, whether you have to conform your conduct to that law.

Your question... your... your case of whether someone has been discharged or not just goes to whether there's been a violation.

Mr. Schwartz: --That's correct, Mr. Chief Justice, but I believe that the analogy applies because it still goes to whether or not you start reading the act beyond the jurisdictional grant.

It's unnecessary to go beyond the jurisdictional grant because--

Chief Justice Roberts: But in City of... in City of Kenosha, of course, the Court went beyond the jurisdictional grant and it said that the definition of the term person in 1983 raised a jurisdictional question.

Mr. Schwartz: --Well, I... I would not necessarily agree that that goes beyond the jurisdictional grant because the jurisdictional grant of... contained in 1334... 1343 requires that... that jurisdiction apply against a person acting under color of State law.

And that's an example which Congress has done many times of putting qualifiers within a jurisdictional grant.

An example of... of that we... we attached 60 such statutes to our appendix in our reply brief, but a specific example, which I think is applicable here, is the Uniformed Service Employee Reemployment Rights Act wherein Congress put in that the act would only apply jurisdictionally, subject matter jurisdictionally, against employers.

And then there's a subsequent definition of employer further on in... in the statute which is missing here because title--

Justice Scalia: What's the practical consequence of the one or the other?

Number one, if you don't raise it below, you can still raise it on appeal if it's jurisdictional.

Right?

Mr. Schwartz: --That's correct.

Justice Scalia: And number two, the... if it's a jurisdictional question, it would be decided by the... by the judge rather than by the jury?

Mr. Schwartz: That's correct as well.

And I would go further that the practical problem is what happened in our case where it wasn't raised in the trial... in... in the case until after a trial on the merits and after the jury returned the verdict, and we wasted a lot of time.

It... it could have been brought up beforehand as a... a substantive motion for summary judgment or a 12(b)(6) motion if the pleadings resolved the issue.

Justice Scalia: But that's always the case.

I mean, why... you know, if those disadvantages... those disadvantages will always exist.

So why would Congress ever make something jurisdictional rather than simply making it an element of the cause of action?

You understand what I'm saying?

I mean, that's always a consequence.

Mr. Schwartz: Well, I... I think the--

Justice Scalia: And yet, you... you felt that some things are jurisdictional.

Mr. Schwartz: --Well, I... I think if I'm... if I'm an attorney representing a plaintiff and I want to make an evaluation of whether or not I have a claim, I want to first evaluate do I pass a jurisdictional threshold.

If a come... a person comes into my office and says, look, this happened to me, I want to bring a cause of action, and I know that they employ less than 15 people, then I'm not going to waste my time.

Justice O'Connor: Well, but what's the rule that you suggest we look to in deciding whether a provision is jurisdictional?

Because, as the Chief Justice pointed out, in 1983 cases where the question is whether the defendant is a person, we've held that is jurisdictional.

So what is the rule in telling us when we should treat something as jurisdictional?

Mr. Schwartz: Well, the rule that has existed for some time now, going back to Bell v. Hood, is a... a fair way to look at this.

If a statute, a Federal law, creates a cause of action, then a cause... a cause of action lies absent Congress expressly limiting or qualifying an... a jurisdictional element within its grant contained within that law, which is... which is missing completely in title VII.

Justice Ginsburg: What would you call this?

Would you call 15 or more employees an element of your claim that you must prove?

Mr. Schwartz: Yes.

Justice Ginsburg: Or there could be an affirmative defense and you're not claiming the latter.

Mr. Schwartz: It could be an affirmative defense.

Justice Ginsburg: But you're... you're accepting that it is your burden rather than the employer's to show that the employer had fewer than 15 employees.

Mr. Schwartz: More than 15, yes, Your Honor.

Justice O'Connor: More than.

Mr. Schwartz: Yes.

That... that's the plaintiff's burden just like it's the plaintiff's burden to prove that they were terminated--

Justice O'Connor: Did you establish that in the course of the proceedings?

Mr. Schwartz: --We did not plead it with particularity.

We pled that the employer sexually harassed the plaintiff, and then thereafter in the pretrial order, it was not raised as a contested issue of fact.

And I believe the law of the case doctrine would control in that instance because the--

Justice Kennedy: I was going to ask what... how does the waiver work?

Suppose the judge pre verdict says, you know, I'm concerned that there are less than 15 employees.

Can the plaintiff say, oh, well, now, Your Honor, you can't get into that?

They waived that.

They didn't raise it.

I mean, how does that work?

Mr. Schwartz: --If it's... if it doesn't go to the subject matter jurisdiction--

Justice Kennedy: Under your theory of the case?

Mr. Schwartz: --then I would say that it is waived, if it's been answered--

Justice O'Connor: Well, but if it's your burden to prove it, how can it be waived by the defendant?

I don't understand your theory.

Justice Kennedy: You mean the judge just has to watch the case sail over the waterfall and--

Mr. Schwartz: --Well, let's talk about two different examples.

If we have pled with particularity that the employer has 15 or more employees and is subject to title VII for liability purposes and the defendant in their answer admits that fact, then that becomes a... a admission--

Justice Kennedy: --Well, in my case nobody mentions it but the judge.

Mr. Schwartz: --All right.

So we have alleged in our lawsuit that the employer terminated or sexually harassed the plaintiff and the... there is not... it's not particularly pled.

Is that the hypothetical, Justice Kennedy?

Justice Kennedy: Yes, and the... and the judge calls it sua sponte to the attention of the parties.

Mr. Schwartz: I would think that if the judge in a... in a Federal cause of action was troubled by any element of the claim, based upon his or her own review of the factual setting, it's conceivable that... that the court then could entertain motions on that particular issue.

Justice Scalia: Well, wait.

You... you pleaded... you pleaded that... that the defendant was... was an employer under the act.

Right?

Mr. Schwartz: Yes.

Justice Scalia: And it's the definition of employer that says he has to have more than... more than 15 employees.

So, in effect, you... in making your complaint, you... you at least implied and maybe said that this person is an employer under the act.

So it seems to me at that point the... the burden shifts to the other side to say... the burden of going forward of saying no, this person isn't an employer under the act, and if they say nothing, then they've accepted what... what your complaint on its face says.

Mr. Schwartz: I agree with you, Justice Scalia.

Justice Scalia: I knew you would.

[Laughter]

Chief Justice Roberts: But... but maybe... but that doesn't sound like a reasonable agreement.

All you... so you file one sentence saying this person violated title VII.

Are you impliedly including all of the allegations of what constitutes a violation of title VII because if you didn't allege every particular element, it wouldn't be a violation of title VII?

That's not how pleading works.

Mr. Schwartz: No.

And... and I can... I can tell you, Mr. Chief Justice, I have probably handled 500 causes of action for discrimination cases, and I've never seen anybody plead the issue of whether or not somebody has 15 employees.

It's just not done.

Justice Souter: In your pleadings, did you say he's an employer?

Mr. Schwartz: Yes.

Justice Souter: Did you use the term employer?

Mr. Schwartz: Yes, Justice Souter.

Justice Souter: Okay.

Mr. Schwartz: And... and it was admitted and then it was never challenged thereafter until after the verdict.

Justice Ginsburg: How does it... you... you told us of your extensive experience.

How does the numerosity requirement usually come up?

You've accepted that it's an element of your claim rather than an affirmative defense the defendant must plead and prove.

So how does it ordinarily come up?

Does it... because defendant answers and asserts that it has fewer than 15 employees?

Mr. Schwartz: I can give you one real world example, Justice Ginsburg.

I represented a defendant in a case that didn't employ 15 people, and when I attempted to convince the plaintiff... plaintiff's lawyer of that fact after the litigation commenced and they weren't willing to... to go ahead and voluntarily dismiss, I simply filed a motion for summary judgment attaching affidavit material, including payroll records.

And then once the plaintiff's attorney reviewed that, they voluntarily gave up and the case was dismissed.

That would be the way it would normally play out, provided it's not held to be an issue of subject matter jurisdiction.

Another reason why this should not be a subject matter jurisdiction goes to the practical elements of the way this would progress in litigation and title VII's admonition, which is a rare admonition in legislation, that title VII cases be heard in an... in an expedited way.

In enacting that particular language, it appears to me that Congress was acknowledging that this is a very important law.

We're trying to remediate a terrible wrong, that is, employment discrimination.

So we don't want these cases to languish.

It's almost as though it's being processed like a Federal Rule of Civil Procedure injunction proceeding, that this is a case that should move very quickly.

And many courts, like the one across the river in Virginia that are known as so called rocket dockets, process these cases on a very fast track.

I know that... that court does it.

Other courts that I practice in do it as well where it is not uncommon that from the pleading that a trial is dead is as quickly as 6 months thereafter.

If this was to be subject matter jurisdiction and we had to initially litigate the question of whether or not the person is an employer and putting aside all other issues in the case, it would invariably result in a dragged out process.

In our case, as we... as we noted--

Chief Justice Roberts: That's true in a lot of areas.

I think of admiralty.

If there's an issue of admiralty jurisdiction that questions whether an injury is caused by a vessel in navigable water, you often have extended litigation over that jurisdictional question.

Mr. Schwartz: --And... and in those cases, the jurisdictional grant in the Jones Act does include elements of jurisdiction.

So it's... it's required.

But I don't... I don't believe that the Jones Act has the same type of language, Mr. Chief Justice, that title VII has, requiring that these cases be heard expeditiously.

So--

Justice Scalia: Does it... does it have to be resolved preliminarily?

Why can't you leave the jurisdictional question to be decided at the conclusion of the trial with all the other questions?

Is there some rule of law that says that a jurisdictional question must be confronted before the trial and before the merits?

Indeed, most jurisdictional questions are reexamined as the trial proceeds.

That is, you know, initially the court will say, yes, there appears to be jurisdiction on the basis of the pleading.

Then if there's a motion to dismiss, yes, there... there appears to be jurisdiction on the basis of the affidavits.

But then if the trial proceeds and it turns out that, in fact, there isn't jurisdiction, the court dismisses.

So why couldn't this jurisdictional question always be handled that way?

Just... just leave it to be resolved during the trial.

It wouldn't slow anything up.

Mr. Schwartz: --There... there's a few problems with that.

One is that it is not uncommon in title VII cases that there are supplemental State claims brought in the cause of action, and so we would have a situation where there would be a lot of wasted effort on the pending claim if, at some point, Justice Scalia, at the end of the day the case was dismissed on subject matter jurisdiction.

That was the situation in our case where we had a pending tort claim for battery, and we also had a pending claim under the ancillary Louisiana discrimination statute.

Justice Scalia: Okay.

So this is a third consequence of the jurisdictional issue.

Mr. Schwartz: Yes.

Justice Scalia: If the issue is jurisdictional, all the pendant State claims don't belong there and they've got to be chucked out; whereas, if it just goes to the merits, the pendant claims are properly before the court.

Mr. Schwartz: That's right, Your Honor.

Justice Scalia: That's an important consequence.

Mr. Schwartz: In addition, the Court's recent opinions addressing subject matter jurisdiction have all gone back, it seems to me, to this question of what does the text say.

The... the issue of not conflating the use of the word jurisdiction, which has been referenced in a number of the Court's opinions, Steel Company, Kontrick, Eberhart, Scarborough, all point to the fact that where the text is clear, as it is in this case, and there is no ambiguity, then subject matter jurisdiction lies if a claim is brought under a Federal act.

If there are no further questions, I'd like to reserve the balance of my time for rebuttal.

Argument of Daryl Joseffer

Chief Justice Roberts: Thank you, Mr. Schwartz.

Now Mr. Joseffer.

Mr. Joseffer: Mr. Chief Justice, and may it please the Court--

Justice O'Connor, we think the rule here, because it's a question of congressional intent, is simply how to best interpret the relevant statutes.

Here, Congress twice unambiguously conferred jurisdiction over all title VII claims, at least twice, first in section 1331 and again in a title VII jurisdictional provision which confers jurisdiction over all claims brought under title VII.

Justice Ginsburg: Mr. Joseffer, maybe you can raise the podium a bit so the microphone works better.

The other way.

Mr. Joseffer: Sorry.

Is that better?

Thank you.

As I was saying, the question is... is... because it's a question of congressional intent, we think normal rules of construction apply.

And, Justice Ginsburg, you asked about whether the title VII subject matter jurisdictional provision is now redundant in light of the reduction of the amount in controversy from section 1331.

Technically we think the answer is yes, but it still has great interpretive value because it shows that when Congress meant to address the jurisdictional question in title VII, it expressly said so and it did so by conferring jurisdiction over all title VII claims.

The definition of employer, which is the relevant issue here, does not itself speak in jurisdictional terms and does not modify in any way title VII's broad jurisdictional provision.

Justice Ginsburg: What... what about the EEOC having typed the question jurisdictional for administrative processing purposes?

Mr. Joseffer: Right.

Well, as the Court has remarked on multiple occasions, the word jurisdiction is a word of many, many meanings, and the EEOC has never said that it's a question of a subject matter jurisdiction in the Federal courts.

It was... until about 5 or 6 years ago, EEOC in an administrative context used the word jurisdiction to refer to the definition of employer, statutes of limitations, and a variety of other matters that are clearly not subject matter jurisdictional.

But after this Court held in Zipes that another provision of title VII is not one of subject matter jurisdiction, EEOC realized that its administrative use of the broad term jurisdiction was confusing.

So 5 or 6 years ago, EEOC amended its compliance manual and no longer refers to any of these questions as jurisdictional.

But I guess the key point is it never said it was on subject matter jurisdiction.

And Mr. Chief Justice, you asked about whether a threshold question of coverage could be considered different than another element of the cause of action.

I think the important thing here is that the place where Congress used the term person is in setting forth what conduct is unlawful.

Title VII says that it shall be an unlawful employment practice for a person to discriminate in various ways.

So the way the definition is irrelevant is in setting forth the scope of unlawful conduct which is a quintessential merits or cause of action inquiry as opposed to a jurisdictional one.

The City of Kenosha is different because, as petitioner's counsel recognized, that interpreted not section 1331 but section 1343 which--

Chief Justice Roberts: Interpreted section... the use of the word person in section 1983.

Mr. Joseffer: --Interpreted the word person in section 1983 not to apply to municipal corporations, but with respect to the jurisdictional inquiry, it said that the... that 1343 did not confer jurisdiction.

In Mt.

Healthy several years later, the Court held that although section 1343 was narrowly limited to actions that are authorized by law, which connoted somewhat of a merits inquiry, section 1331's jurisdictional provision is not so limited and is not limited by the definition of person, which is what the Court held in section 1331.

Chief Justice Roberts: So City of Kenosha was just kind of a silly waste of time.

Mr. Joseffer: Well--

Chief Justice Roberts: 1331 was applicable there as well.

Right?

Mr. Joseffer: --At the time section 1331 had the amount in controversy requirement, and I think that's why now that section 1331 no longer has the amount in controversy requirement, this Court's section 1343 cases have more or less petered out because plaintiffs can now just go under section 1331.

And Justice Scalia, you asked about the... the practical consequences.

I agree there are three practical consequences, and from that perspective, it makes little sense to believe that Congress would have thought that this requirement should be jurisdictional.

The first is whether the issue can be raised at any point in the litigation.

The second is who decides the issue, and the third is whether, after dismissal of the Federal claims, the State law claims must be dismissed for lack of jurisdiction.

And given that this is just one of many facts that arises in determining whether a plaintiff can state a valid title VII claim, it's hard to believe that Congress would have thought that this is the one fact that should be raised at the end of the case instead of at the outset where it can be adjudicated in an orderly manner with all of the other facts.

Also, common law juries have been deciding for centuries whether a worker is an employee or an independent contractor for purposes of agency and tort law.

And since that is the ultimate dispute here, it seems remarkable to think that that's the one fact that Congress would say should not go to a jury.

And similarly--

Chief Justice Roberts: I'm sorry.

What have juries been determining?

Mr. Joseffer: --Well, the question as to whether there are 15 employees here--

Chief Justice Roberts: Right.

Mr. Joseffer: --turns on whether some workers are independent contractors or employees.

And for agency law purposes, which becomes relevant in tort law in terms of vicarious liability, the question whether someone is an employee or an independent contractor is a... is a longstanding jury question.

Justice Ginsburg: The... the question was whether the truck drivers counted as employees because if they did, they'd have enough?

Mr. Joseffer: Right.

If the... if the... if those... if the delivery drivers were workers... were employees, there's no question there were 15 employees.

So the question was whether some workers count as employees and whether a worker is an employee or an independent contractor is... is a longstanding question for a jury when there's a disputed issue of... of fact.

And then the third consequence... I mean, here, there... the jury rendered a verdict on the State law claims, found in favor of respondent on one, petitioner on the other.

And it seems highly unlikely that Congress would think that that jury verdict should be vacated and the case retried in State court because the defendant has 14 instead of 15 employees.

Chief Justice Roberts: But that's the... that's the consequence of a determination that it's jurisdictional in any case.

Right?

Mr. Joseffer: That's correct, and there... there are circumstances--

Chief Justice Roberts: I mean, if you had a case where you didn't dispute that the issue was jurisdictional and there had been a jury trial on the pendant State law claims, we'd still have to throw that out.

Right?

Mr. Joseffer: --Yes, but I think that's one reason that Congress does not ordinarily make jurisdiction turn on those types of facts.

In the admiralty concept... context that you recognized, it's necessary to distinguish between admiralty jurisdiction and general Federal question jurisdiction.

So Congress had to distinguish in some way, and the way it did was by saying, well, is the alleged injury caused by a vessel in navigable waters or elsewhere.

But ordinarily when... a distinction does not have to be drawn like that.

In section 1343, it was the same because Congress didn't want that to be conflated with section 1331 at the time.

When jurisdiction does not necessarily turn on contextual factors, Congress ordinarily just lets the broad jurisdictional ground of section 1331 be a clear, simple threshold inquiry so parties can determine they're in the right court, and then the case can be proceeded... can be litigated on the merits from there.

Justice Kennedy asked whether a court could raise the issue on its own, even assuming that it's a merits issue.

And I think the answer is that although the defendant waived the issue here and therefore has no right to insist that it be raised, most waiver doctrines are discretionary, and therefore, courts retain some inherent discretion to overlook waivers in some circumstances.

That discretion would be greater at the outset of a case where a Federal court decided it should not be deciding a case than it would be once a jury had already decided a case, which is what happened here.

Finally, respondent relies on a number of this Court's title VII decisions for the proposition that this requirement is one of subject matter jurisdiction.

The basic point is that this Court has never opined in dicta or in holding on whether this requirement is one of subject matter jurisdiction of the courts.

The Court's only title VII subject matter jurisdiction case is Zipes which held that a requirement was not jurisdictional because it was not... did not textually modify title VII's broad jurisdictional provision and in light of other relevant canons of construction.

And for precisely the same reasons, the definition of employer does not textually modify the definitional provision and therefore it does not limit the court's subject matter jurisdiction to adjudicate this claim either up or down based on its merits.

If the Court has no further questions, I have nothing further.

Argument of Brett John Prendergast

Chief Justice Roberts: Thank you, Mr. Joseffer.

Mr. Prendergast, we'll now hear from you.

Mr. Prendergast: Mr. Chief Justice, may it please the Court--

I have to start off by disagreeing with my learned colleagues on at least three areas.

First of all, Mr. Schwartz indicated that the plaintiff pled that the defendant Y & H was an employer in this matter.

That is inaccurate.

What the defendant actually pled and which became the subject of the subsequent post trial motions was that the court had jurisdiction, and when the matter of the number of employees was raised, that was the pleading... the allegation in the complaint that the plaintiff raised to say this issue has been waived.

There was no specific pleading in the complaint that said that Y & H qualified for the definition of an employer under title VII.

There was no pleading that Y & H had 15 or more employees for the 20 or more weeks that were necessary.

Justice Ginsburg: There was no... there was no allegation that the plaintiff was employed by your client?

Mr. Prendergast: There was an allegation, Your Honor, that the plaintiff was employed by the company, but there was no allegation that Y & H was an employer as the term is defined in title VII.

Justice O'Connor: Was the--

Justice Souter: Was the word employer used in the pleadings?

Mr. Prendergast: I don't recall, Your Honor, whether or not the word employer was used.

I think it was clearly stated that... and... and there's no doubt Ms. Arbaugh was, in fact, employed by Y & H.

Justice Souter: No.

I'm just asking the really formal question.

Was the word employer used to refer to your client at any point in the pleadings?

Mr. Prendergast: I'm... I'm not sure, Your Honor.

Justice Ginsburg: Do we have the complaint in--

Mr. Prendergast: In the record, yes, Your Honor.

Justice Breyer: Was there an allegation that the company, petitioner, or whatever it was... that they violated the act?

Mr. Prendergast: There was an allegation, Your Honor, that--

Justice Breyer: I... I guess that... they must have thought that there were 15 or more employees because otherwise you wouldn't have.

Mr. Prendergast: --Right.

And... and naturally, though, Your Honor, that was denied.

The... the admission that the plaintiff relied upon in the post trial motions was the allegation that this court has jurisdiction under title VII, under the relevant provision.

Justice Breyer: Was that denied?

Mr. Prendergast: That was admitted.

The jurisdiction was admitted, and... and in the post trial motions, that was the issue that the plaintiff hung their hat on to come back and say this issue is... is established and stipulated.

There was clearly no admission that the--

Justice Breyer: You denied it.

Then they presented evidence, and their evidence was A, B, C, D, E.

And I guess then you presented some contrary evidence, and you didn't present any evidence that he wasn't an employer.

So I guess the odds are he was.

Mr. Prendergast: --Well, there was... but--

Justice Breyer: And if the odds are he was, they win in the absence of any evidence.

Mr. Prendergast: --Justice Breyer, if an employer... and... and I disagree with the position that it's... I... I think it is an element of the merits in addition to being an element of jurisdiction.

But if a plaintiff has that as part of their burden of proof, then the plaintiff naturally has to introduce evidence--

Justice Breyer: Then I guess maybe you could have appealed on that point.

So did you?

Mr. Prendergast: --No, Your Honor, because--

Justice Breyer: Then I guess it's waived unless it's jurisdictional.

So we're back to the jurisdictional question.

Mr. Prendergast: --And which we maintain that it is jurisdictional.

I'm not sure, Your Honor, whether or not there is, in fact, any waiver because--

Justice Breyer: I never heard of a point on the merits that if you... you think you're right.

It's right on the merits, the element of the offense.

You don't think they proved it, but unfortunately, you don't raise that in the appeal.

Mr. Prendergast: --No, Your Honor, we didn't raise it in the appeal, the reason being that while the matter was still pending in the trial court, in addition to the motion to dismiss for jurisdiction, which was granted, there was a motion of renewed judgment as a matter of law, which included the plaintiff's failure to maintain their burden of proof.

Justice Breyer: And did you win or lose on that?

Mr. Prendergast: That was dismissed as moot because of the jurisdictional issue, Your Honor.

So whether or not that is raised or not... I agree with you.

It's not before this Court today, but I don't think it's a matter that can be decided by this Court either.

It's a matter, if this Court should decide that it is a merits issue, that goes back to the trial court on remand.

Chief Justice Roberts: What other aspects of title VII do you think are jurisdictional?

Mr. Prendergast: I think the other aspects... and clearly, this has not been the subject of great research... would be the other ones that designate the scope or the coverage of the act, for example, especially as it relates to employer.

At least three circuit... and in addition to excluding small companies as employers, the act also includes as... excludes as employers private membership clubs, the Government, the United States, agencies of the United States, wholly owned corporations of the United States, and also Indian tribes.

At least three circuit courts have held that Indian tribes and their status is a matter of subject matter jurisdiction.

That's the Fifth Circuit in Thomas v. Choctaw, the Tenth Circuit in Duke v. Absentee Shawnee Tribe, and the Ninth Circuit in--

Justice Stevens: Do they hold that the plaintiff must allege the employer is not an Indian tribe?

I'm over here.

Mr. Prendergast: --I'm sorry.

Justice Stevens: Over here.

[Laughter]

I say in... in those case that you just cited, did they hold that the plaintiff must allege that the employer is not an Indian tribe?

Mr. Prendergast: I don't think they got into that matter, Justice Stevens.

Instead, what they simply decided was whether or not the... the employer was an Indian tribe.

There was a question concerning some of the structures and just the business organizations that the Indian tribes were using and--

Justice Stevens: Do you interpret those cases as, in fact, holding that if there was a trial and a judgment in favor of the plaintiff against what turns out later to be an Indian tribe, that after the case is taken up on appeal, the Indian tribe can have the judgment set aside?

Mr. Prendergast: --Yes, Your Honor, because the... the cases did clearly hold that the matter of... as an Indian tribe was a matter of subject matter jurisdiction.

And as a matter of subject matter jurisdiction, it is completely established law that that may not be waived.

It may be raised at any time.

So--

Justice Ginsburg: --Did it, in fact, come up in that posture in the case?

It has already been mentioned that the word jurisdiction has many, too many uses.

Did it... did the question come up in the Indian tribe cases as it did here after the case was fully tried and after there was a jury verdict for the plaintiff?

Mr. Prendergast: --No, Your Honor.

Those were cases where there were motions to dismiss based upon lack of subject matter jurisdiction.

Justice Ginsburg: When... if... if it's brought up promptly, it really doesn't matter, does it, whether you label it 12(b)(1) jurisdiction or 12(b)(6), failure to state a claim?

It goes out either way.

When it is consequential is when you bring it up, as you did here, after you lose on... at the trial.

Mr. Prendergast: I... I think the effect could be different when you raise it.

I think there can also be a difference in effect in how it will be treated, even if it was promptly raised.

I think, for example, on a 12(b)(1) motion, I don't believe the... the court is obligated to accept all the plaintiff's pleadings.

It's allowed to look outside the pleadings to actually determine the jurisdiction.

Whereas, in a 12(b)(6) motion, if the plaintiff says it's an Indian tribe, it's an Indian tribe.

Justice Scalia: Mr. Prendergast--

Mr. Prendergast: Yes.

Justice Scalia: --my problem with... with your... your contention is that I don't know how it is that you... that you intuit that this one definition is jurisdictional.

I mean, the definition... the... the 15 employee limit is... is part of the definition of employer in section 701.

Mr. Prendergast: Yes, Your Honor.

Justice Scalia: There are 13 other definitions in section 1701.

For example, it defines on the basis of sex.

Now, if... if you contest whether a particular remark or a particular practice of the employer was... fell within that definition, was on the basis of sex or not, would you say that the court had no jurisdiction?

Mr. Prendergast: No, Your Honor.

Justice Scalia: Will you challenge... well, why are you challenging jurisdiction when you're... when you're saying the... the definition of... of employer has not been met, but you are not challenging jurisdiction when you say the definition of on the basis of sex has not been met.

Why... why pick on one rather than the other?

Mr. Prendergast: I think the distinction is similar to an Aldinger/Kenosha type distinction.

And I think the question goes back to it requires an interpretation of whether or not Congress wanted to give the lower Federal courts the type of jurisdiction being discussed.

Justice Scalia: Yes, I... I understand that.

Mr. Prendergast: And... and--

Justice Scalia: That... that's what it comes down to.

Mr. Prendergast: --And... and--

Justice Scalia: But how do you know--

Mr. Prendergast: --Well, how--

Justice Scalia: --If both definitions in section 701--

Mr. Prendergast: --How... how do you know--

Justice Scalia: --why does one of them express one thing and another not express--

Mr. Prendergast: --Justice Scalia, the way you know is because you look at the logical deductions that can be drawn from the congressional statutes, as this Court suggested in Aldinger.

And with respect to the other definitions, I cannot speak categorically with respect to those other definitions because that's not the matter before this Court.

I can't suggest to this Court a wholesale general policy of these definitions are jurisdictional and these definitions are not jurisdictional.

Justice O'Connor: --But the practical consequences of affirming here are severe in terms of handling these cases.

And we've pointed out in some recent cases of ours that we've been a little sloppy in the past in using the word jurisdiction.

So it looks to me like there are many indicators that would point to not treating the 15 employee requirement as one of subject matter jurisdiction.

Mr. Prendergast: Justice O'Connor, I would say the... the consequences of not affirming are even more severe.

Congress, in 1964, made a clear decision that it wanted small businesses not to be burdened with--

Justice O'Connor: Yes, but it's entirely in the hands of the defendant to raise some objection.

Who knows better than the employer how many employees the employer has had?

I mean, it's totally within your capacity to say, wait a minute--

Mr. Prendergast: --But one--

Justice O'Connor: --we didn't have 15.

Mr. Prendergast: --one... one of the... one of the concerns, I believe, that Congress did have with respect to small employers was the fact that in terms of small employers, you are dealing with less sophisticated litigants, less sophisticated litigants with less access to legal resources that bigger companies have.

Justice O'Connor: Were you representing this employer at the time?

Mr. Prendergast: No, Your Honor.

I handled this matter all in post trial.

Chief Justice Roberts: What's... what's wrong with the rule?

We're not dealing with Article III here.

What's wrong with the rule that if Congress doesn't put it in the jurisdictional section, it's not jurisdictional?

Mr. Prendergast: I think--

Chief Justice Roberts: It would make the future cases a lot easier to decide.

Mr. Prendergast: --I think that would be contrary, however, Mr. Chief Justice, to the previous holdings of this Court where they say you do look to the logical deductions--

Chief Justice Roberts: Well, it's--

Mr. Prendergast: --that you look to all the statutes.

For example, petitioner makes note of Zipes, but if... if the jurisdictional statute is going to be the be all and end all of... of the analysis and the discussion, then Zipes would have merely looked and said, oh, well, the statute of limitations is not in the jurisdictional provision.

End of discussion.

But Zipes didn't do that.

Zipes said we need to look at the... the jurisdictional statute, the way it's structured.

We need to look at congressional intent and the legislative history, how they referred to this matter.

We need to look at our prior cases how we referred to this matter.

So I think to say just, okay, let's look at the jurisdictional statute... one, I think there are two problems with it.

One--

Justice Ginsburg: May I go back to Zipes?

In Zipes, the Court was faced with the... the word jurisdictional had been appended to the statute of limitations.

I think that was true of the way the EEOC spoke of the rigid time limit, that it was mandatory and jurisdictional.

And then the Court explained in Zipes that a strict time line doesn't mean that it's jurisdictional.

You can have a rule that's rigid, but it doesn't determine subject matter jurisdiction.

And that's what Zipes tried to explain.

The Court in Zipes was faced with a number of cases that had used that term to describe the time in which you must bring the action, mandatory and jurisdictional.

Mr. Prendergast: --Yes, Justice Ginsburg.

But Zipes also dealt with a legislative history where they referred to it as a statute of limitations period.

Zipes also said, okay, we have other cases where we have used the term jurisdictional, but more often than not, we've referred to this as a limitations period.

Zipes looked at the whole context and said, yes, we're not going to be held by a few random, maybe casual or careless uses of the term jurisdictional, but we are going to look at the whole thing.

Here, the legislative history has traditionally referred to this as a jurisdictional provision.

The '72 amendments, which increase... decrease the number of employees necessary from 25 to 15, referred to it as an expansion of jurisdiction.

This Court has had the matter come up before it always in jurisdictional terms.

This Court has referred to this.

EEOC has referred to it as jurisdictional.

Justice Ginsburg: Yes, but now we know it's... EEOC has changed.

Mr. Prendergast: Seeing the errors of their ways, I guess.

Justice Ginsburg: But why... now that we do have Zipes, why should the number of employees be treated any differently than that rigid time line in... in Zipes?

Mr. Prendergast: Your Honor, I think the reason that the number of employees should be different... treated differently is because we go back to the Aldinger question, and the Aldinger question is this Court has to decide did Congress want to give this type of jurisdiction to the lower Federal courts.

Justice Ginsburg: But that was a pendant jurisdiction case.

Wasn't Aldinger--

Mr. Prendergast: Aldinger dealt with a pendant party issue, yes, Your Honor.

Kenosha, however, dealt with... as the Chief Justice has indicated, Kenosha dealt with a definition that excluded counties from section 1983 and that was found to be implicitly brought into the... the jurisdictional grant for civil rights actions.

So I think the mere fact that something is or is not in the jurisdictional statute cannot be determinative because ultimately you do need to go back to the question of did Congress want to give this type of jurisdiction to the lower Federal courts.

My question would be why would Congress seek to give this type of jurisdiction to the lower Federal courts for a whole category of cases where, in the words of this Court in Hishon, it has granted these businesses complete immunity from title VII?

Justice Ginsburg: --Well, you just used an interesting word because there are litigants who can claim complete immunity from liability, but that immunity, whether it's absolute or qualified, doesn't go to the court's subject matter jurisdiction.

It has to be raised in those cases as a defense.

Mr. Prendergast: True, Justice Ginsburg.

The difference, however, between the immunity in those cases and the type of immunity here that the Court talked about in Hishon... immunity for a police officer in a civil rights case with qualified immunity will depend upon a police officer's particular actions in that particular case.

The police officer, in general, can be sued under section 1983.

The immunity that's present here, with respect to small employers, has no relationship whatsoever to the actions of that employer.

An employer who employs 12 people at most can engage in the most egregious employment discrimination and harassment possible, and the Congress of the United States has said, as a policy matter, on balance we would rather accept that kind of awful conduct because we don't want to impose these burdens on small businesses.

Justice Ginsburg: Or leave it to the States that often do cover smaller shops.

Mr. Prendergast: Yes, Your Honor, or leave it to the States and let the States do it.

But we don't want the Federal Government to be intruding into the operations... into the culture of these small businesses, and that I believe is the difference between the immunity that you mentioned, the qualified or prosecutorial type immunity, which depends upon actions, and this immunity here which depends upon simply the status of the defendant, the whole class--

Justice Souter: Well, that... that argument doesn't apply to absolute immunity cases, and yet in absolute immunity cases, once again, it's clear there's jurisdiction.

There's simply immunity.

The immunity doesn't depend on any particular facts.

Mr. Prendergast: --The absolute immunity, Justice Souter, that I'm most familiar with would be prosecutorial immunity.

I think there can still be exceptions for prosecutorial immunity.

I think a prosecutor, depending upon the type of actions he's engaged in, can still be subject to liability.

Justice Souter: But we have to determine whether he's acting as a prosecutor.

Sure.

We have to determine whether the President was acting in a presidential capacity, but that's not the kind of fact inquiry that you were talking about with respect to the qualified immunity.

Mr. Prendergast: It certainly... yes, Your Honor, I will concede it's a different kind of inquiry.

But I... I do think, though, here the categorical exclusion of small businesses is a clear indication of congressional intent of what Congress wanted to have happen.

Justice Souter: But I... I don't see why the same argument can't be made with respect to prosecutors.

It is clear that if... if an individual is acting in a prosecutorial capacity and enjoys the appointment as a prosecutor, that at least the... the system... we're not necessarily talking about Congress here.

The system says there... there should be, as a categorical matter, an... an immunity from prosecution.

And yet, that does not go to subject matter jurisdiction.

And it seems to me that that is essentially the exact argument that you're making here, and I don't see why it should be any more sound here than it would be in the absolute immunity case.

Mr. Prendergast: Another... well, Your Honor, I'll offer another distinction then.

The other distinction is prosecutorial immunity and qualified immunity, for that matter, are court created entities--

Justice Souter: That's right.

Mr. Prendergast: --court created defenses.

And as this Court is well aware, this Court nor any other court has the power to define subject matter jurisdiction.

That is Congress' purview and power.

Only Congress can limit the court's jurisdiction and define the court's jurisdiction for the lower Federal courts.

Here, Congress has spoken with respect to small businesses.

It's a different matter, I would suggest, with respect to prosecutors, which is an immunity that is... is a product of common law and... and a judicial creation.

I would also want to point out that... another thing.

The Solicitor General indicated that if you look at the structure of the... the liability section, he implied that it just imposes the employer definition into the... all the other causes of action.

In fact, it does not.

It says, it... it shall be unlawful for an employer to, and then it defines what is unlawful.

So I think there again it's indicating a difference between other elements of the cause of action and the employer relationship and the employer existence under title VII.

Ultimately, what this boils down to is whether or not small businesses are going to continue to receive the protection that Congress has indicated that it wanted them to have.

Justice Souter: Well, why can't get they get the protections through summary judgment?

Mr. Prendergast: I think they would be offered some level of protection, Justice Souter, through summary judgment.

The problem is summary judgment offers its own unique hurdles to a defendant.

And again, it's a difference--

Justice Souter: Among other things, you... you've got to do it up front.

Mr. Prendergast: --It's... it's a different standard as well, Your Honor, because under summary judgment, a plaintiff has it within their capability... have to view all the inferences in the light most favorable to the plaintiff, and... and the small business could end up being dragged into the litigation further and further than I think Congress intended.

Justice Souter: Well, if... if we're worried about dragging people into litigation, I presume Congress didn't intend, as a... as a general matter, to allow the... the situation that we've got here.

One party has been dragged through a piece of litigation and, having lost, has decided it wants to take another shot at getting out of the case.

Surely you can't say that was within the contemplation of Congress' intent.

Mr. Prendergast: Your Honor, actually I... I would not have viewed it as outside of Congress' contemplation or intent because Congress... and I think this is an important part of legislative history.

Congress in 1990 enacted the ADA, and they adopted the employer definition from title VII.

And at the time that Congress adopted title VII's employer definition for the ADA, all but one circuit court had decided that this was a matter of subject matter jurisdiction.

And if you decide something is a matter of subject matter jurisdiction, you take with it the unfairness.

And I'm not going to contend that it's not sometimes unfair to parties, some of the consequences of subject matter jurisdiction.

But you take that with it when you decide that it's a matter of subject matter jurisdiction.

And Congress in 1990 adopted for the ADA the title VII definition.

So it's implied that they understood what was going on.

In 1991, they... they had the Civil Rights Act and amended and provided for jury trials in these types of matters.

And again, Congress was aware of the state of the law.

Justice Souter: My... my point--

Mr. Prendergast: And Congress did not--

Justice Souter: --my point is not--

Mr. Prendergast: --seek a change.

Justice Souter: --my point is not that Congress in some specific sense, when it establishes a jurisdictional requirement, does not intend the occasional costs that the system has to bear by virtue of treating that requirement as jurisdictional.

My point simply is that if we are in... in a situation in which it is not clear whether it's jurisdictional or not, the issue can be raised, in effect, up front effectively through summary judgment, and in the alternative, can be treated... and... as... as an ineffective fact element, and in the alternative, can be left, in effect, forever to be raised as a jurisdictional element.

The fact that it can be treated effectively up front is one reason to think that Congress would probably have wanted that fact issue to be regarded not as jurisdictional but as elemental so that it can be gotten out of the way and the parties are not going to go through entire trials only to have the whole thing upset by a belated jurisdictional argument.

That's my only point.

Mr. Prendergast: And... and, Justice Souter, I understand that point.

However, I... I tend to believe that this is, after all, an aberration case.

Petitioner has suggested and the Solicitor General has suggested that businesses may tend to sandbag this issue.

I simply do not believe that that is a realistic danger at all.

In this case, quite frankly, the matter was overlooked, and that's how we ended up here.

But in most cases, these small businesses are not going to be looking to spend a lot of money and go through a whole trial and then say, oh, well, I had my shot at it.

Let me see.

If... if it doesn't work out now, I'll get out as a matter of subject matter jurisdiction.

Most cases, small businesses are going to say, make this case go away from me as fast as you can.

And so I don't think that that's really much of a danger to suggest that this is a pattern that's going to be repeated, especially after a decision from this Court.

If this Court, as we believe that it should, comes down and holds that this is a matter of subject matter jurisdiction, I think parties will raise the matter and get it disposed of.

Justice Scalia: --In other words, it doesn't make a whole lot of difference.

Mr. Prendergast: I think--

Justice Scalia: I'm not sure that helps your case.

[Laughter]

Chief Justice Roberts: --Does it make a difference on the... the... does the categorization make a difference on the relative time of the inquiry for the 15 employees?

You have 16 employees when the discrimination takes place.

By the time the lawsuit is filed, you've only got 14.

Does it matter whether that's called jurisdiction or going to the merits?

Mr. Prendergast: --I... I believe that the... the case law has uniformly held that you look at the time of the discrimination to determine the number of employees.

Chief Justice Roberts: Even... even if it's a question of jurisdiction.

Mr. Prendergast: Even if it's a question of jurisdiction, yes, Your Honor.

And I do think ultimately, though, it does matter because it does become a matter... it doesn't matter for the plaintiff.

It doesn't matter for the plaintiff whether or not it's a matter of subject matter jurisdiction or a matter of the merits because the bottom line is they're going to lose in either event.

Justice Ginsburg: It certainly matters for plaintiffs in this situation.

Mr. Prendergast: In this particular--

Justice Ginsburg: It certainly matters from the defendant's point of view too.

In many of these cases, it's not clear whether the number 15 has been... as in this case, you have delivery drivers.

You have owners whose wives are employed in the business.

Mr. Prendergast: --And, Your Honor, and I would urge that those kind of matters that need to be addressed are best addressed by the court as opposed to by a jury.

I think to the matter of determining whether or not someone is a... is an independent contractor--

Justice Ginsburg: From the... from the point of view of a defendant who thinks I'm going to fight this case on the merits, but if I lose, I still have this ace up my sleeve.

Mr. Prendergast: --I just... Your Honor, I simply do not believe a defendant would generally do that because, as I pointed out in my brief, the problem with that is if I'm representing the defendant, all right, and I'm going to defend my case on the merits and I know I got this 15 employee question here, I go to trial, let's suppose I win.

I win at trial in Federal court.

Subject matter jurisdiction can be raised by the plaintiff.

Now, after I've won at trial, the plaintiff stands up and says, oh, this court didn't have subject matter jurisdiction.

I get a do over.

Justice Ginsburg: That sounds like a good reason why a court should think long and hard about categorizing this as a question of subject matter jurisdiction.

Mr. Prendergast: Your Honor, but again, I... I simply don't believe that that's going to be a problem that's going to come up.

I think the importance of... of categorizing this as subject matter jurisdiction is to avoid... among other things, is adding another complicating factor to a jury trial because, if you make this a matter of the merits now... counsel for petitioner describes in his brief extended hearings to determine the number of employees.

We're now... if you make it part... just a part of the merits, now before you can get to the actual issue of discrimination, a jury is going to have to sit through and try to decide how many employees there were.

Justice Ginsburg: Well, it would be simultaneous.

The jury... the jury would have that question.

Didn't I understand the attorney for the United States to say this is typical of what juries decide, was this person an independent contractor or an employee?

Mr. Prendergast: Your Honor, I... I heard that argument as well.

All I can say is given the number of factors that are laid out under, for example, the Fifth Circuit law to determine whether or not somebody is an independent contractor or an employee, that seems to me to be more like the function of a judge than a jury because it's a matter of balancing of the relevant factors.

Chief Justice Roberts: Thank you, Mr. Prendergast.

Mr. Prendergast: Thank you.

Rebuttal of Jeffrey A. Schwartz

Chief Justice Roberts: Mr. Schwartz, you have 3 minutes remaining.

Mr. Schwartz: If there are no additional questions, I... I have nothing further.

Justice Scalia: Do you think... do you think it's possible that... that Indian tribes could be jurisdictional but an employer couldn't?

I mean, it seems to me the two the questions are quite different.

An Indian tribe is always an Indian tribe.

Right?

And you're... you're excluding... just as a prosecutor is always a prosecutor.

You're excluding a whole category of people.

But you're... you're not excluding a category of employers here, are you?

Because it's a... it's a factual question, whether at the time of the alleged offense, the particular company was employing more than 15 people.

It isn't that this company forever has immunity.

Mr. Schwartz: Yes, I agree with that.

Justice Scalia: So you're... you're not arguing for the Indian tribes here.

Mr. Schwartz: As... well, my... I leave that to other people.

[Laughter]

But the... I could... in answer to that question, I can see an interesting scenario where a plaintiff working for a casino on an Indian tribe, there might be a question of who the actual employer is.

And... and that could come up and that would certainly involve some litigation.

Justice Stevens: May I ask you if the practice of law has returned to normal in New Orleans?

Mr. Schwartz: No.

It's... it's a struggle somewhat for jury pools.

The State court in particular, because it only covers Orleans Parish, is... is really struggling with pulling in jurors.

The Federal courts have a larger number of parishes to draw from.

I'm actually still living in Atlanta.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Pennsylvania State Police v. Suders - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Pennsylvania State Police v. Suders

Media File:

03-95_20040331-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of John George Knorr, III

Chief Justice Rehnquist: We'll hear argument now in No. 03-95, the Pennsylvania State Police v. Nancy Drew Suders.

Mr. Knorr.

Mr. Knorr: Mr. Chief Justice, and may it please the Court:

In its decisions a few years ago in the Ellerth and Faragher cases, this Court held that where a supervisor has created a hostile work environment by acts of sexual harassment, the liability of the employer is not strict, but rather is subject to an affirmative defense which centers around the opportunities provided by the employer for corrective or preventive action.

The question here is whether that affirmative defense should continue to be available where there is an allegation that the hostile work environment resulted in a constructive discharge, and we submit that it should.

In our view there is nothing about a claim of constructive discharge that changes the Ellerth-Faragher analysis of hostile work environments.

A supervisor's acts which create a hostile work environment don't produce strict liability because they are not acts of agency; that is, they are not the acts of the employer.

They don't bear the imprimatur of the employer.

They aren't ratified by the employer, and they are not the sorts of things which could only be done by somebody invoking the authority of the employer.

Justice O'Connor: Mr. Knorr, I'm... I had a hard time, in reading the briefs on this case, figuring out what we ought to do with the suggestion that there's a constructive discharge theory.

Now, I don't think this Court has ever weighed in on that.

It comes out of the labor law context I guess.

Mr. Knorr: Yes.

Justice O'Connor: I'm wondering, you know, in... in Ellerth and Faragher, what we said was that when no tangible employment action is taken, a defending employer may raise an affirmative defense to the liability.

So I'm wondering if we shouldn't just try to look at the facts in this case and ask whether what the supervisors did amounted to a tangible employment action and that would answer the... the question.

I... I don't know that viewing it through the lens of a constructive discharge is helpful.

What she says is that the supervisors... that she had taken tests to qualify for a promotion, that the supervisors had hidden the results of those tests and had thereby prevented any promotion, and that there was a false arrest I guess.

Now, why shouldn't we just look to see if those actions occurred, and if so, whether they amounted to a tangible employment action?

Wouldn't that answer the question?

Mr. Knorr: Justice... Justice O'Connor, if we haven't made this clear, then the Court has my sincerest apologies because that is exactly what we suggest the Court should do.

If the underlying actions of the supervisor amounted... which... which provoked the constructive discharge amounted to a tangible employment action, then there is no affirmative defense.

Justice Scalia: But... but Justice O'Connor is going a little bit further than that.

I think she is suggesting that there cannot be a constructive discharge without some tangible employment action because constructive discharge itself attributes to the employer the desire to get rid of the employee, and that desire cannot simply be communicated through some lower... lower people.

Now, maybe the... the tangible employment action is the refusal of the employer to respond when the obscene actions of... of the... of the coworkers here are brought to the employer's attention.

That would be I... would that qualify as tangible action in... in your part... in your estimation?

Mr. Knorr: I'm not sure if it would be tangible action or not, but it would certainly indicate that if the employer didn't respond, that it was in some sense ratifying or approving what it has done.

Justice Scalia: I mean, the point is, how can you have a constructive discharge?

The only person that can discharge is the employer.

You have to pin it on the employer.

I don't know how... how subordinates alone can... can produce a situation that amounts to a constructive discharge.

Mr. Knorr: That, Justice Scalia, is partly true and it partly is not true because the precise elements of what you need to prove to... to get a constructive discharge vary quite widely from court to court.

And in some courts what you say is quite accurate.

There has to be some proof of an intention on the part of the employer, even if it's only through a failure to respond to a complaint, to get rid of the employee.

But in other courts... and... and this includes the Third Circuit... that is not really the case.

Justice Scalia: Well, what do you think it ought to be?

Mr. Knorr: I think it ought--

Justice Scalia: There is a right answer to this, isn't there?

Mr. Knorr: --Well, that's not a question that we've presented or that the court has addressed.

In... in our view, the right answer to that would be, yes, you have to in some sense prove employer intent--

Justice Souter: Is there... is there... you... you say the... the standards vary.

Is there any jurisdiction that... for a... that recognizes constructive discharge that does not require the employee to prove that the employee acted reasonably in relation to avenues for redress, filing grievances and so on?

Is... is there any... is there any jurisdiction in which the employee's reasonableness in trying to adjust things before leaving is not an element of the... of the claim?

Mr. Knorr: --I think that the short answer to that question is yes.

There are such jurisdictions and they include the Third Circuit, but I need to be a little more expansive than that because in all jurisdictions, including... including the Third Circuit, there is an inquiry into whether the employee acted reasonably, but... and in some jurisdictions, that inquiry is directed to... to the question of whether the employee tried to resolve this... this matter internally.

In other jurisdictions, including the... the Third Circuit, the inquiry into employee reasonableness is tied only to the question of how bad were the conditions; that is, were these conditions so bad that a reasonable person would quit?

And in that inquiry, it may or may not even be relevant whether the employee tried to... to resolve it internally.

Justice Ginsburg: But it was in the Third Circuit because the judge somewhere in that long opinion did say that the evidence that she had complained... that that would be relevant, but not essential evidence to show the reasonableness of her reaction treating this conduct as a discharge.

Mr. Knorr: I'm not sure the court went that far.

The court said that... that it might conceivably be relevant and in... in a later--

Justice Ginsburg: I thought... I thought it was stronger than... than that.

It may be different--

Mr. Knorr: --And it... I'm sorry.

Justice Ginsburg: --in different places because this opinion tended to say everything at least twice.

Unknown Speaker: [Laughter]

Mr. Knorr: My recollection is that the court didn't give very much specific direction on what should come in on a remand in this case.

As a general matter, the court of appeals was quite clear that it was up to district courts to decide whether all, some, or none of evidence about anti-harassment policies and remedial efforts should come in.

And that--

Justice Kennedy: Excuse me.

Mr. Knorr: --I'm sorry, Justice Kennedy.

Justice Kennedy: Did you finish your answer?

I... I beg your pardon.

Mr. Knorr: If... if I could.

And that inquiry, in turn, is tied simply into the question of how bad were the conditions.

That is, if the conditions were bad enough, it doesn't matter if there was an anti-harassment policy.

It doesn't matter if there were remedial efforts made.

So the... the inquiry, while it all is... while it is all... while it is always phrased in terms of employee reasonableness, can really be directed to quite different things.

Justice Ginsburg: May I ask you also to clarify?

That... you gave Justice O'Connor an answer that surprised me because she said let's stick to this case, and she said that action involving the not... not letting her have her papers, and then the arrest, that looking at those facts, could that be... is that the way the Court should go about it.

But the district judge gave summary judgment for you in this case.

Is that not so?

Mr. Knorr: That's correct.

Justice Ginsburg: So, then on Justice O'Connor's facts, there would be no question whether she acted reasonably, whether it was equivalent, whether it was equivalent to a tangible employment action.

Mr. Knorr: In terms of this particular case, in our view it is a little bit... it... it is too late in the day to reopen the inquiry as to whether the underlying actions of the supervisors were or were not tangible.

That... that is something that should have been raised at the district court level when we raised the affirmative defense.

What I... what I--

Justice Ginsburg: But there was no trial.

This was just summary judgment.

There was no evidence submitted.

Mr. Knorr: --There... well, there was no trial.

There was certainly evidence submitted, and it seems to us that when we as the defendants say we are entitled to the affirmative defense and we are moving for summary judgment on it, it's incumbent on the plaintiff at that point to say, no, you aren't entitled even to assert the affirmative defense because we have this action and this action and this action which were taken, which are tangible employment actions, and therefore you aren't even entitled to the affirmative defense.

And that didn't happen.

At no point in this case has the respondent ever said that she was subjected to a tangible employment action other than the constructive discharge itself.

Justice Kennedy: Suppose we're back before the summary judgment stage and you're telling the trial court what the theory of the case should be.

Would your theory be something like this?

Whether we use the phrase, constructive discharge or tangible employment action... and we have to use some phrase because the law works with labels... we're interested in the practical aspects of... of these cases, and one of them is this.

Were there avenues of redress?

And if the employer was... employee was unreasonable in not following these avenues of redress, then there can be no constructive discharge or tangible employment action.

Is that your position?

Mr. Knorr: No, Justice Kennedy, and I... I guess I--

Justice Kennedy: It sounds like a good position.

Why isn't that your position?

Unknown Speaker: [Laughter]

Mr. Knorr: --Our... our position really is that this case and... and hostile environment cases generally which are alleged to be constructive discharges are just like Ellerth, that what you do is you look at what the supervisor did to the employee to provoke the discharge, and if those actions were hostile work environment, if they were... if they were... I hate to use the word merely, but if they were acts of sexual harassment, not arising to tangible actions, if the employee had simply sued on the hostile work environment, we'd have an affirmative defense.

Our position is that doesn't change or it shouldn't change because there is also a claim that it was so bad that I had to quit.

Justice Kennedy: How is that different from the formulation that one component in almost all cases of constructive discharge or tangible employment action, whatever you want to call it, is the existence or nonexistence of avenues for redress, and if they did exist, whether the employee took reasonable steps to follow them.

Mr. Knorr: If that were true across the board, Justice Kennedy, there would be no difference.

You're... you're entirely correct.

Justice Scalia: Why does--

Justice Souter: --Then why--

Justice Scalia: --I'm sorry.

Justice Souter: No, no please.

I was... why isn't the way to simplify the problem and decide this case for us to say in order to have constructive discharge, there has got to be the element that Justice Kennedy just described, i.e., avenues of redress, reasonableness on the part of the employee in availing or perhaps in some cases not availing of them?

If that element is shown, then there is no point in recognizing the affirmative defense because that is in pretty clear contradiction to one element of the affirmative defense.

And... and that would make for a fairly simple body of law.

Why... why isn't that the appropriate way for us to go?

Mr. Knorr: I think that is certainly a way to go, Justice... Justice Souter.

If it were... if it were clear across the board in all jurisdictions that to prove a constructive discharge, you do have to have made some effort to invoke a remedial process, just as with the affirmative defense, then that would certainly... that would certainly satisfy our concerns.

Justice Scalia: Why does a... why does a plaintiff bring a constructive discharge suit instead of just a regular sexual harassment suit?

Is it... is it a matter of getting more damages?

Is that the reason for--

Mr. Knorr: Yes, I think so.

Justice Scalia: --for couching it in those... in those terms?

Mr. Knorr: Yes, because then you've got the... the lost wages and so forth for... for the entire time.

Justice O'Connor: I'm troubled by that too.

I mean, I don't understand why we're using that term at all in light of the case background here.

Why isn't it couched in terms of allegations of sexual harassment and tangible employment action?

Mr. Knorr: That is... that is the way we think that it should be couched, Justice O'Connor.

The... the use of the constructive discharge is... was the plaintiff's choice, of course, and--

Chief Justice Rehnquist: But that... that too is the Third Circuit's theory in the case.

They very much relied on the analogy to constructive discharge, didn't they?

Mr. Knorr: --Yes.

I think that their... their view is that a constructive discharge is... is just the same as an actual discharge.

Justice Ginsburg: No... no court has rejected the constructive discharge.

The question is how do you define it.

And you said, in response to Justice Souter, that it would be fine if you said, plaintiff, you're in this situation, you're claiming constructive discharge, you come in and... and, in effect, negate what would otherwise be the affirmative defenses.

But they--

Justice O'Connor: --Well, I... I thought two circuits hold that a constructive discharge is never a tangible employment action.

I mean, that's part of the problem.

Mr. Knorr: Yes.

That's... that is correct.

And... and frankly, I don't think that is a correct analysis either.

Our view is that a... a... in a... in a sense a constructive discharge can't ever be a tangible employment action because it isn't an action at all.

It's just a construct.

Our view is you look at... to what it is that the supervisor did, and if that's a tangible employment action, then there is no affirmative defense, whether... whether or not the employer is--

Justice Ginsburg: But there's an... there's an intermediary situation and that's the one where there is a tangible action like you get demoted or you get transferred to a... a worse position.

And that... that's one category.

Another category is you say I was harassed constantly and that amounts to constructive discharge.

Another is they did take a tangible action against me, they didn't discharge me, but they were so bad in harassing me and in this demotion, that it amounted to a constructive discharge.

That... that constructive discharge is the label used for that too, isn't it?

Mr. Knorr: --It can be.

An employee can certainly say I was... I was subjected to a humiliating demotion and that was so bad--

Justice Ginsburg: So I quit.

Mr. Knorr: --that I quit.

Had she just sued just on the demotion, clearly a tangible employment action, and we would have no affirmative defense.

If she also goes on to say, and it was so bad that I quit, I think we again should not have the affirmative defense.

Justice Ginsburg: But the Seventh Circuit goes the other way on that.

Mr. Knorr: Yes, they do.

Yes, they do.

And by the same token, if the employee simply says, I was sexually harassed and subjected to a hostile work environment, we would have the affirmative defense.

If she goes on to say, and--

Justice Stevens: Is that true even if the person who did the harassment and so forth but did not otherwise take a tangible action, was the president of the company and said... made the... the workplace impossible to have it for the employee and she quits.

Would that be a tangible employment action?

Mr. Knorr: --I don't think you'd reach that question, Justice Stevens.

I... I think what would come into play there is the idea that there are... there are some people in every organization who are so high up that they are proxies for the employer itself.

Justice Stevens: Right.

Mr. Knorr: And so it... it really is--

Justice Stevens: And that person who's a proxy does not commit a... make a... a tangible decision, doesn't fire her.

He just makes it impossible for her to work.

Would that be actionable or not?

Mr. Knorr: --That would be actionable because it is the action of the employer, and you don't even have to get into the question of whether it is an agent of the employer or not.

Justice Stevens: Even though it was a tangible... even though it was a constructive discharge.

Mr. Knorr: I think at that point it... that is all irrelevant because what you're talking about is the act of someone who is the proxy of the employer and therefore the employer is responsible for it.

Mr. Chief Justice, if I could reserve the balance of my time.

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Very well, Mr. Knorr.

Mr. Gornstein, we'll hear from you.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

An employer is strictly liable for a constructive discharge in any harassment that has preceded it only when the constructive discharge comes about as a result of an official company act, such as a demotion.

If the constructive discharge comes about as a result of a supervisor's creation of a hostile environment, then the employer has an affirmative defense and can show that the plaintiff unreasonably bypassed available opportunities for correction.

Now, the requirement of an official company act as a predicate for strict liability comes from the Court's decision in Ellerth and is supported by two important considerations.

First, a company act is the kind of act that is likely to be documented and subject to higher levels of review, and so it's the kind of act over which the employer can exert the most control.

And that heightened potential to control makes it fair to hold the employer strictly liable, even if in a particular case the employer would otherwise be able to show that it acted reasonably and the plaintiff did not.

It... it... second of all, furthering title VII's... the... recognizing the affirmative defense when there's not an official company act, furthers title VII's prophylactic purposes because it gives the employer an extra incentive to create policies that will help to prevent discrimination from occurring in the first place and it gives employees an added incentive to complain before problems become Title VII violations.

Justice O'Connor: Well, how do you think we should analyze this particular case in light of the Third Circuit's treatment?

How does this fit into your formula?

Mr. Gornstein: Well, in this... in this case you might want to... what I was going to go on to say is you might want to initially decide the logically antecedent question of what it takes to... to make out a constructive discharge claim in the first place.

And if you did that, you should say that to prove constructive discharge, a plaintiff has to show that there's no reasonable other alternative other than to resign.

And a plaintiff who has unreasonably bypassed an available opportunity for correction can't make out a constructive discharge claim in the first place.

Justice Souter: When you... when you posit that reasonableness requirement, I take it you... you mean to include that the employee must show either that the employee reasonably availed herself or himself of whatever grievance procedure there was or at least had a reasonable basis for not doing so.

Mr. Gornstein: That... that's correct, Justice Souter.

Justice Souter: Now, if... if you do that, what is... what is left of the affirmative defense, whether there was... whether there was a supervisor involved or not, because the affirmative... as I understand the affirmative defense, the affirmative defense is inconsistent with that showing?

Mr. Gornstein: Justice Souter, you are right with respect to the constructive discharge claim itself; that is, proving the constructive discharge will necessarily negate the affirmative defense to the constructive discharge claim.

But that--

Justice Souter: So why don't we stop right there?

Mr. Gornstein: --Because it doesn't necessarily negate... proving the constructive discharge doesn't necessarily negate the affirmative case... defense to the claim of a hostile work environment that preceded the constructive discharge.

Justice Souter: Yes, but the hostile work environment claim... and if... if we're going to recognize constructive discharge, hostile work environment I... I presume has been subsumed under constructive discharge because constructive discharge says, hostile environment plus something more.

And we've been describing the plus something more.

And... and in order to prove the plus something more, you've got to prove, as you said, something which is inconsistent with the affirmative defense.

Mr. Gornstein: Let me try to explain to you how this could come up.

You could have a situation in which at the moment of resignation, the plaintiff was reasonable in believing that there was nothing she could do other than to resign and reasonable in bypassing the available procedures at the moment of resignation, therefore, could prove a constructive discharge.

But it may have been the case that at a prior point in time, she would have been unreasonable in failing to complain about the harassment and therefore be vulnerable to the affirmative defense on the hostile environment claim even though she's proven her constructive discharge.

Justice Souter: I understand what you're... I understand what you're saying, but I... I would suppose that if... if the evidence shows that it was... that there was a point at which she could have resolved this or at least a point at which it would have been reasonable to pursue grievances and so on to resolve it, and she didn't do it, that she's going to lose.

In other words, if... I... I don't... I don't see how she's going to get to the point that you describe.

Mr. Gornstein: The... the way that she would get to the point that I described, Justice Souter, is if you had an escalating kind of harassment and at the last act of harassment, it would have been reasonable that... for the plaintiff to leave at that point... let us say the supervisor does a lot of things, and then on the last act says, if you come back tomorrow, you're dead.

Justice Souter: I... I see your point.

I... I have one question in response to the point, and that is, if... if we... if we construct a system that... that recognizes the possibility that... that you just described, are we going to have a system that is just so darned complicated that it's going to be too difficult to administer?

In other words, every case is going to involve allegations of what you just say, denials of those allegations.

In order to have an administrable system, shouldn't we simply say that if you can prove the constructive discharge, if the... if the element includes the unreasonableness on grievance, no affirmative defense, and just get over with it simply because otherwise it would be just too complicated a system?

Mr. Gornstein: Justice Souter, it would be a simpler system, but the... the system we are proposing really is just superimposing on this problem the same structure the Court created in Ellerth and Faragher.

The Court could have devised a simpler rule in Ellerth and Faragher.

Justice Souter: You're saying it's my fault.

Mr. Gornstein: Well--

[Laughter]

I'm saying that the Court took into account various competing considerations in... in structuring it, and it made for a somewhat more complicated scheme.

Justice Ginsburg: But it wasn't--

Justice Scalia: --Mr. Gornstein, could tell us what the Government proposes that we do in this case?

Justice O'Connor: Yes.

That's what I want to know.

Justice Scalia: You... you asked us to remand because why?

Mr. Gornstein: We would say that you would remand because it is possible that there is a... an official company act that caused the constructive discharge.

Justice Scalia: To wit.

Mr. Gornstein: To wit, the sequence of events leading up to the arrest, and that the arrest might be... we're not saying that it is... but it might be an official company act.

If it is and the plaintiff could show that that act left her with no reasonable alternative other than to resign, you would have a constructive discharge that leads to strict liability.

Justice Scalia: How... how could the... how could the arrest by an official company act?

Mr. Gornstein: It could be an official company if it is only the sort of thing... if it depends on a grant of authority from the employer to the supervisor and it's only the sort of thing that a supervisor could do.

Justice Scalia: But it patently is not so.

I mean, it... it has nothing to do with employment.

You don't... you don't arrest somebody because he's your employee.

Mr. Gornstein: Justice--

Justice Scalia: I mean, it... it seems to me that... that this action you're concerned about is not an employer type of action.

It is... it is quite apart from employment.

Mr. Gornstein: --Justice Scalia, I think it could be that you're right about that, but it also may be that it's the type of action where the... the person was wearing both hats, as a supervisor and as a law enforcement officer, and that it was the... only the sort of thing that a supervisor could have done.

And all we're saying is that should be fleshed out.

If you don't think that should be fleshed out, if the Court didn't think that that was a possibility, then there wouldn't be the need for the... the remand.

You could just decide it without a remand and... and reverse on the grounds... to get back to Justice Souter's point, you still, under my scenario have to get to the question of whether a constructive discharge is a tangible employment action.

Justice Kennedy: Suppose that the tangible employment action... say, a demotion or an arrest or a firing... could have been avoided if the employee had been prompt and reasonable in pursuing avenues for relief.

Mr. Gornstein: In that--

Justice Kennedy: And a reasonable employee in that position would have done that and they didn't do it.

Then it escalates.

Then there's the discharge.

Mr. Gornstein: --Then in that situation, there's a constructive discharge, but there's a potential defense to the harassment claim that would depend on whether the constructive discharge is itself a tangible employment action.

It only is a tangible employment action if it's brought about by an official company act, such as a demotion.

If it's not brought about by an official company act, then the affirmative... no affirmative defense for the constructive discharge because that's been negated by proving constructive discharge.

But there is affirmative defense for the prior acts leading up to it that are framed as a claim about hostile environment.

There would be an affirmative defense to the hostile environment claim if the hostile environment culminates in a constructive discharge that's not effected by an official company act.

Justice Breyer: I... I thought the first... the last thing you said I thought is already there in Ellerth, either at least your tangible discharge or it doesn't or does.

You have to show, you know, that they were reasonable in not making... take advantage of a... of a complaint procedure, and insofar as it doesn't, Ellerth already says that there's a... there's an affirmative defense and we had a reasonable complaint procedure in place.

So I don't really see that problem.

Nor do I see the problem with the Third Circuit.

The Third Circuit says working conditions were intolerable, so intolerable a reasonable person would have concluded there was no other choice but to resign.

Mr. Gornstein: May I answer, Mr. Chief Justice?

Chief Justice Rehnquist: Briefly, yes.

Mr. Gornstein: Yes.

The... what's that's missing is there is that Ellerth requires an official company act to have a tangible employment action as a... not just a change in status from being employed to not being employed.

And if there's not an official company act, then the employer has the affirmative defense.

Argument of Donald A. Bailey

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Mr. Bailey, we'll hear from you.

Mr. Bailey: Mr. Chief Justice, and may it please the Court:

Pursuant to title VII, the general rule has been is that employers are liable for the discriminatory acts of their supervisors.

The question presented is whether a constructive discharge is the equivalent of a formal discharge.

One of the greatest difficulties in dealing with the law that we're addressing today is one of semantics.

A formal discharge is the equivalent of a constructive discharge by definition.

It is a... it is a matter of methodology.

The United States and the petitioner would have this Court define the culpability of the employer for the supervisor's acts as a matter of official act.

That leads this Court down an incredibly complex road of... of definitional problems.

If the Court goes back to Meritor, the Chief Justice's opinion, where the Court held clearly there is no automatic liability for the employer's being responsible for the wayward acts, clearly outside the scope of employment, clearly not authorized, but we're not going to find a... a... an automatic liability.

What the United States wants to do and why the respondent believes that the Third Circuit... that the Third Circuit Court of Appeals decided this case properly is to devise a general rule and underline if proven, if the constructive discharge is proven, then the obvious occurs.

It's a tangible employment action.

Chief Justice Rehnquist: Well, but that's the whole question that is presented in the... in the question here.

I mean, I don't think you can just say it's obvious.

Mr. Bailey: Well, it's... it's the... to go back to some of the questions that Justice Souter was... Souter was raising, the issue of the... of the constructive discharge, when proven, reaches a point as a practical matter in litigation that the affirmative defense is no longer viable.

And the issue in the question presented is when a... if... if we stick to that issue, is that is a constructive discharge a tangible employment action.

Conversely, isn't it reasonable to assume that a constructive discharge, if proven, is an official company act?

Justice Breyer: But isn't it the same?

Justice Scalia: Why?

Why?

Why is that?

It seems to me what you're saying is that up to the point where the harassment reaches such a level that a reasonable person would leave, up to that point, the individual could not sue the employer because the employer is not responsible for it.

But suddenly when it goes over the edge and it's even worse and the person says, I'm going to leave, suddenly the employer is automatically responsible for it.

Why... why... that doesn't make any sense at all.

Mr. Bailey: Your Honor, I believe... Justice Scalia, I believe the... the... you can sue the employer.

The issue... and that's... that's the hostile work environment claim that... that this Court was really addressing in Faragher.

The issue becomes--

Justice Scalia: You... you can sue, but you're going to lose unless you show that there was some official action on the part of the employer that... that caused this or... or that the employer didn't have a... a means of remedying it.

Mr. Bailey: --Well, the case would then become a hostile work environment case.

Justice Scalia: Exactly.

Mr. Bailey: There would not be a tangible employment action.

This... the... the employee can still sue.

The issue then becomes that the affirmative defense is available.

The issue here is the affirmative defense is not available.

Justice Scalia: Why?

I don't understand.

I mean, that's my point.

Why is it that up to the point... you know, there's terrible harassment, and the employer could... and the employee could sue.

But if the employee sued the employer, she would lose.

But when it goes just... just an inch further and is justifiable cause for her to quit, all of a sudden the employer becomes responsible for what he was not responsible for earlier.

That... that doesn't make any sense to me.

Mr. Bailey: Okay.

I... I don't think it's... it's a situation where the employer is not responsible.

It's that the employer has mechanisms available to... if proven, again, if... if they can prevail on the affirmative defense to counteract the charges of hostile workplace harassment.

Justice Souter: Okay.

May... may I interrupt you with... with this question because it goes to Justice Scalia's question?

Isn't... for the reason you just gave, isn't the reason that the claim goes from a hostile environment for which there's a defense to constructive discharge for which there isn't a defense... isn't the reason that in order to get from hostile environment to constructive discharge, the employee has to prove something that she didn't have to prove merely for hostile environment?

Mr. Bailey: Yes.

Justice Souter: And that is the element... we're... we're assuming.

Mr. Bailey: Yes.

Justice Souter: That is the element that she either reasonably availed herself of... of the... of grievance mechanisms or was reasonable in not doing so.

And that's the element that gets her to the more serious claim, and it's also the element that is inconsistent with the affirmative defense.

Is... is--

Mr. Bailey: No, Your--

Justice Souter: --Is that fair to say?

Mr. Bailey: --No.

Justice Souter: Okay.

Tell me... tell me why not.

Mr. Bailey: It's... it's putting cart before the horse.

It's taking the burden that this Court carved out in Faragher and Ellerth and it's putting a burden on the employee which, as a practical matter, the employee has to carry anyway in proving the constructive discharge.

We are back at the original question that you asked.

Justice Souter: Yes.

Mr. Bailey: And... and we're back where the Third Circuit in its... in its opinion underlined if proven, held that if the constructive discharge... if the constructive discharge is proven, the affirmative defense... and even the... the United States admits this... is in all likelihood not a cogent defense at that point, the constructive discharge has been proven.

That's--

Justice Kennedy: Is the availability of avenues of redress and... coupled with a showing that there was no pursuit of those reasonable avenues of redress, is... are those components or facts relevant to determining constructive discharge?

Mr. Bailey: --Yes, they are relevant in this sense.

Justice Kennedy: Then we're not arguing about very much.

Justice Souter says the constructive discharge is then inconsistent.

Maybe another characterization would be superfluous.

I mean, the reasonable... the reasonable attempts to obtain redress is inconsistent.

I... I think maybe superfluous.

What are we arguing about here?

Not very much.

Mr. Bailey: I respectfully disagree.

Justice Kennedy, in the process of proving the constructive discharge, the salient factual issues that by implication you refer to are going to arise.

The employer is going to have an opportunity in... in the real case in controversy in the district court or during litigation and discovery of addressing issues and answering questions about... and this is where we get into a great difficulty with the position of the United States.

You know, when does the employee... when does the employee have a responsibility to come forward?

Justice Scalia: Well, it isn't the responsibility of the employee I'm concerned about.

It's the responsibility of the employer.

And I don't agree with your description of... of what the rule is.

That is, if there were no grievance procedures available... and that I agree ought to... ought to pin... pin the tail on the employer.

It's his fault and I'd hold him for the constructive discharge.

But you say if they were not available or if she reasonably didn't use them, well, I mean, these... these renegade employees who were... who were performing these acts of sexual harassment... suppose they tell her if you file a grievance, we're going to kill you.

Now, I'd say that's pretty reasonable for her not to file a grievance.

But is that the employer's fault?

How... how does that somehow attribute all of this action to the employer?

She should sue these individuals.

Mr. Bailey: Justice Scalia--

Justice Scalia: He... he has in place the grievance procedures.

The fact that they threatened her life is... is not at all his responsibility.

So how do you... how do you attribute to him a constructive discharge?

I don't see it.

Mr. Bailey: --Justice Scalia, it begs a multitude of questions.

Those questions relate... and they're probative.

They're of probative value in any litigation.

And they relate to how that... that scheme, that remedial scheme, the internal, private remedial scheme, how it is enforced, how it's policed.

Justice Scalia: That's fine.

But so... so long as you're willing to acknowledge that the mere fact that she was reasonable in not resorting to the grievance procedures, does not establish that it's the employer's fault.

So long as you accede to that, you say that's all up for... for proof in... in the... fine.

Then... then I'll agree with you.

But you're not willing to concede that.

Mr. Bailey: No, Justice Scalia.

Justice Scalia: So then... so then it's not true that it's all available to be discussed in the... I mean, what are you saying?

Mr. Bailey: What... what I'm saying--

Justice Scalia: It's either relevant or it's not relevant.

Now, which is it?

Mr. Bailey: --It's relevant and it's probative in the conduct of the case, but it's not dispositive of a... of a constructive discharge being--

Justice Scalia: Why is it relevant then?

Mr. Bailey: --being a tangible employment action.

The relevant facts... the employee's conduct is always going to be a relevant fact situation for a jury or a court sitting as a fact finder to hear, to contemplate, and understand.

There are issues--

Justice Scalia: There's not an ounce of evidence of any... any... activity by the employer.

Not an ounce of any... he has in place a wonderful grievance procedure and the only problem is they threatened her life.

And that's why she didn't use it.

Now, what is... what is there for the jury to... to consider?

Mr. Bailey: --As a matter of law, it dispenses with the definition that set this Court on the road to Meritor and Ellerth and Faragher, and that is the definition of an employer in Title VII law.

Of course, it's the employer's act, if it's an official act, and if there are issues that are--

Justice O'Connor: Threatening her life is an official act by... by his employees.

Mr. Bailey: --To the extent the... how do we define the employer?

The board of--

Justice Scalia: I mean, I cannot imagine an act that's more ultra vires.

I cannot imagine an act more unofficial than that.

Mr. Bailey: --Justice Scalia, I... I may not... I may not be understanding your point.

I apologize for that.

But if I do... if I do understand it correctly, we are now down the road embarking into a multitude of definitions of what the employer is, while in reality to an employee in the workplace, invariably the employer is that immediate supervisor who, as described in... in Faragher and Ellerth, has the power to make those tangible employment decisions.

And to that employee--

Justice Stevens: May... may I just interrupt there because I want to get one thing clear in mind?

Is it your view that the constructive discharge can only be caused by a person with the authority to take a tangible employment action?

Mr. Bailey: --No.

Justice Stevens: So your argument would apply whether... if it's just coworkers as well as supervisors.

Mr. Bailey: No.

[Laughter]

I... I think... I think it can be both.

I think, as correctly defined by this Court previously, there are certainly situations where by negligence... in fact, the law of constructive discharge across the length and breadth of our country does include the reality that there are circumstances where there's ratification by omission, acquiescence and negligence--

Justice Stevens: Well,--

Mr. Bailey: --of the acts of... I'm sorry.

Justice Stevens: --Let me just put the... a little easier question for you.

To what extent in your view is the... is the... is it relevant that the person who did the harassing conduct has some status, enough authority to impose a tangible employment action?

Is... to what extent is it relevant?

Mr. Bailey: It's... it's relevant to the extent of imputing that responsibility to the broader employer, the supervisor in other words.

It's relevant.

But--

Justice Stevens: And if it's... but if it's not such a person--

Justice Scalia: --But not conclusive.

Right?

Mr. Bailey: --I'm sorry.

Justice Scalia: But not conclusive.

Mr. Bailey: I think in--

Justice Scalia: Just... just one of a whole mishmosh of things that we sort of chuck at the jury.

Mr. Bailey: --Well, I... I think in... as I understand the original question, we're referring to a coworker-induced discharge, let's say, or... or involuntary quitting.

And in that case, Justice Scalia, I... I believe you... you are certainly pointing at something here because the standards of proof factually and perhaps legally are different.

They still go, however, at their core to the conduct and actions of the supervisor.

Now, unquestionably, the supervisor... the supervisor's actions are not authorized by the employer.

Clearly they're not.

The imputation that the Congress made of employer liability for agent actions was a policy consideration goal and this worked, in an effort to balance judgments and to balance realities in the workplace and achieve justice in terms of what is fair if you have that hardworking employer who works very, very arduously at structuring a workplace program and enforces it... not the case here... but enforces it and follows through with it, there should be some recognition, some issue of mitigation.

And under those circumstances, of course, depending upon what the trial court finds and... and depending upon how this Court decides that constructive discharge if it is a tangible employment action, how... what role it plays and what... what the demands or requirements this Court would have in Title VII situations so that... so that... the official act, which the Government would say is not a tangible employment action, in reality has to be.

It's a semantic distinction without a difference.

Justice Ginsburg: Well, I don't follow what you said even in the context of the facts here.

You said it's not the case that there wasn't... that there was in place a good grievance procedure and that she availed herself of whatever she could avail herself of.

I think that's very murky in this case.

She tells one story.

The EEO officer tells another story, and we don't know how grievances have been handled in this workplace, whether it has been effective for other employees in the past.

We just don't... we have... how can you make a judgment one way or another about the effectiveness of this grievance procedure on the basis of the evidence that's now in the record?

Mr. Bailey: Justice Ginsburg, you are correct in the sense that the facts of the record reflect that the employee, Nancy Suders, went to the... the top dog in the Pennsylvania State Police in the affirmative action and discriminatory area, as a result of education she received on a test... in a seminar taught by that person and because she could not locate an appropriate form.

Now, technically speaking... technically speaking... and the district court didn't even get into this, but to do fair and honest response to your question, Nancy Suders did not go and acquire the exact form.

She could not find it.

She couldn't locate it.

It wasn't posted.

The record will indicate that in fact Nancy Drew Suders did complain.

That complain found... complaint found its way to the bureau of... of the IAD, you know, where they... they look at professional responsibility.

She didn't have the correct form, quote/unquote, according to the record.

Now, if that's not availing herself... that's a factual determination that has to be made either as part of a... a decision at law by the court as to whether a constructive discharge has been proven.

And I assume in the litigation process at some point the trial judge is going to look at that record, is going to look at what is presented.

They're going to be considered... considering points of charge and a motion by the defendant to... to be given permission to present an affirmative defense.

To go back to what the Government even admits, in many circumstances... and to questions that were raised by... by other Justices here, in many circumstances the... there will be no affirmative defense available because the constructive discharge will have been proven.

Now, in this particular case, in the facts in this case, Nancy Drew Suders... and I think this is what offended the sensibilities of the Third Circuit, and... and... and the Third Circuit said that even--

Chief Justice Rehnquist: Are you suggesting that the Third Circuit decided the case the way it did because its sensibilities were offended?

Mr. Bailey: --Legal sensibilities, Justice Rehnquist... Chief Justice Rehnquist.

Justice Kennedy: That's as hard to figure out as constructive discharge.

Unknown Speaker: [Laughter]

Mr. Bailey: Well--

Justice Kennedy: But it... it--

Mr. Bailey: --Justice Kennedy--

Justice Kennedy: --It seems to me that... that both sides point the finger at the other and say you're using labels.

Your... your brief says a constructive discharge is a tangible employment action.

And I... and I assume you argue that there's no affirmative defense.

Mr. Bailey: --Yes.

Justice Kennedy: So the... the label is of... of immense importance.

Mr. Bailey: Yes, it is.

The label... and... and you made reference in earlier arguments this issue of label--

Justice Kennedy: Depending on... depending--

Mr. Bailey: --legal labels--

Justice Kennedy: --The... the question is, what does it consist of?

Mr. Bailey: --Well--

Justice O'Connor: But you're very unclear on what the employee has to prove to establish constructive discharge.

It's very vague to me what it is you say the employee has to prove with regard to the availability or lack thereof of employer remedies.

Mr. Bailey: --Well, it's an objective person test.

The employee has got to prove that the harassment was so intense and intolerable--

Justice O'Connor: As to remedies available by the employer, it is unclear to me what position you take on what the employee has to prove.

That the employer had no remedial scheme in place or what is it?

Mr. Bailey: --I... I believe that the remedial scheme is not relevant for two reasons.

The remedial scheme is not relevant because the employee cannot avail themselves of the procedures in a procedural due process sense of a in-place employer remedial scheme because they are, in the case of a formal discharge, fired, in the case of a constructive discharge, precluded because they are really fired.

Formal discharge equals constructive discharge equals official act.

Justice Breyer: I'm sorry.

I don't understand that part.

Mr. Bailey: Yes.

Justice Breyer: The part I don't understand is when you say they are precluded from using a... a corrective opportunity, a preventive or corrective opportunity because they have been fired.

I think... doesn't that beg the question?

Imagine an employer who has notices in print 4 inches, black print all over the place pasted.

If anyone here creates a hostile work environment, threatens you in any way, does anything, I want you to phone this emergency number immediately 24 hours a day, and we will correct it.

And... and the... the employee, who is totally not blind, in fact teaches a class that that's what they're supposed to do--

Unknown Speaker: [Laughter]

Justice Breyer: --and now is subject to terrible harassment, but does not avail herself of those procedures for no understandable reason.

Has that employee made out a claim of constructive discharge?

Of course, I think obviously, the answer is no, she hasn't.

Now I want to know what you think.

Unknown Speaker: [Laughter]

Mr. Bailey: I... I believe that you are correct, Your Honor.

You're correct. [Laughter]

Justice Breyer: All right.

Now, fine.

Now, and if I am correct, if you believe I am correct--

Mr. Bailey: And that's--

Justice Breyer: --doesn't the argument in this case simply disappear?

Because all you have to say is there is no constructive discharge as long as there was a preventive or corrective opportunity in place and the employee was unreasonable in failing to take advantage thereof.

Mr. Bailey: --I... I--

Justice Breyer: So if the employee was reasonable in not taking advantage, she's constructively discharged.

But if she's unreasonable, she is not.

Mr. Bailey: --I... I... that part is correct.

I... I believe your--

Justice Breyer: That's the whole thing.

Mr. Bailey: --Well, I believe your analysis is erroneous until when what is brought into what's actually going to occur is an application of the reasonable person standard.

Your hypothetical quite clearly would put a horrendous burden on an employee unless perhaps that employee is so traumatized, they don't have any faith in those great big 4-inch black letters.

Justice Breyer: Fine, and if the traumatized employee by the judge or jury is determined to have been reasonable, she wins.

But if she's unreasonable, she loses like any other reasonable person test in the law.

What's the problem with that?

Mr. Bailey: Assuming that what has occurred in that process is we've reached a hiatus where the employee has either proven the constructive discharge, the issue then becomes what the issue in this case is.

The affirmative defense is then not available.

We've reached the same conclusion.

Justice Breyer: Yes, of course, I'm saying the affirmative defense is not available because there's no need for it.

That's what we've been talking about, I thought, the last half hour.

Mr. Bailey: Your Honor, I don't disagree with that.

Justice Breyer: Now, do you win this case, by the way?

Because the... the Third Circuit seemed to say, as I read it, that in not taking advantage of the available opportunities, your client was reasonable.

In other words--

Mr. Bailey: My... my client's actions were reasonable.

Justice Breyer: --Is that what the Third Circuit said?

Mr. Bailey: That was the Third Circuit conclusion, that my client indeed did act reasonable or... or at very best, when the district court granted summary judgment, there was a disputed material fact as to whether or not there was a plan that was in effect and Nancy Drew Suders took advantage of it.

And then the court--

Justice Kennedy: Well, if that's true... if that's true, the case has to go back.

Mr. Bailey: --I disagree.

I... I was going to conclude, if... if I may, Justice Kennedy.

Then the court says... and they use the word... let's look at the last day.

If there's any question, let's look at the last day.

And if we look at the last day, Nancy Drew Suders is brought in.

The bathroom, the toilet seat, the handle, everything is dusted with stuff... powder.

Her test results are taken.

They're stuffed in the lingerie drawer.

Nancy Suders happens to find them.

They set the room up, and Nancy Suders is brought in and her hands are photographed and she's read her rights.

And she's called a thief repeatedly and she's told she can't leave.

And then finally, hands shaking, having drafted a resignation letter, she presents it.

So until the last day, which is where the hypothetical I was left with ended, it might be arguable that Nancy Drew Suders... if we want to craft a rule which says... and we... and if it's possible to do... which says there is some point in time where the burden arises for the employee to take a countermeasure or counteraction, when is that?

How do we do that?

How can we craft a general rule that way?

Justice Kennedy: Just like you always do in the law.

It's a question of reasonableness.

Mr. Bailey: I... I agree.

And in this case Nancy Drew Suders did every conceivable thing that an employee could do, including contacting the head of the affirmative action in the department--

Justice Ginsburg: But as I tried to suggest before, Nancy Drew Suders and the head of the equal employment gave different versions of what happened in the... in the only encounter that those two had, which was very far down the road.

So is it... if... if the system works, if there's ample notification of it... because she went... the first... the first episode Suders says, I think I may need your help.

Nothing specific at all about what's going on.

And then very far down the road... one question is did she complain too late.

What would have happened?

How would this... how can she say constructive discharge or anything if, had she been diligent about complaining, maybe none of this would have happened?

Mr. Bailey: --Well, the facts in the case would indicate that she complained not only to Virginia Smith-Elliot who blew her off... by the way, she only worked there for 5 months.

She complained to a State Senator.

She did everything.

She went looking for help.

She was frightened.

She could do nothing at this rural barracks at this station.

The issue then becomes, in terms of... of if... if we're looking at her actions in terms... in a context of did she take... did she assume that employee burden of reasonably responding, putting all of those things together, that's where the Third Circuit I think correctly analyzed that there... that that Nancy Drew Suders acted reasonably.

She was subjected to horrendous conditions at work.

She did go elsewhere to complain.

She complained to Virginia Smith-Elliot.

It's... the difference is that Virginia Smith-Elliot said that Nancy Drew Suders complained about age and a number of different complaints that were being... or... or mistreatments she was suffering, but that she did not raise sexual harassment as an issue.

That, indeed, is ironic on the record when you look at these--

Rebuttal of John George Knorr, III

Chief Justice Rehnquist: Thank you, Mr. Bailey.

Mr. Knorr, you have 2 minutes remaining.

Mr. Knorr: If it were really true that to prove a constructive discharge and a central element of that proof would be that the employee either invoked a remedial process or reasonably failed to do so, if that were required as an element of constructive discharge, that would go a very long way toward meeting our concerns in this case.

That is not, however, the current state of the law, at least not in all jurisdictions.

That is really the only point I wanted to reemphasize on rebuttal--

Justice Scalia: You... you would find it acceptable that she didn't do it because they threatened to kill her and... right?

That's certainly reasonable basis not for filing a complaint, and that... that would attribute the whole thing to the employer.

Mr. Knorr: --Justice Scalia, that I wouldn't say is acceptable to us, but that problem--

Justice Scalia: You could live with it.

Mr. Knorr: --That problem--

Justice Scalia: It's not very logical, though, is it?

Mr. Knorr: --It is a problem that inheres in the Ellerth-Faragher affirmative defense from the beginning, and we have taken that defense as we found it.

I... I agree that it is not entirely satisfactory to us, but that is where we are.

Chief Justice Rehnquist: Thank you, Mr. Knorr.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Desert Palace, Inc. v. Costa - Oral Argument

Fri, 09 Jan 2009 14:50:41 +0000

Case:

Desert Palace, Inc. v. Costa

Media File:

02-679_20030421-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Mark J. Ricciardi

Chief Justice Rehnquist: We'll hear argument next in No. 02-679, the Desert Palace, doing business as Caesars Palace Hotel, v. Costa.

Mr. Ricciardi.

Am I pronouncing your name correctly?

Mr. Ricciardi: It's Ricciardi, sir.

Chief Justice Rehnquist: Mr. Ricciardi.

Mr. Ricciardi: Mr. Chief Justice, and may it please the Court:

This case involves the extraordinary situation in the law where the burden of proof is shifted to a defendant.

Courts have recognized this type of burden shift in certain limited situations, certain torts, and in 1989 this Court recognized that burden shift in Title VII cases.

We are here today because the court below has held and the respondent argues that the Civil Rights Act Amendment of 1991 shifts the burden of proof to the defendant in virtually all Title VII disparate treatment cases.

That conclusion does not follow from the text of the Civil Rights Act, nor does it make sense based on this Court's history of fashioning the orderly presentation of proof in Title VII cases.

The Civil Rights Act of 1991 was passed in part as a response to certain decisions of this Court.

One of those decisions was Price Waterhouse v. Hopkins where the Court recognized that in certain limited situations in a Title VII disparate treatment case, when the plaintiff presents direct evidence of an unlawful motive that was actually relied upon in making a decision, the burden of causation then shifts to the defendant.

The Price Waterhouse mixed-motive framework applies to a narrow subset of cases.

The Court recognized early on in Title VII that most of these cases will be circumstantial evidence cases, and as a way to deal with that, the McDonnell Douglas case set up a framework for considering the vast majority of those cases.

In the few cases where there is direct evidence of illegal animus tied to an employment decision, the Court said that the defendant must now prove that it would have made the same decision either way.

Chief Justice Rehnquist: And what is your definition of direct evidence, Mr. Ricciardi?

Mr. Ricciardi: There's two definitions that we've briefed, Your Honor.

Both of them I think are helpful.

The first one is quoted in the SG's brief at page 26, and that's from the EEOC guidance.

And I'll read that.

Any written or verbal policy or statement made by a respondent or a respondent official that on its face demonstrates a bias against a protected group and is linked to the complained-of adverse action.

We proposed, Your Honor, in our blue brief a slightly different formulation, but I believe it gets you to the same place.

On page 41 of our blue brief, borrowing from the First Circuit Febres case, a three-part test which we think gets you to the same place.

The first is there has to be a statement by a decisionmaker; second, that directly reflects the alleged animus; and third, that it bears squarely on the contested employment decision.

Justice Scalia: The first... the first of those three is... goes beyond what the... what the Government... the EEOC guideline would require, doesn't it?

As I understand the EEOC guideline, it doesn't require that... that the indication come from a decisionmaker.

Mr. Ricciardi: You're correct, Your Honor.

The words of the EEOC are the respondent or respondent official.

Yes, so it does go a bit beyond.

I... I--

Justice Scalia: Although the fact that it has to bear upon the decision, it's hard to get there without--

Mr. Ricciardi: --Well, I think--

Justice Scalia: --pinning it on a decisionmaker somehow.

Mr. Ricciardi: --What could be contemplated I guess is a respondent official, who's maybe even higher than the decisionmaker, makes the statement.

Justice Scalia: Yes.

Mr. Ricciardi: The Civil Rights Act of 1991 sets out a new section, and we've set it out in appendix A.

Chief Justice Rehnquist: Of your brief?

Mr. Ricciardi: Of the brief, of the blue brief, Your Honor.

It sets out 42 U.S.C. 2000e-2(m), which was 107(a) of the Civil Rights Act.

And that described that an unlawful employment practice would be established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice.

And then this is the key language: even though other factors also motivated the practice.

This indicates that Congress intended for there to be the distinction, recognized in Price Waterhouse, between the standard McDonnell Douglas pretext case, which you prove under 2000e-2(a), and the mixed-motive case which was first recognized in Price Waterhouse.

The second part of the text that evidences this distinction is section 107(b) of the Civil Rights Act which is codified there in that same place at 2000e-5(g)(2)(B), and that talks about where an individual proves a violation under 2(m) that... and where the employer does not succeed in proving... excuse me... where the employer does succeed in proving the affirmative defense, then in that case the plaintiff is entitled only to declaratory relief, injunctive relief, and attorneys' fees demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m).

Justice Ginsburg: Mr. Ricciardi, would that demonstration by the defendant also have to be made by direct evidence?

The words Congress used is the same.

One is respondent demonstrates, and the other is the plaintiff demonstrates.

Mr. Ricciardi: The word demonstrate is used twice, Your Honor, but I do not agree that the respondent or the defendant or the employer has any heightened standard.

And the reason I say that is because in order to interpret the burdens of proof, this Court historically looks at background principles.

And when we look at this statute, using the Court's background principles of McDonnell Douglas for the standard pretext case and Price Waterhouse for the standard mixed-motive case, there's no heightened evidentiary standard for the respondent or the employer.

Justice Ginsburg: Well, the question whether there is, you would be suggesting a rule that, as far as I know, is alien to our law, that is, to make a distinction between direct evidence and circumstantial evidence.

You can have direct evidence by a liar and you can have highly convincing circumstantial evidence.

So why would the law in this one area make a distinction that, as far as I know, is not made elsewhere?

Mr. Ricciardi: Your Honor, I believe the distinction is made because the shifting of the burden to the defendant in employment cases is an unusual thing.

It does not happen in other areas of the law.

Courts need a bright line rule in order to--

Justice Scalia: It is... it is unquestionably... it was unquestionably made in Price Waterhouse, wasn't it?

Mr. Ricciardi: --Absolutely, Your Honor.

Justice Scalia: I mean, that's what it said.

Mr. Ricciardi: Price Waterhouse--

Justice Ginsburg: What... what was it... the it that was said in Price Waterhouse?

Not in the... not in the plurality opinion.

The direct evidence rule doesn't come out of a plurality--

Justice Scalia: --Concurring opinion.

Mr. Ricciardi: --Well--

Justice O'Connor: It came out of a concurring opinion that bore my name, did it not?

Unknown Speaker: [Laughter]

Mr. Ricciardi: --That is correct, Your Honor.

Justice O'Connor: Yes.

And I don't think it appeared in the plurality opinion, nor in Justice White's concurring opinion, did it?

Mr. Ricciardi: No, it did not, Your Honor.

What I believe the--

Justice O'Connor: I know a number of courts have followed it, but I... it's hard to extract a... a rule under those circumstances.

Mr. Ricciardi: --I... I--

Justice O'Connor: Congress, in making its amendments in 1991, did not mention anything about direct evidence, did it?

Mr. Ricciardi: --No, it did not, Your Honor.

And... and I think there are two things that... that we have to look at.

One of them is the plurality opinion did in... in note 13 state that... that its formulation was not meaningfully different from Justice O'Connor's concurrence.

For what... for what that's worth, that's there.

And another way I think to look at the direct evidence picture is that six Justices of the Supreme Court all found that the facts in Price Waterhouse were sufficient to have a mixed-motive burden shift.

Justice Breyer: Fine.

So that's what I took the statement... I mean, far be it from me to characterize somebody else's opinion, but I thought the statement was simply saying, and here this is an added feature that shows how right the majority is and that's true in that case, but what is there that suggests that it's not just an added feature showing the majority was right in that case, but that you have to have it and can't have anything that isn't direct evidence.

Mr. Ricciardi: Well, Your Honor, I think--

Justice Breyer: Where does it say that?

Mr. Ricciardi: --I think we get that from going back to background principles.

The McDonnell Douglas decision, which has still been followed and has been referred to by this Court, is the rubric that's used for circumstantial evidence cases.

Justice Breyer: Then I probably am unclear about it.

What I thought happened is that Price... that McDonnell Douglas governs a circumstance where a plaintiff puts on a case, however he puts it on.

Once you show the McDonnell Douglas factors, you can get to the jury unless, of course, the defendant puts something on.

And once the defendant puts something on, McDonnell Douglas bursts and goes away.

Now, am I right about that or not?

Mr. Ricciardi: That is correct, Your Honor.

And the plaintiff--

Justice Breyer: All right.

Then... then I don't see what McDonnell Douglas has to do with this because I would think 90 percent of the cases in which there is a mixed motive are going to come up because the defendant will say, I did it for a different reason, and the plaintiff will come back and say, you did it for both reasons.

So I think in 90 percent of the cases, we're not going to have any McDonnell Douglas involved.

Mr. Ricciardi: --I... I--

Justice Breyer: It will just be... am I right or not?

Mr. Ricciardi: --I... I don't agree with that, Your Honor.

The reason is because in... if you look at the facts on the classic mixed-motive cases... Mt.

Healthy, for example, and... and that was a case specifically relied upon in Justice White's concurrence.

There we had a school district in a written letter making an admission, yes, we considered the illegal aspect of your First Amendment rights.

And then we have Price Waterhouse where, on the facts it's uncontested that the written evaluations by those partners, which were relied upon by the policy board, used sexual stereotypes.

Justice Breyer: Did... did the defendants in those two cases put on any evidence?

Mr. Ricciardi: I would... I would imagine they absolutely did, Your Honor.

Justice Breyer: Yes, so do I. So neither of those cases does McDonnell Douglas have to do with anything, because they aren't involved in the case I gather, if I'm right, once the defendant put on some evidence.

Mr. Ricciardi: That is correct, Your Honor.

Justice Breyer: All right.

So my question really is since McDonnell Douglas doesn't have much to do with the cases in which mixed motive comes up, why does... why are you talking about McDonnell Douglas?

What has McDonnell Douglas to do with the background rule?

Why isn't the background rule just... well, what your opponents are saying?

Mr. Ricciardi: Well, because, Your Honor, the backgrounds rule enables us to deal with the cases where there is not direct evidence of the illegal motivation, and those cases will be rare.

And if you look at Mt.

Healthy and if you look at the facts... Price Waterhouse facts, in the concurrence by Justice O'Connor in Price Waterhouse, it says, the employer has created uncertainty as to causation by knowingly giving substantial weight to an impermissible criteria.

I believe these cases will be few and far between where you--

Justice Ginsburg: Mr. Ricciardi, can we go back to the background, which I find very difficult to understand because if an elevated proof standard is wanted, then courts not uncommonly will say, we will require you to prove something by more than a mere preponderance.

We will require you to prove this by clear and convincing evidence.

Then I can understand.

But a line between direct evidence and circumstantial evidence... is there any other area where direct evidence counts for more than substantial evidence just by virtue of being direct?

Mr. Ricciardi: --I have not uncovered ones, Your Honor.

I think that is what the Court in Price Waterhouse was faced with, and I think it's a bright line rule that would give our trial judges the ability--

Justice Ginsburg: Then how do you get it out of Price Waterhouse when it's in the opinion, as Justice O'Connor said?

Her opinion.

There were four people who didn't say direct evidence.

There was Justice White who said a substantial factor, but didn't say direct evidence.

That's a lot to load on two words in a concurring opinion.

Mr. Ricciardi: --Well, Your Honor, unfortunately because of the fractured opinions there, we have had to rely on, besides the actual words on the page, we had to rely on, what... the way the circuits have read the case... and they have all consistently... almost all consistently read it as having a heightened evidentiary standard and--

Justice Ginsburg: Well, wouldn't heightened ordinarily be clear and convincing evidence, whether direct or circumstantial?

Mr. Ricciardi: --Your Honor, it might ordinarily, but I believe in employment cases it's very difficult to do.

In employment cases we have stray remarks, we have rumors, we have maybe documents that are--

Justice Souter: Sure.

But doesn't... doesn't a standard like clear and convincing address that kind of problem?

If all you have are stray remarks that, you know, cannot be taken as company policy, et cetera, then you're going to have a hard time getting to the clear and convincing standard.

I don't see why the... the quality of evidence, direct or indirect, is... is necessary to address that problem as opposed to the... to the quantum of proof, clear and convincing versus preponderance.

Mr. Ricciardi: --Your Honor, I think that you're putting too much weight on the shoulders of the trial judges.

In our case, our trial judge was convinced that there was direct evidence, and he was sifting through what we believed amounted to nothing more than a pile of circumstantial evidence.

And I think had he had the guidance of the bright line rule, it would have been easier for him.

Justice Breyer: Can you explain to me... and you're the expert on this, I'm not.

You try a lot of these cases.

When I look at it, being naive in this area, since I'm not trying a lot of them, I think, well, this... this seems to make perfectly good sense.

A plaintiff comes in and has to show that the bad motive was a motivating factor.

Well, once the plaintiff has shown that, why shouldn't the plaintiff win?

And if, by the way, the defendant can come in and show that she would have been fired anyway because she was a bad typist, well, then maybe he shouldn't have to pay damages.

Mr. Ricciardi: Your Honor, going back to the text of the statute, 2(m) defined the plaintiff's duty as showing that the illegal criteria was a motivating factor.

But the vast majority of cases fall under 2(a)(1) where the plaintiff must show that he or she was discriminated against because of sex, gender, race, whatever.

So that is a but for standard in 2(a), which means that the plaintiff has to carry the ball all the way across the goal line, does not shift the burden of proof to the defendant.

Justice Souter: But the burden of proof that... that you keep referring to, in effect, is the burden of proof for what under the statutory scheme is... is a partial affirmative defense.

What is remarkable about saying if you... if you want to claim a partial affirmative defense, you have the burden of proof on it?

You always have the burden of proof on an affirmative defense.

Mr. Ricciardi: Well, what makes this extraordinary, Your Honor, is that under 2(m), the plaintiff never has to prove that what this defendant did caused this injury.

The but for is in 2(a), but in 2(m), the plaintiff can say--

Justice Souter: 2(m) is addressing something else.

2(m) is... is addressing what happens if, in fact, a... a defendant wants to raise an affirmative defense, a partial affirmative defense.

That's all it addresses.

Mr. Ricciardi: --Your Honor, I believe--

Justice Souter: Well, it isn't all it... I mean, it addresses the sufficiency of... of liability, and then it goes on to address the... the affirmative defense.

Mr. Ricciardi: --Well, Your Honor, my response to that is I believe that the Civil Rights Act incorporated 2(m) as a direct response and a partial codification of the Price Waterhouse decision because there was no burden shift under Title VII until Price Waterhouse created it.

Justice Scalia: When that was enacted, was there already a considerable body of court of appeals opinions which had interpreted Price Waterhouse as establishing the direct evidence rule, or did they come later?

Mr. Ricciardi: Your Honor, I believe these are cited in the... in the SG's brief, and I believe there were five circuit courts that had, between Price Waterhouse and the Civil Rights Act, recognized that.

Your Honor, may I reserve?

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Yes, Mr. Ricciardi.

Unknown Speaker: We'll hear from Mr. Gornstein.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

Since 1964, Title VII's disparate treatment prohibition has required a finding that a protected characteristic such as gender was a but for cause of an adverse employment decision.

Now, the '91 amendments create a special rule of liability for mixed-motive cases where proof of but for cause is not required.

To qualify for--

Justice O'Connor: How do we know that those amendments apply only to mixed-motive cases?

The language in the statute Congress passed is pretty broad.

Mr. Gornstein: --It... the--

Justice O'Connor: And in theory, it could apply across the board.

Mr. Gornstein: --The text that says, even though other factors also motivated the practice, make clear that the amendment only applies to mixed-motive cases.

It doesn't say, even if, which would be regardless of whether, but it says, even though, which means the factors were present, but that it doesn't matter.

And so the text makes clear that it applies only to mixed-motive cases, but it doesn't address--

Justice Stevens: Well, the text makes clear that the exception does, but why does 2(m) not apply to all cases?

Mr. Gornstein: --2(m) says, even though other factors also motivated the... the practice.

That's what 2(m) says.

And that... that limits it to mixed-motive cases.

Justice Stevens: It says whether or not they... other factors motivate it.

Mr. Gornstein: No.

If it... if it was whether or not, it would be even if.

Even though means the factors were present.

Other factors were present, but it doesn't matter under this statute that they were.

Now, the text of the law doesn't address what kind of evidence is sufficient to make out a mixed-motive case, and it leaves that to resolution through background principles as Congress typically does.

Congress typically does not address what kind of evidence is sufficient.

And the key and most relevant and pertinent background principle here was that before the amendment, direct evidence was required to make out a mixed-motive case.

Justice Souter: Do you say that because that's the way a lot of court of appeals determined, or do you think that was a necessity by virtue of the split in the opinions on this Court?

Mr. Gornstein: Two sources for that, Justice Souter.

One is the court of appeals' decisions, and there were five between the time of Price Waterhouse and the time of the '91 amendments, and that formed an important part of the backdrop against which Congress--

Justice Ginsburg: Were those... were those opinions based on the reading of this Court as depending upon Justice O'Connor's opinion where those words were used?

Mr. Gornstein: --I... I would--

Justice Ginsburg: Or did the courts independently create a distinction between direct and substantial evidence?

Mr. Gornstein: --I think that those two... those cases, for the most part, were trying to reconcile this Court's decisions in McDonnell Douglas with Price Waterhouse, and that's exactly the first source for where we would get the background rule as well.

Justice Ginsburg: Well, then would you tell me--

Justice Breyer: --Why would you have that background?

Justice Ginsburg: --why would the court... if that's what it was trying to do, why would it resort to something as extraordinary... now that we no longer have formal rules of evidence, like you need two witnesses to prove A and three witnesses to prove B, why would it resort to that kind of distinction between direct and circumstantial rather than a heightened burden expressed as clear and convincing?

Mr. Gornstein: Because it was trying to be... they were trying to be faithful to this Court's decisions in McDonnell Douglas and Price Waterhouse.

And let me explain how those two decisions fit together because in... in Price Waterhouse, there was direct evidence, and six Justices said that was sufficient to shift the burden of proof.

Now, no opinion expressly stated that something other than that would be sufficient to shift the burden of proof.

Justice Souter: But only one stated that it was necessary as well as sufficient.

Mr. Gornstein: That's correct.

Justice Souter: So you had five that did not say it was necessary as well as sufficient.

Mr. Gornstein: That's correct.

And five did not say that it would... that anything less would be sufficient, however, and that issue is resolved by McDonnell Douglas and... and that line of cases.

And what McDonnell Douglas and that line of cases say is that in a purely circumstantial evident case... evidence case... the plaintiff has a very light burden at the outset, but that once the employer comes back and puts on a nondiscriminatory explanation, the plaintiff has to carry the burden of proof all the way to showing pretext and but for causation.

The plaintiff under the McDonnell Douglas line of cases has to show but for causation.

So when you put the two decisions together, Price Waterhouse and McDonnell Douglas, the rule that emerges is in... to get into the Price Waterhouse box, where you get a shift in the burden of proof, you need direct evidence.

Justice Stevens: Are there cases in which a motivating factor is not but for causation when it's not a mixed-motive case?

Mr. Gornstein: It... it's a mixed-motive case where it's not a but for factor.

That's correct.

Justice Stevens: No.

I'm asking the other... the converse of that.

If there was no second motive, but merely there's evidence of... of a motivating factor, period, isn't that enough?

Mr. Gornstein: No.

If it's... if it's the sole motive, then it would be a violation under 2000e-2(a)(1).

That would be a--

Justice Stevens: Would it also not be a violation of this statute?

Mr. Gornstein: --No, because 2000e-2(m) is designed just for cases where there's more than one motive.

Justice Stevens: It's designed to create a special defense and a special remedy, but it doesn't say anything about what it takes to prove the case, does it?

Mr. Gornstein: It leaves that to background principles.

And as I was saying, that's the background principle.

The second point that's very crucial here is that if there's not a direct evidence requirement, Justice Stevens, the result would be that you are going to effectively render superfluous 2000e-2(1) which up until now has been the principal safeguard against discrimination, and the reason is that 2000e-2(a)(1) requires proof of but for cause.

2000e-2(m) requires proof--

Justice Stevens: But I... I still... maybe I'm just stupid, but I don't understand the difference between a but for cause and a motivating factor that is not part of a mixed-motive case.

Mr. Gornstein: --If it's just--

Justice Stevens: If... if the only motivating... if there's a motivating factor and there's nothing else, isn't that but for causation?

Mr. Gornstein: --It... certainly it is--

Justice Breyer: And so is it if you have two, isn't it?

Mr. Gornstein: --2000e-2(a)(1) but not... it doesn't apply where cases where it's not a but for cause.

That's what--

Justice Breyer: Why not?

In... in law school, in my first year in torts, I learned that there's an odd case where you have two hunters shooting at the same person.

Now, in both cases, you know, they're not actually literally but for conditions, but they fall within the word because.

My torts teacher used to call them co-causal conditions.

Mr. Gornstein: --Well--

Justice Breyer: So I'm amazed that you're reading because, contrary to all tort law--

Mr. Gornstein: --No.

Justice Breyer: --to mean that if you have the co-causal condition, which happens to be two motives here, not two hunters, that it wouldn't fall within the beginning.

Mr. Gornstein: No.

That... that's a special case, Justice Breyer.

Justice Breyer: Yes, it is.

Mr. Gornstein: And... and the ordinary rule is that you have to show that it's but for cause, and the Court said as much in--

Justice Breyer: All right, but it's a special case we're dealing with where you have two hunters... I'm sorry... two motives.

And so in that unusual two-hunter/two-motive case, what the Congress did was write 2(m) to tell you treat it okay for liability, but don't award damages.

Now, where am I wrong in that analysis?

Mr. Gornstein: --The... the key point that you're missing there is that if you interpret 2000e-2(m) in that way, you would be rendering superfluous 2000e-2(a)(1) which requires but for cause by virtue of the because of language.

And if... if under the... that's because in order to show a violation, a plaintiff would only have to show motivating factor, not but for cause.

It would render... no plaintiff would ever seek to prove a 2000e-2(a) case.

They'd always seek to prove a 2000e-2(m) case.

And the result would be that what up until now has been the principal safeguard in literally thousands of cases under Title VII would be translated... transformed into something that is almost completely obsolete, and there's just nothing to indicate that Congress intended to so radically change the fabric of Title VII law.

And what we have is a much more modest adjustment.

Justice Stevens: Would it be a radical change in our law if we said that instead of direct evidence, it's clear and convincing evidence?

Mr. Gornstein: That would be a very big change in this Court's law if... if this Court said that because this Court has already said, under Title VII, the background understanding is more likely than not, and that's what the plaintiff has to show.

And so the way to look at this amendment is not as a very fundamental change in the basic fabric of Title VII law, but a response to a particular decision.

That's what Congress was responding to.

And if you'll recall in that case, there was direct evidence.

An employer basically admitted that it had taken gender into account, and then the Court said, well, the employer can get out from all liability by showing absence of but... but for cause.

And Congress responded to that particular decision in doing that.

But that didn't mean that Congress thereafter went on to undertake a complete reexamination of the law.

It left it where it was, and where it was is in purely circumstantial evidence cases, under McDonnell Douglas, once the employer introduces a nondiscriminatory explanation, the plaintiff has to carry the burden of proof of showing pretext and but for cause.

If the Court has nothing further.

Argument of Robert N. Peccole

Chief Justice Rehnquist: Thank you, Mr. Gornstein.

Mr. Peccole, we'll hear from you.

Mr. Peccole: Mr. Chief Justice, and may it please the Court:

This case, at the very middle of it, when we're trying to settle instructions, the parties involved agreed to instructions 1 through 9.

Instruction number 9 to the jury was, in fact, the 107(a) instruction.

It read... and this jury instruction is found at the joint appendix 32 and 33.

It read, the plaintiff has the burden of proving each of the following by a preponderance of the evidence.

One, Costa suffered adverse work conditions, and two, Costa's gender was a motivating factor in any such work conditions imposed upon her.

Gender refers to the quality of being male or female.

If you find that each of these things has been proved against a defendant, your verdict should be for the plaintiff and against the defendant.

On the other hand, if any of these things has not been proved against a defendant, your verdict should be for the defendant.

What I'm trying to point out is the parties at that point and at that juncture had agreed that this definitely was a 107(a) case and it would go to the jury as such.

The only objection that Caesars had to instructions was instruction number 10, and instruction number 10 was the same action defense that aids Caesars in the fact that it actually cuts down the type of damages that can be awarded.

In fact, monetary damages cannot be awarded.

That instruction aided Caesars and in no event is it easy for them to now come before this Court and say they were harmed by the fact that that instruction was given.

I would point out that this is similar to the Reeves case, and the reason that it is similar is in Reeves, the parties in that case had basically agreed that the McDonnell Douglas framework would be used, and this Court said since that seems to be the position of the parties, we'll accept that.

Well, I would submit that the same thing occurred in this case.

The parties agreed that this is a 107(a) case, and that's... that's the way it was presented to the jury.

Reading 703(m), which is Title VII 200e-2(m)... and that's found at the respondent's brief, page 9... the section specifically states, except as otherwise provided in this title, an unlawful employment practice is established when a complaining party demonstrates a race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

That's stating any employment practice that... that takes into consideration any of the things listed, and in this case, it was gender.

So it was a gender-motivated case.

I would point out that when we look at this statute, it talks in terms of a plaintiff having to demonstrate, and the plaintiff under that terminology merely had to show and bear the burden of showing a case which actually would indicate that gender was a motivating factor.

In the case that was presented to the jury, there was absolutely no question that Ms. Costa showed a case every bit as strong as the case and the facts that were found in Price Waterhouse.

Reference does not have to be made to Price Waterhouse.

The statute itself does not talk in terms of any heightened burden placed on the plaintiff, nor does it talk in terms of substantial evidence.

It goes right to what it says on its face that a plaintiff merely has to demonstrate.

Justice Scalia: And what do you... what do you respond to the argument made by the Government if... that if that is what it means and if it does not embody the understood requirement of direct evidence, it effectively supplants (a)(1).

It... nobody would... would try to prove a case under (a)(1), which is what has been the traditional approach.

Mr. Peccole: In our brief, Your Honor, we... we actually took the position that the language in 703(m) does, in fact, supplant the language in 701(a).

Justice Scalia: So you... you accept that argument.

Mr. Peccole: 703(a).

Excuse me.

But--

Unknown Speaker: Well, that's a massive change in... in--

Mr. Peccole: --I... I would like to maybe--

Unknown Speaker: --I mean, it just shifts the burden to the employer to prove nondiscrimination effectively.

That's a... that's a very big change.

Mr. Peccole: --I would like to backtrack just a little bit on that.

I think there's an explanation necessary.

It has to be more detailed.

In the Price Waterhouse case, the plurality actually had said, first of all, the motivating factor was the... the motive involved.

The plurality also said that the... the words because of, in 703(a), really didn't mean because of.

It said something along the lines that it does not mean solely because of.

That's how the plurality basically got to motivating factor.

The language motivating factor of the plurality ended up in 703(m), and I think you could also say that it... the definition given by the plurality, to because of in 703(a), actually came over into 703(m) too.

Justice Scalia: But they are still contradictory.

I mean, (a)(1) would require in a mixed-motive case... okay... if... if you apply (a)(1) to a mixed-motive case, it would require the plaintiff to show that the... the improper motive was an effective cause and that the employer would not have dismissed this person anyway.

Whereas, if the new 2(m) governs, it's just the opposite.

Once you show an improper motive, it is up to the employer to show that if he wishes to get off, he would have taken the same action anyway.

Unknown Speaker: So I... the... the two are just not... not compatible.

Mr. Peccole: I think the Ninth Circuit's approach is the best.

The Ninth Circuit actually said that if you show a single-motive type case which falls under 703(a), that it goes to the jury as a because of.

There is just absolutely no question that is the better approach.

The other approach is, if there is a mixed motive... and these are decisions that have to be made by the judge before the instructions go to the jury.

If there are mixed motives, then it goes to the jury as a 703(m).

In this case, the mixed motives were there.

It did go to the jury as a 703(m), and it also included the defense that Caesars had available under 706(g)(2)(b).

Justice Ginsburg: And as I understand--

Justice Breyer: --Am I right--

Justice Ginsburg: --as I understand (m), it isn't a question of shifting the burden to the defendant.

The plaintiff wins at that point.

If the plaintiff demonstrates sex is a motivating factor, at that point plaintiff wins.

The affirmative defense doesn't take away the plaintiff's victory.

It just limits the remedy.

So the defendant can't get off the hook.

As (m) is structured, it's not that you're loading on the defendant an extraordinary burden of showing nonliability.

If the plaintiff makes the demonstration that (m) calls for, plaintiff is the winner, and the only thing that... the only function of the defense is to limit the remedy.

That's how I understand--

Mr. Peccole: I... I agree with you wholeheartedly on that.

In fact... and that's what occurred in this case.

If you look at the verdict form, which is at the joint appendix on page 40, you'll see that what happened is the jury was instructed exactly the way you just commented.

If the plaintiff had established by preponderance of an evidence that gender was a motivating factor, then the plaintiff proved its case and should win right then and there.

And if you see, you will find in number 2 of the interrogatories, it asks the question, do you find that the defendant's wrongful treatment of plaintiff was motivated both by gender and lawful reasons?

And the jury marked yes.

But had they marked no, if you look down to the next sentence, it says, if your answer was yes, answer the next question.

If your answer was no, proceed to question number 4, which was the damage section.

Chief Justice Rehnquist: --Well, Mr. Peccole, what is your understanding of the relationship between 2(a)(1) and e-2(m)?

Mr. Peccole: e-2(m), Your Honor?

Let me just--

Chief Justice Rehnquist: The... the one we've been talking about.

Mr. Peccole: --The relationship between the two statutes?

Chief Justice Rehnquist: Between the two sections, yes.

Mr. Peccole: Okay.

First of all, the relationship, if we're talking about 703(m), what... what happens there is the plaintiff--

Chief Justice Rehnquist: Why don't you refer to the statutory numbers that... that are in the... the appendix.

Mr. Peccole: --Yes.

That's... that will be a little bit easier.

Okay.

703(m) is 42 U.S.C. 2000e-2(m).

Chief Justice Rehnquist: Right.

Mr. Peccole: What... what that new statute did is it placed on the burden of the plaintiff to show... and I... and this... this burden never changes.

It never changed with McDonnell Douglas.

It does not change here.

The... the burden is always on the plaintiff to prove by a preponderance of the evidence that gender was a motivating factor.

So what happens is once the plaintiffs have proved that, he's proved his case.

The problem now shifts, and it's... it's an affirmative defense.

It's not a shifting of burdens.

An affirmative defense comes into play under 42 U.S.C. 2000e-5(g)(2)(B) which... which allows the employer to come in and show that if they took the same action, even though there was a gender-motivating factor, then it reduces their damages or the possibility--

Chief Justice Rehnquist: Well, are there any... are there any cases that are covered by e-2(m) that are not covered by 2(a)(1)?

Mr. Peccole: --My answer in that case would have to be that conceivably... the Ninth Circuit did say this, that there are those cases.

The cases are when you have a... a single-motive case.

They got back into the distinction between single and mixed-motive.

If you have a true single-motive case, then it would come under the... the section 703(a) which is 42 2000-2(a)(1).

Justice Breyer: Does it matter?

Justice Stevens: In your view, what... what did Congress accomplish by 703(m), also known as 2000e-2(m)?

Mr. Peccole: I think what they accomplished was, first of all, they clarified Price Waterhouse from the standpoint that there was no heightened burden, no direct evidence burden, no substantial factor burden.

It did that for sure.

The next thing that it did is it... it made it so a plaintiff would bear the burden of having to establish that gender played a motivating factor.

And that is in any employment decision, not just, you know, the very limited type or anything like that.

It says, any employment decision.

And that becomes an unlawful employment action.

Justice Souter: Is... is this correct, that McDonnell Douglas survives on your reading in a case in which the defendant does not go forward with anything?

The plaintiff puts in enough to make a prima facie case.

Defendant sits mute.

McDonnell Douglas controls the result there.

If the defendant does go forward with something at that point... and... and here I'm not sure of this, but I think... by definition, it then becomes a mixed-motive case, doesn't it?

Under (m)?

Mr. Peccole: I believe it does.

Justice Souter: Okay.

Mr. Peccole: I... I think--

Justice Souter: So McDonnell survives in the case of the mute defendant.

In the non-mute defendant, (m) governs everything.

Mr. Peccole: --Let me see if I can answer.

McDonnell Douglas, as has been suggested... it's used at the very preliminary stage of a... of a case.

McDonnell Douglas at some point in that decision then bursts.

It goes away.

And so what you're left with is the 71... or 703(a) and the 703(m).

Now, I'm... here I'm... again I'm relying on what the Ninth Circuit said.

They are still giving McDonnell Douglas cases some deference, but what they are saying in fact is yes, once you're past that stage, basically the 703(m) cases will come into play.

That will be the instructions to the jury.

Justice Breyer: Does it... does it... just for clarifying in my mind, does it matter or doesn't it matter whether you say (m) governs a separate set of cases?

When I came in, I thought the answer to that was no, it doesn't, that e governs every case because the cause can govern the two-motive cases too, and that in (m) Congress was simply clarifying that there could be such cases, and then they go on to say what happens.

But the Government made a very good point and said no, I shouldn't look at it that way and I should look at it as if e governs the single-motive case and then (m) comes in to govern the dual-motive case.

And that was a good argument too.

And so what I'm asking you, who understands this a little better than I do, does it matter?

Mr. Peccole: No.

Justice Breyer: No, it doesn't matter.

That's it.

Chief Justice Rehnquist: Well, how many... what percentage of all these cases, do you think, are single-motive cases?

Mr. Peccole: To guess, I would... I would say probably a vast majority of the cases are.

They're... or not single.

Excuse me.

Those are mixed-motive cases.

Justice Stevens: Well, you don't suggest the defendant always admits liability, do you?

Mr. Peccole: No.

Justice Stevens: If there's only issue about one motive, it's always that the defendant has some kind of defense in every case.

Justice Scalia: If he stands mute, he... he loses.

I mean, under McDonnell Douglas, if the plaintiff comes in with... with a claim that this was the motive and the... and the defendant doesn't come up with anything, he loses, doesn't he?

Mr. Peccole: Yes.

Justice Scalia: So any case that goes forward is a mixed-motive... is a mixed-motive case.

Mr. Peccole: Yes.

Chief Justice Rehnquist: Yes.

Mr. Peccole: Yes.

And... and the only thing... the only time that I could see otherwise would be a... a specific instance where, for example, you have working women in a... in a department.

The employer comes in and says we have to make a layoff because we're... we're in dire straits.

We can't afford it.

They lay off that whole division, and then 2 weeks later they hire a whole male division.

I think that you have the single motive there and... and you... those are the only kind of cases I can think of.

Chief Justice Rehnquist: Yes, they settle, don't they?

Mr. Peccole: Yes.

[Laughter]

I... I would entertain any other further questions.

I think that one... one other point I would like to make is that 703(m) and the way the Ninth Circuit has approached it, has made it simple and easy for the judges to handle, for the trial attorneys to handle, and for the jury to handle through instructions.

It's a... it's a much easier way of handling these type cases.

It... it's like any other civil case basically.

Plaintiff has to come in and show by a preponderance of the evidence that it's entitled to what it's... it's saying it's entitled to, that certain things occurred.

Then the defense can either sit back and say, well, wait a second, you didn't prove your case, or the defense can say, well, maybe there's a motivating factor here.

Even after I presented valid reasons for the termination, for example, then what they'll do is they'll say, well, maybe I want this instruction that limits my damages.

But it... it's a simple structure, and we have got to get to that.

I mean, it is--

Justice Ginsburg: But if you... if you--

Mr. Peccole: --so chaotic out there in the circuits right now, it's just unbelievable.

Justice Ginsburg: --If you were right, Mr. Peccole, about (m) taking over the field so that every case becomes a mixed-motive case, why would Congress have added not even if, but even though other factors also motivated the practice?

Mr. Peccole: I don't think it has anything actually to do with the mixed-motive.

I think what it is... they're saying is even if that... that kind of evidence is present.

In any event, you succeed.

Justice Ginsburg: Well, if they said whether or not, then--

Mr. Peccole: Yes.

Justice Ginsburg: --I would see your point clearly.

But they didn't say whether or not.

They said even though, which seems to assume that two... at least two motivating factors have been shown: one, sex; two, another motive... another even though another motivating factor existed.

Mr. Peccole: I think if you read the any employment practice means any.

And I think what it does is it takes away from that last sentence or phrase.

What it's done is it's basically said any employment practice where you can show that gender, for example, is a motivating factor, you've proven your case.

It doesn't make any difference whether there's other factors present, whether they're legitimate or illegitimate.

Rebuttal of Mark J. Ricciardi

Chief Justice Rehnquist: Thank you, Mr. Peccole.

Mr. Ricciardi, you have 2 minutes left.

Mr. Ricciardi: I'd like to call the Court's attention to the joint appendix, page 17, the middle of the page.

It's the jury instructions colloquy.

The court says, all right, may I hear from the defense?

And I say, yes, Your Honor.

We have no objections to the court's instructions 1 through 9.

I believe this is not a mixed-motive case, and under Price Waterhouse, direct evidence is required.

I should have said 1 through 8.

There's no question about that.

I don't think that's fatal to this appeal for several reasons.

There's no question that the trial judge was on full notice of my position that it was not a... it was not a Price Waterhouse case.

Justice Scalia: You also should have said, I believe this is a mixed-motive case, not I believe this is not, shouldn't you?

You had a bad morning I think.

[Laughter]

Justice Stevens: Did you think it was a mixed-motive case or not?

Mr. Ricciardi: No.

No, Your Honor, it was not.

It was a McDonnell Douglas case.

We should have gotten... if you look back to the actual jury instruction that was given, number 7 on page 32--

Justice Scalia: I see.

Okay.

Mr. Ricciardi: --It was not a Price Waterhouse case.

That's why I'm here today.

I've been living with this for many years.

But jury instruction number 7 was the 2(a)(1) because of language, and the trial judge was on notice from our colloquy on my motion for judgment as a matter of law, which starts on page 15, that I was objecting that the prima facie case hadn't been shown.

There was no jury issue raised to show pretext.

Furthermore, the Ninth Circuit, both the panel and the full en banc court, passed on the propriety of the mixed-motive instruction and never once had any problem with the way I had preserved the objection.

And then finally, in this Court, in the... in the petition for certiorari, we formulated the question, and in the opposition, which I believe is an optional filing, the opposition to the petition for certiorari raises nothing about instruction number 9 or the 2(m) formulation.

And it was only for the very first time in any of these many appeals was it raised in the merits brief.

So I believe--

Chief Justice Rehnquist: Thank you, Mr. Ricciardi.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Pollard v. DuPont - Oral Argument

Fri, 09 Jan 2009 14:50:33 +0000

Case:

Pollard v. DuPont

Media File:

00-763_20010423-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Kathleen L. Caldwell

Chief Justice Rehnquist: We'll hear argument next in Number 00-763, Sharon Pollard v. E.I. Du Pont de Nemours.

Ms. Caldwell.

Mr. Caldwell: Mr. Chief Justice, and may it please the Court--

Congress never intended to include front pay as a type of compensatory damages when it enacted the Civil Rights Act of 1991.

This is made clear by looking at the Act itself, Section 2 of the Act, which provided that the congressional purpose was to provide additional remedies.

This was intended to deter harassment and to prevent intentional discrimination in the workplace, just as in the Vinson case.

This legislation was stated by Congress to be necessary to provide these--

Chief Justice Rehnquist: What about the terms of the legislation itself, rather than what members of Congress might have said about it?

Mr. Caldwell: --All right.

That's the next analysis, Your Honor.

If you look at (a)(1) of the legislation itself, 1981a-(a)(1), it provides that the complaining party... and this is a quote from page 2 of the blue brief.

The complaining party may recover compensatory and punitive damages as allowed in subsection (b), in addition to any relief authorized by Section 706(g).

Now, what that means is that Congress was not enacting--

Chief Justice Rehnquist: This is on page 2 of the blue brief?

Mr. Caldwell: --It's page 1, Your Honor.

Chief Justice Rehnquist: Page 1.

Thank you.

Mr. Caldwell: It starts on page 1 and goes over onto page 2.

What Congress was saying was that we're not changing what the status quo was.

We're adding to it, and they did it very carefully in (a)(1) of the Act.

You then look to (b)(2) of the Act, which is the first part that is pertinent to our analysis.

In this particular part--

Chief Justice Rehnquist: Where is this?

Mr. Caldwell: --Page 2.

Chief Justice Rehnquist: Page 2.

Mr. Caldwell: Where it says, Exclusions from Compensatory Damages.

Compensatory damages awarded under this section shall not include back pay, interest on back pay, or any other type of relief authorized under Section 2000e-5(g) of the Civil Rights Act of 1964, which is the same as 706(g).

Now, what this language specifically says is that we're not disturbing the status quo.

What was available previously is still available.

We're simply adding the supplemental or the additional remedy.

Justice Ginsburg: But, Ms. Caldwell, the status quo that you're talking about is the status quo created by courts, because at no point did the statute use the words front pay.

Mr. Caldwell: That's correct, Your Honor.

Justice Ginsburg: It did use the words back pay.

Mr. Caldwell: It did use the word back pay.

If you look at the original language... and it's provided again on the quote that starts on page 1... the language talks... of the original Act, 706(g), in 1964 provided, and can order such affirmative action as may be appropriate, which might include but is not limited to reinstatement or hiring of employees with or without back pay.

Then in 19--

Chief Justice Rehnquist: Well, then it goes on to say, or any other equitable relief as the court deems appropriate.

Mr. Caldwell: --That's correct.

And that was the language--

Chief Justice Rehnquist: So the question boils down here to whether or not so called front pay is equitable relief, doesn't it, as opposed to damages?

Mr. Caldwell: --The central question for this Court is, what was the intent of Congress?

Chief Justice Rehnquist: We look to the intent of Congress, I suppose, by looking at the laws that it wrote.

Mr. Caldwell: That's right.

And the laws that it wrote in 1972, there was an intent of Congress to provide additional relief to what had been provided under the 1964 Act, and they added the language, or any other equitable relief as the court deems appropriate, clearly discretionary with the court and therefore equitable, Your Honor.

Chief Justice Rehnquist: Do you think a court of equity has ever traditionally awarded damages in the sense of front pay?

That is, you promised to hire me for five years.

I work for the first year.

You fire me for no reason.

I sue you.

I want the balance of what I would have earned in the next four years, minus whatever damages I've mitigated.

To me, that's classical damages awarded by a common law court, not by equity.

Mr. Caldwell: It does sound like straight legal relief, Your Honor, but if you look at specific performance, which is a form of equity, and if the relief that would normally be required of the person, which would be injunctive in nature, is not available for whatever reason, such as the land no longer exists on the market, then relief can be given, which would be equitable, and yet be monetary in nature.

Chief Justice Rehnquist: I thought there was a doctrine where contracts for personal services were not specifically enforceable, Longley against Wagner.

Mr. Caldwell: That's correct, Your Honor.

But I think there is an analogy in equity, in the maximums of equity, which do lend credence to what Congress created, which was a form of equitable relief involving monetary relief, both back pay and later the court created remedy of front pay.

Justice Souter: When you speak of front pay, do you mean an award calculated as it was in the Chief Justice's hypothetical?

In other words, you take... if you have a term contract, you take the term of the contract, figure out what portion of it is unexpired, and in effect, award pay equal to what would have been earned in that unexpired term--

Mr. Caldwell: Not at all, Your Honor, and that's one of the central problems of the concept of front pay as a purely legal remedy.

Justice Souter: --All right.

Well, how, then, is front pay calculated, because that was going to be my question.

I understand it in his hypo, and you didn't take exception to that, but you now say, Well, that isn't the way we calculate it.

How is it calculated?

Mr. Caldwell: Front pay is much more fluid.

It depends on the circumstances.

The first consideration is not whether the person's entitled to front pay.

The first consideration is whether that plaintiff should be reinstated, and is there a compelling reason why they should not be reinstated, and there are numerous examples of circumstances where reinstatement would be inappropriate.

For example, there's another employee in the place in which the plaintiff... to which the plaintiff would be reinstated.

Justice Souter: Okay.

Let's just take that case.

Assume that.

How is front pay going to be calculated?

Mr. Caldwell: Some courts have fashioned it as, we'll give the company two years to find an appropriate position for this plaintiff, given the training, experience, background.

And during that two year period, that person will be paid the pay that they otherwise would have missed.

Justice Souter: All right.

Now, if at the end of the two year period, there hasn't been a reinstatement, is there any further front pay ever awarded, or do you say at that point, it's over with and any future award would have to be an award of damages?

Mr. Caldwell: Often it comes right back to the court, and in the Sixth Circuit case of Shore v. Federal Express, which went up on appeal twice to the Sixth Circuit... and it's one of the leading cases from the Sixth Circuit in which the Sixth Circuit recognizes front pay as equitable... the plaintiff was held by the judge not to be required to go back to that employment because of the hostile environment, the painful situation she would find herself in.

Justice Souter: This is after something like the two year period has passed?

Mr. Caldwell: Well, what he did was he fashioned the remedy, saying that she would never again find a job equivalent in pay to what she had Federal Express, and each year Federal Express is required to pay her the difference between what she earned and what she would have earned.

Justice Souter: Okay. But that... I just don't see how when the front pay so called becomes that extensive, I don't see how you distinguish it from an award of lost future earnings not attributable to loss of earning capacity, which is a recognized form of damages at law.

Mr. Caldwell: The hallmark really is the discretion of the court.

Justice Ginsburg: Ms. Caldwell, you're describing this as the typical substitute for reinstatement, but you did say that front pay covers a wide range, and at least one area that it covers is a person qualifies for the promotion or for the job, doesn't get it because of discrimination.

But then there's a seniority system, so the job isn't there.

Front pay is you pay the person at the job level where they are now until there's a vacancy.

Or if there's a training program, she hasn't been promoted but she would need a training program, you pay her while she gets the training program at the higher rate.

And front pay in those situations was conceived of as an incentive to stop the employer from foot dragging.

So you're treating this in the most questionable case where front pay is originally, in the situations I describe, it's much more easy to characterize as equitable.

Is that not so?

And you're giving us these cases where she's never going to be in the job.

Mr. Caldwell: Well, front pay applies to both instances, and normally this is one of the reasons why it should remain with the court rather than with a jury.

Justice Kennedy: Ms. Caldwell, would you tell me how it works so far as the jury's concerned.

I think you pointed out that from your standpoint, there's a real problem with the respondent's position as to what the jury should be instructed, but even if your position is accepted, I'm not quite sure how it works.

Is the employer entitled to an instruction to the jury?

Ladies and gentlemen of the jury, if you find that there is liability and if you reach the point of punitive damages and future damages, you should not take into account any lost future earnings.

Is that the way it works, if you prevail?

Mr. Caldwell: If I prevail, that's not the way it would work, Your Honor.

Justice Kennedy: How does it work?

Mr. Caldwell: The way it would work--

Justice Kennedy: Just as... for the preface, because it would seem to me that the employer would want the jury to know that they shouldn't worry about future pay and future earnings, and there should be some instruction to that effect.

Mr. Caldwell: --There should be an instruction to that effect, but there are certain future pecuniary amounts that the jury would be instructed on.

Justice Kennedy: And what are those?

Mr. Caldwell: And those would be such things as future medicals, moving expenses, those sorts of items, which are clearly within the confines of what Congress allowed in enacting this legislation.

Justice Scalia: Ms. Caldwell, can I call your attention to the text of the statute again which you cited us to?

Compensatory damages shall not include back pay or any other type of relief authorized.

I assume that means currently authorized, not that used to be authorized.

And isn't one of the problems with your case that, assuming you're relying on the equitable nature of this award, it's clear that you do not give equitable relief where legal relief is available.

Equity only steps in when the law doesn't cover the problem.

Now, once upon a time, this front pay may have been available under 2000e-5(g) of the Civil Rights Act as equitable relief, but once you have enacted a new provision for compensatory damages, it seems to me you do not need that equitable relief of front pay.

You have legal relief.

Mr. Caldwell: It does not function the same as a sum certain that a jury would find as to future losses.

It's a different animal.

Also I believe if you look to--

Justice Scalia: Well, do you deny that if you have legal ability to get your future earnings, you cannot ask a court of equity to give you your future earnings without jury trial and everything else that goes with it?

Mr. Caldwell: --It would certainly thwart the intent of Congress to provide make whole relief.

Justice Scalia: I don't understand that.

Justice Kennedy: What do you call this... is there a universe of compensatory and punitive damages?

And then what's the term that you call these other damages?

Equitable damages?

Mr. Caldwell: Equitable relief.

Justice Kennedy: No.

Equitable relief but not damages?

Mr. Caldwell: Well, damages are a portion or a type of equitable relief which have been fashioned and made available under Title VII.

Chief Justice Rehnquist: Well, that's just contrary to the most fundamental understanding of the difference between equity and law.

The law awards damages.

Equity awards other kinds of relief when damages are not sufficient.

Mr. Caldwell: And the difficulty here... and perhaps I'm not expressing it clearly enough... is that when a court reaches the issue of front pay, the court is normally joining it with some form of injunctive relief that's certainly not within the provenance of a jury.

Chief Justice Rehnquist: Well, under the new law as written, you can get compensatory damages.

Mr. Caldwell: You can get compensatory damages under the Act.

If you look at (b)(2), it excludes damages that were previously available.

It says, compensatory damages awarded under this section.

In other words, 1981a.

It does not include the prior relief, and that would include front pay, because front pay was part of the relief that had been awardable and had been recognized by eleven of the circuit courts of appeal.

Justice Scalia: It used to be, because under your theory, it was equitable relief, and it was... and the same money was not available through the law.

But when you have a new statute that says you can get this compensation, I don't see any justification for giving you front pay on an equitable basis.

Mr. Caldwell: We have legislative history which makes clear that all the persons who expressed any statement on the new Act--

Justice Scalia: You're not looking at me, are you?

Mr. Caldwell: --Yes, Justice Scalia, I am.

Justice Ginsburg: Are you saying, Ms. Caldwell, essentially that front pay is post judgment back pay, that is, that they are identical animals, and Congress characterized back pay as equitable?

Mr. Caldwell: Absolutely.

Justice Ginsburg: And front pay, since it is of the same character, is as much equitable.

Mr. Caldwell: Is equitable.

And, again, very, very briefly, because--

Justice Kennedy: Does the jury award back pay?

Mr. Caldwell: --Historically the jury did not award back pay.

They do now.

Justice Kennedy: Then it seems to me back pay and front pay ought to be treated the same under 1981a-(b)(2).

Justice Ginsburg: Are you sure that that's the right answer?

Under the statute, back pay is not awarded by the jury, as I understand it.

Mr. Caldwell: Well, that is... I believe Justice Kennedy asked a question of practicality in terms of how it has been working in the court systems.

But it is in their discretion--

Justice Kennedy: Well, you mean the courts are violating the statute?

Mr. Caldwell: --Sir?

Justice Kennedy: The courts are violating the statute?

I read the statute the way Justice Ginsburg says it.

Just from a statutory reading, I would think the jury shouldn't award back pay, but I'm pretty sure also that's not the way it works.

Mr. Caldwell: I believe it should not work that way.

I think in actuality the judge has the discretion to give the instruction on back pay, and if the judge gives the instruction, then there's a calculation by the jury.

But that's a different animal from front pay to that extent, because there is a two step process in front pay.

First, the issue of reinstatement entirely for the court.

Second, the issue of front pay which is a matter of not straight calculation.

Chief Justice Rehnquist: What about someone who has been discriminated against and wants damages but does not want reinstatement?

Mr. Caldwell: If you look at 706(g) itself, that allows an award of back pay and other equitable relief regardless of reinstatement.

Chief Justice Rehnquist: So... but you're saying that the court must always first deal with reinstatement before it gets to back pay or--

Mr. Caldwell: Before it gets to front pay.

Chief Justice Rehnquist: --To front pay.

But in a situation where the plaintiff, although wronged, does not wish reinstatement, that's not going to be the case.

Mr. Caldwell: The converse is equally difficult.

If this Court decides that front pay is now awardable exclusively under 1981a, the effect will be that persons who were discriminated against but not intentionally will no longer be able to get front pay.

That will certainly thwart the make whole purposes of the Act.

Justice Ginsburg: Isn't it true that the original characterization of back pay as equitable, that that was done way back in '64, because there was frankly distrust in how southern juries would deal with Title VII?

Mr. Caldwell: Absolutely.

Justice Ginsburg: So Congress created this thing that they call back pay, which one might characterize as compensatory whether it was called back pay, and then the court said, well, front pay is the same, is post judgment back pay, so the courts put it under the same heading.

Mr. Caldwell: And keep in mind that front pay did not... that term was not coined until 1977, some five years after the 1972 amendment.

Justice Scalia: You said in response to an earlier question of Justice Ginsburg that the statute... or you agreed that the statute characterizes front pay as equitable.

The 1991 statute, where does it do that?

Mr. Caldwell: I didn't mean to say that.

Justice Scalia: It doesn't call it equitable.

It doesn't even call back pay equitable.

It says, shall not include back pay, interest on back pay, or any other type of relief authorized under the Civil Rights Act of '64.

It doesn't characterize any of them as equitable.

Mr. Caldwell: It does not, but the original 706(g) as enacted in 1972 certainly does that.

Back pay--

Justice Ginsburg: It would have to be equitable.

Otherwise, there would be a jury trial.

Right?

Mr. Caldwell: --That's right.

Justice Ginsburg: And that's what Congress was trying to prevent in '64.

Mr. Caldwell: And this Court certainly was well aware of it in the Albemarle Paper v. Moody case in which the Court strongly expressed the need for make whole relief to prevent discrimination.

If I may reserve my... I'm up.

Thank you.

Argument of Matthew D. Roberts

Chief Justice Rehnquist: Thank you, Ms. Caldwell.

Mr. Roberts, we'll hear from you.

Mr. Roberts: Mr. Chief Justice, and may it please the Court--

A front pay award under Title VII is not subject to the cap on compensatory and punitive damages added by the 1991 Civil Rights Act.

The 1991 Act provided new relief and generally capped that new relief, but the Act did not cap remedies that were already authorized such as front pay, which has traditionally been awarded when reinstatement is delayed or impractical.

And the 1991 Act expressly excludes from the cap damages relief authorized under Section 706(g).

Justice Scalia: Not relief that used to be authorized, but relief that is authorized.

Mr. Roberts: Yes, Your Honor.

At the time Congress drafted the 1991 Act, which is when it said is authorized, the courts of appeals had uniformly held that front pay was authorized under Section 706(g), so when Congress--

Justice Scalia: As equitable relief.

Mr. Roberts: --As affirmative action or other equitable relief.

Yes, Your Honor.

Justice Scalia: Well, let's leave affirmative action aside.

That may be a different question.

But if you're relying on the equitable relief portion, it seems to me that with the new legislation, it's no longer equitable relief.

Mr. Roberts: Well, I don't think it has to be characterized as other equitable relief.

It could fall under such affirmative action language, but even assuming that it falls under the other equitable relief, there was no legal relief that was provided in 1991 that's a substitute for the equitable relief that was already available--

Chief Justice Rehnquist: Well, there was certainly compensatory damages provided.

Mr. Roberts: --Yes.

Compensatory damages were provided, but Congress was careful to indicate that it meant those damages to be in addition to the relief that was available, and that it was... that the relief that was available under Section 706(g), it excluded it from the compensatory--

Justice Scalia: It didn't say, the relief that was available.

Chief Justice Rehnquist: It says, the relief that is available.

Mr. Roberts: --That is available, that is authorized.

Justice Scalia: I mean, you're being circular.

If, indeed, you can get the compensatory damages, you have no need for equitable relief.

You have no entitlement to equitable relief.

Mr. Roberts: I think our arguments are equally circular when Congress--

Justice Souter: Well, the statute simply doesn't make that choice.

It doesn't say, is authorized or was authorized.

It says authorized.

Mr. Roberts: --It says authorized, and there are two factors there to consider.

One, that the courts of appeals had uniformly held that it's authorized.

And two... and so Congress incorporated that understanding under accepted principles of statutory construction.

And also we know from the legislative history for those on the Court that are interested in looking at it that Congress did intend to incorporate that understanding.

Justice Scalia: You think authorized... you agree with Justice Souter.

Authorized means previously authorized.

Mr. Roberts: No.

I think it means is authorized, but I think that Congress understood... Congress ratified the understanding of what was authorized, so what was authorized became what is authorized, and--

Justice Scalia: All right.

Suppose that's wrong--

Mr. Roberts: --and they're not divisible--

Justice Stevens: --Let me ask the question in another way.

Are you arguing, in effect, that Congress did not intend to subtract anything from what was previously authorized by 706?

Mr. Roberts: --Yes.

I am completely arguing that.

Justice Breyer: Tell me if there was a--

Mr. Roberts: In fact, we know from the statute--

Justice Breyer: --No, go ahead.

Go ahead.

Mr. Roberts: --We know from the statute that it didn't intend to subtract anything.

In the Findings section which it put in as part of the Act, it said that it wanted to provide additional remedies.

In (a)(1), it said that the new relief was in addition to the relief as authorized, and it excluded the relief that's authorized from the new relief, and that's because the whole... what was going on is Congress wanted to provide added relief in the forms of compensatory and punitive damages.

It knew that that relief would be subject to a jury determination, and there were Members of Congress and the Administration that was worried that those new damages, subject to jury awards, might be excessive, and so they wanted to cap the new relief, but there was no concern about existing relief.

Nothing had been expressed that there was excessive relief then, and Congress had no desire to touch existing relief at all.

It wanted to leave it alone, add something new, limit what was new.

And it was correct... the courts of appeals were correct that front pay was authorized under 706(g), because it's discretionary relief of the same character as back pay and reinstatement.

And like back pay--

Chief Justice Rehnquist: It's much closer to traditional damages, front pay.

Mr. Roberts: --It's no closer to traditional damages than back pay.

In fact, less close, because damages are traditionally retrospective.

Also--

Chief Justice Rehnquist: Well, no.

Not damages for a breach that goes into the future.

Mr. Roberts: --Well--

Chief Justice Rehnquist: Are you suggesting that, you know, if I am terminated before the time for my performance of services contract expires, that I can't get damages?

Mr. Roberts: --No, Your Honor.

Under the current rule of a breach of contract, you could, but interestingly enough, if one's looking back for law versus equity and analyze back to the 18th Century, the rule then was that you couldn't get future lost wages as damages for a breach of contract because they were too speculative, so you couldn't get them at law, you couldn't get them in equity then.

Congress provided for new remedies of the type that don't have a precise parallel to what was traditionally available at law and equity.

Justice Scalia: It specifically named back pay.

I mean, it seems to me it doesn't get you very far to say that front pay no more resembles equitable relief or no less resembles equitable relief than does back pay, because Congress mentions back pay in Section 706(g)(1).

Mr. Roberts: Yes, it does, Your Honor, but it also mentions back pay as an illustration in a statute that allows the court to order such affirmative action, including reinstatement and in a statute that also allows it to award other equitable relief.

Justice Scalia: Well, but that may have been referring back to reinstatement or hiring of employees.

That's certainly equitable relief.

Mr. Roberts: Yes, Your Honor.

But--

Justice Scalia: With or without back pay.

Mr. Roberts: --There's never been a question that the back pay under title VII is equitable relief.

This Court has repeatedly characterized it as equitable relief, in the Albemarle case, in the Burke case.

In Curtis v. Lothar, it took care to say that Title VII's back pay is equitable relief.

And, in fact, back pay... the courts refer to back pay under the Fair Labor Standards Act as equitable relief.

Justice Scalia: Do you think that Congress can eliminate the right to jury trial by simply denominating relief in the '64 Act as equitable relief?

Mr. Roberts: No, Your Honor.

Justice Scalia: I mean, it seems like a simple remedy.

We mistrust southern juries, and we're therefore going to call this legal relief, equitable relief so that the defendant doesn't get a jury.

Mr. Roberts: No, Your Honor.

Although Congress's characterization of the relief, the Court has indicated, does count for something, but--

Justice Kennedy: What happens with back pay, a) under the statute as you interpret it, and b) as a matter of practice insofar as the jury's function is concerned?

Does a jury consider back pay?

Mr. Roberts: --Back pay is a matter for the court.

There's no right to a jury trial on back pay, just as front pay is a matter for the court and there's no right to a jury trial on front pay.

Justice Kennedy: As a matter of practice, do juries ever do back pay?

Mr. Roberts: To the extent that juries might in some cases do back pay, which I'm not specifically aware of, I would assume that they're doing that in an advisory capacity, which the court is allowed to ask the jury to do.

Justice Kennedy: And do you view that as consistent with our opinion in Chauffeurs Union?

Mr. Roberts: Yes, Your Honor.

I think that the back pay and front pay under Title VII are both restitutionary in nature and intertwined with other injunctive relief, and therefore, they are equitable remedies.

It's restitutionary in nature, because they both put the... they require the employer to pay the employee the wages that the employer would have paid the employee if there had been no discrimination.

Justice Scalia: In that sense--

Chief Justice Rehnquist: --But that's true of damages, too.

Damages are restitutionary, if that's how you define restitution.

Mr. Roberts: Damages would apply even in a tort case where the--

Chief Justice Rehnquist: But in a contract case, a contract for personal services--

Mr. Roberts: --Yes.

It's true in that case, but the additional features that are here are that it's discretionary with the court.

It's not automatically available.

It's not available--

Chief Justice Rehnquist: --I don't see how that would affect the right to jury trial.

Mr. Roberts: --Well, Your Honor suggested in your concurring opinion in Albemarle Paper that the discretionary nature was relevant to the question of whether it's equitable relief or whether it's legal relief, and we would agree with that.

Discretion is a hallmark of equity, as this Court has repeatedly noted.

Justice Souter: Even if you were to lose on that point and even if it should be determined that it was subject to a jury trial, you might very well be correct about this case as to what Congress intended to exclude from the cap by the reference to the word other.

I mean, isn't that the nub of this case?

Mr. Roberts: That it said other relief, but it excluded all relief authorized under 706(g), not just equitable relief.

Justice Souter: It doesn't count toward the... what is it... 300,000, whatever the cap is.

Mr. Roberts: It is true that in (b)(2), Congress did not limit the relief that's excluded to equitable relief, and if you think that 706(g) authorizes more than... relief that's more than equitable relief, then, yes, that would be true, Your Honor.

Argument of Raymond M. Ripple

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Ripple, we'll hear from you.

Mr. Ripple: Mr. Chief Justice, and may it please the Court--

The issue before the Court today involves the division of responsibilities between the judge and jury under this restructured remedies program under the '91 Act, and that is the one that exists today and did exist at the time of trial.

The division follows fairly conventional system.

The judge retains authority over equitable matters.

The jury has its powers to assess damages.

A facial reading of the statutory scheme, in fact, shows that compensatory damage and, as we get to it, one of its component parts, future pecuniary losses, are subject to decision by the jury.

Now, what I would like to do just briefly is step back and see where the parties agree here and really where we shouldn't differ.

I listened very closely to Petitioner this morning, and I thought there was no disagreement, and maybe there isn't, on the question of what front pay is.

Historically when you boil it down, the court said that front pay is future lost earnings or wages.

Justice Ginsburg: Just as back pay is past loss of earnings.

Mr. Ripple: That's generally true.

Justice Ginsburg: So you can't distinguish the two.

I think it is an accurate characterization, is it not, that front pay is post judgment back pay?

That is, back pay is past loss of earnings, front pay is future loss of earnings.

Mr. Ripple: As far as that goes, that's correct.

There is a great difference, I believe, also between back pay and front pay, back pay being generally restitutionary, named by Congress specifically as an equitable remedy directed by Congress in, I believe it is, (a)(1) of the statute to exercise its discretion specifically on back pay.

Nothing, of course, has ever been said about front pay anywhere in the statutory scheme.

But what I was just going to get to was I think there is agreement between the parties as to what this front pay means, which is critical to this case, and then, in fact, petitioner in her opening brief, on page 14, concedes that, in effect, it is lost future earnings.

The Government also acknowledges in their brief that, in fact, front pay is by calculation lost future earnings or wages.

I believe in the Government's brief, it's footnote 12.

I think there's general agreement among the parties as to what front pay means.

Good starting point.

Justice Ginsburg: But it means, according to the Government, the same thing as back pay.

Mr. Ripple: Again, as I said before, I don't think it does exactly at all.

In fact, this whole title of post judgment back pay was new to me when I saw it.

Justice Ginsburg: It's for loss of wages.

One is for past loss of wages, the other is for future loss of wages.

They're both for loss of wages, and if you characterize the one legal, you could characterize the other as legal.

The Government tells us the difference here, why it's not strictly damages at law, is that it's discretionary with the judge.

They don't have to be awarded.

Mr. Ripple: As to which?

I'm sorry.

Justice Ginsburg: As to both, as to back pay and front pay are both discretionary with the judge.

Mr. Ripple: I agree that as to back pay, based on the statute, the court had discretion.

I do not see that as to front pay.

Justice Ginsburg: I think that's what all the courts have said, courts of appeals have said, about front pay since they modeled it on back pay, that it was discretionary.

Mr. Ripple: Whether they modeled it on back pay, I think... I would take exception to that.

What they said is, for whatever reason up to 1991, if you had a situation... take the hard case where equity has failed, frustrated.

They can't reinstate.

For whatever reasons, rule of necessity, whatever, the lower courts invented this front pay, called it front pay.

If you get beyond that step, of course the courts are going to say it's within their discretion.

Many of the courts--

Justice Ginsburg: Mr. Ripple, am I not right in thinking that front pay was first developed in the context of seniority systems where someone was denied the promotion, and Title VII preserves seniority systems, so that person was kept on the job at the lower level, paid at the higher rate.

And the idea was to speed up getting them into the more advanced position.

Unknown Speaker: It came up with seniority systems, and it came up with training, that people could not immediately be put in their rightful place because they needed training or because there was a seniority system.

Justice Ginsburg: That was what front pay came out of, was it not?

Mr. Ripple: --I'm not sure that was the first case.

The first one I remember was not a seniority case.

I think it was the Patterson case, Fourth Circuit.

I can't remember the date.

I think one or the other of us have cited it in the brief, but--

Justice Scalia: Does this really matter?

Mr. Ripple: --No... well, it does... if Justice Ginsburg has a question, it matters.

Justice Ginsburg: Thank you.

Mr. Ripple: And I'm trying to be helpful... I'm trying to be helpful, not facetious, but I'm trying to be helpful.

I think the next point, though, where we do differ but we shouldn't perhaps is that future pecuniary losses, the statutory term, really, when you look at it, we don't need Webster, Bouvier, or Black.

It should be inclusive of future lost earnings just by plain English.

We really shouldn't disagree on that, and maybe... I was listening carefully, but maybe we don't disagree on that.

Where we do part company... and this is critical to the case.

Where we part company is over Section (b)(2), the exclusion to compensatory damages.

Now, you remember that says, compensatory damages will not include back pay, interest on back pay, or remedies under 706(g), the old equity statute.

Now, if we understand the petitioner's argument, at least in their reply brief, what they're saying is, if we go... I'm sorry.

Front pay is now a legal remedy.

What of this language in the exclusionary clause?

And the answer is really, in our judgment, quite simple.

There are a number of other monetary reliefs that are available in an equitable form other than front pay.

They are... let me just give you a few examples.

In promotional cases Justice Ginsburg was mentioning, very often there's a monetary sum involved.

There have been cases involving equitable accounting, usually involve professional organizations such as law firms, accounting firms--

Justice Scalia: Go back to the first one.

I don't understand what you're talking about.

In promotional cases--

Mr. Ripple: --In promotional cases--

Justice Scalia: --there's a sum involved.

Of course there is.

Mr. Ripple: --That's right.

Justice Scalia: But other than back pay?

Mr. Ripple: In some cases, yes.

It could be a going forward pay, either in lump sum or in grade.

Justice Souter: What is the difference between going forward and front pay?

Justice Stevens: Yeah.

You've got to explain why that's different--

Mr. Ripple: That's what I mean, going forward, front pay.

Justice Stevens: --from front pay for me to follow the argument.

Mr. Ripple: Well, you can have... and this gets really to the next point, but you can have a situation where, for instance, equitable relief is granted and still have monetary relief as it relates going forward.

If--

Justice Souter: That's one variety of front pay, isn't it?

Mr. Ripple: --Some courts have called it that.

Whatever moniker you want to put on it--

Justice Souter: In other words, the reason I think it's significant is we're not here to determine this morning what the ultimate limit of front pay by a court of equity may be.

We've had some disagreement about it.

What we're here to determine is whether there is any species of an award that an equity court can make which is customarily called front pay that survives, and it seems to me that your answer to the question says, yeah, there's one variety that survives, and I'm using the term going forward, but it's what these other people are using by the term front pay, and that seems to me like the end of the case.

Mr. Ripple: --I guess I would disagree with you, Justice Souter, on one point.

I think the point I was on is not bound in with the existence or nonexistence of front pay.

The question is, is there any other equitable monetary sum?

Justice Souter: Right.

You were saying, this is not an empty set, if you include front pay, and you've--

Mr. Ripple: That's right.

If you pulled front pay--

Justice Souter: --given an example of why it's not an empty set, an example of what most people would call front pay, not the most extravagant example perhaps but an example.

Mr. Ripple: --Not necessarily.

Again, the usual use of front pay is when there is no equitable relief.

In a promotion case, there's usually an order.

Justice Souter: Okay.

There may be cases in which we will argue.

Maybe it will get to this Court as to how far front pay can go.

But it doesn't seem to me that what you're saying excludes your example from what is meant by front pay.

Mr. Ripple: The--

Justice Scalia: You're saying front pay is equitable, so long as it is connected to the equitable relief of a promotion.

Mr. Ripple: --Can be.

Justice Scalia: But it is not equitable if it's not connected to the equitable relief.

Mr. Ripple: Under Tull, if it's somehow incident to or... I think the word used is adjunct to the equitable relief--

Justice Scalia: Yes.

But the other side is going to say, front pay is equitable relief if it's attached to the equitable relief of the requirement of rehiring.

Mr. Ripple: --Of the requirement of rehiring?

Justice Scalia: Yes.

Mr. Ripple: That's possible.

Let me stake out--

Justice Scalia: So the only case in which you say it's not equitable relief is where you award front pay without any other equitable imposition upon the employer.

Mr. Ripple: --No, not completely.

If, in fact, an injunction is entered, if, in fact, a reinstatement is ordered, and there is, for instance, a period of time, short period of time, until that slot opens up where you can put the person back in, that sum of money, whatever you call it, is probably incident to the equitable relief, and therefore can be considered as equitable rather than legal.

In this case, of course, what we're dealing with is there will not be a reinstatement.

Apparently she does not want to be reinstated, and apparently the judge was not going to order it, so this is a pure case of front pay or whatever we call it now in lieu of--

Chief Justice Rehnquist: What is important here, I take it, is that... are these things excluded from compensatory damages which are capped?

Of course, the way you describe front pay is something that would be so insignificant that it could never be... it would never be... rise up anywhere close to the cap.

Isn't that correct?

Mr. Ripple: --We don't think, in our view of the case, that there will be many situations where pure front pay, let's say, front pay in lieu of reinstatement like our case, would rise up to that level.

That would be, I think, rather unusual.

The--

Chief Justice Rehnquist: Well, what is the amount of the cap?

Is it--

Mr. Ripple: --300,000.

Justice Kennedy: --Well, but there are smaller employers.

There's a [$] 50,000 limit, and I assume there are many jobs, say, that pay 40-, [$] 50,000 a year, and one or two years of front pay just could... front pay under your theory would completely exhaust the cap, no matter how outrageous the employer's conduct was, and then there would be no punitive damages.

That's the consequence of your theory.

Mr. Ripple: That's also the consequence, Your Honor, of the statutory scheme--

Justice Breyer: The statutory argument, as I understood it on their side, was not so much that the words other type of relief is an empty set without front pay.

Rather it was that front pay had been authorized, and that's the end of it.

Now, very simply, if we're to hold to the contrary, we'd have to say that in this later statute, the court... the Congress changed the meaning of old 706(g), which seems to me fanciful, or we would have to say that front pay never was authorized, and all the courts of appeals were wrong, and when we held that, our reasoning would also say, probably back pay isn't authorized either.

Therefore, if we take that route, we are tearing the statute apart.

And then they say, by the way, if you want to know what they thought, why don't you just look to the words of the sponsors who without any contradiction on the floor of the Senate, said, this amendment includes front pay, in those words.

All right.

Now, that I take it was their basic argument, and I would like to hear what's wrong with it.

Mr. Ripple: --I think one place to start... and please stop me, Justice Breyer, if I'm not getting to your question on that.

I think one place to start is again go back and look at (b)(2) exclusions as we were doing.

Where I was was the... for instance, there is the example of other monetary sums equitable in nature involving cases involving unions.

Justice Ginsburg: Cases involving--

Mr. Ripple: Unions.

I'm sorry, Your Honor.

Unions, where the union is the defendant in the case brought by the employees, where union dues have had to have been paid back to the employees, where they... monies paid in levies to the unions or whatever program they had going at the time were required to be paid back.

That wouldn't be in the traditional sense of true back pay.

It's a different relationship with the union, but there have been some cases on that.

Justice Ginsburg: --Is this under the NLRA, because the NLRA also has--

Mr. Ripple: No.

No, no.

This is under Title--

Justice Ginsburg: --Is it Title VI?

Mr. Ripple: --VI.

That's right.

As you know, under 706(g)--

Justice Ginsburg: Unions as well as employers can discriminate.

Mr. Ripple: --That's right.

Employers and employment agencies would also be covered.

Our case... let me answer your question, Justice Breyer, in this manner, and maybe I can satisfy it.

Our case is that such... looking at front pay now, it is a monetary sum.

It certainly carries the presumption, being a monetary sum, that it is a legal remedy.

The question is, does it fall into exceptions to that?

Our argument is, no, first, it is not incident to, especially in this case, incident to another... an equitable remedy, so it doesn't fall into the Tull exception, intertwined or incident to.

Second, it's not really restitutionary in nature as back pay, this Court, I think, has recognized is basically restitutionary in nature.

I think that was the Curtis--

Justice Breyer: Well, my question really as the dilemma they put you... I think, are trying to put you into is, in giving that definition, are you saying that Congress changed the meaning of 706(g)?

Or are you saying that always was the meaning of 706(g)?

Hence, all the courts of appeals holding to the contrary were wrong.

Now--

Mr. Ripple: --That's our ultimate--

Justice Breyer: --it seems to me... all right.

That's what you say.

All right.

Then my next question from that would be, is isn't it true that if we write those words on paper, that by writing those words, we will cast considerable doubt on back pay as well, because it will suggest that that is a legal remedy and not an equitable remedy, hence calling into play the constitutional requirement for a jury?

Mr. Ripple: --Answer to your last question is no.

Justice Breyer: Because?

Mr. Ripple: Because back pay has a history in this Court and all the other courts of being traditionally an equitable remedy.

Justice Breyer: But the conceptual distinction between the back pay that you're going to call equitable and the front pay that in your ideal we will write into our opinion is not equitable.

The conceptual distinction is going to be what, because it's always possible that future courts will try to follow the logic of our opinion.

Mr. Ripple: Back pay traditionally highly restitutional in nature, equitable, restitutional.

Secondly, specifically named by Congress, and that's worth something.

We said so in Terry case.

It is easily calculable--

Justice Scalia: Let's go back.

So it's named.

So what?

That shows you can get it.

It doesn't show whether it's equitable or not equitable.

Mr. Ripple: --Front pay or back pay?

Justice Scalia: You say one reason is back pay is equitable and front pay isn't is that back pay is named by Congress.

So what?

Mr. Ripple: I don't think in the context of this case, whether or not back pay is implicated is really terribly important in the long run.

Justice Souter: No, but the concern is that if we suggest that, in fact, back pay shouldn't have been awarded, for the same reason that front pay shouldn't have been, then, in fact, there won't be any front pay under your theory awarded by the court, there won't be any back pay awarded by the court.

And the cap will have a very different significance from the cap as it was enacted, which was supposed to be a cap that at least excluded back pay.

That's why Justice Breyer said that wrecks the statute.

Mr. Ripple: No.

I think I understand now.

If you're referring... Justice Breyer perhaps referring a bit to our last argument, what I consider the equity jurisdiction argument, did the district courts ever have authority to create front pay?

Justice Ginsburg: And your answer to that was?

Justice Souter: Was no.

Mr. Ripple: No.

Under that theory, the larger theory, no.

Justice Souter: And now his concern... is there an implication for that about back pay?

Mr. Ripple: No.

I don't believe so.

Justice Souter: Why not?

Mr. Ripple: I think this Court could write the opinion that because under the historical analysis, front pay, what we call now front pay, is not incident to the granting of another equitable relief.

Equity never had jurisdiction for that, at least at the time of the founding of the country.

Justice Ginsburg: Well, the founding of the country--

Justice Kennedy: --The statute provides a jury trial for back pay anyway, so we don't need to worry about that.

But the practical consequence of your argument is, is that the jury has to award front pay, but the judge hasn't determined whether there's going to be reinstatement or not.

He doesn't know if there's basic liability.

He doesn't know what the jury's findings are going to be with reference to how egregious it is on certain counts.

I just don't know how your theory's going to work.

Mr. Ripple: I have... we have great faith in the Federal district judges, and I don't see--

Justice Kennedy: Well, that's reassuring, but I just don't see how mechanically this can work under your view--

Mr. Ripple: --I don't think... I'm sorry, Your Honor.

I don't think there's a serious practical problem here.

Anyone that's tried one of these cases... there are points in a case where the judge can make the decision.

Am I going to reinstate this person or not?

Certainly before the prayer conference, that decision can be made.

Therefore... and we would suggest these cases only be tried to jury on special interrogatories, the only way it makes sense, and the only way if you have--

Justice Ginsburg: --That might be a suggestion, but certainly it's nothing that a judge is required to do.

The rules give the judge the option.

Mr. Ripple: --That's right.

Absolutely.

And one of the strengths of the Federal district judges is they have the full panoply of the rules and any... some other inherent powers--

Justice Breyer: Just... the other part of their argument is just in case your answer to this part, in their view, has shown that this whole thing is very complex, what about looking to what the sponsors have done for us, what they happened to say, senator... I get two senators and on the House side, in memorandum signed by both of them, and in statements, compensatory damages does not include back pay or front pay.

I mean, I can understand not using legislative history when it's ambiguous, when there are two sides.

This seems to be absolutely clear, consistent with the language, without anybody saying to the contrary.

So can't we at least take it as a hint as to what they were driving at?

Mr. Ripple: --Answer your question, first, we believe obviously you need to look at the statute first.

But if you get there, if you get there, there are some stray remarks regarding--

Justice Breyer: Stray remarks?

Mr. Ripple: --Yes.

I think... not the technical term of that remark.

Justice Breyer: Senate sponsors' memorandum, interpretive memorandum of Representative Edwards, as well as floor statement.

Mr. Ripple: The floor statements are individualized remarks.

They're isolated remarks.

There is also the other side of the coin.

Justice Scalia: Did the President sign onto those floor--

Mr. Ripple: No.

Justice Scalia: --The bill required his signature, didn't it?

Mr. Ripple: It did in 1991.

Justice Scalia: Did he sign onto those floor statements?

Mr. Ripple: He did not.

In fact--

Justice Scalia: What about the House of Representatives?

Were they the sponsors, these two individuals who made these statements?

Were they the sponsors of the bill in the House?

Mr. Ripple: --In the House, no.

Justice Scalia: Yeah, Representative Edwards did say that in the House, didn't he?

Mr. Ripple: He did in the House, and he was one of the sponsors, but--

Justice Stevens: May I ask two questions?

Mr. Ripple: --Yes.

Justice Stevens: I don't think that people are going to change their views on legislative history at this particular point.

Mr. Ripple: I didn't think so.

Justice Stevens: First of all, was there a demand for a jury trial in this case?

Mr. Ripple: No, there was not.

Justice Stevens: And, secondly, is there anything either in the statute or the legislative... you can go either way you want on this... to suggest that the purpose of (b)(2) had any purpose other than to impose a cap on the additional relief that was authorized by the statute?

Mr. Ripple: (b)(2)--

Justice Stevens: To exclude--

Mr. Ripple: --Right.

Justice Stevens: --Did it have any purpose except related to the cap?

Mr. Ripple: I don't know any legislative history that says, if you get down to legislative history, that says that it was related to the cap, the (b)(2) exclusion.

Justice Stevens: But isn't it perfectly clear, just looking at the statute itself, the sole purpose of this is to exclude certain things from the cap?

Mr. Ripple: From... yes.

All right.

On its face, yes.

It excludes it for compensatory damages.

That seems to be--

Justice Stevens: And the things that are excluded are those that were put in that had not been in the statute before.

Mr. Ripple: --I'm sorry.

I misunderstood your first question.

I think, looking at the exclusionary section, it was certainly one way to exclude certain matters, to make sure that they weren't subject to the cap.

Yes, yes.

Justice Scalia: Can I ask you this question?

The case has been argued, because this is what the... your opponents have placed the stress on, on the assumption that front pay has to be equitable relief, or it wouldn't be covered under 706(g)(1).

But, in fact, why can't it just be... instead of being considered equitable relief, just be considered affirmative action?

That phrase, affirmative action as may be appropriate, which may include but is not limited to reinstatement or hiring of employees with or without back pay or any other equitable relief as the court deems appropriate.

That last phrase, or any other equitable relief as the court deems appropriate, that was added later on.

And the original phrase, affirmative action as may be appropriate, was in the National Labor Relations Act, and they copied that almost verbatim from the NLRA as I recall.

Mr. Ripple: That's correct.

Justice Scalia: And under the NLRA, the Board had awarded back pay, hadn't it?

And--

Mr. Ripple: They had.

Yes, Your Honor.

Justice Scalia: --And had awarded at least a form of front pay, hadn't they?

Mr. Ripple: Without calling it that, there were some--

Justice Scalia: Without calling it that, they had done it.

Mr. Ripple: --Yes.

Justice Scalia: So I don't maybe even need the equitable portion of the statute to find that what this statute seemed to do was to simply suck up what the NLRA had done and spit it out into this new statute, in which case you get back pay and front pay.

Mr. Ripple: I think that was the intent in '72.

Justice Scalia: The problem with it is you will have the worst of both worlds, because in which case, there would be front pay, and both front pay and back pay would not be equitable, but would be legal relief, and you'd get a jury trial on both of them.

Would you like a jury trial for back pay as well as for--

Mr. Ripple: Usually back pay is a practical matter in these cases.

It's relatively manageable, it's understandable, it's calculable and by statute only goes back two years anyway.

Justice Scalia: --Well, if I rely on the National Labor Relations Act language which was embodied in the original version of this statute, why don't I reach the same result that your opponents say should be reached in this case?

Mr. Ripple: I guess I don't understand that argument, Your Honor.

I'm sorry.

Justice Scalia: The argument is that this constitutes affirmative action as may be appropriate, whether or not it's equitable relief, because that's all that the National Labor Relations Act language said, and under that language, the NLRA awarded both back pay and front pay.

And when Congress adopted that language in this statute, they expected courts to do the same thing.

Mr. Ripple: I don't know if I've ever seen it construed that way.

It's an interesting observation.

I don't think I've ever seen it construed.

Usually the affirmative action--

Justice Scalia: I try to stick to the words of the statute rather than--

Mr. Ripple: --I understand, Your Honor.

Justice Scalia: --the floor statement.

Mr. Ripple: I understand.

The... I don't think I've ever seen it construed quite that way.

Usually affirmative action is more of an injunctive type relief.

That's when I have seen it, but I'm... I just have not seen it played out that way.

Justice Scalia: Well, you acknowledge the Board had done that... had granted relief of that sort, and the courts had upheld it.

Mr. Ripple: Back pay certainly.

Yes, back pay certainly, and my memory is--

Justice Scalia: And some forms of front pay.

Mr. Ripple: --Some prospective maybe incident to other more affirmative relief.

Yes.

There are some cases of that.

Mr. Chief Justice, unless the Court has any further questions, we'll submit the matter.

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Ripple.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Burlington Industries, Inc. v. Ellerth - Oral Argument

Fri, 09 Jan 2009 14:50:05 +0000

Case:

Burlington Industries, Inc. v. Ellerth

Media File:

97-569_19980422-argument.mp3

Related Transcript:

1997_97_569_argument.xml

Transcript:

Argument of James J. Casey

Chief Justice Rehnquist: We'll hear argument now in No. 97-569, Burlington Industries v. Kimberly Ellerth.

Mr. Casey.

Mr. Casey: Mr. Chief Justice, and may it please the Court:

Is an employer strictly or automatically liable for job-related threats made in conjunction with sexual advances when the employee has suffered no tangible job detriment for the rejection of those advances... in other words, the unfulfilled threat?

We submit that the answer to that question is no.

Strict or automatic liability should not be applied in a situation of unfulfilled threats, but rather should be analyzed--

Unknown Speaker: Mr. Casey.

Mr. Casey: --Yes.

Unknown Speaker: It sounds to me like you're asking question 2 of the questions presented on petition for certiorari, which is whether strict liability is the proper standard.

Now, I thought the Court didn't grant certiorari on question 2.

I thought we granted certiorari on question 1.

Mr. Casey: That is correct.

Unknown Speaker: Most of your brief addresses question 2.

I mean, are we going to talk about question 1, on which cert was granted?

Mr. Casey: Justice, the... the... the question... question 1 is the un... is whether or not the strict liability standard ought to apply in the unfulfilled threat situation, where... where there is no adverse job consequence.

Unknown Speaker: Well, it doesn't address strict liability actually.

It says whether a claim of quid pro quo sexual harassment may be stated under Title VII, when the plaintiff has neither submitted to the sexual advances nor suffered any tangible effects.

That's the question.

Mr. Casey: Yes, Justice.

Under--

Unknown Speaker: It... it doesn't refer to strict liability.

Mr. Casey: --Under... under the assumption, Justice, that in... that most courts, who have addressed the issue, have addressed quid pro quo as a strict liability issue.

And that's why I referred to the strict liability for the unfulfilled threat.

And... and that's why I believe it is... it is cognizable under question 1, which is the question that the Court did accept.

You are quite correct about that.

But almost all of the courts who have addressed quid pro quo sexual harassment have addressed it under the theory of strict liability for the employer, where there has been a adverse job action, such as a termination of employment, a demotion, a transfer to a less fulfilling job, a loss of benefits.

These are all tangible job detriments, where the company has acted, through... through a supervisor.

Unknown Speaker: Well, there... there's really no other reason to have the quid pro quo category, is there?

Mr. Casey: Absolutely not, Your Honor.

Unknown Speaker: Except to establish a different standard of liability.

Mr. Casey: That's correct, Your Honor.

And... and--

Unknown Speaker: The statute doesn't... doesn't establish different kinds of sexual harassment... quid pro quo and... and environmental harassment.

Mr. Casey: --No, it does not.

It--

Unknown Speaker: That's not in the statute, is it?

Mr. Casey: --It does not, Your Honor.

But the courts who have addressed the other violations of Title VII, for example, in race cases, have attached strict liability to the employer when the... the supervisor has taken an adverse job action, such as a termination of someone because of their race, a refusal to hire someone because of their race, a termination of someone because of their national... their national origins, because of their religion.

Courts have viewed that as employer strict liability.

On the other hand, when... when in a race case, for example, a... a person is living in... in a hostile racial work environment, or a hostile environment to one's religion, or a hostile environment because one happens to be Korean or Indian or... or English, that has been viewed as whether or not the company has been negligent in permitting that hostile work environment to exist.

Unknown Speaker: When you say VII, you are just asserting that there is a different standard for the employer?

Mr. Casey: Oh, absolutely, Your Honor.

Unknown Speaker: So everybody agrees that this kind of claim is stated under Title VII?

Mr. Casey: This is a... this is a claim for discrimination by reason of one's gender.

Unknown Speaker: And then how did we come to this distinction, then?

Because the statute doesn't say a word about quid pro quo and it doesn't say a word about hostile environment.

It says: same terms and conditions of employment, period.

Mr. Casey: It... it does, indeed.

This Court, in Meritor, acknowledged at least a distinction between the hostile work environment and quid pro quo.

This Court, in the Harris Forklift opinion, by noting that the Harris case was not a quid pro quo case, implicitly recognized the distinction.

I think the same distinction, Your Honor, has been made in the other... in the other type violations of Title VII, in terms of... of race and national origin, where there has been an act.

Unknown Speaker: Do we have a race or national origin case where there's a negligence, as opposed to vicarious liability?

Mr. Casey: Not from this Court.

There have been... there are many circuits who have... who have recognized that... that the hostile environment... the racially hostile environment is... is a negligence issue.

And... and the standard the company or the employer is held to is whether the... whether the employer knew or should have known of the... of the racially hostile environment.

And... and the same distinction is... is what we are urging the Court to adopt in the sexual harassment case.

Unknown Speaker: So suppose this supervisor... let's use race as an example... suppose a supervisor says, I'm not going to promote you because you're Asian, Hispanic, whatever, and a week later does promote the person.

And the person is no longer even working for that supervisor... promoted out of the department.

Is there a violation there?

Mr. Casey: In that one instance, I would say there is not.

Unknown Speaker: There is?

Mr. Casey: There is not a violation.

Unknown Speaker: There is not.

Mr. Casey: If... if there was repeated... repeated and... and repeatedly hostile comments made by the supervisor to the employee because of his national... I think there then would be a violation.

But here--

Unknown Speaker: And do you analogize what happened here to the hypothetical that I... I gave you?

Mr. Casey: --I do.

I do exactly.

Here there was an implicit threat: I could make your job easier or harder for you.

That was... that's the kind of threat we talked about.

And it was at... at a job promotion instance.

And in this case--

Unknown Speaker: Well, suppose in the case that I... that I put the promotion... the case where I put it was... that she was promoted the next week.

Mr. Casey: --Yes.

Unknown Speaker: Suppose in the race hypothetical the promotion isn't going to come up for a year, but the supervisor has said that.

Could the employee bring a cause of action injunction?

Or is there just no... it's just kind of a violation in the air, with no damage?

Mr. Casey: I think... I think there is no harm.

I think there is no harm.

Although--

Unknown Speaker: Despite... despite the insult and the personal hurt, et cetera, et cetera?

Mr. Casey: --Well, I don't think, Your Honor, that one insult is sufficiently severe to rise to... to a hostile environment, as... as bad as it may--

Unknown Speaker: Well, what if... what if you have a situation of a supervisor for a large corporate employer who routinely orders a female employee under his supervision to go to a certain isolated place, where the supervisor can be alone with this employee and repeatedly then tries to use that opportunity for sexual gratification... repeatedly?

No... no change in promotion status or discharge.

Is... is there vicarious liability there for the employer or only if the employer is, as you put it, negligent?

Mr. Casey: --Your Honor, in... in the example you just gave, I believe that there... there is very likely a quid pro quo.

She has been ordered off--

Unknown Speaker: No.

No.

I... I left that out of the assumption.

Mr. Casey: --All right.

The assumption is that... that she's ordered to an isolated--

Unknown Speaker: That the supervisor uses his supervisor... supervisory authority to place the employee in... in this situation, where he can then take advantage of her.

Mr. Casey: --Okay.

Unknown Speaker: And does so repeatedly.

Mr. Casey: Okay.

He has acted.

He has... he has used the authority vested in him by... by his employer.

He has then acted on behalf of the employer, and I believe there may well then be--

Unknown Speaker: But the employer is not negligent, the employer tells all their supervisors to be careful, don't do this.

Mr. Casey: --By... by issuing orders to isolate an employee, I believe he is using the authority vested in... in... in... vested in him by the... by the employer.

Unknown Speaker: All right.

Then why not, in... in one instance alone... let... let's take Justice O'Connor's example, but change it in this respect.

Let's assume the supervisor orders the... the employee into his office.

And instead of being subtle about it or comparatively so, he is very explicit about it.

He said: You are going nowhere with this company.

You are not going to get your promotion 12 months hence unless in the meantime you grant sexual favors to me.

Isn't that sufficient to create at least the hostile environment?

Mr. Casey: No, Your Honor.

Unknown Speaker: Why not?

Mr. Casey: Because it--

Unknown Speaker: What could be more hostile than that?

Mr. Casey: --Because he... he... he has one... well, in terms of the hostile environment, Your Honor, the... the courts have routinely... the circuit courts of appeal have routinely held that a single incident--

Unknown Speaker: Oh, quite.

But... but the... the point of the single incident cases, as I understand them, is that there's a certain amount of... of necessary rough give and take in life.

And the fact that there may be one or two employees in a company who occasionally make a remark... the one-incident case to be literal about it... does not suffice to modify the entire environment to the point where a discrimination can be inferred.

But when one is talking about a supervisor, with the undoubted authority, in effect, to... to change the entire future of a given employee in that company, and that supervisor is explicit about it, nothing is left to chance, it seems to me that the... that the... the very power of the employer, the explicitness of what he does in... in this hypothetical should... should be enough, whereas one remark from a fellow employee wouldn't be enough.

Mr. Casey: --For liability... Your Honor, for liability, for an employer to attach in an hostile work environment, there has to be some... some indication to the employer that he knew... the employer knew or should have known.

Unknown Speaker: But why... why not?

Why, if... if in a series of cases the employer is going to be liable because the supervisor has been authorized, has been given a particular power and repeatedly abuses it, so that the abuse is clear, why shouldn't the employer, by a parity of reasoning, be liable when the abuse is equally clear when it is made very explicitly clear in... in one instance?

Mr. Casey: Because, Your Honor, in... in the... in the example... or the hypothetical that Your Honor posits, the supervisor has done nothing but speak words.

He has not exer--

Unknown Speaker: Well, but he has done nothing in Justice O'Connor's hypo except speak words, except that he has done so somewhat less explicitly than he does in my case.

So it may take a while to make it very clear that he means what he says.

But in... in my case, the... the same inference can be drawn after the first instance.

Mr. Casey: --On the contrary, Your Honor, in Justice O'Connor's hypothetical, as I understood it, the... the supervisor repeatedly ordered the employee off to a isolated place where... where he could then take advantage of the employee.

And... and it's the acting--

Unknown Speaker: But she resisted.

She resisted every time.

It was awful for her, but she resisted.

What... where do you put that case?

I assume that if she succumbs in order to get the promotion, then you would say we don't have to prove negligence; is that correct?

Mr. Casey: --Your Honor, in a... in a submission case, I would... I would argue that, in a submission case, that if the employee reasonably believed that submission was a term and condition of employment, I believe then there would be strict liability... if she reasonably believed--

Unknown Speaker: Okay.

Now she reasonably... she reasonably believes that it's going to be very hard to put up resistance, but she's going to do it.

She reasonably believes that she's got to resist this.

And she does.

And in those two cases, as far as the employer is concerned, there's no more likelihood that the employer will know about one situation than the other, is there?

But you told me that if she succumbs, then there's liability.

And if she doesn't, then what?

Mr. Casey: --In... if I can modify my... not modify my answer, but if I can clarify my answer on... on the submission.

I do not believe in a case such as we have here, where there is a clear policy against sexual harassment, where there are avenues of redress which... which... in which you can avoid the complaint... complaining through the offending supervisor, as is this case here, where... that no employee then could reasonably believe what--

Unknown Speaker: Well, that's... that would all be for a trial if there were a trial.

But this... that's... this was decided only on summary judgment.

Mr. Casey: --On summary judgment.

That's correct.

Unknown Speaker: So we don't know anything about what employees... we know that there was a policy.

We don't know anything about how effective it was, how other employees reacted to it.

So all we know at this stage in the game is that there was a policy.

Mr. Casey: We... we know... we know something in addition to that, Your Honor.

We know, one, there was a policy.

We know, two, in... in... in following this Court's guidance in Meritor, that there were avenues of redress in which one could avoid the... the... the offending supervisor.

And, three, we know that... that the Respondent in this case was aware of the policy, understood the policy, and intentionally... intentionally did not follow the policy.

And in fact stated the reason she didn't tell her--

Unknown Speaker: We... we know... we know two things: That there was a policy and she didn't use it.

We don't know any... anything about why.

It may be that she thought it would... was a totally ineffective policy.

But we really can't go beyond the summary judgment record.

And we don't know any of these things, other than the fact that there was a policy and the fact that she didn't use it.

Mr. Casey: --Your... Your Honor, and... and I'm not going beyond the summary judgment record.

What she... what she testified to... and it... and it is part of the summary judgment record... what she testified to is that she intentionally did not report it to her supervisor because, and I quote, it would be his duty to report it.

And we do know that.

And we do--

Unknown Speaker: Where is that?

What are you referring to?

What testimony?

Mr. Casey: --That's in the record, Your Honor, at... I will find it, Your Honor.

But it is... it is clearly in the record, and it's quoted directly in our brief.

Unknown Speaker: What... what is the relationship between your reasonably believe standard and the standard either of employer negligence or, for that matter, employer strict liability?

Mr. Casey: I... I don't understand.

Unknown Speaker: Well, I understood you to say a moment ago, in response to Justice Ginsburg's variant on the question, that if the employee reasonably believed that he could carry out... that the employer could carry out threats, even though those threats had not at that point been carried out, that there would be a hostile environment.

And I... I was going to say, what is the relationship between that standard and the standard of employer negligence?

Mr. Casey: Your Honor, I... I... perhaps I misspoke.

What I said was if... what I meant was... if an employee reasonably believed that... that submission was a term and condition of employment and she did submit, and the relief was reasonable, then I believe there is... there would be a... an adverse tangible job consequence.

Unknown Speaker: But... but if she reasonably believed it and did not submit, even on a claim of hostile work environment, there would be no liability, period?

There could be no liability; is that your position?

Mr. Casey: In the hostile work environment, unless there... there is some evidence that the employer knew or should have known.

Unknown Speaker: May I ask a question on that point?

Supposing in the Chicago office you had conditions that clearly amounted to a hostile work environment, much... much worse facts than you have here.

Everybody is being very, very rude to the female employees.

And the only person outside of that office who knows about it is the vice president in charge of sales in New York... this particular individual.

Would that be notice to the company of the hostile work environment?

Mr. Casey: Your Honor, I think in this... in the... in the situation you describe--

Unknown Speaker: Yes.

Mr. Casey: --there would be... there would be the standard of the company should have known.

If it is as open and notorious as Your Honor describes.

Unknown Speaker: Well, but it's open only in Chicago.

And the only higher executive who knows about it is this particular individual, Mr. Slowik.

Would that be sufficient notice to the company?

Mr. Casey: And he was responsible for this office?

Unknown Speaker: Well, he had exactly the duties he has in this case.

He's the vice president in charge of the sales in a large part of the country.

Is that--

Mr. Casey: I believe... I believe, Your Honor, if he was aware of open--

Unknown Speaker: --Yes, he's aware of it.

That's my--

Mr. Casey: --and... open and notorious conduct, of... of a hostile environment for female employees, it would be notice to the company.

I think so.

Just--

Unknown Speaker: --Well, then why isn't it notice to the company when he does it himself?

Mr. Casey: --Because, Your Honor, he did not fulfill the threat.

He... he simply implied a threat, never carried it out.

She in fact got promoted.

Unknown Speaker: What if he told the president about... about the case, the president of the company.

Would she then have... have a case?

He told the president everything that she's put in the record here.

Mr. Casey: I'm missing the--

Unknown Speaker: The question... part of the question is, A, is there a violation?

And, B, if so, is the company responsible for it?

And I'm trying to assume that... that what he said would be a violation.

Maybe that's where we... we part company.

I don't know.

But if the things that happened here were not only known by Mr. Slowik, but by the board of directors of the company, would there be liability?

Mr. Casey: --I do not believe so.

I do not believe this is a hos... I do not be--

Unknown Speaker: So... so it isn't a question of whether we hold the company responsible.

The question, in your view, is whether there was a violation at all?

Mr. Casey: --Well, if there's no liability, there's no... there's no violation.

Unknown Speaker: Right.

I thought you said earlier that... that, in your view, the acts were not repeated enough to constitute a hostile work environment.

Was I wrong about that?

Mr. Casey: No, that's correct.

Unknown Speaker: Yes.

Mr. Casey: And... and... and I don't--

Unknown Speaker: So that's the reason, if there were notice to the company--

Mr. Casey: --and I don't think it rises to a hostile work environment.

Unknown Speaker: --Can... can I ask you something about Justice O'Connor's hypothetical?

Mr. Casey: Yes, certainly.

Unknown Speaker: You said that where... where the company officer takes the woman aside to an isolated place where he can make his sexual advances, that that would... that would be automatic liability on the part of the employer?

Mr. Casey: Your Honor--

Unknown Speaker: That would be a quid pro quo case?

Is that why... why... because he's using his power as an officer to take her aside to the--

Mr. Casey: --To order her to isolated parts of the... of the factory.

Unknown Speaker: --What would you call that?

Would you call that quid pro quo?

Mr. Casey: I would... in... in that circumstance, Your Honor, I would say that is quid pro quo, because... because he is exercising the... precisely the authority--

Unknown Speaker: Well, what if he tells her to come over to the water cooler?

I mean, boy, you've expanded quid pro quo an enormous amount if you accept that.

What if he tells her, you know, Come on over to the water cooler, I want to tell you something, and she goes over to the water cooler?

Mr. Casey: --I don't... I'm making the distinction, Your Honor.

I interpreted Justice O'Connor's question--

Unknown Speaker: I had thought the quid pro quo was just those... those company actions which, in themselves, amount to an alteration of the terms and conditions of employment, like firing, promotion and so forth.

Mr. Casey: --I think--

Unknown Speaker: But you're willing to say quid pro quo is... is what, any... any action that... that an officer of the company has authority to tell somebody to do?

Mr. Casey: --No.

I think, Your... I think, Your Honor, that isolation and constant isolation on orders of a supervisor is... is an adverse tangible job consequence.

Unknown Speaker: Well, it isn't constant isolation, as I understood her hypothetical.

He just took her aside to an isolated place to make his proposition.

I mean if he assigned her to a... you know, to Timbuktu or something, yes, then--

Mr. Casey: Justice--

Unknown Speaker: --then I could see a quid pro quo.

Mr. Casey: --Justice--

Unknown Speaker: But he just pulled her aside to make his proposition.

Mr. Casey: --Justice O'Connor's question was repeatedly... repeatedly ordered her to an isolated part of the factory so he could do that.

Unknown Speaker: Oh, I see.

So she's working... you... you understood her question to mean that she's working in an isolated part of the factory?

Mr. Casey: That's correct.

Unknown Speaker: All by herself there?

Mr. Casey: That's correct.

That's how... exactly how I interpreted it.

Unknown Speaker: Mr. Casey--

--Well, that wasn't the question.

[Laughter]

But you're altering it to suit your needs now.

Mr. Casey, would you explain this to me?

In the... I take it it's common ground here with you and everybody else that in a hostile environment claim there does not have to be any change in conditions beyond those conditions which are constituted by the hostility of the environment?

Mr. Casey: That is correct.

Unknown Speaker: Okay.

Now--

Mr. Casey: Environmental hostility, correct.

Unknown Speaker: --Right.

If the environmental hostility is created by threats of personnel action, threats of a quid pro quo nature in other words, which are not carried out, why isn't the hostility of the environment just as clear, even though there are no other changes in condition, as... as may be the case in a non-unfulfilled quid pro quo hostile environment case?

Mr. Casey: It... Justice Souter, it may well be a hostile environment.

And if it is a hostile environment, then... then we look at it as a... as a standard of negligence.

Did the employer know or should the employer have known?

Unknown Speaker: Well, but I'm leaving aside the... and maybe... maybe I'm isolating the question too much for... for... for your tastes... but I'm... I'm suggesting for a minute let's leave aside the standard for imputing liability to the employer.

Let's just look at whether there's been a violation.

And... and forget whether it's negligence or whether it's strict liability for the moment.

And I take it your answer is yes, there can be a hostile environment by unfulfilled quid pro quo kinds of threats?

Mr. Casey: That's correct.

Unknown Speaker: And your... your only point of difference then, I guess, with your opponents on that isolated point is that you say there's got to be more than one threat, just as there has got to be more than one hostile remark, if you will, in order to create the environment?

Mr. Casey: Correct.

Unknown Speaker: One... one instance--

Mr. Casey: One instance does not create a hostile environment.

Unknown Speaker: --And you're saying that the fact that the hostile environment and the unfulfilled quid pro quo situation is created by a supervisor, with more authority than let's say just a fellow employee, that doesn't make any difference in the calculus of how many instances there have got to be before we can conclude that the environment has in fact become hostile; you're saying that really is not relevant?

Mr. Casey: I... I don't... I do not believe that to be relevant.

Unknown Speaker: Okay.

Mr. Casey, you... you formulated this question, a claim of quid pro quo sexual harassment.

Now, what... what is your understanding of the term "quid pro quo sexual harassment"?

Mr. Casey: My understanding, Your Honor, is... is this for that.

You give me something, and I will do something either negatively or positively to you.

There's a quid and a quo.

And... and I believe--

Unknown Speaker: Simply where it's proposed or where it happens?

Mr. Casey: --Where it happens.

Unknown Speaker: Where it happens?

Mr. Casey: Correct.

Unknown Speaker: You mean--

--Where it happens?

Mr. Casey: --where... where... where something is proposed by... by the... by the supervisor, but not necessarily acquiesced in by the employee, I take it?

Sleep with me or I won't promote you, I mean, is the classic example that we all use.

Unknown Speaker: Yes.

But... and--

Mr. Casey: And I don't promote you.

Unknown Speaker: --Yes.

But it's curious, because you say that where... where the woman says, Okay, I will sleep with you, and he does promote her, so that there is a quid and there is quo for the quid, that is not quid pro quo.

But where she refuses, she does not give the quid, and therefore does not get the quo, that is quid pro quo?

[Laughter]

Mr. Casey: Your Honor, if... if he gets--

Unknown Speaker: It's an interesting theory.

Mr. Casey: --No... no, it's... but that's... but that's not precisely the theory.

The theory is if... if she gets the promotion for having slept with him, she... she got something she's not otherwise entitled to.

And I think that is... that is discrimination.

And I think that is a violation if she actually didn't get the promotion.

Unknown Speaker: And in the case where it is... in the case where it is the violation, he makes the proposition, it's refused, and she is not promoted, and the person who did it is the vice president of the company, why doesn't the company know about it?

He knows about it.

He's the vice president.

He is the company.

So why isn't the company the actor?

Why does he--

Mr. Casey: Because he... he... excuse me, I didn't mean to interrupt you... because he didn't act with the authority given him by the employer.

Unknown Speaker: --All right.

So then you're just using the same arguments that were in this other case.

There's nothing new here?

I guess it puzzles me that--

--Is that right?

--if she does acquiesce, the law gives her a remedy.

If she doesn't, it doesn't give her a remedy.

So the law favors submission, as I understand it.

Mr. Casey: No, I don't... I don't think that's actually the case, Your Honor.

I don't think it's safer for submission in... in any event.

I don't think there's a--

Unknown Speaker: But if we're talking--

--I'm assuming he's bluffing in both cases.

In both cases he's bluffing.

Mr. Casey: --If he's bluffing in both cases and she had no reasonable belief, I think there's no violation.

Unknown Speaker: But in your view, there... in your view... this is what I was trying to get at... there is nothing in this case in respect to authority, apparent authority, agency... all the things that we discussed in previous cases that were recently argue... in that area, there is nothing different here; the only thing that is different in this case is whether or not the quid pro quo is in fact substantively irrespective, is that right?

Mr. Casey: In the face... in the face of a clear policy in the company, she could not reasonably believe that he had the authority to do... there is no apparent authority--

Unknown Speaker: I mean, but I know that you... I'm trying to figure out, is there anything in the question that we are being asked to decide that is different from the question in the two cases that were recently argued here?

Mr. Casey: --Absolutely.

Unknown Speaker: And there is one thing that seemed different.

We're asked... which is what I thought the question meant... whether there is a substantive violation of the statute, nothing to do with vicarious liability.

Mr. Casey: The--

Unknown Speaker: And now, other than that, is there anything different?

Mr. Casey: --Yes, Your Honor, the difference--

Unknown Speaker: And what is that?

Mr. Casey: --The difference in this case is the standard of liability to be applied.

Is it strict liability or is it a negligence issue?

Unknown Speaker: So if I believe it's strict liability, there's nothing different?

If I--

Mr. Casey: Other than standard liability, that's correct.

Unknown Speaker: --But that... that's what we didn't grant certiorari on.

That's the second question.

Mr. Casey: Your Honor, I'm... I'm tying the strict liability to the quid pro quo.

If it is a quid pro quo case, this for that, I believe the... the cases are... are quite uniform that there is strict liability.

And in--

Unknown Speaker: Mr. Casey, how did all this come up?

It really is mystifying, with a statute that doesn't use any of these terms.

It just says no... thou shall not discriminate in hiring, firing or terms and conditions of employment.

Mr. Casey: --Justice, it came up in the context, really, of the other violations of Title VII, in the race cases.

For example, the company is automatically liable if... if the person is fired or demoted or not promoted because of his race.

And--

Unknown Speaker: Why... why should that be?

Why... why should that be?

Why should there be a distinction between quid pro quo and hostile work environment?

What is the law trying to achieve by adopting that category... by adopting that dichotomy?

Mr. Casey: --Well, this Court has... has instructed us, in Meritor, that we should look to agency principles.

And... and when one is acting on behalf of the employer and using his authority, that is in effect the employer acting.

When... when there is simply a hostile environment, there... the standard for agency should be "known" or "should have known".

Unknown Speaker: Thank you, Mr. Casey.

Mr. Rossiello, we'll hear from you.

Argument of Ernest T. Rossiello

Mr. Rossiello: Mr. Chief Justice, and may it please the Court:

The express language of Title VII of the Civil Rights Act of 1964 specifies that three elements, and three elements only, must be demonstrated to establish a violation of that statute.

There must first be employer action; secondly, posited upon a discriminatory basis; and, third, the discriminatory conduct must alter the terms and conditions of employment.

The only issue for this Court to decide is whether or not Mr. Slowik's conduct in this case was employer action within the meaning of 42 U.S.C. 2000e-2 (a)(1).

Unknown Speaker: Mr. Rossiello--

--Well, why does quid... I'm sorry, go ahead.

I'd like to ask you, in... in a situation like this, where we take it that the supervisor doesn't follow through on any threat, actual or implied, of failure to promote or something, some employment action, where the employer does not follow through on that, the harm to the employee seems to be very much the same as that under hostile environment claims.

Mr. Rossiello: That's correct.

Unknown Speaker: I mean, I... I don't see a lot of difference here than there would be to simply a hostile environment situation, where... where the threat is... is not carried out.

Mr. Rossiello: Well, the harm could or might be the same.

For purposes of damage... for purposes of damages or the harm inflicted, it could be the same for hostile work environment.

Unknown Speaker: Well, I... I just don't see much difference now.

And in that regard, what role does the existence of an employer policy and method for handling complaints of this type play?

Does it go to the reasonableness of the employee's belief or does it go to the amount of damages if there's liability?

What role does that play?

Mr. Rossiello: It goes to the amount of damages.

The existence of a policy has little or no effect on the liability issue.

In this particular case, the policy we're talking about is a single, flimsy sentence, buried amid two very brief paragraphs--

Unknown Speaker: Well, let's suppose it's a fabulous policy and very effective.

Mr. Rossiello: --If we can find--

Unknown Speaker: Now, what role does it play?

Mr. Rossiello: --Excuse me?

Unknown Speaker: What role should it play, if it's a perfect policy?

Mr. Rossiello: Little to none on the liability issue.

Because the express language of Title VII does not require that the plaintiff follow a policy or complain to the employer before it goes to the EEOC--

Unknown Speaker: Well, but might it go to the reasonableness of the employee's understanding when some comment is made?

I mean if she knows perfectly well, look, this company has a... a good policy, and if I say something higher up the ladder, it's going to be taken care of.

Then is it reasonable to... for her to believe that there is some serious threat out there?

Mr. Rossiello: --The short answer to that is yes.

The existence of a policy does affect the reasonableness of the plaintiff's conduct.

Most often that would be in a hostile work environment-type case.

In a quid pro quo-type case--

Unknown Speaker: Well, but we've already explored the possibility that this is very much like hostile environment if the threat isn't carried out.

You're... you're back to hostile environment.

Well, it's sort of a hybrid.

If--

--Well, Mr. Rossiello, a hybrid of what?

Mr. Rossiello: --Well, some case... if you look at Judge Wood's opinion, the first one, that was vacated in the Seventh Circuit, she seems to believe that quid pro quo sexual harassment also is a hostile work environment.

Unknown Speaker: Well, what's wrong with that belief?

Mr. Rossiello: Nothing.

I think it's... not... nothing at all.

Unknown Speaker: Could I follow up on that?

Mr. Rossiello: Sure.

Unknown Speaker: You... you agree that where... where either she complies and... and the job action... threatened job action isn't taken or she doesn't comply and the job action still isn't taken, it's like hostile work environment.

Isn't it also true that where she doesn't comply and the job action is taken... she's not given the promotion or she's fired... is anything added to the Title VII analysis by saying it was quid pro quo?

That is to say, suppose the... the officer of the company, without making a quid pro quo proposition, you know, didn't say, you know, Unless you sleep with me, you won't get the promotion, but simply asked the woman to sleep with him, she didn't, and he fired her for that reason.

Without having made any quid pro quo proposal, would... would the case come out any differently if that could be established than it would if he had made the proposal?

In other words, isn't the... isn't the proposal simply evidence of the fact that the reason she was fired or the reason she didn't get the promotion was sexual discrimination?

Mr. Rossiello: Yes.

Unknown Speaker: Okay.

Mr. Rossiello: Because... right.

The... if the threat is discriminatory in nature and if it affects--

Unknown Speaker: You don't even need a threat.

I mean if... if--

Mr. Rossiello: --You don't need much necessarily.

Unknown Speaker: --if he just makes a sexual advancement, she doesn't comply, she is fired thereafter, and if you can show that the reason for the firing was that she was not compliant, you... you've established a case, haven't you?

Mr. Rossiello: Yes, you have.

Unknown Speaker: Whether there's been the threat or not.

The threat only serves as evidence of the reason for the job action.

Mr. Rossiello: Yes.

Unknown Speaker: Okay.

But in a... in a situation in... in which the threat is not carried out, then I take it quid pro quo... the quid pro quo distinction makes a difference in this sense... and tell me whether you think I'm right.

As I understand the way we've been using the term, a quid pro quo threat is, by definition, a threat that only a supervisor can make, because only the supervisor has got the power to do whatever is threatened.

Mr. Rossiello: Right.

Unknown Speaker: I suppose that a supervisor's threat, simply because it is that of a supervisor, may have more force, may be more powerful in creating a hostile work environment, even if it's only made once, than would one off-color remark or one proposition by a fellow employee without such power.

Do you agree that in the unfulfilled quid pro quo situation there might be that difference?

Mr. Rossiello: Well--

Unknown Speaker: Which is essentially an evidentiary difference.

Mr. Rossiello: --There is.

It's a question of proof.

Right.

Unknown Speaker: Okay.

Mr. Rossiello: We're only on summary judgment here.

The District Court has--

Unknown Speaker: With respect to that, if you've got a supervisor who just loves to... never makes kind of a thing,

"If you don't, then I will. "

but just likes to make the atmosphere fun for the guys and dreadful for the... for the women, doesn't ask for any favors, there's just all of these remarks, light touching, just makes it... do you remember way back in the beginning of the world, there was a case called Bundy, and there were secretaries who said, We don't want a promotion, and nobody is threatening to fire us, but this is awful to live under these conditions.

So, Court, don't give us money, just tell them to stop.

Now, where does that kind of case fit in this picture?

Mr. Rossiello: --Well, that is discriminatory conduct within the meaning of Title VII.

As both... both cases, Harris and Meritor, stated when the work environment is permeated with intimidation--

Unknown Speaker: But nobody ever suggested in those days that there was something different between quid pro quo and a hostile environment and... and vicarious liability on the one hand versus knew or should have known on the other.

It seemed to be all one... it was under Title VII and there was one standard.

Mr. Rossiello: --Well, we believe there should be one standard.

I mean, with all due respect, I think Meritor is a wonderful opinion, but I don't think the Court or the author of the opinion intended to wreak the havoc that it did when it used those words, "quid pro quo", and "hostile work environment", in that opinion.

The circuit courts of appeals and the district courts have had a field day with those two expressions.

Unknown Speaker: Well, let me ask you this.

Suppose it were a given... suppose we would hold that in a hostile work environment case there is liability only if the employer is negligent.

Suppose that were our holding.

Would the quid pro quo distinction then be important to you?

[Laughter]

Mr. Rossiello: Yes, it would be.

[Laughter]

Unknown Speaker: And in fact, I noticed that in answering Justice O'Connor's question you said, but in a quid pro quo case.

And now, see, you attack this distinction and yet you use it.

Mr. Rossiello: Well, it's so hard to--

Unknown Speaker: Or at least you want to hold it in reserve.

Mr. Rossiello: --You see, it's so hard to avoid it.

There is just such a large body of case law throwing these two terms around.

Unknown Speaker: And we didn't start it, Mr. Rossiello, lest... lest silence indicate consent.

[Laughter]

When we used the... the expression in... in Meritor, we were referring to by... what was by then a well-established body of... of court of appeals law.

I mean don't... don't put it on us.

We were just--

[Laughter]

Mr. Rossiello: All right.

I promise not to.

Unknown Speaker: I don't see why it's a problem.

Why is it a problem, but for the circumstance that you have here, where there is a proposition that is refused and no punishment?

In any other situation, isn't it perfectly useful, or is it?

Mr. Rossiello: Well, it is... it is instructive.

Unknown Speaker: Instructive.

But I mean more, doesn't it happen, propositions, every day of the week?

Mr. Rossiello: Yes.

Unknown Speaker: And they're sometimes are followed by punishment.

And they're also sometimes accepted and followed by the lack thereof.

Mr. Rossiello: In many cases, yes.

Unknown Speaker: So there is actually... but if there is... if... to go back to our case, where... where there's a proposition turned down and no punishment, if it were true in that subset, in that subset of quid pro quo, that it is not a violation unless it is a hostile work environment, which depends upon circumstance and a lot more than just the bare facts I stated, how can you win?

Because what I'm interested in your answering is, in the opinions below, I have some kind of impression that you either waive that or they said that that isn't in the case or... what... can you explain to me what I'm... what... it may be a hostile work environment, but it requires further factual exploration, and there is a Seventh Circuit opinion that suggests this whole matter was waived or something.

Mr. Rossiello: Right.

Unknown Speaker: Could you respond to my... what I'm worried about?

Mr. Rossiello: Yes... yes, I can.

And that inquiry of Your Honor is treated at great length in our cross-petition for certiorari.

By the time the Seventh Circuit got through its 203-page decision below, I think that hostile work environment claim got lost in the shuffle.

We think there's enough in the record that we... it hasn't been waived.

And if the Court--

Unknown Speaker: What are we supposed to do if... if... or what am I supposed to do if I thought that might still be there, in light of what the Seventh Circuit did hold, not what they should have hold... held?

And... and in light of the fact that your cross-petition, I take it, is not before us?

Mr. Rossiello: --No.

Unknown Speaker: All right.

So what are... what would I do in this case if I... on the assumption... I'm not saying I really think that... but on the assumptions that I gave you?

Mr. Rossiello: Well, I would remand this case for reconsideration of the whole claim.

[Laughter]

Unknown Speaker: He should regret that we did not accept your cross-petition, I suppose.

Mr. Rossiello: Well--

Unknown Speaker: We didn't accept it.

I mean that's the fact.

Mr. Rossiello: --Well, it's still pending.

We have our foot in the door.

Unknown Speaker: Mr. Rossiello, as I understood what... what happened, was that you didn't surrender a hostile environment case, but you did surrender a simple negligence.

So, in other words, what you said is hostile environment, quid pro... whatever you want to call it, there's vicarious liability here.

So I think what the majority of the Seventh Circuit judges said you gave up was hostile environment, simple negligence, not that you gave up hostile environment and the standard is vicarious liability.

Is that correct?

Mr. Rossiello: Yes, I believe that's an accurate characterization.

Unknown Speaker: So that in the next round of this... let's assume you win this round... in the next round, if it is determined that in fact when a supervisor is involved and the action involves a threat of using the authority that the supervisor has been given by the company, negligence is not required.

A stricter standard of vicarious liability applies.

Then you're home free?

Mr. Rossiello: Yes.

Just as Justice Breyer said a few minutes ago, you know, when this... this type of conduct is engaged in by a vice president, he is the company and the company is him.

Unknown Speaker: Right.

But the... the point that I was making is the only thing that you have conceded out is company liability on a negligence theory?

Mr. Rossiello: For sure.

Unknown Speaker: Yes, okay.

Mr. Rossiello: If there are no more questions--

Unknown Speaker: Well, I don't... I just don't understand your response about his using authority that the company has given him.

The company hasn't given him authority to... to make a sexual proposition to any of the employees, has it?

Mr. Rossiello: --That's true, the company has not.

Unknown Speaker: And I assume the company also hasn't given him authority to fire a woman for her failure to comply with his sexual proposition.

Mr. Rossiello: No, absolutely not.

That's why the cases in our brief, which are other types of Title VII cases, where--

Unknown Speaker: I mean--

Mr. Rossiello: --where a firing or discharge or a demotion or a pay... a pay differential is--

Unknown Speaker: --where it occurs, you can say the employer has acted.

I don't care whether this officer was involved or not, the employer has acted, where the firing has occurred.

But where the firing hasn't occurred, where there's been no employer action, I... I find it... I find it much more difficult to leap to employer responsibility on a theory that the supervisor was using authority employment... the employer gave him.

The employer didn't give him any authority to fire somebody for failure to comply with his sexual advances.

Mr. Rossiello: --Well, there's where you... we get into the hair splitting.

That's very true.

The employer did not give the authority to sexual harass.

No employer does that as far as I know.

In fact, in the face of an explicit policy against sexual harassment, this type of conduct still occurs.

But where a supervisor, like in this case, Mr. Slowik... should I just finish?

Unknown Speaker: You can finish your answer briefly to Justice Scalia's question.

Mr. Rossiello: All right.

But where a supervisor uses the authority delegated in him in general to accomplish the sexual harassment, Title VII has been violated.

Thank you very much.

Unknown Speaker: Thank you, Mr. Rossiello.

Ms. Underwood, we'll hear from you.

Argument of Barbara D. Underwood

Ms Underwood: Mr. Chief Justice, and may it please the Court:

When a supervisor tells an employee she has to provide sexual favors in order to get a promotion, he is, at that moment, imposing a term or condition on her employment because of her sex, in violation of Title VII.

That's true whether she complies or refuses.

And if she refuses, whether she's punished immediately or has to suffer anxiety about the result.

No matter how she responds, this supervisor has used the power of the employer--

Unknown Speaker: Even when the employer's policy, which the woman knew about, specifically prohibits this, how... how could you possibly say that the employer was... was changing her terms and conditions of employment?

The... the supervisor was violating an employer policy that she knew about.

Ms Underwood: --Just as when a supervisor fires someone or demotes someone--

Unknown Speaker: Yes, but in... but in... but in that instance, the... the company is acting... the company has acted.

So it is within the scope of employment.

But if it's just a threat, there's no action within the scope of employment for agency principles.

Ms Underwood: --Justice Kennedy, there is.

The power to--

Unknown Speaker: And we'll... we'll leave aside hostile environment and repeated acts and pervasive discrimination and so forth.

Ms Underwood: --The power to fire or to hire, to promote or demote, includes the power to state what the conditions are for doing that, to hold out threats and promises.

In fact, that's the way that power is most commonly and effectively and predictably used in the management of a company.

Unknown Speaker: Well, you could say that, but it's not true.

In fact, that power does not reside in that officer.

It has explicitly been taken away from him by the company.

What more can the company do than to... you know, than to make that the company policy?

Ms Underwood: No, the company has given him the power to hire and fire, but not to do it for wrongful reasons.

And just so, the company has given him the power to hold out the prospect of hiring and firing, promoting and demoting--

Unknown Speaker: Well, but that's... that's--

Ms Underwood: --but not to do it--

Unknown Speaker: --But that's the difference.

Suppose you have a model employer, with... with policies, with grievance procedures and so forth.

Then you have a threat that is not carried out.

Under agency principles, there's... the scope of employment doesn't come into play, because nothing has happened other than an environment, which we can take care of under a different analysis.

Ms Underwood: --Well, a great deal has happened.

The employee has now been told that her work assignment and the conditions of her work are different and the terms on which she can get a promotion are different.

Just--

Unknown Speaker: But... but that's never... that's never... never carried out.

And she knows that's not true.

Yes.

Ms Underwood: --Well, she doesn't know it's not true.

She knows that the company has stated that it's against company policy.

That's not quite--

Unknown Speaker: Well, then she also learns that it's not carried out because she doesn't acquiesce and nothing happens.

Ms Underwood: --If there are no damages, then that would be a matter for damages.

In this case--

Unknown Speaker: Well, but there... there... my sense of the thing, if... if that is true, is that there simply isn't any liability.

Ms Underwood: --Well, suppose the company fires somebody and she complains and she immediately is reinstated.

There will still be a violation.

Unknown Speaker: Sure.

Ms Underwood: There will be minor damages.

Unknown Speaker: And suppose they don't discharge the person.

He says, I'll discharge you; are you discharged?

Ms Underwood: No.

Unknown Speaker: He's wanting you to go collect unemployment insurance.

I don't think they'll give it to you.

Ms Underwood: No, you're not discharged.

Unknown Speaker: All right.

And this doesn't penalize an attempt to discharge.

Ms Underwood: No, it doesn't.

Unknown Speaker: All right.

So it... it... if it's say you can't discharge, you can't hire, you can't discriminate on terms of employment.

So why, if in fact you don't discharge the person but say you're going to but you don't, if that doesn't violate the statute, why would it violate it to say, I'm not going to give you a promotion, and then you do?

Ms Underwood: Well, this... this isn't just, I'm not going to give you a promotion.

If it were just, I'm not going to give you a promotion--

Unknown Speaker: But suppose it is, I'm going to make you work in Timbuktu, or, I'm going to make you do some other thing terrible, but you don't.

Ms Underwood: --No, what... what distinguishes this is the... the coercive effect it has right now.

I'm not going to give you a promotion because you're a woman, I would say, is... is not a... is not now changing the condition--

Unknown Speaker: But if it has... if it has... if it has the bad effect, if they do something bad, she's hurt.

Ms Underwood: --Right.

Unknown Speaker: But you're saying the simple statement of saying it... so if you say something that never happens, because the person is a woman and it doesn't create a hostile environment, it still is actionable?

Ms Underwood: No, not if they say because she's a woman, because that isn't attempting to coerce her to do anything.

There's nothing really she can do to stop being a woman.

It's when the statement is, I won't promote you unless you do something.

Unknown Speaker: Ms. Underwood, supposing this supervisor had two employees, one a man and one a woman.

And he says to the man, I can make your life a lot easier here if you let me... you let me use your beach place every weekend, and he says to the woman what was said here.

Now, is a case of discrimination on the basis of sex made out there?

Ms Underwood: Well, if it's on the basis of using your beach place, then it's not on the basis of sex.

Unknown Speaker: Well, but he's... he's asking favors from both males and females.

Ms Underwood: Oh, I see.

Well, I think that if he's asking female... favors from females on the basis of sex, then he is discriminating on the basis of sex against them.

And he may also be engaging in other improper conduct with respect to other people.

But I think the... the point--

Unknown Speaker: I see.

So... so your answer might be different if he hadn't asked the male employee to lend him his beach place, but rather made a sexual overture to the male employee.

Then he would have been making sexual overtures indiscriminately, and there would have been no sexual discrimination towards either party; is that your--

Ms Underwood: --Well, that... that's the hardest case for the sex discrimination proposition.

But--

Unknown Speaker: --Yes, it is.

It's an impossible case, isn't it?

Ms Underwood: --Yes.

[Laughter]

Unknown Speaker: Ms. Underwood--

Ms Underwood: But... but... yes.

Unknown Speaker: --No, finish... I thought you were finished.

Go ahead.

Ms Underwood: No, I want... I wanted, in response to some of those questions, to suggest that, for instance, if an employer said to the women employees or to the black employees that you have to work twice as hard as the men do in order to keep your job or to get a promotion or you have to do twice as much work or you have to work twice as fast or you have to do the... the... you have to, in addition to doing all the other aspects of your job--

Unknown Speaker: And... and then the next... and the next day, a new supervisor comes in and says, We're sorry about that; that's wrong.

Was there a violation?

They worked for 1 hour under the... under the employee who behaved wrongfully.

Ms Underwood: --There's a violation with de minimus consequences.

You can always produce a trivial version of a violation.

There was a violation.

There have been cases in the lower courts where there was a remand to the district court for a factual inquiry to determine whether what happened was so trivial, so de minimus as not to--

Unknown Speaker: Is there any case in any area of the law... I'll focus on the word "discharge", because it clarifies it conceptually.

I want to take out of your thought the problem of the bad environment.

So we're not talking about a bad environment at all.

Is there any case in labor law, law of contract?

You know, there... there is lots and lots of law where it's unlawful civilly to discharge someone.

And is there any instance where a person could recover where he wasn't discharged?

It's somebody who said, I will discharge you, but he didn't.

I... I can't--

Ms Underwood: --Not... not if the only--

Unknown Speaker: --All right.

Then--

Ms Underwood: --there is not the case that to... that a discharge is equivalent to a promise to discharge.

But Title VII prohibits more than discharges.

Unknown Speaker: --Is there any case, then, under Title VII... well, but it's... you see, it's in... it's lined up certain things: hiring, discharge and discriminating in terms of conditions of employment.

So the question would be the same for each.

That is, where there was no discharge, where there was no hiring, where there was no discrimination in terms or conditions of employment, but simply a threat to make... to do those things that was not carried out.

Now, is there any precedent that would make the threat in any of those areas equivalent to the reality?

Ms Underwood: Well, I would describe the threat... if... if you describe the threat as altering her job responsibilities, altering what she has been told she must do to get a promotion, then the answer is yes.

But--

Unknown Speaker: And can we tell from just the first threat... and this is the problem, Ms. Underwood, that I had understanding the government's position... there could be a threat and the company could have a very strong policy.

So you really, looking at it as an observer, you can't tell whether it would be reasonable for the worker to believe that the threat is anything more than a... a slight of the kind that is... we... we all have to accept.

So I can understand a series of threats as making for a hostile environment.

But I don't understand just a single threat.

And you seem to say that a single threat, whether carried out or not, it... it qualifies for liability.

Ms Underwood: --A genuine, credible threat, which could be communicated, depending on the circumstances of the particular case, by one, serious, credible statement by somebody who is known, for instance, to have carried out such threats in the past, notwithstanding the wonderful policy--

Unknown Speaker: But suppose all you have is this... you have this vice president, who is a pest.

And you have a strong policy.

And you have only those two things.

How do you... how do you know, when he makes his first threat?

Ms Underwood: --Well, I think you have an issue of fact about whether a genuine, credible threat, sufficient to support liability, has been made.

I think that on this record, more was alleged than one statement.

And sum... enough was alleged to resist summary judgment.

What we have in this case, after all, is the initial statement, I can make life difficult for you; then, I'm reluctant to promote you; then, after she's promoted, I won't give you permission to do the... the job that you need to do for your customer unless you comply with my sexual demands.

In each case, a coercive statement is made.

Unknown Speaker: Why does the threat... why does the threat make a difference?

In the example you gave earlier, about racial... racial discrimination in employment, why... why is it any worse... why does it affect the working conditions any more if the... if the officer of the company says, Because you're black, I'm going to make your work... unless you work twice as hard, unless you black employees work twice as hard, you're going to be fired... why is that any worse than... than the officer who says, Because you're black employees, I'm going to give you twice as much work?

Now, there... there's--

Ms Underwood: I... I... I--

Unknown Speaker: --there is no quid pro quo in the latter case.

Ms Underwood: --No, I think they're the same.

Unknown Speaker: They're not saying, Unless you do this, I'll do that.

They're saying--

Ms Underwood: They are, in each case, imposing a new term or condition on employment by reason of race, in... in the hypotheticals that you've posed.

Unknown Speaker: --Right.

But the problem--

--So the threat makes no difference?

Ms Underwood: No, the threat... the threat can be the mechanism by which the new condition is imposed.

And in this case, and in other sexual harassment cases, it sometimes is.

But no, it's not the only way a new term or condition can be imposed on someone's employment.

Unknown Speaker: What you're saying is--

--But you're saying it's a term or condition even if the person is bluffing all the way through?

You're saying it's still a term or condition?

Ms Underwood: I'm saying it's a term or condition if it is--

Unknown Speaker: Even... even... even if the... if the supervisor says, You're going to have to work twice as hard because you're a woman, and she doesn't work twice as hard and nothing happens, he was bluffing all along, that's still a violation as soon as he said it?

Ms Underwood: --Well, if he says it in a... in a sufficiently credible manner, so that she now... and everyone... and other people in the work place to whom it's said... anybody to whom it's said understands that to be a new term of employment under which--

Unknown Speaker: But how do you judge that just on the basis of the threat alone?

I mean, we... and let me ask you how you factor in the existence of a policy that this kind of thing shouldn't happen and this is how you complain when it does?

Ms Underwood: --Well, in general, it seems to me a good complaint procedure will serve many functions.

One is that it will prevent some violations.

Another is that prompt reporting will tend to corroborate the plaintiff, and failure to use it will tend to raise questions about her credibility.

Unknown Speaker: But... but strict liability, which is what you're arguing for, will not encourage that.

Strict liability for a hostile work environment, say, or for a quid pro quo, say, if we were going to make a distinction, does... does not encourage use of grievance procedures.

It encourages laying back and filing a lawsuit.

Ms Underwood: Well, I don't... it's not so clear that that's so.

Because one consequence of laying back and filing a lawsuit is to minimize, to reduce the credibility of the plaintiff who says that something happened but never complained to anybody about it.

Unknown Speaker: It certainly will go to damages, won't it?

Ms Underwood: It would go absolutely to--

Unknown Speaker: All right.

Let me... let me... let me ask you this question, which... which I think is behind some of the things that are bothering us.

Take an easy case in which there's a company policy, but there have been 25 threats from the... from the particular supervisor.

And he had done everything that... that he could reasonably do to make it clear that he's going to follow through on the threat, but the moment for doing so has not yet occurred.

The... the next job evaluation has not come up yet.

The reason, if I understand your argument, that those threats... repeatedly, et cetera... changed the terms and conditions of employment is the same reason that we say other actions, perhaps even of co-employees, create hostile environments.

It does create a hostile environment, and the hostility is in fact a change of condition.

Is that your argument?

Ms Underwood: --Well, it is similar to the hostile environment created by coworkers in the way that you suggest.

The difference is that when hostile environment is created by coworkers, there is an issue about whether the company is properly responsible, because--

Unknown Speaker: Okay.

But leave... leave aside the question of what the standard of imputed liability is going to be.

Just go the question of violation.

And I take it on the question of violation, the two... the two instances are identical in your analysis?

There are evidentiary differences, but conceptually they're identical; is that correct?

Ms Underwood: --The harm... yes, the harm that's caused is caused in the same way.

I see the light.

Chief Justice Rehnquist: Thank you, Mr. Underwood.

The case... the case is submitted.

Attribution:

The Oyez Project

Featured:

Faragher v. City of Boca Raton - Oral Argument

Fri, 09 Jan 2009 14:50:04 +0000

Case:

Faragher v. City of Boca Raton

Media File:

97-282_19980325-argument.mp3

Related Transcript:

1997_97_282_argument.xml

Transcript:

Argument of William R. Amlong

Chief Justice Rehnquist: We'll hear argument first this morning in Number 97-282, Beth Ann Faragher v. the City of Boca Raton.

Now, Mr. Amlong.

Mr. Amlong: Mr. Chief Justice, and may it please the Court--

This is an employment discrimination case in which there are two issues facing the Court.

The first is whether the Court of Appeals applied too narrow a standard in the application of agency principles to supervisory liability under Title VII for sexual harassment.

The second is whether the Court of Appeals erred in reversing the findings of the District Court, who had found constructive and actual knowledge by an agent of the City, Robert Gordon, and had also imputed constructive knowledge to the City through the pervasiveness of the sexual harassment in this case.

The relief that we ask--

Unknown Speaker: That isn't precisely the two questions in your petition, is it?

Mr. Amlong: --No, Your Honor.

It's phrased somewhat differently.

Unknown Speaker: So the second question in your petition you see as basically Should the Court of Appeals have affirmed the District Court?

Mr. Amlong: Based on the factors I set forth in the petition, Mr. Chief Justice, that there was the pervasiveness that could give rise to constructive knowledge, and it should be re... clearly erroneous standard, that there was notice to an intermediate agent, Mr. Gordon, and that there was no dissemination of the sexual harassment policy.

Unknown Speaker: Well, what... what do you mean by permit pervasiveness?

Mr. Amlong: I mean, by pervasiveness, Mr. Chief Justice, that there were eight women who were sexually harassed by Mr. Terry and/or Mr. Silverman over a period of 4 years.

That's what the record evidence showed.

And that's what the District Court found.

Unknown Speaker: So pervasiveness means multiple victims, then?

Mr. Amlong: Pervasiveness can have more than one meaning.

But in this case, yes, it does, Your Honor.

Pervasiveness in the sense of Harris v. Forklift Systems, could mean one person with... kind of be secret pervasiveness without--

Unknown Speaker: Secret pervasiveness.

That's--

Mr. Amlong: --A pervasiveness... a pervasiveness, Mr. Chief Justice, that would apply only to that person.

In this case, the pervasiveness is not only as to Beth Ann Faragher, the Petitioner, who was repeatedly and consistently sexually harassed, but was also to seven other women.

Now, it is that pervasiveness, Your Honor, that I argue gives rise to constructive notice.

It is that pervasiveness, Your Honor, that differs from the pervasiveness in Harris.

Unknown Speaker: --I don't know how... I mean, constructive notice, I can't imagine how secret pervasiveness could ever... could ever give rise to constructive notice.

Mr. Amlong: Nor can I.--

Unknown Speaker: Okay.

So you're saying that it was so obvious that the employer must have known about it?

Mr. Amlong: --Either must have known about it or was engaged in willful ignorance about it.

Did not wish to know about it.

You can't sexually harass eight women over a 4-year period and not expect the employer to know about it.

Unknown Speaker: The employer is downtown, in... in city hall.

And all of this is going on across the highway, on the beach.

Now, is... is it implausible that he would know about it... that... that the employer would not know about it?

Mr. Amlong: Not at all, Your Honor.

Because, Justice Scalia, number one, the beach is 1.5 miles from city hall, roughly the distance from this Court to the Washington Monument.

Number two, corporations throughout this Nation have offices... IBM, for example, has offices throughout the Nation, headquartered in New York.

You can't say that if there was sexual harassment going on in the IBM plant in Boca Raton, that IBM should not be responsible for it.

Here, they were not... here, they did not know about it because of two things.

Number one, Robert Gordon, who was a captain, an intermediate supervisor and someone who should be expected to have carried the message forward to city hall, declined to do so when he was told by--

Unknown Speaker: He wasn't asked to do so.

I thought he was asked as a friend.

He was told as a friend, and asked what he though, as a friend.

Isn't that what it seemed from the testimony?

Mr. Amlong: --No, Justice Ginsburg.

What is in the testimony is that they did... and what the trial judge found... is that they did find... that they did hold Mr. Gordon in very high repute.

And that's why they came to him.

Mr. Gordon testified, however, that Nancy Ewanchew, a coplaintiff below, had asked him repeatedly, What can you do about this?

Can you make this stop?

Other women had complained to him.

Did they complain to him as a friend?

Yes.

Did that take away his status as an agent of the City?

No, Your Honor, it did not.

Unknown Speaker: Well, let me ask you about the third... what you list under "C".

Suppose the City had had just a fine policy against this kind of conduct.

And it was included in the manual that every employee got.

And it had the telephone number in city hall to call when incidents like this came up.

And everything else is the same.

Would there be Title VII liability for... what was it... Silverman and Terry's conduct on the part of the City?

Mr. Amlong: Yes, Justice Ginsburg, there would be.

And that goes to the second ground on which we seek to hold the City liable.

Which is the invocation of the kind of agency principles that are embodied in the second clause--

Unknown Speaker: Well, then, what you make... you seem to make quite a thing out of this... there was no procedure that was... that was well known.

But now you say it doesn't make any difference.

Mr. Amlong: --No, Your Honor.

It does make a difference.

Because what we are asking in the 219(2)(d) argument that we're making is... and the Court of Appeals held that to impose liability on the City in those circumstances, that... under 219(2)(d)... that Mr. Gordon... I'm sorry... Mr. Silverman and Mr. Terry would have had to explicitly threatened Ms. Faragher or to actually used their power to harm.

What we are arguing, Justice Ginsburg, is that the dynamic of a supervisor/subordinate relationship gives rise to a reasonable fear of retaliation, so that these women will put up with this stuff.

Now, the City--

Unknown Speaker: Is... is that... that sounds like strict liability to me.

That sounds like strict liability.

Mr. Amlong: --No, it does not, Your Honor, with all due respect.

I believe it would be strict liability, Mr. Chief Justice and Justice Kennedy, if we argued, perhaps, under 219(1), that they were doing this in the course of their employment.

What we're saying is that there is liability when they are aided in the commission of the tortious behavior.

Unknown Speaker: Well, but I... I inferred from your remarks... maybe improperly so... that the... they were aided, under the 219(d) formulation because of the subordinate/superior relation.

Mr. Amlong: Yes, Your Honor.

Unknown Speaker: Well, that's strict liability.

Mr. Amlong: No, it's not, Your Honor, respectfully.

Strict liability is--

Unknown Speaker: That's strict liability whenever there is a... a superior that harasses a subordinate.

Mr. Amlong: --Strict liability, Justice Kennedy, is in such instances as somebody convicted of shooting birds over a baited field, somebody who is shown to have made a profit on insider trading, in... in short swing investments under 16(b) of the Securities Act of 1934.

Here--

Unknown Speaker: Well, could you give us some examples of situations in which the employer would not be liable under your hypothesis?

Mr. Amlong: --Yes, I can, Justice O'Connor.

Yes, I can.

Unknown Speaker: Well, would you?

[Laughter]

Mr. Amlong: Yes.

One example, for example, was in the Bouton v. BMW of North America case, out of the Third Circuit, where the... where the company had a strong policy against sexual harassment, communicated it broadly, that the plaintiff had herself used before.

What we're asking--

Unknown Speaker: Well, you have just informed Justice Ginsburg that if the employer had had a strong policy, fully communicated, that it wouldn't make any difference.

Now, what position are you taking?

Mr. Amlong: --I am taking the position, Your Honor, that, number one, in this case, there was no policy.

Number two, that the existence of a policy is a strong mitigating factor against imposing liability.

But that, number three--

Unknown Speaker: Well, then your answer to Justice Ginsburg was incorrect... it would make a difference if the employer had a policy--

Mr. Amlong: --Oh, it would certainly--

Unknown Speaker: --and that would be an excuse, so there would not be strict liability?

Mr. Amlong: --It would certainly make a difference.

And it would be one of those things to be weighed.

Because the plaintiff would have the burden of proof, to prove that the fear that she was expressing was a reasonable fear.

What we seek is--

Unknown Speaker: Is there any other example of when an employer would not be liable.

Mr. Amlong: --Yes, Justice O'Connor, there is.

For example, if a female police officer, on the midnight shift, complained about harassment by a sergeant on the afternoon shift, he would not be responsible then.

If a--

Unknown Speaker: Well, that's because he's not a direct supervisor, presumably.

Mr. Amlong: --Yes, Mr. Chief Justice.

Unknown Speaker: I thought Justice O'Connor was asking for an example where there was a direct supervisor who would not be liable.

Exactly.

Mr. Amlong: Mr. Chief Justice, the... we can't envision every case.

The Bouton case was one in which there was a policy that was disseminated and had been used.

You're going to have... the--

Unknown Speaker: You would at least say that all of these cases have to go to trial?

Mr. Amlong: --Yes.

Unknown Speaker: You would never be able to get... to get these cases disposed of before a full fledged trial--

Mr. Amlong: Justice--

Unknown Speaker: --as to whether... whether the woman had a, quote, reasonable fear?

Mr. Amlong: --Justice Scalia, I don't want to say "never".

I would say that it is unlikely that summary judgment would be--

Unknown Speaker: Well, when... when would it be, if all the woman has to do is say, I had a reasonable fear?

Mr. Amlong: --If it could be shown that her fear was unreasonable.

But, like negligence, the reasonability of her fear is something that likely is going to have to be weighed by the trier of fact.

Unknown Speaker: Well, the company could have the clearest policy, and... and many other employees could have... could have used that policy to stop this kind of intimidation.

But if a particular woman has not used it, she could still have a trial on... on whether she was fearful enough... that... that's an excuse?

Mr. Amlong: If she had not used it, and if she could explain why she did not use it.

We ask only that an objectively reasonable fear be taken into account.

Unknown Speaker: Well, incidentally, reasonable fear of what ridicule, retaliation, embarrassment?

Because I... I assume some of those will always be present.

Mr. Amlong: Well, in the cases in the studies cited at, I believe, note 32 of our brief, there is widespread fear amongst women of retaliation if they complain about sexual harassment.

Unknown Speaker: Okay, retaliation.

Mr. Amlong: Retaliation.

Unknown Speaker: That... that is to say, demotion and further bad treatment, et cetera?

Mr. Amlong: Yes, Your Honor.

Unknown Speaker: It's just women?

Mr. Amlong: No... no, Your Honor.

Unknown Speaker: And is it just sexual harassment?

I mean, do you know anybody who isn't... who isn't afraid of... of, you know, criticizing his supervisor?

Mr. Amlong: Precisely not, Your Honor.

Unknown Speaker: Jumping over the chain of command, and crit... nobody is not afraid of that, is he?

Mr. Amlong: I do... I do not, Your Honor.

And there... and that's why there is a reasonable fear in the work place for complaining about this.

Unknown Speaker: And that's... that's why there's an absolute liability.

Yes.

There's always going to be reasonable fear.

And, therefore, there's always going to be absolute liability.

Mr. Amlong: No, Justice Souter, there is not always going to be reasonable fear.

Because... there is going to be reasonable fear at the summary judgment stage.

I am not suggesting that these cases are going to be disposed of on summary judgment.

I think there's plenty of time, however, that the juries will say, This is nonsense.

This woman--

Unknown Speaker: But let's go back to what you conceded, at least I thought.

There's a very clear policy.

It has been used successfully... the Third Circuit case.

So that could go to summary judgment, or not?

Mr. Amlong: --That case did not go to summary judgment.

I think that comes closer to it.

Unknown Speaker: Yes, but you said--

Mr. Amlong: I think... I think it's a--

Unknown Speaker: --you said it could be mitigating, and it... I'm sort of fuzzy about... you give... on the one hand, you give have a clear policy, great prominence; but then it kind of drifts off into the wind.

Mr. Amlong: --Well, Justice Ginsburg, it's going to depend on the... the factors of the work place.

Is the policy enforced?

How much power does--

Unknown Speaker: I really gave you an example of a policy that's included in the manual.

Let's have it posted on the guardhouse door.

Everyone knows about it, and there's a number, in big letters, to call.

And I asked you... and everything else is the... the same.

These supervisors are just as gross.

Would there be a Title VII claim against the employer?

Mr. Amlong: --If the employee could demonstrate that, notwithstanding the policy, that she had a reasonable fear of retaliation if she came forward.

This would depend on--

Unknown Speaker: This is an objective fear or subjective?

Mr. Amlong: --No.

An objectively reasonable fear.

I would want to point out to the trier of fact the degree of control that the employer... that the supervisor exercised over the work place.

I would want to point out the other kind of rules they have there.

Is he allowed to hire and fire at whim?

I would want to point out his history in dealing with employees.

I would want to deal with whether he... whether he has the reputation as a bully.

What we're saying is that if the supervisor is allowed to get away with this behavior, that that gives rise to a reasonable fear, Justice Ginsburg.

If I may reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Amlong.

Mr. Amlong: Thank you, Chief Justice.

Unknown Speaker: Mr. Gornstein, we'll hear from you.

Argument of Irving L. Gornstein

Mr. Gornstein: Mr. Chief Justice, and may it please the Court--

Our position is that Respondent is potentially liable for the hostile work environment experienced by Petitioner on three different grounds.

First, that Respondent's delegation of authority to Terry to run the beach, coupled with the failure to disseminate an anti harassment policy, made the creation of a hostile work environment possible.

Second, that knowledge of--

Unknown Speaker: Now, you... you would say that, and that alone, is... is sufficient to impose liability?

Mr. Gornstein: --That's correct.

Although, I... I would have to elaborate on the standard for deciding when it is that the delegation of power has made the creation of the hostile work environment possible.

Unknown Speaker: You don't... this is not a negligence argument?

You're not--

Mr. Gornstein: This is not an negligence argument.

The second ground is that the Respondent... knowledge of it should be imputed to Respondent, because one of Respondent's supervisors knew about it.

And third a possible ground of liability is that the Respondent should have known about it, but did not, because it failed to disseminate an anti harassment policy.

Unknown Speaker: --And that is negligence?

Mr. Gornstein: That is a "should have known" standard.

And the--

Unknown Speaker: Is it a negligence standard?

Mr. Gornstein: --Correct.

And--

Unknown Speaker: But it's a... it's a negligence... it's a negligence standard that will always be satisfied if there is no policy?

Mr. Gornstein: --That's--

Unknown Speaker: So, in effect, it's kind of an... an absolute policy standard?

Mr. Gornstein: --No.

I... I... I... I... there is a causation issue that goes along with the third theory.

Unknown Speaker: Well, is there a causation issue... well, a causation issue on the first theory, too, then?

Mr. Gornstein: There... that... that's correct.

Unknown Speaker: You say they made it possible because--

Mr. Gornstein: That's correct.

And on the third theory, it would have been, had the policy... would they have known about it had they had distributed... had they distributed a policy... an effective policy.

So there is a causation issue on the third question.

Unknown Speaker: --How will... how will we ever know that if they haven't distributed a policy?

Because we'll never know how the... the... the policy, contrary to fact, would have worked.

Mr. Gornstein: Yes.

Unknown Speaker: So won't... won't the effect of your third prong always be liability when there's no policy?

Mr. Gornstein: Justice Souter, there is... there will be uncertainty in... in many cases.

And then the question will be who bears the risk of uncertainty in that situation.

Unknown Speaker: And who is it going to be?

Mr. Gornstein: Well, I think a fair argument could be made that the employer of that situation... in that situation... should bear the risk--

Unknown Speaker: Well, if that's... if that's the case, and... and what we're uncertain about is how a policy that was never promulgated would have worked in fact, then the practical effect of the third prong is always to make the employer liable if there's no policy.

Mr. Gornstein: --Well, if... if the... unless the employer can make that showing.

Or you reject--

Unknown Speaker: Yes, but how can you ever do it?

Mr. Gornstein: --Or if you reject the view that he should have the burden, and place the burden on the plaintiff.

A plaintiff could satisfy that burden in a number of ways.

For example, in this case, the plaintiff herself could have testified that had there been an effective policy, I would have complained.

And then if that testimony is believed, causation is demonstrated.

Unknown Speaker: That sounds like running around Robin Hood's barn.

I mean, we're looking for something that's fairly simple and easy to administer.

And that isn't it.

Mr. Gornstein: Yes, Mr.... yes, Mr. Chief Justice.

But that... that is a... that is the classic negligence theory.

Which is, should the employer know... known about it.

I would like to--

Unknown Speaker: Why do you need... why do you need a special policy?

I mean, isn't it... do you really have to tell somebody that if your supervisor is doing something that you think is wrong or improper, you should talk to your supervisor's supervisor?

Why do you need a policy for that?

Mr. Gornstein: --I... I think that the... the... the problem is difficult enough, that in most cases, if an employer does not adopt a policy, they would not be exercising reasonable care.

But I would leave room for cases in which an employer could show that it has exercised reasonable care in relationship to this problem if they have adopt... adopted policies.

Unknown Speaker: Yes, but don't you think every employee in the country knows that if they're mistreated, they can complain to somebody higher up the ladder?

I mean, it's not like everybody is totally ignorant of these situations.

Mr. Gornstein: Well, there are two... two problems.

Not everybody knows about it, first of all, Justice O'Connor.

But even if they know about it, they may not be... they may not know that the employer is willing to do something about it.

And that's why the... the... a policy... a clear policy against discrimination that is disseminated to everyone, and where the... the employer... it's made clear--

Unknown Speaker: Well, it's obviously helpful to have.

But I think we have a case here that requires us to grapple with a situation where there wasn't an articulated policy.

And we're trying to look at what reasonable people know and understand.

And I would have thought most people would know and understand that if you're being mistreated, you can complain to a higher up.

Mr. Gornstein: --But I think that returns me to the first potential line... liability here.

And that is that there should be liability when the supervisor is aided by the agency relationship, in the sense that he is able to impose a hostile work environment because the employee reasonably fears adverse employment consequences if she resists or if she complains.

Unknown Speaker: But that... that's a form of strict liability, it seems to me.

Because I think any employee is going to fear adverse consequences from... from a supervisor, even though the supervisor... the harassing supervisor has not made any threat at all, just by virtue of the position.

That's why you laugh at his jokes.

I mean, everybody knows that.

That... that's a--

Mr. Gornstein: Mr. Chief Justice, I think that when there is an effective policy in place, it has the capacity to remove reasonable fear.

And when an employer can show that it... its policy has all the elements of a good policy, and they're listed in the EEOC guidance, and that that policy has been effectively disseminated to everyone, and that it's clearly understood that the... the employer takes this seriously, there's a complaint mechanism, then the plaintiff would have to show, through case specific evidence, that notwithstanding such an effective policy, she nonetheless reasonably feared adverse employment consequences if she resisted or complained.

I think that--

Unknown Speaker: --What would you do if you have the model employer, who does everything that they can, but he... there is one bad apple, a supervisor, and he offers a quid pro quo... promotion in exchange for sexual favors, et cetera... is that a completely different case, or is it governed by this same rule?

Mr. Gornstein: --That... that is a different case, Mr. Justice... Justice Kennedy.

And in... in that case, we would say that the employer is liable.

And the employer is liable because there the role of supervisory power is clear.

And the employer is liable in that situation.

Now, the reason the employer is liable there is the same reason that an employer is liable when a supervisor fires a black employee because he has a personal aversion to blacks in the work place, notwithstanding anything that the employer might have done to prevent that from happening.

And that's... that is because, in that case, it's still the case that the discrimination was made possible by the delegation of power from the employer to the supervisor.

Unknown Speaker: What if the woman is not... is not fired, because... because she... she yields to the... to the harassment, and provides the sexual favor requested?

Mr. Gornstein: We... if it's... if it's... if it's an explicit request--

Unknown Speaker: Right.

Mr. Gornstein: --if it's an explicit threat of adverse employment consequences--

Unknown Speaker: Right.

Mr. Gornstein: --again, we would say that the employer is liable in that situation, where there's an invocation of power.

Unknown Speaker: Now, I... I find that... why is that?

That seems to me very strange.

I mean, so it would make all the difference in this case... let's assume... let's assume that... that... that there would otherwise be liability on the basis of employer negligence only.

Let's assume we were to adopt that rule.

Mr. Gornstein: Yes.

Unknown Speaker: You say, however, that if in this case one of the lifeguards had said, You know, unless you let me continue to abuse you in this fashion, I'm going to assign you to that tower, that life tower... lifesaving tower that doesn't have a screen on it--

Mr. Gornstein: Yes, we are... we are... now we are getting to the--

Unknown Speaker: --That would be quid pro quo, I guess, right?

Mr. Gornstein: --That... that's correct.

And that's the--

Unknown Speaker: And suddenly everything would transform, even though the employer knows nothing about it.

All you have to allege is that he said he was going to send me to this other tower.

And suddenly it becomes a totally different case.

Mr. Gornstein: --It does.

And that's because, in that case--

Unknown Speaker: I don't understand why.

Mr. Gornstein: --the invocation of power is clear.

And I... I might add that this is the case the Court is essentially is going to have next sitting.

So I'm not sure I want to spend that much time on it.

That is what is at issue in Eller for... for the Court next sitting.

But--

Unknown Speaker: Well, maybe because it's a little difficult to see where the line is between that kind of case and this kind of case.

I mean, it's one thing to go off to the tower without any windows; it's... is it so different to be subjected to this kind of leering and groping and foul mouth every day?

Mr. Gornstein: --But the question is Has the... that harassment been made possible by the delegation of power from the employer to the supervisor?

And the line we draw is between those cases in which supervisory power makes it possible and those cases in which the supervisor is simply taking advantage of proximity in the same way that a co worker would.

And the reason that we... we hold employer liable in those situations is... is twofold.

It serves two important Title VII purposes.

First, it provides a greater incentive for employers to root out discrimination from their work places.

And, second, it provides compensation to an innocent employee--

Unknown Speaker: Well, but in... in situations where the harassment is carried out by the supervisor, but there is no retaliation suggested or in fact imposed by the supervisor, he just does these gross things, but otherwise the... the employment relationship stays the same, why do you say the employer has aided the supervisor in doing it?

Why isn't it closer to the co employee harassment situation?

Mr. Gornstein: --Because, by the delegation of power itself, and by the absence of an effective policy providing the person a way around, there will... there can be a reasonable fear that adverse employment consequences will be imposed.

Unknown Speaker: Thank you, Mr. Gornstein.

Mr. Rissetto, we'll hear from you.

Argument of Harry A. Rissetto

Mr. Rissetto: Mr. Chief Justice, may it please the Court--

Hostile environment sexual harassment is seldom within the scope of employment.

It is seldom within the authority that is given to a supervisor.

We believe that the United States Court of Appeals for the Eleventh Circuit properly applied a test, that is essentially a test of negligence, to deal with this situation.

Was--

Unknown Speaker: Is... is firing someone just because of the color of his skin, when the employer has a... a policy against race discrimination, is that within the scope of employment?

Mr. Rissetto: --Excuse me, Ms. Justice, I didn't hear the first part of your question.

Unknown Speaker: You... you had said that this kind of thing can't be within the scope of employment because no rational employer would sanction... would allow such a thing.

And I said, well, suppose you have a bigot running the personnel office and the employer doesn't know about it.

And that that person is making decisions strictly on the basis of race.

Surely, not within the scope of employment anymore.

Mr. Rissetto: No, that is... that is no longer a case of hostile environment sexual harassment, it is a case of disparate treatment.

I mean, I grew up in a world where most discrimination that occurred was disparate treatment, that people were treated differently because of their gender or their race.

Unknown Speaker: Yes.

But as far as attributing it to the employer, the employer in both cases says that's certainly not any policy that I authorized.

Mr. Rissetto: When... when... when a supervisor takes what Justice Posner, in the Jansen case, called is a company act, the hiring somebody or not hiring somebody, that is an act that's separate from the motivation of the act.

It is... it is an act that's an official act of the company.

And if that act is tainted by a discriminatory motive or a discriminatory intent, it's a violation of Title VII.

It's always been.

And... and that is the... that is the... at least the fundamental distinction between a quid pro quo situation or a disparate treatment situation on one side, and hostile environment situation on the other.

Unknown Speaker: I don't understand--

--But it isn't because... because, I think, as... as your... your... your friend on the other side indicated, it's still a quid pro quo.

Even if the person is not fired, but... but yields and... and... and gives the sexual favor demanded, isn't that still quid pro quo?

Mr. Rissetto: That is an unsettled question, since I believe the lower courts are wrestling at the present time as to what a quid pro quo violation is.

At least--

Unknown Speaker: So you think that... that should make the difference, the... the... the woman who is so intimidated that she yields is... does not get the advantage of the quid pro quo rule, whereas the one who... who is tougher and is fired does?

Mr. Rissetto: --Well, there is a... there is a... there are three categories of quid pro quo, one where the person is fired.

That's a company act.

That is, if I fire somebody because of their gender, that's a violation of Title VII.

I don't believe that that principle is in dispute.

Unknown Speaker: And you're not arguing that there should be a negligence test for that?

Mr. Rissetto: No.

When there is disparate treatment discrimination, it's not a matter of employer negligence.

Unknown Speaker: But, Mr. Rissetto, may I just ask this question?

You draw the distinction because the personnel supervisor, in the course of his or her regular responsibilities, hires and fires people.

That's... but why isn't it true that the supervisor in this case, in the course of his regular responsibilities, is responsible for the conduct that occurs at the beach?

What's the difference?

Mr. Rissetto: He is responsible for the conduct of... that occurs at the beach.

Unknown Speaker: Including how the employees deal with one another.

Mr. Rissetto: But when that supervisor departs from the scope of the employment--

Unknown Speaker: Well, but didn't the personnel officer depart from the scope when he based it on race rather than merit?

Mr. Rissetto: --No.

In that case, he made a hiring decision.

Unknown Speaker: Well, here, this supervisor made a... a... employment decision in the sense it related to how people had to interact with one another under his supervision.

Why isn't that an employment decision?

Mr. Rissetto: But the... in... in... in the case of hostile environment, the... the effect of... on the terms and conditions of employment are as a result of an action that's outside the scope of the employment by the supervisor.

In a normal disparate treatment case, the effect on the terms and conditions of... of employment, at least in one respect, is as a result of not being hired or being fired or not being promoted.

And that is a fundamental distinction.

And it makes... and it makes the hostile environment cases difficult to fit into the normal disparate treatment mold.

Unknown Speaker: My question is, why is it a fundamental distinction?

That's what I don't quite follow.

Mr. Rissetto: I'm sorry?

Unknown Speaker: My question is, why is it a fundamental distinction?

That's what I don't quite follow.

Mr. Rissetto: Because in--

Unknown Speaker: Because in both cases, the... the supervisor is performing his... his or her general official responsibilities, but deviates from company policy.

And you say, in one deviation, is outside the scope of the employment, but the other is not.

Mr. Rissetto: --Because in one case there is an employment action that is... that is within the... the supervisor's authority.

The right to hire and fire is within the supervisor's authority.

Unknown Speaker: But so is the right to tell how people behave on the beach.

Mr. Rissetto: And this is a case where the supervisor his self... himself or herself... is departing from the scope of that authority.

Unknown Speaker: Well, but think of the situation where the employer tells the supervisor to run an errand, drive the car downtown to buy supplies for the beach.

And on the way, the employ... the supervisor drives negligently and hits somebody.

Employer liable?

Sure.

Not a frolic of his own.

Mr. Rissetto: But if--

Unknown Speaker: So... so how do you relate what happened here to that concept?

Mr. Rissetto: --Because in this particular case, the activities of the supervisor in question were in pursuit of his own personal agenda.

They weren't... they weren't carrying out the responsibilities that he had in operating the beach.

Unknown Speaker: Well, his responsibilities included supervising the employees.

Mr. Rissetto: It included supervising the employees.

Unknown Speaker: Yes.

Mr. Rissetto: And... and there is no question that Mr. Terry and Mr. Silverman--

Unknown Speaker: And he carried it out in a grossly improper fashion.

Mr. Rissetto: --Well, I would suggest that there's a distinction between his supervisory actions and the frolics, or improprieties and misconduct, that he committed outside his supervisory responsibilities.

We would suggest that the record in this case suggests that most of the things that went on that were offensive to the lifeguards at Boca Raton were done outside the normal responsibilities... the regular responsibilities of either Mr. Terry or Mr. Silverman.

Unknown Speaker: No, but I think you're--

--Would it make a difference if... if one of the other... or both of them... said, I'm going to have my way with you once a week, and everything else is the same, would the employer be reachable more readily than you contend, where there was just groping and leering and foul language?

Mr. Rissetto: Well, if... if he says, I'm going to have my way with you once a week, there is legitimately a negative implication in that statement that if I don't, you're going to be fired or something bad is going to happen to you.

In that case, you're on the way over to a... a quid pro quo kind of situation that's before the Court in Burlington--

Unknown Speaker: Well, why don't we just concentrate on the act rather than... he doesn't say, I'm going to fire you.

He's going to say, you're here, I'm stronger, once a week.

Mr. Rissetto: --Your Honor, I don't think it would make a difference in the outcome.

It would still be a hostile environment sexual discrimination for the employ... for the supervisor to say that to the employee.

That would... that... that there is... we believe that the--

Unknown Speaker: In other words, if that... if that were a term and condition of her employment imposed by the supervisor, there would still be no liability on the part of the employer?

Mr. Rissetto: --Your Honor, at... at the point we're on in the hypothetical, we're only a threat that the employer... that the supervisor says to the--

Unknown Speaker: I'm not talking about words, because there were deeds here, too.

Mr. Rissetto: --Okay.

Unknown Speaker: They didn't go that far.

So let's take this case, where there's no words, just deeds.

That happens once a week.

And it's a... she describes it as a term or condition... a condition of her employment.

Would it not be, if that in fact is what her boss... her supervisor did?

Mr. Rissetto: If there was... if... if there were no nexus to an employment action, if it was not a condition of her employment, it would... it would fit into the--

Unknown Speaker: Well, that's the problem.

Is it or is it not?

How do I know?

Or I know the fact that once a week this goes on.

Mr. Rissetto: --Well, we know in this case that... that... that there was no evidence in the record that the activities that these... that Silverman and Terry engaged in was anything more than gratuitous.

Unknown Speaker: Well, I'm just trying to find out, as far as the employer's liability is concerned, which is the issue before us, whether these are differences in degrees or difference in kind, whether it makes any difference.

Mr. Rissetto: Well, the degree of grossness or the degree of coarseness, or whether it's verbal or... or physical, ought not to make an operative difference in the outcome.

In either event, the... the Title VII works best when a regime of communication is... is created, where employees that are the subject of either criminal activity or improper activity or misconduct--

Unknown Speaker: Well... well, I'm not so sure.

In the case of very gross misconduct of the kind in the hypothetical, in one sense, the employee is... almost has less fear because she knows the employer will stop that.

It's these... it's these less offensive, but still gross and vulgar, situations, where she is really concerned that the employer might brush her off or not... not care, not act.

Mr. Rissetto: --Well, in this particular case... and it's difficult to extrapolate from an anecdote... as soon as Miss Ewanchew wrote... wrote the letter, something happened.

An investigation took place, and disciplinary action was taken.

But as... I am not offering that as... as the paradigm example.

What I am offering is... is an argument from policy that suggests that from an employer's perspective, trying to find out the sexual harassment of the subtle variety that you hypothesized is going on in the work place is nearly impossible.

A lot... if... reading the record in this case--

Unknown Speaker: What is subtle about the behavior that's described here?

Mr. Rissetto: --Well, to the extent that you're in a room and... and someone grabs a part of your anatomy and... and... and does so secretly, it is difficult for an outsider--

Unknown Speaker: But there was nothing here, as far as I can tell, that was secret.

It was on the beach, right?

Mr. Rissetto: --There was... there's a... there's a variety of... of anecdotes, some of which... for example, a number of the lifeguards... female lifeguards testified that they weren't aware that conduct vis a vis other lifeguards was even going on.

Which goes to the obviousness of the... of... of a lot of the activities.

Some of the verbal activity was relatively public among the lifeguards.

Unknown Speaker: Is that the nub of your argument, that it is... that it is more difficult for the employer to... to become aware of this kind of harassment than it is for the employer to become aware of racially discriminatory hiring?

Is that the nub of it?

Is that why you... you would... you would call for different treatment of employer liability in those two cases?

Mr. Rissetto: That's part of it, Justice Souter.

I think--

Unknown Speaker: What's the other... what's the other part?

Mr. Rissetto: --The other part of it is that when the employee takes an employment action, hiring somebody or not hiring somebody in a discriminatory fashion, the person taking that ultimate action is acting within the scope of his or her work.

Unknown Speaker: No.

But that's just a matter of definition.

I mean, what you're saying is the person in your example, who... who fires or hires for a racially discriminatory purpose, is exercising a power that the employer has... has given him.

But you could just as well define it by saying no, the employer has simply given an authority to hire and fire for legitimate reasons.

So it seems to me that that distinction, which you've stated several times, is simply a distinction that's based on an arbitrary definition that... that you are assuming here.

And the real reason, if I understand your argument, is that it's more difficult for the employer to become aware of the harassment than to become aware of the racial discrimination.

And you... you said a second ago that that is one of your reasons.

My question is Why is it more difficult?

All sorts of hiring decisions are made.

And they may... they may be made very legitimately, even though the... the two parties, the... the supervisor and the person hired or fired are of different races.

How is it easier for the employer in the racial situation to know that something wrong is going on, but not in the harassment situation?

Mr. Rissetto: I don't believe there is a... a distinction in knowledge, particularly with respect to far flung employers, with operations that are run, where hiring decisions are made by supervisors.

I think, as a practical matter, there is a... there is a... a great degree of difficulty in ensuring that personnel decisions are made in a manner that are consistent with Title VII.

However, in... in the case of... of an employer making that decision with somebody acting within the scope of... of its employment, I don't believe that an employer can define away its Title VII responsibilities by saying, Joe, you can hire these people, but I don't want you to discriminate against Title VII; and remember, your job only entails hiring within the confines of Title VII.

In that situation, the law of agency is clear, that--

Unknown Speaker: Why is the situation any different when we get to sex harassment?

Mr. Rissetto: --Because in this particular case, the activity that was engaged in by the individual supervisors had nothing to do with the exercise of their supervisory authority.

Unknown Speaker: No.

But you're saying... your response to my definitional objection was, in effect, it's... it's easier to define with reference to the prohibited act in the one case than in the other.

And... and that's what I don't understand.

I don't... I don't understand why the definitional responsibility and the practical consequences of it are different in the race situation from the sex situation.

Mr. Rissetto: Well, I think if you... under the... the historic law of agency, there is a... a premise.

And the premise is that supervisors can act outside the scope of their employment.

And when they do, they're on their own.

Justice Hand had a bosun's case, where a drunken bosun beat up a... a sailor--

Unknown Speaker: Okay.

And that's true with respect to improper racial considerations.

It's true with respect to improper sex considerations.

What's the difference?

Mr. Rissetto: --Well, the difference is that, in... in the case when the supervisor departs from the scope of employment, he's acting on his own.

And--

Unknown Speaker: Well, if... if... if IBM refuses to hire a woman, and thereby violates the prohibition against discrimination based on sex, you don't need vicarious liability on the part of a supervisor or on the part of the hiring manager.

She tried to get on IBM's payroll and did not succeed.

So it seems to me you're not talking about vicarious liability there at all.

You're talking about liability on the part of the employer directly.

Mr. Rissetto: --Yes, because the... but in... in every case of a corporation, the employer is acting through individuals, and the act of the individual is the act of the corporation, unless the... the supervisor departs from the scope of his employment.

If Mr. Terry decided that he was going to begin to steal from the... from the... from the women lifeguards, on... on the... because they were women, and... so disparate treat... disparate action with respect to... on the basis of sex with respect to the women lifeguards.

And he does this stealing.

The question is Is he within the scope of his employment?

Should the employer be automatically liable to the women lifeguards for the theft?

Now, you get back to the question--

Unknown Speaker: Suppose... suppose I... I'm a hiring officer for a company, and I hire somebody because he's my son in law.

Am I acting--

Mr. Rissetto: --cases Your Honor--

Unknown Speaker: --Am I... am I acting in the scope of my employment?

Mr. Rissetto: --It depends whether or not the... a... the court will find that that's part of a pattern of not engaging equally... equal employment hiring decisions.

Unknown Speaker: No, no, no.

Apart from whether... there's no discrimination.

There's no Title VII involved.

Mr. Rissetto: Okay, no discrimination.

Unknown Speaker: I'm clearly not acting in the scope of my employment if the only reason I hired a person is because he's my son in law.

Mr. Rissetto: Well, if... if you assume he's not qual--

Unknown Speaker: He's incompetent.

Yes.

But he's making hiring decisions.

I don't care if he's qualified.

[Laughter]

I don't care whether he's qualified; he's my son in law.

I mean--

[Laughter]

What's family for?

Right.

[Laughter]

Mr. Rissetto: --The act... precisely... the act of hiring is within the scope of his employment.

Why he hires--

Unknown Speaker: I, m--

Mr. Rissetto: --That's the reason we don't let them off the hook when they don't hire somebody because they're a woman or because they're black.

Because the act of hiring is within the scope of employment.

Unknown Speaker: --May I ask another--

Mr. Rissetto: Yes.

Unknown Speaker: --if you could get away from the hiring for a second.

Supposing a... a company... the supervisor has a... the work place has got asbestos in it or it's dirty or unhealthy or something like that.

And it makes it an undesirable place in which to work, which causes harm to the employee.

Should there be a different standard of liability on the... on the principle there than in... in this particular work environment situation?

Mr. Rissetto: Well, in that particular case, there are... are... vicarious liability can flow to the employer by virtue of the conditions--

Unknown Speaker: But why is it different in that?

Mr. Rissetto: --Because it's a dangerous condition is one of the historic exceptions to... that creates vicarious liability.

The Court had a case 20 years ago involving feces in a... in a food warehouse.

And found--

Unknown Speaker: Right.

Mr. Rissetto: --vicarious derivative liability to the... to the president of the company, who knew nothing about it.

The Court, in its decision, concluded that it was a... that there was a public health... an overriding public health justification for the regulation that created--

Unknown Speaker: But if there was... it wasn't... it was not within the public health exception, but just a general dirty place, and squalid... I suppose most of these do come down to health, don't they?

Mr. Rissetto: --Yes.

Unknown Speaker: But if it's some... if it's just simply unpleasant, you'd say you would not... you would not attribute it to the employer in this case?

Mr. Rissetto: Well, if it's noisy, Your Honor... I mean, I... I think--

Unknown Speaker: Unless which actually caused harm.

But, again, you're... you're in the health area.

Mr. Rissetto: --Yes.

I'm reluctant to try to an... analogize a hostile environment sexual discrimination--

Unknown Speaker: What you're saying is the public interest in avoiding this kind of environment is not as strong as the public interest in protecting the health of the worker?

Mr. Rissetto: --Well, from the perspective of the City of Boca Raton, they do have a strong interest in... in... in avoiding this.

I mean, this is a terrible situation.

The... the conduct of these supervisors--

Unknown Speaker: Sure.

But what is the interest different here from the interest in the race situation or the interest in the health situation?

Why is it lesser?

That's... because I think that's what you're... at the moment, I think that's what you're telling us we should find.

And what are the reasons for finding it?

Mr. Rissetto: --Well, hostile environment because of race is a... is... is... is... I would analogize it to this situation.

And... and I think the same--

Unknown Speaker: So the standards are to be the same?

Mr. Rissetto: --It... yes, in a parallel situation.

If... if these... if the things that happened to these lifeguards happened because they were black or because they were, you know,--

Unknown Speaker: Then why don't you lose?

Mr. Rissetto: --We don't... I'm... Your Honor, I'm suggesting that... that... that there is... at least the lower court decisions do not draw a distinction between a hostile environment situation involving race and one involving sex.

Unknown Speaker: All right.

Why is the... why is the necessity different between a hostile environment situation in sex and a hiring/firing decision on race?

Mr. Rissetto: Because in a hiring/firing decision because of race, there's a company action made for which the company is responsible.

Unknown Speaker: Yes.

But why?

Mr. Rissetto: Why?

I'm sorry--

Unknown Speaker: Why do you say it's not vicarious liability in the one case but it is vicarious liability in the other case?

The President of IBM does not know when the personnel manager in Pasadena, California discriminates on the basis of race any more than he knows that a supervisor is creating or tolerating a hostile environment based on sex... doesn't know in either case.

Why is the treatment different?

Mr. Rissetto: --I'm embarrassed to give you the same answer that I... I gave you before, Your Honor.

I apologize for this.

But in... in... in one case there is a corporate action being taken within the scope of the employment... not hiring or promoting... and--

Unknown Speaker: May... may I be sure I understood your answer to the comparative, two different kinds of hostile environment, one caused by the kind of situation we have here, and the other caused by a supervisor who doesn't like African Americans and he puts them all in the corner.

You say the same standard of... of agency liability would apply to both of those cases?

Mr. Rissetto: --Yes, that would be the position--

Unknown Speaker: I see.

Mr. Rissetto: --that negligence... the... the employer... in... in a case where the supervisor is not exercising--

Unknown Speaker: Have we ever--

Mr. Rissetto: --and your hypothetical is slightly off--

Unknown Speaker: --Yes.

Mr. Rissetto: --but assuming that it... it was not within the scope of employment and he was not--

Unknown Speaker: Well, the company has a policy in both cases against sexual harassment on the one kind, and against treating blacks differently than whites.

But the supervisor happens to be a member of the Ku Klux Klan in one case, and he happens to be the lifeguard in this case.

Are they parallel, in terms of agency principles?

Mr. Rissetto: --They should be.

But if, in both cases the employer assigns... makes adverse assignments or... or--

Unknown Speaker: Well, the supervisor does it.

The people in city hall don't know about it in either case.

Mr. Rissetto: --But... but the act of making assignments down in the beach was in the scope of Terry's employment.

And if Terry's--

Unknown Speaker: Well, but the same is true of my... the same is true of my... my black/white case, too.

Mr. Rissetto: --They would be parallel.

They would--

Unknown Speaker: Yes, they would be parallel.

Mr. Rissetto: --they would be parallel.

And there'd be... and there would not be liability in the... in the racial discrimination context unless there's actual knowledge?

For a gratuitous comment made by a supervisor--

Unknown Speaker: No, no, no, not a gratuitous comment.

A steady, every day policy of making the black secretary sit off in a dark corner.

Mr. Rissetto: --Well, but now... that... that's... I think in the case of the lifeguard and in the case of the... of the secretary--

Unknown Speaker: Right.

Mr. Rissetto: --race and sex, you would have the same outcome.

The employer would be liable in both cases.

Because there--

Unknown Speaker: Oh, but if you say liable in both cases... but you're saying in this case your client is not liable.

Mr. Rissetto: --Because the distinction is when I make assignments on a discriminatory basis, I'm liable.

When I make gratuitous comments and... and do gross things and make coarse comments to an employee, I am not acting within the scope of... of my employment.

Unknown Speaker: But... but you--

Mr. Rissetto: And that is the fundamental distinction.

Unknown Speaker: --Well, suppose... so you'd say, in my case, if the hostile environment for the black secretary was partly the assignment, but consisted mostly of racial epithets and the like, then it would be the same case?

Mr. Rissetto: Then it would be the same case.

Unknown Speaker: Okay.

Can... can you say what... what harm do you do to the fabric of the law... and I'm not saying you don't... but what harm do you do if you say the... the policing of the environment, the policing of the work environment for a high level supervisor, is precisely analogous to hiring and firing in respect to a hirer?

And if you do the hiring wrong, even for personal motives, the company is liable because the hiring/firing decision is the company.

And if you do the policing of the environment wrong, your company is liable, because the policing of the environment is a company responsibility.

I think that's what Justice Stevens and everybody has been trying to get at... I think.

And... and you're saying, Well, that would be somewhat novel.

But there is an analogy, I take it, in the asbestos area.

And is there other harm that would be occurring if... if... I mean, is... would the law be hurt?

Is that very novel?

Is it contrary to other?

You see what I'm... I'm trying to get a--

Mr. Rissetto: We believe the objectives of Title VII would be hurt.

Unknown Speaker: --And that's because of your policy argument.

And I've been think... in my... my... the reaction that I wanted to ask you about that is, is that... in other words, the difficulty of the employer finding out... is that a problem with the liability assessment?

Or is it a problem with the substantive standard?

Mr. Rissetto: I--

Unknown Speaker: That is, if you have a tough substantive standard, you risk, let's say, creating too much tension in the work place.

If you have too relaxed a standard, you risk injuring women or minorities in the work place.

It's very hard to get the right standard.

But is the policy problem that you're worried about related to the standard or is it related to this problem of liability?

That's my whole question.

Mr. Rissetto: --I... I think it's related to the problem of liability, as a practical matter.

And... and... and to speak somewhat cynically for a moment, if... if the law was such that if whatever the... the standard is, the... an employer/supervisor violated the standard, there was automatic liability... if I'm an employee in the work place and a gross comment is made to me, but I'm... you know, I can live with it... but all of a sudden, one day it dawns on me, hey, there may be some money here.

So I let this conduct continue.

I don't object to it.

I don't, you know, say, Stop it, to the supervisor doing it to me.

I just go on and on.

And at some point in time, I reach the magic moment.

Either it permeated or pervasive, whatever the standard you want to use.

And I say... and I drop my charge in with the EEOC.

Unknown Speaker: Then you sue and you recover $1.

[Laughter]

Mr. Rissetto: Well, we--

Unknown Speaker: That's what happened here.

Mr. Rissetto: --this... unfortunate... or fortunately for the City of Boca Raton, this was prior to the amendments in 1991.

Now, we have compensatory damages and... and at least with respect to private employers, you have punitive damages that are available.

Unknown Speaker: We are going to have to address at... I think, at some point in this case, the constructive notice by reason of... of Gordon's involvement, and by his failure to report.

Could you just comment on your friend's argument in that respect?

Mr. Rissetto: Yes.

With respect to Gordon, it's... we believe that... that the conversations that occurred with Gordon, one, were not complaints, were not made with an expectation that Mr. Gordon would take the matter up.

He communicated back to the people, saying, I'm... it's not... I'm not going to take it up.

Unknown Speaker: Is... is one standard whether or not he would have been disciplined for failure to make the report?

Mr. Rissetto: Well, I think that the standard is whether he had a duty.

And at least in agency law, one standard would be whether he had a duty to make the report, or was he higher management and can deal with it?

Gordon was no... in no position to deal with Terry.

Terry was--

Unknown Speaker: It seem... it seemed to me that the... the counsel, in the Petitioner's brief, made the point, if he had... if Gordon had known that... I think Terry... was stealing money, I assume he probably would have been disciplined by the City for failure to report that.

Maybe I'm wrong.

Mr. Rissetto: --Well, Mr. Bender, when he testified, thought that the lifeguards themselves should have reported it to him that this was going on.

He thought that Mr. Gordon should have reported it.

But it... it isn't... there is nothing in Mr. Gordon... in... in Mr. Gordon's duties, as the training captain of this... on this beach, that... that requires--

Unknown Speaker: Well, suppose I... suppose I knew that Gordon would be disciplined for failure to report theft by Terry, even though Gordon is not Terry's supervisor.

Mr. Rissetto: --Yes.

Unknown Speaker: Would that mean that he should also report this?

Or is there... does he have a different obligation?

Mr. Rissetto: No.

I think the obligations would be in tandem.

I don't believe that--

Unknown Speaker: So if he has the obligation to report theft, he'd also have the obligation to report sexual harassment?

Mr. Rissetto: --I would assume that there would be a presumption that that was correct.

And, you know, without looking at more facts with respect to the duties and responsibilities set out in the regulations and handbooks and training--

Unknown Speaker: What... what are the duties of supervisors?

I... I would have thought that every employee has the duty to... to... if he's a loyal employee... to tell his employer about... about violations of law that are occurring.

Mr. Rissetto: --Well, there's an expectation and a hope.

And I think that was evident in Mr. Bender's testimony.

But I don't know that there is a duty, a legal duty, that is... that is punishable in some way for failing to make that kind of report.

I mean, particularly--

Unknown Speaker: Well, didn't Mr. Bender... wasn't he the witness who admitted that Gordon had an obligation to report this?

Mr. Rissetto: --Yes, he said, in the same sentence, he said he also though the lifeguards had an obligation to report it, too.

And I... so I think Mr. Bender was speaking optimistically, as a manager speaks about what you would hope that your employees would do in a--

Unknown Speaker: Mr. Rissetto, what difference does it make in your view, legally, whether the employer has a clear policy about sexual harassment and where to complain and so on, or the lack thereof?

How does that fit in with it?

Mr. Rissetto: --I... I think it is relevant to the question of negligence.

I think it's important to note that we're back in 1985 with these cases.

And the country's sensitivity about these matters were--

Unknown Speaker: Well, today, if an employer has such a policy, then... then is the employer protected or not?

Mr. Rissetto: --I... no, I don't believe the employer is protected.

Unknown Speaker: How does it--

Mr. Rissetto: I think the... the question in all cases is whether he knew or should have known.

And if... if he didn't know, was the employer playing an ostrich, like... that's a question of proof that would be presented under a negligence standard.

In this particular case, Ms. Faragher, in 1990, after she had decided to go to law school, had the policy.

Thank you, Your Honor.

If there are no further questions--

Unknown Speaker: --Thank you, Mr. Rissetto.

Mr. Amlong, you have 4 minutes remaining.

Rebuttal of William R. Amlong

Mr. Amlong: Thank you, Your Honor.

Justice O'Connor, the... the need for a policy, even back in 1985, is... is exemplified by the knowledge by that time of sexual harassment in the work place.

The EEOC's policy requiring employers to do something had been on the books since 1980.

There was widespread knowledge about it.

The movie, 9 to 5> ["], people knew sexual harassment was going on.

And the... and the... the problem with the Court of Appeals' approach is that it discourages persons to come forward and... I'm sorry... it discourages employers from having the kind of policy that will bring these reports to their attention.

As Judge Tjoflat noted in dissent, this rewards ostrich like behavior.

It's hear no evil, see no evil, pay no lawsuit.

Unknown Speaker: But your position was, even if there was a policy, it would make no difference; there would still be a trial.

Mr. Amlong: Justice Ginsburg, my position is that if there was a policy, it would not make an automatic difference, that... but it would be a factor to be considered.

Now, they had a policy.

They just didn't tell anybody about it.

And, in fact, the policy said, on the issue of whether or not Mr. Gordon had an obligation to... to report, the policy, which is found at page 267 of the joint appendix, says, in pertinent part, a... speaking about the EEOC guidelines Under the guidelines, an employer is responsible for the actions of its supervisory employees or agents and, in some cases, for the acts of others when the employer or a supervisory employee knows of, or should have known, the behavior.

Now, Mr. Gordon knew of the behavior.

He had actual... actual knowledge.

He did not report it.

The behavior of which he knew, Justice Souter, was of... just like discrimination against African Americans.

It is that... this is not somebody asking for a date.

This is two supervisors, for whatever purpose, engaging in the crudest treatment possible of these two women.

It is not merely a frolic.

It is the same kind of behavior that, were it to have been directed to an African American, were he to have been called these epithets, and were he to have been badgered repeatedly, there would be no question that this was discrimination.

Unknown Speaker: Well, your brother... your brother says there would be no liability there.

He... I mean, he's drawing the distinction, if I understand it, between the hiring/firing distinction, because supervisors, at least, are authorized to hire and fire, and the discrimination, or the harassment situation, in which they are not authorized to harass.

And he says a... a definition of what is or is not within the scope of employment is... is... is subject to legitimate distinctions between those two cases.

What... what do you think of that distinction?

Mr. Amlong: Justice Souter, there is no principal distinction between that kind of discrimination and this kind of discrimination.

Unknown Speaker: Well, what about the claim that it's harder to find out... it's harder for the upper level employees, the management, to find out about hostile environments than it is for them to find out about discriminatory hiring and firing?

Mr. Amlong: It's especially hard to find out if there is no policy, and if Robert Gordon does not report it up, number one.

Unknown Speaker: All right.

That's a different... that's a different argument.

Mr. Amlong: The... it is... I do not expect that a Klansman personnel manager is going to announce Mr. Smith, I'm not hiring you because you're black.

So it is... it is not that much harder for them to find out.

What we have here is we have Terry and Silverman, through their acts, altering the terms and conditions of the employment.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Amlong.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Oncale v. Sundowner Offshore Services, Inc. - Oral Argument

Fri, 09 Jan 2009 14:50:02 +0000

Case:

Oncale v. Sundowner Offshore Services, Inc.

Media File:

96-568_19971203-argument.mp3

Related Transcript:

1997_96_568_argument.xml

Transcript:

Argument of Nicholas Canaday, III

Chief Justice Rehnquist: We'll hear argument now in Number 96-568, Joseph Oncale v. Sundowner's Offshore Services, Inc.--

Mr. Canaday.

Mr. Canaday: Mr. Chief Justice, and may it please the Court:

Rejecting Joseph Oncale's title VII claims, the Fifth Circuit stated, same-sex harassment claims are not cognizable under title VII.

The question presented through this appeal is whether the Fifth Circuit's categorical rejection of same-sex claims under title VII is correct.

We argue that it is not.

The court below should be reversed.

Same-sex sexual harassment claims are actionable under title VII.

This case is not about the outer limits or parameters of same-sex sexual harassment as an actionable form of discrimination because of sex, nor is this case about the methods of proof of such a claim.

This case is about whether a same-sex sexual harassment claim exists as a matter of law.

The Fifth Circuit rule that same-sex claims do not exist under title VII is not sex-specific.

It is an absolute rule.

Both sides to this litigation agree that women are entitled to the protections of title VII, but to accept the Fifth Circuit rule is to accept the proposition that a woman's right to work in an environment free of unwelcome sexual conduct, or sexual solicitation, turns on the sex of her harasser.

If the harasser is a female, the woman has no rights or remedies under title VII as interpreted by the Fifth Circuit.

Unknown Speaker: I thought this case involved a man.

Mr. Canaday: It does, Your Honor.

This case does involve a man, but I emphasize that the Fifth Circuit's ruling is not a male-on-male decision, it is a same-sex decision, and I emphasize that to point out the breadth of the Fifth Circuit's categorical and absolute rule that same-gender sexual harassment claims, regardless of the genders, as long as they're identical, and regardless of the underlying facts, would, under the Fifth Circuit's rule, be dismissed as a matter of law, but Your Honor, you're exactly correct, this is a male-on-male situation, but the court did not decide the case on that fact except to recognize that the genders of the two parties, the harasser and the victim, were the same.

So to accept the Fifth Circuit's rule, then, is to agree that the sex of the harasser defines the scope of title VII.

Unknown Speaker: Not necessarily.

I mean, you could say if the harasser, whoever he or she is, treats members of one sex, whether the same sex as the harasser or the opposite sex, differently, you could... so you... if you have a difference of... in treatment by the perpetrator of males and females, that's one thing.

So I don't think that the Fifth Circuit has ruled quite as broadly as you suggest.

You could have a male perpetrator and a male victim.

Mr. Canaday: Your Honor, the Fifth Circuit has ruled categorically that if there is a male victim and a male perpetrator they do not look at the underlying facts or circumstances of the harassment.

They decided as a matter of law that same-gender causes of actions do not exist.

The Fifth Circuit's rule would be equally applicable were this a woman-on-woman case.

The fact that it is male-on-male--

Unknown Speaker: But my point is, this was an all-male environment, too, and wasn't that... don't we have to take the decision in that context?

In other words, they didn't say that if you have an employer who treats members of one sex one way and members of another sex another way there would still be no claim under title VII if the victim is a male and the perpetrator is a male.

They didn't say that.

There was no other sex involved in this case.

Mr. Canaday: --That is correct, there was no other sex involved, but that factual determination is not the foundation of the Fifth Circuit's rule.

The Fifth Circuit's rule is a categorical rule.

The Fifth Circuit in fact did not discern or consider the underlying circumstances or the maleness of the workplace.

The Fifth Circuit's rule is the broadest of possible brushes.

It's an absolute rule.

Unknown Speaker: Well, as I understand, Mr. Canaday, you're not asking us to decide whether or not there was discrimination in this case.

You're simply asking us to say that the fact that it was male on male does not prevent there from having been discrimination.

Mr. Canaday: Your Honor, that's exactly correct, because my case was thrown out as a matter of law.

The court below found that no facts were material.

The court below did not review the facts and determine which facts of the alleged harassing situation were material.

They didn't decide this case as a matter of fact.

They decided this case as a matter of law.

Unknown Speaker: Well, what are you going to have to show if you prevail?

What does a judge tell the jury?

Ladies and gentlemen of the jury, you may find for the plaintiff if, what?

Mr. Canaday: We would prevail if the jury was instructed that sexual harassment is a cognizable form of discrimination based on sex.

The jury could then be instructed on the law as established in the circuits and as articulated by this Court, and then the court, the trier of fact could draw the reasonable inference... well, first of all, under the facts alleged the trier of fact could determine that Joseph Oncale was quid pro... the victim of quid pro quo sexual harassment, or the trier of fact, under the facts as they currently stand, could find that Joseph Oncale was victimized of a hostile sexual environment.

Unknown Speaker: But title VII doesn't speak of sexual harassment or a hostile sexual environment.

That is a part of a... the basic is discrimination.

You would have to show that he was treated differently because he was a man, would you not?

Mr. Canaday: Your Honor, we would have to show that discrimination because of sex, as defined by this Court in the Meritor case, did in fact occur, yes, sir.

Unknown Speaker: Well, suppose you had a case in which an uncouth supervisor tells very offensive and suggestive jokes to both sexes.

Mr. Canaday: Well, on the facts--

Unknown Speaker: Or, in your case, if we could change the facts a little bit, if almost the same conduct was perpetrated against both sexes by this supervisor?

Mr. Canaday: --If it is the off-color, or the poor joke case, Your Honor, I believe the argument then would be, or the issue then would be whether or not the severity or pervasiveness of the conduct raised the level--

Unknown Speaker: Well, you know what I'm trying to say.

Mr. Canaday: --Yes, sir.

If the facts were that the... all employees of both genders are treated equally, the equal opportunity harasser... first of all, let me emphasize that's not this case.

Unknown Speaker: I understand.

Mr. Canaday: But assume hypothetically it was, then the question would be whether or not that under the facts you could... the jury could discern an attempt to discriminate based on sex.

So--

Unknown Speaker: So you're saying that the other sexual harasser, or the homosexual harasser is liable, but the bisexual harasser is not.

Mr. Canaday: --No.

Unknown Speaker: That there is immunity for the bisexual harasser.

Mr. Canaday: No, sir.

That is not our position in this case.

Unknown Speaker: Oh, I thought... I thought--

Mr. Canaday: No, sir.

If I stated that, I misspoke.

Unknown Speaker: --Well, if not, why is there discrimination?

I think that's what we're both asking.

Mr. Canaday: In the pure... in the true bisexual harasser scenario, which again this case is not, the court could then look at the sexual nature of the conduct and could, under existing precedent, argue that each victim was a victim of sexual harassment.

Unknown Speaker: No.

Each victim would have been a victim of... would have been discriminated against on the basis of that person's sexuality, but not on the basis of that person's sex, because it was indifferent to the harasser whether the person was male or female.

Mr. Canaday: But the individual claimant, Your Honor, who brought the cause of action alleging that he or she was the victim of sexual discrimination could demonstrate that their work environment was a discriminatorily hostile work environment and then, perhaps as a matter of defense--

Unknown Speaker: No more so than people of the other sex.

Mr. Canaday: --Then that would be--

Unknown Speaker: That's what the person has to show.

Mr. Canaday: --But that would be a matter of affirmative defense, would it not, not as matter of an element of cause of action.

If that person shows that they are singled out for mistreatment based upon sex--

Unknown Speaker: Yes, if they show they're singled out.

Mr. Canaday: --Yes.

Unknown Speaker: But the point is, they haven't been singled out.

This person treats males and females alike.

Mr. Canaday: Right, and again, if that was--

Unknown Speaker: I just wonder... you know, if you acknowledge that the bisexual harasser does not violate this law, I just wonder how that transfers over to the case that you have.

Mr. Canaday: --Well, I do not believe it transfers over to the case that I have because the case before you now is the first-step case as to whether the cause of action exists and secondly, in my case, only men were harassed under the situation on the Sundowner rig.

Only Joseph Oncale was harassed.

Unknown Speaker: No, but you don't concede as a matter of law, do you, that the bisexual harasser cannot harass on the basis of sex?

Mr. Canaday: That is exactly correct.

Unknown Speaker: I mean, a person may be quite neutral on sexuality and still in fact discriminate on the basis of sex, and you're not conceding that fact.

Mr. Canaday: Absolutely not, sir.

Unknown Speaker: Okay.

Mr. Canaday: Your Honor.

I do not concede that.

Unknown Speaker: Well, are you taking the position that any harassment, provided that it's grave, fits under title VII, then?

Mr. Canaday: No, Your Honor, we're not taking the position that any harassment--

Unknown Speaker: So what would you exclude?

Mr. Canaday: --Well, I believe that the exclusions would be a matter of fact, whether or not it... whether or not the harassment was shown as a matter of fact to raise to the level of severity of the--

Unknown Speaker: Oh, let's assume that it's very gross, but... so... and it meets all the standards of our case law about it has to be pervasive and grave.

Is there any category that you would then omit, or are you saying that all sexual harassment, provided it meets the standards of being severe and pervasive, fits under title VII?

Mr. Canaday: --If... assuming the harassment does raise to the level of severity and pervasiveness and would be recognized as sexual harassment, then our position is that the gender of the harasser vis-a-vis the gender of the victim is not a material fact.

Unknown Speaker: Well, why is that discrimination, then?

You would agree that you also have to show that the harasser is discriminating--

--Yes--

--on the basis of sex, which the statute says, would you not, that he is treating, or she is treating one sex differently from the other?

Mr. Canaday: I believe that's an essential element of the cause of action, but the Fifth Circuit in this case said that those circumstances could never be proved in a same-gender sexual harassment claim.

These questions that the court have posed are questions of proof, or questions of motive, but not of questions of definition.

Unknown Speaker: No, but it's also a question of how we're going to write the opinion.

I mean, maybe you would prevail under these facts, but we have to understand the nature of the cause of action, and we're asking you why there is discrimination in some of these hypotheticals that we have posed.

Mr. Canaday: Your Honor, there is discrimination because Joseph Oncale in this case, alone among men in a workplace, was selected by his supervisor, a male, to be the victim of that male supervisor's unsolicited, unwanted, and obnoxious sexual advances.

That is sexual harassment.

Unknown Speaker: I wouldn't really call them sexual advances.

It was certainly not... a lot cruder than that, but suppose... suppose that Mr. Oncale had been hazed, which is what the other side says.

This is just, you know, good frolics, and male hazing.

Suppose he had been hazed in some other fashion.

I mean, just as obnoxious, but just not... you know, nothing to do with genitals or anything else.

They just said, you know, you're a fat slob.

Your eyes are crooked.

And, you know, they just made life miserable.

The same, but... just as obnoxious.

Mr. Canaday: But removing the element of sex, then--

Unknown Speaker: Well, just using something else, other than his manhood, as the basis for the hazing.

Mr. Canaday: --Then he would not have... I don't believe, under that fact pattern, he would have a right of action under title VII.

Unknown Speaker: You see, I find that difficult to understand.

I mean, that... he's still singling out this person.

Mr. Canaday: Well, if--

Unknown Speaker: I don't know why singling him out on the basis of his sexuality means that you're singling him out on the basis of his sex.

Mr. Canaday: --Well, I believe that what we've argued in brief is that it is... the singling out for sex-specific or sex-driven conduct is one category, this category, but your hypothetical--

Unknown Speaker: Why is that?

Is this a law... I mean, is this a dirty-word law, or something?

It wasn't meant to produce politeness and--

Mr. Canaday: --Right.

To answer your question, though, you asked earlier, Your Honor, is if the conduct was devoid of sexual connotations, or didn't involve grabbing Mr. Oncale's genitalia, or didn't involve use of a bar of soap in a shower, as this case did, then perhaps there would have to be showing of modus, or motive, or intent, or animus, independent of the facts.

But given that this man was singled out for sexual abuse by his supervisors, the component of sexuality as a component of... because of his sex is inherent in the fact pattern.

Unknown Speaker: --Well, take Justice Scalia's hypothesis that the hazing here did not involve genitals, but just very nasty treatment.

Now, if you could show the supervisor, or whoever was the hazer, did not treat women the same way given the same circumstances, then I suppose you could make out a claim of discrimination.

Mr. Canaday: Yes, sir.

Unknown Speaker: But just the hazing by itself, unless you can show that men are treated differently than women, doesn't make out a claim.

Mr. Canaday: I believe if the harassing conduct is nonsexual then the plaintiff would have a burden of establishing a disparity of treatment and show that perhaps that supervisor didn't treat women the same way so as to show the motive to--

Unknown Speaker: But supposing it is sexual, you still have to show different treatment of men versus women, do you not?

Mr. Canaday: --You have to show that this individual was harassed or discriminated against because of his sex.

Unknown Speaker: And to be discriminated against, that is, treated differently than someone of the other sex.

Mr. Canaday: That is true.

Unknown Speaker: Isn't your point here that when the hazing is of the sexual nature here, simply by proving what went on, you make a stronger prima facie case that in fact there was sex discrimination going on than you would be if you were merely to prove hazing of a totally nonsexual nature?

Isn't that the real difference?

Mr. Canaday: Yes, Your Honor, it is.

Unknown Speaker: But theoretically your burden is the same.

In this case, your burden is to prove that in fact these... the individual defendants here would not have treated women the same way they were treating this man.

Mr. Canaday: Yes, Your Honor, in--

Unknown Speaker: And that the employer would not have reacted or have condoned this sort of treatment in a women... had women been the object of it, whereas they have condoned it in this case.

Those are your two burdens, then.

Mr. Canaday: --Right, and the manner in which members of the opposite gender are treated and the manner in which the employer may respond to--

Unknown Speaker: But how could you show that for an all-male workforce?

That's... you seem to be thinking that it's irrelevant that we don't have any comparison group, and yet you answered Justice Souter, yes, it is relevant.

Where you have an all-male workforce, how can we know how the... this... these gross people would have treated women, or how the employer would have reacted to it?

Mr. Canaday: --Your Honor, it may well be relevant, but we do not concede that it's determinative.

Unknown Speaker: But how would you prove anything at all about it, because what evidence would you have about how women would have been treated had they been in the workplace?

Mr. Canaday: We might be able to show how women were treated in other circumstances, in other work offices of Sundowner, or how they responded to sexual harassments by other individuals.

We may be able to demonstrate that Mr. Lyons may confess that had Joseph Oncale not been a man he never would have done that.

In the current posture of this case we haven't had an opportunity to take Mr. Lyons' deposition, but those are the types of questions we would certainly explore with him.

I'd like to save some time for rebuttal, if I may.

Unknown Speaker: Very well, Mr. Canaday.

Mr. Kneedler.

Argument of Edwin S. Kneedler

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

Unknown Speaker: Mr. Kneedler, will you please get into this question of what a plaintiff has to show when it's a same-sex situation, in the Government's view?

Mr. Kneedler: --Yes.

The--

Unknown Speaker: Is there an element of discrimination?

Mr. Kneedler: --The--

Unknown Speaker: And how can that be shown?

Mr. Kneedler: --The test under title VII is whether a person was treated in the way he or she was because of that employee's sex.

As this Court said in Vinson, to quote, without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminates on the basis of sex, or, put another way, as in Manhart, when the person is treated in a manner different from what he would have been treated if gender had not been taken into account.

The question of how someone of the opposite sex is treated is one way of proving that ultimate question, but the Court in Vinson regarded it as treating someone because of their sex as discrimination.

Unknown Speaker: How can that possibly be involved in this case?

I mean, there were other men in the workplace who weren't treated this way.

They just didn't like this guy.

Mr. Kneedler: Well, that... there's a difference between motive and treatment.

I mean, if we look at Harris, for example, in Harris the harassment was explicitly sexual, sex-based.

The employer was saying, you dumb woman, comments like that.

It was facially sex-based, just like in Johnson Controls the policy with respect to employment was explicitly sex-based, and the Court said when you have something that's explicitly sex-based the motive behind that does not detract from the fact that it is a violation of title VII.

And when you... in the opposite gender harassment cases the courts, lower courts have been prepared to assume, as I think this Court's descriptions in Vinson and Harris have, that it is because of sex.

Now, that may--

Unknown Speaker: So it's a presumption?

Justice Souter used the kinder, gentler word of prima facie case.

Mr. Kneedler: --Yes.

Unknown Speaker: But is there a presumption that this kind of conduct is discriminatory?

Is that what you're saying?

Mr. Kneedler: Well, I think that the courts have assumed that it's because of sex, that there's something relational about sex.

Unknown Speaker: But the statute requires discrimination, and that's what we're puzzled--

Mr. Kneedler: The... what I was saying, though, is that it prohibits action because of sex.

It was intended to remove race, sex, national origin from the decision-making process.

Unknown Speaker: --Well, because of the sex of the victim.

Mr. Kneedler: Yes, because of the--

Unknown Speaker: Isn't that right?

Mr. Kneedler: --Because of the sex of the victim.

Unknown Speaker: Okay.

So suppose you have an employer who has the unfortunate habit of patting every single employee, male or female, on the fanny every day, indiscriminately, both sexes.

Now, how do you show sexual harassment under that discrimination requirement of title VII?

Mr. Kneedler: It may well be that in that situation the conduct is not because of the recipient's... of the victim's sex.

That is the requirement, and as the Court said in Harris, this is a question of the facts and circumstances and the severity--

Unknown Speaker: You're concentrating on because of sex, which is in the statute, I agree, but discriminate... discriminate is also a word in the statute, and you're leaving that out of your analysis, it seems to me.

Mr. Kneedler: --Well, it textually... this is a constructive discharge case, among other things, and the statute says it's an unlawful employment practice to fail or refuse to hire... excuse me, or to discharge an individual or otherwise discriminate because of the individual's sex.

The suggestion textually, discharge because of sex, is taken to be discrimination in that situation, and this is consistent with the purpose of title VII, which is to render irrelevant a person's sex, just as the person's race or national origin is to be irrelevant in the workplace.

So if you have... in the hypothetical equal opportunity harasser, if someone uses explicitly sex-based harassing terms, rising to the level of offensiveness at issue in Harris, against women using sex-specific words and men using derogatory, sex-specific terms, each of those employees experiences the terms and conditions of his or her employment--

Unknown Speaker: I don't see how you can get that out of the statute, Mr. Kneedler.

It says discriminate.

Mr. Kneedler: --Well, each... going back to Manhart, the question is--

Unknown Speaker: Well, but I'm talking about the statute.

I'm not--

Mr. Kneedler: --But the words used, discriminate means treat differently, or a draw a distinction between, and the words chosen for the harassment of the woman are different from the words chosen of the harassment of the man, and specifically because of the recipient's--

Unknown Speaker: --Well then, Justice O'Connor's hypothetical, then, would not meet the statute because no words were chosen.

Each one is just patted on the fanny.

Mr. Kneedler: --And it is not... it is not... perhaps looked at in other ways, it's not facially sex-based.

In the opposite sex sexual harassment cases the courts have been prepared to assume, I think, that it is because of sex.

Maybe that's an assumption about human behavior, and probably an accurate one.

It is seldom the case that the victim, or the other person's sex is irrelevant in sexual conduct.

Sex is relational.

It's done with regard to the sex of the other person, whether it's the same sex or opposite sex.

Unknown Speaker: I find it difficult to see that there ought to be a distinction, with regard to the application of this law, whether the particular individual who was harassed in this case is made to feel small and insignificant and embarrassed by using dirty sex words or in some other fashion.

I can't see how that would have anything to do with whether he's being discriminated against on the basis of his sex.

You're telling me if you call him a jerk every day, that's okay, but if you use some sex-related word it's not okay.

Mr. Kneedler: Well, it's not--

Unknown Speaker: That doesn't make any sense.

Mr. Kneedler: --It wouldn't be okay... if you have very abusive conduct that is not sex-based on its face, it would still be open to the employee to show that it is because of the employee's sex by showing that women were not treated in the same way.

But where it is explicitly sex-based, where it is by use of the sex organs, it would at least be a permissible inference for a finder of fact to conclude that this conduct would not have been engaged in with a woman, that this was done--

Unknown Speaker: A mandatory... would it be a mandatory conclusion?

Does it go to the jury?

You know, if... do you tell the jury, if you find that the reason they were giving this man a hard time, including through sexual acts and so forth, is because of his sex, you will find for the plaintiff.

However, if you think they were doing this just because for some reason they didn't like this guy--

Mr. Kneedler: --Well, I think again--

Unknown Speaker: --you won't find for the plaintiff?

Mr. Kneedler: --It would depend on the facts and circumstances.

If the--

Unknown Speaker: I just want to know what the charge is.

Mr. Kneedler: --Well, the charge would be that it has to be because of sex, and I would think ordinarily that would be... the jury could draw an inference... I think it should go to the jury, but it's a question--

Unknown Speaker: Would the instruction that I just gave... if you think the reason they did these sex-based acts is because they didn't like his sex, that's one thing, if you think they did it just because they didn't like this jerk, that's something else--

Mr. Kneedler: --But if the method that was done was sex-specific... for example, the grabbing of the genitals--

Unknown Speaker: --Yes, right.

Then what?

Even if it's not, wouldn't you also say, even if it's not sex-specific, even if it doesn't get beyond the point of calling the person a jerk, if the employer calls males he doesn't like jerks, and does not do the same thing for females he doesn't like, that would qualify under the statute?

Mr. Kneedler: --Right.

No, absolutely.

No, I didn't mean to suggest otherwise.

Unknown Speaker: Sure.

Sure.

I... that's no question.

I'm talking about this case, an all-male workforce, and they have picked on this fellow, and they've picked on him in ways that have sexual connotations.

What charge do you give to the jury?

Is it enough that they've picked on him in ways that have sexual connotations?

If you find that they did this, there has been sexual discrimination.

Is that the charge?

Mr. Kneedler: Well--

Unknown Speaker: Or do you tell the jury, in addition to finding that they did this, you have to find that they did it because they didn't like his maleness, and it... this was not just some other way of hazing him.

Mr. Kneedler: --No, I think the question is, was he treated in a manner but for the fact that he was a man he would have been treated differently, and the fact that it was sexual conduct is a permissible basis upon which a trier of fact can conclude that that was so.

I mean, this conduct may have been--

Unknown Speaker: Well, would it be wrong for the judge to charge, you make a decision.

Was it because of his sex?

Did they want to demean him because they didn't consider him sufficiently male, or was it just that they didn't like him and they used this disgusting way of showing it?

Would that be a proper charge?

Mr. Kneedler: --Well, it might be, but I just want to make clear, for example, in--

Unknown Speaker: Well, under--

Mr. Kneedler: --that if something is... if the method... it's not just the identity of the person.

if the manner of the treatment is selected because of the sex of the person, in this case placing the penis on the person's head because it was... it would be regarded as especially humiliating for a man to be subjected to that treatment, then the manner of treatment as well as the selection of the individual, if that is because of sex, then there is a violation of--

Unknown Speaker: --Well, you're leaving out the word discriminate, which is in the statute.

You're just looking at the part of the statute that says, because of.

Now, don't you have to at least instruct on... that a discrimination because of the individual's sex--

Mr. Kneedler: --Justice O'Connor, I think as in Price Waterhouse, the question of how a woman would have been treated, or a man, in that case, may be evidence that goes to whether the person... whether sex was made relevant in the action, but the ultimate question is whether something that shouldn't have been relevant was made relevant in that--

Unknown Speaker: --Thank you, Mr. Kneedler.

Mr. Reasoner, we'll hear from you.

Argument of Harry M. Reasoner

Mr. Reasoner: Mr. Chief Justice, and may it please the Court:

I would like to rest our argument on three points, to the extent that the Court would permit.

First, I think the question by Mr. Chief Justice about the relationship of sexual harassment to this discrimination statute is at the heart of the case.

This is a discrimination statute.

It was passed in 1964, clearly, we submit by its plain language to deal with discrimination between men and women.

In our language, words take their meaning from the context, and in the context of this statute it did refer to discrimination between men and women.

Sexual harassment, although both the Government and petitioner treat it as if it were an independent, statutory concept not tied to the fundamental finding of discrimination, is not an independent--

Unknown Speaker: Mr. Reasoner, can I ask you sort of a basic question?

Your opponent relied on the Manhart case.

Mr. Reasoner: --Yes, Your Honor.

Unknown Speaker: Which I guess the basic test is, if this person would have been treated differently if he had been of the opposite sex, then that's a prima facie proof of discrimination.

Mr. Reasoner: Yes, Your Honor.

Unknown Speaker: Would you agree that if the jury could reasonably infer from the set of circumstances that the same thing would not have happened if this person had been a woman, that then that would be the necessary showing of discrimination?

Mr. Reasoner: I would not, Your Honor.

Unknown Speaker: You would not.

Mr. Reasoner: And if I might attempt to explain, I think that when you... that the Court extended the statute to say that sexual harassment can so affect the conditions of employment that it violates the statute, creates discrimination.

That is clearly powerfully true with regard to women.

Congress was well-informed on that.

They had passed in 1963 the Equal Pay Act, and so to extend the statute to say if you are harassing women in the workplace you are creating a discrimination which deprives them of a level playing field.

We do not... and I think that this extension is reasonable.

The question that is now being asked, the Court is now being asked to do is say, you have extended sexual harassment into the area of men and women, discrimination between men and women.

Now we want you to extend it to regulate the conduct of men.

Sexual--

Unknown Speaker: The statute doesn't say either women or men.

It says sex.

Mr. Reasoner: --It says because of sex, Your Honor, correct, and I would interpret that to mean the two sexes, men and women.

Unknown Speaker: Yes.

There are only two, so far as we know.

[Laughter]

But you answered my question by saying, if there was a fair inference for the jury to draw that the man was treated differently because he was not a woman, that a woman would have been treated one way and a man a different way, that's not discrimination.

Mr. Reasoner: What I would--

Unknown Speaker: I think that's how you answered me.

Mr. Reasoner: --I think I did, too.

What I'm trying to say, at least, is this.

If we move into Federal regulation the whole spectrum of male relationships which are sexually, which have sexual content and are abusive and in the workplace... and I submit to you, that is what both the petitioner and the Government are asking for.

If you look at page 21 of the Government's paper, in response to Justice O'Connor and Justice Ginsburg's question, they would include it all, all male conduct that has a sexual content that is in the workplace and is abusive.

Unknown Speaker: And supposing we disagree with that.

We're not bound by what they said.

Supposing we say, this is just a discrimination statute.

Then why doesn't it apply in the hypo I give you?

Mr. Reasoner: If Mr. Oncale would have been treated differently if he had been a woman?

Unknown Speaker: If the evidence were clear that the... that if a woman had been on the barge, that he would not have done this because he had a special interest in relationships with men, if that was clearly proved--

Mr. Reasoner: Your Honor--

Unknown Speaker: --would that... why would that not be discrimination within the meaning of the statute?

Mr. Reasoner: --Let me suggest to you why I think that the statute should not be applied in that way, and three circuits have followed that notion.

The Fourth Circuit, Sixth Circuit, and the Eleventh Circuit have adopted the concept of a homosexual... if the homosexual... there's a homosexual harassment, then they can meet the because-of-sex requirement.

You would argue that if you can find homosexuality, or raise an issue of homosexuality, then it was because of Mr. Oncale's sex that this occurred.

I--

Unknown Speaker: But employers can discriminate because of sex without the discriminator having any particular sexual desires for the victim of the discrimination.

I mean, under the Fifth Circuit's ruling a man who discriminates against a man or a woman who discriminates against a woman in the workplace is immune, and it seems to me that's very difficult to justify.

Mr. Reasoner: --I... with respect, Mr. Chief Justice, I would say that is an overstatement of the Fifth Circuit's position, as I would understand it.

I think you must bear in mind that the Fifth Circuit was speaking only to sexual harassment, and only to the question that when the Court has extended this discrimination statute into the area of sexual harassment to meet its purposes, should it then extend it further to regulate same-sex conduct?

Unknown Speaker: I don't know that we regard it as an extension of the statute to say that it covered sexual harassment.

I think what we said was that sexual harassment without actual resulting in a discharge or a demotion was nonetheless actionable.

I don't think we changed the actors involved.

Mr. Reasoner: I think, Your Honor, what... Mr. Chief Justice, what I understood you to say in Meritor is that sexual harassment can be equivalent to discrimination if it is so severe and pervasive that it changes the conditions of employment, thereby discriminating against the sex being harassed.

Unknown Speaker: Well, sexual harassment directed in a discriminatory way against a victim, but certainly we didn't say that sexual harassment that was meted out equally to everybody is discrimination.

Mr. Reasoner: Well, yes, Mr. Chief Justice, I agree with that, and both in Meritor and Harris you were dealing with sexual harassment of women, very clear based on congressional findings... I mean, that there was a disparity.

There's a disparity in power.

There was a need to level--

Unknown Speaker: But there were no findings at all in connection with the inclusion of sex in the 1964 acts.

Mr. Reasoner: --I would submit, Your Honor, that the Court can look to the Equal Pay Act of 1963, that there were extensive findings by Congress that there was a disparate treatment of women in the workplace.

My point on federalism is that there are no findings, anywhere, that suggest that Congress needs to pass a statute to regulate discrimination among males, or to regulate male conduct.

Unknown Speaker: Mr.--

--Well--

--Then you defend the fifth Circuit's rationale based on a nonstatutory analysis.

You would have us hold that if a homosexual supervisor trades favors with people of his own sex for advancement, that this is not a violation of the statute.

Mr. Reasoner: I would, Your Honor.

Unknown Speaker: Why is that?

Because if a Jew could discriminate against a Jew, an African American against an African American, an Italian against an Italian, all those things could happen.

Mr. Reasoner: Certainly, Your Honor.

Unknown Speaker: So why isn't it possible that a homosexual or nonhomosexual man, irrespective, could discriminate against another man on the basis of sex, and so could a woman?

Mr. Reasoner: Well, I think... you're using the word discriminate.

Unknown Speaker: Yes.

Well, if that's so, if those things are possible--

Mr. Reasoner: There's--

Unknown Speaker: --as they think they are, how could you have a circuit that has a rule that says they're not possible under the statute?

Mr. Reasoner: --I don't think it does, Your Honor.

I think what the Fifth--

Unknown Speaker: Well, if we think that's what they held, I guess we'd have to say that's wrong.

[Laughter]

Mr. Reasoner: --Yes, Your Honor.

Unknown Speaker: Yes.

Mr. Reasoner--

--And it sure reads that way, so I think you have to come to grips with that and then help us--

Mr. Reasoner: Well--

Unknown Speaker: --decide what it is this statute really means.

Mr. Reasoner: --I--

Unknown Speaker: And in that context, do we consider at all the EEOC guideline on this?

Now, the guideline says that harassment on the basis of sex is a violation of title VII if it's physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

The guideline does not refer at all to discrimination, I notice.

Mr. Reasoner: --No, and the EEOC flatly argues, Your Honor, if you look at their brief they want to include it all.

They feel no obligation to prove discrimination.

But again, all the Fifth Circuit was addressing was sexual harassment, and I respectfully submit, as the circuits which struggled with this--

Unknown Speaker: I just read you the EEOC guideline--

Mr. Reasoner: --Yes, Your Honor.

Unknown Speaker: --on sexual harassment, or harassment, however you pronounce it.

Mr. Reasoner: Yes.

Unknown Speaker: Now, does that... do we rely on that?

Are they entitled to some deference there--

Mr. Reasoner: I--

Unknown Speaker: --in how we interpret this statute?

Mr. Reasoner: --I think they're entitled to deference only insofar as the Court finds them consistent, and they're not entitled to a Chevron-type deference, as this Court has made clear, only insofar as you find them consistent and persuasive.

But I would respectfully submit, Your Honor, the question here--

Unknown Speaker: Excuse me.

They get no Chevron deference, you say?

Mr. Reasoner: --That is my understanding, Your Honor.

Unknown Speaker: Well, what's the basis for that understanding?

Mr. Reasoner: If I might... I don't recall your case.

Unknown Speaker: The General Electric case.

Mr. Reasoner: Thank you, Mr. Justice Stevens.

I will rely on Mr. Justice Stevens.

[Laughter]

Unknown Speaker: Are you--

--You could rely on the Chief Justice.

He wrote it.

[Laughter]

Mr. Reasoner, have you finished your answer to Justice O'Connor?

I have a question, but I... if you have more to say--

Mr. Reasoner: If I could say this one word, or sentence, the Fifth Circuit is saying that discrimination because of sex was not intended to comprehend relationships between the same sex.

It was not intended to comprehend all the whole spectrum of males' treatment of males.

Because of sex meant discrimination between men and women.

That's why they would exclude sexual harassment.

Unknown Speaker: --Then you could... is it in general?

If you have a male boss who takes good care of the women but treats the men miserably, that would not be... that would not be in title VII?

Mr. Reasoner: Justice Ginsburg, I think there is a clear distinction between policies regarding to pay, promotion, et cetera.

That's clear.

You can't discriminate.

The sex of the superior deciding that is immaterial.

It is only the area of sexual harassment, this interpersonal abuse--

Unknown Speaker: Well, why would it be different?

Let's say you had two rooms in the same, and in one there were women working, in the other, men, and when the women complain about sexual harassment, the boss attends to it, takes it seriously, and when the men complain about the grossest treatment, the kind we have here, the boss says, boys will be boys.

That would be okay?

That would not be within title VII?

Mr. Reasoner: --No, it would not be okay.

The conduct alleged here, for example, would violate five Louisiana criminal statutes, and subject all the participants to damages.

Unknown Speaker: But I'm talking only about title VII, so... but I've given you a situation where the employer responds to women's complaints of sexual harassment, says to the guys, you've got to be made of sterner stuff, so I'm not going to pay any attention.

That would not come within title VII?

Mr. Reasoner: No, Your Honor, I think not, in the sense if what is being complained about is male harassment of a male.

The... now, to the extent--

Unknown Speaker: The same boss treats women one way, he attends to their complaints, and he treats men a different way, says, I'm not going to listen to you.

I've no sympathy with you.

Mr. Reasoner: --Let me say, clearly, Justice Ginsburg, I think such a boss would be foolish, and would be inviting action under State--

Unknown Speaker: But you--

Mr. Reasoner: --But the question here is, did Congress in 1964, when it said discrimination because of sex intend to encompass not only discrimination between men and women based on sex, but the entire gambit of sexuality... and that is what the Government would argue for.

As Mr. Justice Scalia said, we would now be into sexuality, for example--

Unknown Speaker: --But our choice is not between nothing and everything, so... and your argument is for nothing.

Mr. Reasoner: --My... I do not believe, Your Honor, that if you cross this threshold, certainly you have no assistance from the petitioner or the Government in drawing a line, and if you look at how the circuits have tried to struggle with this, in Doe the Seventh Circuit said we will... in trying to say what because of sex means, they looked at sexual stereotyping, sexual orientation, sexuality in general.

They then attempted to retreat from that in Johnson v. Hondo shortly thereafter saying, well, we won't look at sexual content alone, but once you get into regulating male behavior with sexual content--

Unknown Speaker: Why isn't the Manhart test the answer to all this?

You say there are all sorts of problems, but why don't you just have a very simple rule?

If the plaintiff sustains the burden of proving that the victim would have been treated differently if he or she had been of the opposite sex, that proves discrimination.

Why isn't that a simple test that works?

Mr. Reasoner: --Because it's not simple, Your Honor, because how do you give content to it?

The Fourth, Sixth, and Eleventh--

Unknown Speaker: Well, you require the proof in the particular case and make the plaintiff prove his case.

Mr. Reasoner: --Well, what is--

Unknown Speaker: And if the jury finds here, well, we're pretty well convinced that this fellow would have done the same thing to women, the plaintiff loses.

Mr. Reasoner: --I would--

Unknown Speaker: But if the reasonable inference is he wouldn't have, the plaintiff wins.

Mr. Reasoner: --I would submit, Your Honor, that that would be the creation of a statute that was not intended by Congress.

Unknown Speaker: We'd just be following what we wrote in Manhart, you know, 15 or 20 years ago.

Mr. Reasoner: I think not, Your Honor.

I mean, there in Manhart you're talking about treating men and women differently--

Unknown Speaker: Right.

Mr. Reasoner: --on levels of policy, pension plans, pregnancy leave, et cetera.

Now, when we're talking about interpersonal relationships and we're going to attach them to discrimination in some way, what's the content we give to them?

What does because of sex mean?

The only thing the Fourth, Sixth, and Eleventh Circuit could figure out that because of sex meant was that we inquire into the sexual orientation of the predator.

Unknown Speaker: But that must be wrong, isn't it?

I mean, isn't it the... that they're trying to get at the problem of whether the employer has imposed a term or condition, a significant term or condition because of the person's gender, and in those instances where, for example, people create a workplace where there is either quid pro quo or some frightful situation where the women have to suffer because of their gender, they have a term or condition that the others don't, and the same could happen to a man, couldn't it?

I grant you it's hard to work out in the... in some individual cases.

In many it's not hard to work out.

But how does that differentiate this from any other area of law, antitrust, or, you know, thinking of difficult ones, and how could you escape that in this statute?

Mr. Reasoner: I... Your Honor, I think that you would go where Congress did not intend.

I think when they said discrimination because of sex, it's very clear that they were trying to level the playing field between men and women, and that there's no evidence, not the slightest evidence that they intended to federalize the regulation between men and men.

Unknown Speaker: Mr. Reasoner--

--Well, Mr. Reasoner... go ahead.

Let me see if I understand what your position is.

Suppose that there had been hazing of male employees without any sexual allusions or connotations, and you have a workplace in which only male employees are hazed, they are made to feel insignificant, or, you know, horseplay, whatever, but no sexual connotations, and this is never done to women employees, what is your position on whether that would violate the legislation?

Mr. Reasoner: I would say it would not, Your Honor.

Unknown Speaker: It would not.

Well then, I don't understand your position.

[Laughter]

You told me that you thought the male-on-male was no good, only as it relates to sexual harassment, and you said that's what the position of the court of appeals here was.

I give you a case that doesn't involve any sexual harassment--

Mr. Reasoner: I apologize, Mr. Scalia.

I did not realize you... that was the case you were giving me.

Unknown Speaker: --Oh.

Mr. Reasoner: I think--

Unknown Speaker: Well, that was the case I gave you.

Mr. Reasoner: --Well--

Unknown Speaker: So your answer is what I thought it should be, right, that that would be a violation.

[Laughter]

Mr. Reasoner: --Yes.

I clearly... if a company set a discriminatory policy, that would be a different... discriminating between men and women, that would clearly be reached by the statute.

Unknown Speaker: Okay.

So if you haze them with no sexual allusions and you don't haze women, then it is a violation of title VII, right?

Mr. Reasoner: If the company sets a discriminatory policy.

Unknown Speaker: Yes.

Then... now suppose you haze them with sexual allusions, but you don't haze women.

Suddenly it does not become a violation of title VII?

Mr. Reasoner: I think what a court must then ask itself, Your Honor, is what does because of sex mean, and I submit to you... Congress has not passed, as you know, the Employment Nondiscrimination Act, which I think tries to deal in a way that would be workable and not intrusive and violative of privacy, with harassment based on sexuality or orientation.

Unknown Speaker: But discriminatory hazing is discriminatory hazing, whether the hazing has sexual allusions mixed into it or not.

Mr. Reasoner: But that--

Unknown Speaker: I would think your answer would have to be, yes, if it's discriminatory hazing, it's bad.

Mr. Reasoner: --If the defendant is going to be allowed to raise the issue as to whether it is because of sex, Mr. Justice Scalia, then I think you are opening it up into inquiry as to the sexual orientation of all of the parties involved.

Unknown Speaker: Is that any part of this case?

As far as I know, it isn't, and--

Mr. Reasoner: The... I... Justice Ginsburg, I would be inclined to say not, but you... I think I just heard the petitioner say that they would argue that there was quid pro quo possibility involved.

They will, and if you're going to argue quid pro quo, of course you have to--

Unknown Speaker: --But you see, we don't know that at this stage.

The case has been thrown out because it says no matter what, if it's male-male, it's not covered.

Mr. Reasoner: --You know that the petitioner is trying to assert that over these facts, and, of course, this is a fee-shifting statute.

You would make the Federal courts the forum of choice for all litigation involving abusive male-on-male--

Unknown Speaker: Mr.--

--If we were to decide, Mr. Reasoner, that in some cases discrimination by a man against a man violates the statute, it seems to me we would have to reverse the Fifth Circuit here, because they said that just can't be, and very likely we don't have to work out the rules that would apply to whatever factual development comes in this case, but I don't see how we can possibly sustain the ruling of the Fifth Circuit that it never could be.

Mr. Reasoner: --Well, Your Honor, I think that when one looks at the struggles of the Seventh Circuit, the Fourth, the Sixth, and the Eleventh, to work out a rationale to make this statute... and I submit one reason it is so difficult to work out is because this statute was never designed to regulate conduct among the same sex, then I think that the... that it's fair to say that the courts desperately need guidance.

Unknown Speaker: How about a woman supervisor discriminating against a woman?

Would that... is that immune from the statute?

Mr. Reasoner: If she discriminates in an employment decision, a promotion decision, certainly not.

You know, discrimination at the level of company policy or supervision is certainly not immune.

If she discriminates... if she propositions her, or makes sexual overtures to her, then yes, we would say that that is not implicated by the statute.

Unknown Speaker: Well, and is the reason... is the reason it is not implicated simply because it was not the intent of Congress to implicate it?

Is that your argument?

Mr. Reasoner: Yes, Your Honor.

Unknown Speaker: In other words, it's the... the text covers it.

Mr. Reasoner: I think not, Your Honor.

Unknown Speaker: But that was not the problem that Congress was addressing.

Is that your argument?

Mr. Reasoner: I think that the text does not cover it.

I think that--

Unknown Speaker: Then why does the text cover white against white discrimination?

The language is equally undifferentiated.

Mr. Reasoner: --Well, the statute would cover reverse discrimination.

It would... I mean, in all its aspects, but--

Unknown Speaker: Well then, why doesn't the statute cover reverse sexual discrimination when it happens to take a sexually explicit form?

Mr. Reasoner: --I--

Unknown Speaker: I mean, so far as the text of the statute is concerned, I don't see how you can draw a distinction.

Mr. Reasoner: --Well, I would submit that you're having to change the meaning.

If you say discrimination because of sex, speaking of gender, you're talking about discrimination because somebody's a male or because somebody's a female.

That's exactly what you had in Meritor and Harris.

You went no further than that.

Unknown Speaker: Sure, but at the time the statute was passed, exactly the same argument could have been made about discrimination because of race.

You're talking about somebody of race A who treats race B in a disadvantageous way, and exactly that same argument, if it were sound, would have led to the conclusion that you can't have discrimination by one white against another white.

Mr. Reasoner: No, Your Honor, I would suggest that if you look at because of sex, when you apply it to... a female to a female, or a male to a male, you have changed the meaning.

You are now making it because of this--

Unknown Speaker: Why have you changed it when--

Mr. Reasoner: --Because--

Unknown Speaker: --Why have you not changed it when you say because of race?

Mr. Reasoner: --I think, Your Honor, that we're... that sexual harassment is a complex concept that implicates many things that because of race does not.

Unknown Speaker: Because it--

--Well, are you... may I... are you saying that it's simply the nature of the harassment rather than the nature of the discrimination against a member of one sex or the other which is the crucial thing, so that it comes down to a point almost of evidence?

Mr. Reasoner: No.

Unknown Speaker: No.

Mr. Reasoner: I would say that on the harassment that male-on-male, it's not because of sex.

It may be because of orientation, it may be because of sexuality, it may be because he doesn't like him--

Unknown Speaker: Why couldn't it be because you're not the right kind of man, just as with respect to women, and wasn't there, at least in one case, a statement to the effect of what title VII is aimed at is getting rid of stereotypical notions about the way men are or the way women are, so that if you... we know that an employer can't say, as in Martin Marietta, how could I discriminate against women, most of the people I hire are women, but I won't take the ones who have children.

So if that's what title VII is about, you're not the right kind of male, or you're not the right kind of female, why wouldn't it fit?

Mr. Reasoner: --Well, I think Your Honor illustrates the difficulty.

Martin Marietta is easy.

Of course that's discrimination.

But are we now going to say that, on male-on-male relationships, that abuse, because we don't like their appearance... I mean, does it all go back to sex and harassment, and I submit to you that's what the Government would have you do.

They say to you flatly it's immaterial what the motives were, and the test is tautological.

You say, because of sex.

Man harasses a man, of course it's because of sex.

What else?

He is a sex.

Unknown Speaker: But why do we have to go as far as you go?

As... I understand your position.

You're not saying that male-on-male is bad.

There can be discrimination male-on-male.

You're just saying that sexual harassment male-on-male does not automatically constitute discrimination under the act, as male-on-female or female-on-male would.

Is that right?

Does not automatically.

Mr. Reasoner: I would certainly agree that it does not automatically--

Unknown Speaker: Okay.

Mr. Reasoner: --Your Honor.

Unknown Speaker: But just because it does not automatically, I don't know why that leads to the conclusion that it does not ever, and why was a summary judgment proper here?

Why shouldn't it have been left to the jury to say, well, regardless of whether there were sexual overtones or not, that doesn't decide the case, but nonetheless, if you think that this individual male was being discriminated against because he was a man and not for some other reason, you can find for the plaintiff?

Mr. Reasoner: It leads to that conclusion, Your Honor, if you conclude that, looking at the language of title VII in context, that Congress intended to limit it to discrimination between men and women, that it did not intend to reach into same-sex harassment, and--

Unknown Speaker: Wait, you've acknowledged that it didn't intend to limit it between men and women.

You've acknowledged that if you... that if a woman discriminates against another woman because of her womanness, say, I just want a male workforce, I'm not going to promote any women, you've acknowledged that that's a violation.

Mr. Reasoner: --Certainly.

Certainly.

Unknown Speaker: It's only in the sexual harassment area--

Mr. Reasoner: Exactly.

Unknown Speaker: --you think that it does not automatically constitute a violation, but why do you have to say it does not ever constitute a violation?

Mr. Reasoner: I have to say that, Your Honor, because--

Unknown Speaker: To win the case.

Okay.

Mr. Reasoner: --the Fifth Circuit said that.

[Laughter]

But... but let me say, I do believe that is correct.

I think it implicates serious concerns of federalism to now say that this statute will be expanded to uncover this entire spectrum of relationships, and to do it with no... you have no standard.

Once you've cut loose from the moorings of the two sexes, because of sex, are we then going to get into homosexuality--

Unknown Speaker: Of course, there's another way of looking at it.

Instead of saying it's expanding the statute, say the statute's always covered discrimination, and you're asking to cut out of the general field of discrimination this one area.

One can look at it that way, too.

Mr. Reasoner: --One could, Your Honor, but I submit, and even the Government admits this at page 10 of their brief, that sexual harassment was an expansion of the statute based on the intent of the statute, and I think necessary to achieve the statutory purposes, and the question before the Court now is, does sexual harassment need to be applied in the context of single-sex relationships in order to achieve the statutory purposes, and--

Unknown Speaker: But it's not necessary to look at it as an expansion of the statute.

It seems to me that it's sufficient to look at the sexual harassment law as being in effect a kind of evidentiary gloss on the statute, that when this kind of conduct occurs, as Thoreau put it, you know, there's a trout in the milk.

We know what that means, and I don't see why we don't also draw an inference when the harassment is between the same sexes.

It may in some instances be more difficult to draw it, but as Justice Scalia says, what is the theoretical basis for saying you can never draw that kind of an inference?

Mr. Reasoner: --Well, you know, first I would say that there... the statute is solid.

It does not create such an offense.

Second, we have a history in the literature.

We know about the disparate treatment of women, et cetera.

We know that there was something for Congress to remedy there.

Unknown Speaker: That's why we can draw the inference so easily, right.

Mr. Reasoner: With regard to women, correct.

Unknown Speaker: As a practical, common sense thing, right.

Mr. Reasoner: But now, on same sex, we have the whole spectrum, from hazing, bullying... you know, I mean, would we argue that generations of fraternity boys are liable under--

Unknown Speaker: Right.

Mr. Reasoner: --title VI, or--

Unknown Speaker: More difficult to draw.

I can understand your point there, but how do you take the final leap, you can't draw it?

Mr. Reasoner: --But I would say, Your Honor, that because of sex becomes contentless in this statute if you're going to say every time there's sexual content, male-on-male abuse, it's sexual harassment.

Unknown Speaker: Thank you, Mr. Reasoner.

Mr. Reasoner: Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Canaday, you have 2 minutes left.

Rebuttal of Nicholas Canaday, III

Mr. Canaday: The Fifth Circuit held that same-sex harassment is not cognizable under title VII.

That is the holding of the court below.

Again, we re-urge the Court to reverse that holding.

The language of title VII is broad enough to... that a decision of the court below is inconsistent with this Court's interpretations of the statute--

Unknown Speaker: The statute doesn't make unlawful same-sex harassment, or any harassment.

It makes unlawful discrimination on the basis of sex, right?

Mr. Canaday: --Yes, Your Honor, and this Court--

Unknown Speaker: So you don't want us to say that same-sex harassment is actionable.

It isn't necessarily actionable.

It's actionable if it constitutes--

Mr. Canaday: --Sexual discrimination.

Unknown Speaker: --If and only if it constitutes sexual discrimination.

Mr. Canaday: Yes, sir, as set forth in the Meritor case.

Unknown Speaker: Which you say it always does.

Mr. Canaday: I--

Unknown Speaker: And your opponent says it never does.

Mr. Canaday: --No, sir.

I said that the--

[Laughter]

Our position is that the sexual nature of the conduct does allow for the inference which has been recognized in the cross-gender cases of the fact that it is because of sex, but our position is that it is inherently a question of fact which needs to move to the trier of fact.

It is not a... we are not asking for a per se rule.

We're asking for a rule that recognizes the factual nature of the inquiry, and with that, we thank the Court for its attention in our case.

Chief Justice Rehnquist: Thank you, Mr. Canaday.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Mckennon v. Nashville Banner Publishing Co. - Oral Argument

Fri, 09 Jan 2009 14:49:55 +0000

Case:

Mckennon v. Nashville Banner Publishing Co.

Media File:

93-1543_19941102-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Michael E. Terry

Chief Justice Rehnquist: We'll hear argument first this morning in Number 93-1543, Christine McKennon v. Nashville Banner Publishing Company.

Mr. Terry.

Mr. Terry: Mr. Chief Justice and may it please the Court:

Our case is about age discrimination.

Particularly, this case is about the after-acquired information doctrine, or the after-acquired evidence doctrine.

The so-called after-acquired information in these cases varies, but it bears two common characteristics.

First, the information is acquired after a questioned employment practice, usually after litigation has begun.

Second, the employer contends that the information would be a legitimate basis for terminating the employee.

Simply stated, the issue in this case is, what significance should attach to such after-acquired evidence in cases, in discrimination cases arising under the Federal civil rights statutes?

Clearly, there are two camps.

The Sixth Circuit and other courts have determined that such after-acquired evidence is a complete defense to liability and bars all relief.

The Third Circuit and other courts have determined that after-acquired evidence is not a defense to liability but may, in appropriate cases, impact upon relief.

We come to this Court with the notion that the after-acquired evidence doctrine is nothing new.

We believe that for more than 30 years this Court's construing the decisions of this Court and agencies construing other Federal statutes have been confronted with the after-acquired defense by employers seeking to avoid liability under other statutes protecting employees' rights.

In each case, beginning with Still v. Norfolk & Western Railroad in 1961, this Court and the other courts and the agencies have found that after-acquired evidence, as a defense, does not bar all remedy.

Unknown Speaker: Well, Still was somewhat different than the present case, wasn't it?

Wasn't that the question of whether the person was an employee for purposes of the FELA, even though he might have had misinformation on his application form?

Mr. Terry: Mr. Chief Justice, Still was under the Federal Employers' Liability Act, and it was a case involving an employee seeing compensation for a back injury, and there was a question about information that he had provided in his form, but he railroad in Still took the position that he was not an employee, not qualified to be an employee.

The respondent in this case takes that position, and so do some of the courts that extend the--

Unknown Speaker: The respondent doesn't say that the petitioner in this case never was an employee.

Mr. Terry: --No, but the plaintiff in Still had worked for Norfolk and Western Railroad for 6 years, just like the plaintiff here had worked for the Nashville Banner for 40 years, so the theory that somehow the misconduct or the application error or misstatement has removed the standing or the qualification was the same.

Unknown Speaker: Well, what remedies, Mr. Terry, do you say are available to the petitioner if it is discovered during the course of the discovery proceedings that valid cause existed for the employer to fire the petitioner?

Mr. Terry: Justice O'Connor, the first... in answering your question, and maybe you have already suggested that we think the first and very important part of this rule that we propose is that the employer show under a standard similar to the standard in Price Waterhouse that they would have terminated the employee.

They must show this by objective evidence in a fair, factfinding proceeding.

If that is done, we believe that the remedies should be fashioned by the facts.

Clearly, if the employer would have terminated the employee, then in most cases reinstatement and front pay are inappropriate, but we do not believe that backpay should be barred, and we believe that their backpay should be awarded in most cases, and awarded to the point of judgment to satisfy the... to satisfy the objectives of the ADEA and title VII.

Unknown Speaker: What about the situation of an employer discovering that there was a fraudulent employment application, that a qualification for the job, for example, was a certain education degree, and the employee had fraudulently said she had that degree, and it's later discovered.

Now, what kind of relief there, do you suppose?

Mr. Terry: We... the answer to your question is the same.

We propose that that employee should receive backpay if they can... if they can establish a discrimination claim, but the fear in that result, and the problem with that result, is removed by the idea that the employer should be able to pursue State civil and criminal remedies to recover any unjust compensation or any injury that the employer has suffered, so in these extreme cases, when we talk about the so-called nondoctor doctor, or the case where the day-care worker is a child molester, that type of case that are used as examples, the case, the facts of the case take care of themselves.

Unknown Speaker: Do they do that by way of a counterclaim?

Would the offset be on the employer's part... you said you imagine, you could imagine a case where civil, even criminal liability, but let's take the civil.

Would that come into the very same case, the discrimination case, by way of counterclaim?

How would it play out?

Mr. Terry: We believe that the counterclaim may be... will mostly be found in State law.

If the counterclaim is in State law, then it should be presented as a defense, or a counterclaim in--

Unknown Speaker: Well, it could be a pendant cause of action, I take it.

Mr. Terry: --Yes, exactly.

Unknown Speaker: But then, as Justice Ginsburg said, it would be an offset to the judgment?

Mr. Terry: Absolutely.

There would be no money exchanged in a lot of these cases that people seem to be afraid about, and the purposes of title VII and ADEA would be served by--

Unknown Speaker: Wouldn't you argue in that case that the ADEA trumps any other State recovery mechanism?

Wouldn't you say that the Federal policy should prevail, and therefore there shouldn't be a recoupment?

Mr. Terry: --No.

Our position is that if the employer has a valid State law claim, and I might mention that some of the recoupment--

Unknown Speaker: For the recovery of some of this compensa... backpay, for example?

Mr. Terry: --Or it could be a situation, let's take for... where the employee has caused some actual damage or injury on the job.

Unknown Speaker: Well, that I can understand, but if you're talking about recovery of the very backpay to which the employee is entitled under the act, or determined by the court to be entitled under the act, are you conceding that that might be a proper subject of recovery under some State law action?

Mr. Terry: Absolutely not.

Unknown Speaker: Okay.

Mr. Terry: Absolutely not.

We're talking about--

Unknown Speaker: The employer would have to prove damage, I take it?

Mr. Terry: --Absolutely.

Unknown Speaker: So that if the person holds himself out as a lawyer, and in fact is not a lawyer, and they discover that, if he had been doing his job adequately and the employer hadn't been sued, I take it no damage under your theory?

Mr. Terry: In a lot of these cases, that's the situation, Justice--

Unknown Speaker: Despite the fact that it's somewhat outrageous that the person held himself out as a lawyer and in fact was not.

Mr. Terry: --Yes, and... but in that case you may also find some theory of unjust enrichment, and you will also find that the local district attorney will probably initiate a criminal prosecution just like they would in the nondoctor doctor situation, and part of the criminal prosecution could also involve restitution of part of the money that was received.

Unknown Speaker: Well, now you're causing me to get confused again.

I thought that you told Justice Souter you can't get the backpay back.

You say you can't get it back as backpay, but you can get it back as restitution, or as unjust enrichment?

Mr. Terry: You can get it back if there's injury and if there's harm, or if there's some viable State remedy that the title--

Unknown Speaker: So you can get the backpay back.

Mr. Terry: --If--

Unknown Speaker: You just need a state cause of action for unjust enrichment or for restitution, right?

Mr. Terry: --If... if the... yes.

If there is a... we do not believe that the purpose of title... I think this Court has said in cases such as McDonnell Douglas and McDonald v. Santa Fe and Sure Tan that title VII, that wrongdoing by an employee doesn't remove that employee from the protections of title VII and ADEA.

Unknown Speaker: Okay, let me make sure I understand.

I take it you are saying that a State action for the return of backpay on the theory that backpay is, per se, unjust enrichment in these circumstances, would be barred, is that correct?

The employer could not simply bring an unjust enrichment claim to recover the backpay under State law which had just been awarded by Federal court under this act.

Mr. Terry: The answer to that question is if the State law was passed and promoted as a defense to title VII, then it would have those problems.

If there was a valid existing State remedy--

Unknown Speaker: And wouldn't your argument be that in fact the State law was barred by the ADEA?

Mr. Terry: --If that was the purpose, if the purpose of the State law was to frustrate the purposes of ADEA, or title VII, then it would have problems.

Unknown Speaker: Sure.

Mr. Terry: But if--

Unknown Speaker: Now, what if it's a general State law saying no one shall be unjustly enriched, and let's assume that under State law as a general rule the payment of salary to someone who has misrepresented qualifications for the office for which the salary is paid would be a proper subject for unjust enrichment recovery, would you say that the ADEA would not bar that State law claim?

Mr. Terry: --Yes, I would, but I would also say that it would be my understanding of that claim that the employee, as Justice Kennedy has suggested, if they've done the job, if the employer has received benefit for what he's paid, that the unjust enrichment claim would not succeed to the extent of the backpay.

Unknown Speaker: Okay, and the easy claim would be the case of the nonlawyer lawyer whose firm has been sued for malpractice and has had to recover.

They would certainly be able to claim against the nonlawyer lawyer.

It wouldn't be a claim for the return of backpay, it would simply be a claim for what they had been forced to pay as under respondeat superior.

That would be easy.

They could do that.

Mr. Terry: Absolutely, and we think--

Unknown Speaker: Could a judge in such an instance determine the order of trial and say, I'm going to try the counterclaim first, and that may render any discrimination claim academic because of the size of the damages?

Mr. Terry: --Your Honor, no.

We believe that the plaintiff is entitled to establish the title VII or ADEA claim even if damages is completely out of the equation because of unjust enrichment or some other recovery.

There is other relief that the plaintiff may be entitled to, or that the defendant should be affected by other than damages.

Unknown Speaker: Let me take you back just one step to clarify, if I understand correctly, that even if you lose on your main argument you are contesting the propriety of summary judgment here, because it was... you were not given an opportunity to challenge whether this misconduct would in fact have led to the discharge.

Mr. Terry: Absolutely, under the appropriate standard, which we think is articulated in Price Waterhouse, where... which requires objective evidence and clear issues of fact which were present in this case, a fair factfinding proceeding.

The district judge in this case found as a matter of law that the Nashville Banner could have fired--

Unknown Speaker: But you didn't raise that question in the petition.

You didn't raise that issue.

Mr. Terry: --I didn't--

Unknown Speaker: You didn't raise that question in your certiorari petition.

Mr. Terry: --We have raised that question.

That question is in our... is in our brief.

We have--

Unknown Speaker: We know it's in your brief, but not in your--

--It wasn't in the petition.

Not in your certiorari petition.

You just raised your basic legal argument.

You only have one question in your certiorari petition, and it did not include that.

Mr. Terry: --Well--

Unknown Speaker: You may be right on it, but I'm not sure you preserved it.

Mr. Terry: --Well, Justice Stevens, our approach to this is that until there is a rule, a rule articulated by this Court, when you start with the procedural problems that are presented in the district court, the problems are shown in this case.

It's not something that just occurs as soon as an employer says, I would have terminated.

It's a problem in determining the process for would have terminated--

Unknown Speaker: Yes, I understand, but your principal argument is that even if they clearly would have fired her for this conduct, you still say that she's entitled to recover under the statute.

Mr. Terry: --Absolutely.

Unknown Speaker: That's a question you primarily addressed, at least.

Mr. Terry: Yes.

I would like to reserve my--

Unknown Speaker: Is it your submission that the time runs at the... when judgment is entered in the trial court or when the judgment becomes final after appeal?

Mr. Terry: --When judgment runs in the trial court.

Unknown Speaker: Don't some circuits say that the cutoff date is when the employer actually discovers the grounds for discharge?

Mr. Terry: Yes.

Yes, Justice O'Connor, and--

Unknown Speaker: Isn't that what the EEOC has used as well?

Mr. Terry: --We think that the EEOC has changed its ruling in that area a couple of times.

We don't believe that a rule that stops short of judgment will serve the purposes of Albemarle, and we think Albemarle is served if backpay runs to judgment.

Unknown Speaker: What about the rule that backpay would terminate when the employer would have found out, which could conceivably be never?

That's one of the cutoffs that--

Mr. Terry: If the employer can demonstrate that absent discrimination they would have found out, then it's just as if the plant had closed.

Then it stops at that point.

Unknown Speaker: --But suppose the employer can't prove that?

I mean, you are suggesting a cutoff that we can determine a fixed time when the judgment becomes... when the judgment is entered in the district court.

Another cutoff could be when the employer finds out in the course of discovery.

Another could be when, absent the litigation, the employer could have found out.

What reason would we have for picking one or the other of those stopping points?

Mr. Terry: The reason is that if the... anything other than what we propose allows the employer to improve their position because of the discrimination.

My client would be working at the Nashville Banner today except for the discrimination.

The discrimination that originally terminated her also leads to this after-acquired information, and to cut it off any place else allows the Nashville Banner to profit from that.

Unknown Speaker: Well, that's true even under your rule.

Mr. Terry: Well--

Unknown Speaker: Let's assume that but for the lawsuit this never would have been found out, so even under your rule she... the employer is better off because of the discharge.

Mr. Terry: --Because they don't have to face reinstatement or front pay, but they have the same obligations under backpay, and backpay is critical.

As this court said before, it's the spur, it's the catalyst, it is the backbone to deterrence and compensation under Albemarle, and we do concede that there is some advantage to the employer, but it puts the employer in the same position they would have been absent the discrimination.

If they have a legitimate reason at that point, they can refuse reinstatement.

We do think that this rule balances the employer and employee interests.

The rule proposed by the Nashville Banner is a rule that establishes a predetermined national penalty.

It's a rule that says no matter what the conduct, here's the penalty.

You've lost your right to bring a civil rights claim, and the penalty is the same in every case, no matter what the misconduct is, and that's a--

Unknown Speaker: But why don't you go for the whole hog in this case, because in this case, presumably absent discovery the employer would never have found out and would never have discharged for any other reason, other than the age discrimination.

Mr. Terry: --The rule we proposed, Your Honor, is structured with regard to reinstatement and front pay to accommodate the employer's interest.

We don't believe that title VII should overreach to the point where it implicates the future and requires two people who now have a legitimate reason not to be tied in this relationship to be in that relationship.

Argument of Irving L. Gornstein

Chief Justice Rehnquist: Very well, Mr. Terry.

Mr. Gornstein.

Mr. Gornstein: Mr. Chief Justice, and may it please the Court:

Our position is that evidence of an employee's misconduct that is acquired after the employer has discharged that employee on the basis of age has no bearing on the question of liability under the Age Discrimination in Employment Act.

Evidence or proof that the misconduct would have caused the employer to discharge that employee had he known about it can affect the scope of relief, but the Sixth Circuit's holding that such proof precludes all relief under all circumstances is incompatible with the language and purposes of the ADEA.

Unknown Speaker: Well, Mr. Gornstein, what should the cutoff date be for any so-called backpay relief?

Mr. Gornstein: We believe that the appropriate cutoff date is the date upon which the employer would have discovered the information had there been no discrimination and no lawsuit.

Unknown Speaker: That's kind of a hard test to employ.

Don't you think that... isn't it true that the EEOC has used, and perhaps now uses, a cutoff date of when the employer actually discovers it?

Mr. Gornstein: The EEOC position on this issue has evolved, and at one point it was using or advising its investigators... there's never been an EEOC regulation on this.

Unknown Speaker: What is it using now?

Mr. Gornstein: Right now, the position is the one reflected in our brief, which is that the cutoff date should go to the date on which the employer would have discovered the information had there been no discrimination.

Unknown Speaker: Well, that just inserts a new and difficult factual inquiry into the equation.

I don't see much to commend it.

Mr. Gornstein: I think what commends it is that it advances the purposes of the statute here, which--

Unknown Speaker: Well, but do you agree that it does insert an often difficult factual question into the equation?

Mr. Gornstein: --Yes, but I think what it--

Unknown Speaker: Well, it's very difficult in this case.

It could be argued that absent this litigation the employer never would have discovered it.

Mr. Gornstein: --And in cases like that, then the backpay period should go to the date of judgment.

Unknown Speaker: Mr. Gornstein, can I interrupt with this question?

Do you think the remedy issue is embraced within the question presented in the cert petition?

Mr. Gornstein: Well, I would just--

Unknown Speaker: It only relates to liability in all three briefs.

Mr. Gornstein: --The remedy issue as to what particular remedies ought to be granted--

Unknown Speaker: You first have to decide whether there's liability, and that's the only issue that the cert petition raised.

Mr. Gornstein: --I think that it fairly raises whether, assuming there--

Unknown Speaker: What the remedy should be if she wins?

Mr. Gornstein: --No.

What I would say is that it raises the question of whether all relief can be precluded, even assuming there's liability.

It arises the question of whether there's liability at all, and the question of, assuming there's liability, can you preclude all relief.

Unknown Speaker: But then you don't have to decide which of the various alternatives would be right.

Mr. Gornstein: You do not.

Unknown Speaker: You say there's some... some--

Mr. Gornstein: That's all you have to decide in this case, this--

Unknown Speaker: --It's clearly all that we should properly decide under the question presented, it seems to me.

Mr. Gornstein: --Well, I think that that's probably so.

On the issue of liability, I wanted to make two basic points.

First, with a few exceptions that are not applicable here, the language of the statute broadly prohibits employment discrimination on the basis of age against any individual.

There is no exception in the statute that would license an employer to discriminate on the basis of age against an employee who is engaged in this conduct.

Second, as this Court's decisions have made clear, the critical question in determining the issue of liability under the statute, is what actually motivated the employer at the time of the adverse action, and that point is crucial here.

Since this case arises on summary judgment, it must be assumed that at the time the respondent discharged petitioner, it acted entirely on the basis of her age.

Under the plain language of the statute, that was sufficient to establish a violation.

After-acquired evidence of petitioner's misconduct could not change the historical fact that by then there had already been a violation of the act, so the only remaining question is what the appropriate remedy is for that violation, and that's governed by 29 U.S.C. section 626, which authorizes district courts to grant such legal and equitable relief as may be appropriate to effectuate the purposes of the act.

Unknown Speaker: All right.

Then how is it... imagine the employee is dismissed on day 1, because of age.

The employer says, you're too old.

I'm firing you.

All right.

During the discovery, 10 months later, they discover that this employee has been stealing all the money in the company, I mean, totally dishonest crook, and they never would have found it without the discovery.

The judgment takes place a year after that.

You're saying that this employee who was stealing them blind should receive backpay not only for the first 10 months before they discovered it but also for the next 14 until judgment.

Mr. Gornstein: Unless the employer can show--

Unknown Speaker: He couldn't show he discovered... he never would have found out--

Mr. Gornstein: --Then--

Unknown Speaker: --and yet there is this word, equitable, in the statutory section dealing with relief.

How is that equitable?

They don't... I mean, I take it that the... go ahead.

Mr. Gornstein: --I think that it is equitable because you look at what is equitable in light of advancing the purposes of the statute, which are deterrence, and making whole the victims of discrimination.

Running the backpay to the date of judgment provides further deterrence and it slots the employee more nearly in the position that that employee would have occupied had there been no discrimination.

Unknown Speaker: What about the employer's claim?

Wouldn't the employer have a very good claim?

Mr. Gornstein: Absolutely, that there would... in that case, it would look like a clear claim for offset that would probably offset all the backpay.

Unknown Speaker: Claim for what, a claim for--

Mr. Gornstein: Theft.

Unknown Speaker: --to get his money back that's been stolen?

Mr. Gornstein: Yes.

Unknown Speaker: He's still paying this guy wages.

He would never get those wages back.

Mr. Gornstein: Well, only in the sense that the--

Unknown Speaker: That doesn't seem equitable to me.

Mr. Gornstein: --Well, Justice Scalia, we--

Unknown Speaker: The statute does use the word equitable, doesn't it?

Mr. Gornstein: --It does, but that's--

Unknown Speaker: It doesn't say whatever... whatever helps to further the purposes of the act.

Mr. Gornstein: --Well, it does--

Unknown Speaker: It says, equitable.

Mr. Gornstein: --Well, it says such legal or equitable relief as may be appropriate to effectuate the purposes of the act.

That's exactly what it says.

Unknown Speaker: That's my question.

It would seem in that circumstance, contrary to the Sixth Circuit, that the employee should get paid for the first 10 months before they found it, perhaps, but why the next 14?

Mr. Gornstein: Our answer to that is, and I think this is the question is which of those two rules best advances the purposes of the statute, and we think that the rule that you... the backpay ends on the date on which the employer would have discovered it follows directly from this Court's decision in Albemarle.

Unknown Speaker: It doesn't say best advances, it says such legal... as may be appropriate, right?

The question is whether this kind of relief is appropriate to advance the purposes of the statute.

Mr. Gornstein: That's right.

Unknown Speaker: Don't you think some people may think it's inappropriate?

Mr. Gornstein: Well, I don't think there should be an... that implies a sort of unguided discretion to deny relief based on your reaction to the personal character of the plaintiff.

You still have to decide whether it's appropriate in light of the purposes of this statute.

Unknown Speaker: Is ease of administrability, is that taken into account at all?

You can say, you don't know... you would have to have a kind of a satellite trial on this question of when would the employer have found out.

You are accepting Mr. Terry's outer limit of the day of judgment.

Mr. Gornstein: Yes.

Unknown Speaker: But then, if you take the day of discovery, that's something fixed, and you don't have to quarrel about it, apart from any equitable clean hands doctrine.

It's easy to administer that kind of rule, and your rule is difficult, as Justice O'Connor pointed out.

Mr. Gornstein: I think that the virtue of the date of discovery rule is that it's easier to administer, but I think that that should be balanced against... the more important question is which rule is more appropriate to effectuate the purposes of the statute, not which rule is easier to administer.

Unknown Speaker: You say our discretion is unguided.

Is the law in such a beginning primitive state that we can't call a thief a thief?

Mr. Gornstein: No, I would not... you can call a thief a thief, sure.

Unknown Speaker: But it's unguided discretion to allow that--

Mr. Gornstein: No, I would say that--

Unknown Speaker: --to allow that to shape the remedy that we provide?

Mr. Gornstein: --Well, I think it's unguided when the rule is, if somebody who's engaged in serious misconduct, they get relief, somebody who's engaged in less serious misconduct, they do not get the relief.

That's the rule that's proposed by the respondent in this case.

That, it seems to us, leads to unguided discretion, which this Court has had experience with in the Federal Employers' Liability Act.

Unknown Speaker: But your submission is there be no discretion at all.

Mr. Gornstein: No, there will be discretion, but not on the basis of the employer's misconduct.

Unknown Speaker: What about criminal?

Couldn't we at least draw the line, criminal, if there's criminal misconduct?

Mr. Gornstein: I don't think--

Unknown Speaker: That's a pretty clear line.

Mr. Gornstein: --I don't think it's an appropriate line to draw, because there are many things that are not criminal that are very serious, and there are many things that are criminal--

Unknown Speaker: Oh, so therefore we have to let even larceny go unpunished because there are some things that aren't criminal that are serious.

Mr. Gornstein: --Well, larceny will not go unpunished, because that violates the criminal law and the State will punish it.

At the same time, the employer will have a right to recover whatever the value of the larceny is, but that should not take away from the point that--

Unknown Speaker: Thank you, Mr. Gornstein.

Mr. Gornstein: --Thank you.

Unknown Speaker: Mr. Wayland.

Argument of R. Eddie Wayland

Mr. Wayland: Mr. Chief Justice, may it please the Court:

The court below properly held, on the facts of this case, that employee misconduct and evidence of employee misconduct that undeniably would have resulted in the termination of the plaintiff had the company known about it bars this plaintiff's, or similarly situated plaintiffs' claim for relief for wrongful discharge.

Unknown Speaker: The court didn't have an "undeniably" case before it though, did it?

Mr. Wayland: Yes, Your Honor.

The facts in this case show it was admitted that it was misconduct.

The plaintiff in her deposition admitted she knew that she could be--

Unknown Speaker: The conduct was undeniable, but what would have followed from it, whether her employment would have terminated, was a debatable fact question, was it not?

Mr. Wayland: --No, Your Honor, it was not.

The court below found, on the basis of the undisputed facts, that--

Unknown Speaker: Undisputed facts, there were only affidavits, no cross-examination, even.

Mr. Wayland: --No, that is not correct, Your Honor.

Unknown Speaker: It was?

Mr. Wayland: There was.

There were depositions of all four of the individuals who submitted affidavits.

The court below, on the plaintiff's motion, extended the discovery period, gave them the opportunity to depose all of the executives, to try to prove pretext, or prove that the company would not have done what the executive said they did, and no evidence, absolutely no evidence came forward to show that.

It's a finding of fact, uncontradicted in the record, that she would have been terminated, and the only reason she wasn't terminated is because she successfully concealed her misconduct.

Unknown Speaker: Is a deposition the same thing as presenting a witness before a trier of fact who will then take into account the credibility of the witness?

Couldn't a witness... couldn't... well, you see the point of my question.

A deposition is not the same as presenting a witness in court before the trier of fact, subject to cross-examination.

It didn't have that setting here.

Mr. Wayland: Well, Your Honor, if that's the standard, then there could never be summary judgment in any case where someone could argue that credibility of witnesses may be appropriate.

Unknown Speaker: I thought that was the case, in fact Where there's a credibility question to be resolved, then you do not have a case where there is no genuine doubt of what the facts are.

Mr. Wayland: I believe the teachings of this Court establish, Your Honor, that when faced with a properly supported motion for summary judgment, the person opposing the motion has to come forward with evidence that would show that there is a genuine factual dispute.

That did not happen here.

There is no evidence showing that there is a genuine factual dispute, and it's certainly consistent with this Court's standards and with controlling law for a court to grant summary judgment on those principles and on those facts.

Unknown Speaker: Was it shown what had happened in similar situations, or was the testimony just that, yes, we would have fired her?

Mr. Wayland: The testimony was, Your Honor, that there was no similar situations to compare it to, that it had never happened before, that the rule at the company was so well understood... in fact, the plaintiff admitted that anyone would know that if you did this you could be discharged for it, and the company in the testimony was that they would have unequivocally terminated the employee the minute they found out about it.

Four different executives testified to that under oath, Your Honor, and not one shred of evidence contradicts that.

On those facts, we think it's a matter of fact that she would have been terminated.

It was a fact that she had engaged in this misconduct at the time that she was chosen for a lay-off.

Those facts are undeniable.

Unknown Speaker: Mr. Wayland, I take it the trial court went no further than to say, than to conclude that there was no genuine issue on the point?

Mr. Wayland: The trial court concluded that there was no genuine issue, Your Honor, and also further concluded that, on the basis of the undisputed facts, that the company had objectively stated a legitimate cause for discharge.

I believe the court said that it would be cause for discharge as a matter of law.

The court then went further and said, on the basis of the undisputed facts, not only was it objectively cause for discharge, but the company subjectively would have discharged the employee on these situations.

Unknown Speaker: Well, whatever the deficiencies, the question presented at least does assume that the conduct here would have provided a basis for dismissing the employee.

Mr. Wayland: That is correct, Your Honor.

Unknown Speaker: And that we take the case on that assumption.

Mr. Wayland: That is correct, Your Honor.

Unknown Speaker: That is not much to argue about.

Mr. Wayland: And if you look at what's happened here, if you look at the statute, and we submit that's the place to start, in the Age Discrimination Act, Congress pecifically provided that if someone... if there's good cause for termination, or if there's a reasonable factor other than age, then that is not age discrimination.

Congress also provided that a person must be aggrieved to bring a claim.

What the plaintiffs are trying to argue here is, simply because there's bad motive, that therefore that's a violation of the law, and the teachings of this Court are that that's not enough.

Unknown Speaker: Well, at the time of the discharge of the petitioner, the employer did not know of any other ground for discharge, and I guess we take the case on the assumption that the discharge was made at that time on the basis of her age.

Mr. Wayland: For purposes of--

Unknown Speaker: For purposes of our disposal of this case we take it on that assumption, do we not?

Mr. Wayland: --That is correct, Your Honor.

Unknown Speaker: And so as of that date, it appears that there was indeed discrimination as described in the statute, and an injury occurred on that date.

Mr. Wayland: Well, the question, we submit, Your Honor, is, did an injury occur on that date, a legal injury, and if so, even assuming that it did, is it redressable, and that's the real... that's what we're dealing with here.

What the plaintiffs and the Government are trying to read into the statute is the word shall, that this Court shall provide a remedy, and that's not what the statute says.

The statute says, in the Court's discretion, when it's appropriate, a remedy may be provided.

Unknown Speaker: Mr. Wayland, suppose what was at issue here was not intentional misconduct, but simply gross incompetence that the employer had not theretofore been aware of, but it comes out during the course of the trial that this employee is really grossly incompetent, would that in your view lead to the same conclusion, that no recovery could be had for firing this employee because of race, or sex, or age?

Mr. Wayland: It may well lead to that conclusion, Your Honor.

I think--

Unknown Speaker: I know it may well.

[Laughter]

I want to know what your answer is.

Mr. Wayland: --Well, I think it would depend upon the employer.

The test that we submit, Your Honor, is applicable is, are there undisputed facts, is that... would that be an objective reason for discharge, and can the company prove it would have terminated the employee--

Unknown Speaker: Had it known about the incompetency.

Mr. Wayland: --Had it known about the incompetency.

Unknown Speaker: So it's not a matter of intentional misconduct alone, it's if there were any reason for which this employee might have been, would have been discharged had the employer known about it?

Mr. Wayland: That's correct, Your Honor.

The statute says, good cause.

It doesn't define good cause, but it says good cause, and in enacting the discrimination laws and the Age Discrimination Act, Congress was very sensitive to the employer's right to exercise its legitimate prerogatives except for when... a discriminatory motive--

Unknown Speaker: So I gather--

Mr. Wayland: --that resulted in an injury.

Excuse me.

Unknown Speaker: --if you bring a suit under this statute you better expect your employment history to be very carefully scrutinized not only for intentional misdeeds but for general incompetence?

Mr. Wayland: Yes, Your Honor.

Unknown Speaker: And that would be rather risky, wouldn't it, to bring such a suit?

Mr. Wayland: I don't believe so, Your Honor.

Unknown Speaker: Even if the employer is unable to establish the general incompetence, it would make good reading for any subsequent employer, wouldn't it?

Mr. Wayland: Well, Your Honor, I guess there's protective orders that would deal with that.

But the point, Your Honor, is that the... you look at the conduct and what the employer would have done, and whether or not that rises to the level of actual discrimination.

Unknown Speaker: Well, Mr. Wayland, I would have thought you would look at the situation at the time the employment action occurred, and that's what Congress was trying to prevent.

They don't want employment action, a discharge, based on the employee's race or sex or age, and they're trying to discourage that kind of action, so I don't see how your rule implements the goal of the statute at all.

Mr. Wayland: Well, Your Honor, it's also a goal of the statute not to reward bad employees, and if you buy the plaintiff's theory, if you ignore the fact of the misconduct that would have resulted in their termination, then the result is you are rewarding an employee for their stealth and for the concealment of their misconduct.

Unknown Speaker: Well, not if you look at it, for example, as of the date of the acquisition of the subsequent knowledge.

Then it looks to me like you can sort out the appropriate remedy.

Mr. Wayland: Well, the employee is still being rewarded, Your Honor, because that's going to, employees that conceal it better than others are going to be rewarded more, because it's going to take longer for the company to find out about it.

It might also, we submit, foster a situation where there's more deceptiveness in the discovery process.

What we submit--

Unknown Speaker: Mr. Wayland, let me put it this way.

This is a statute that says, thou shalt not discriminate.

As you describe this scenario, you are turning that around and say, well, let's just assume that, arguendo, this case is going to be about whether this was an inadequate employee.

And you have turned what Congress set up as a discrimination claim into something where the discrimination claim never even sees the light of day unless the employee can first survive this hurdle of showing that she would have kept the job that she was a competent employee, that she had not engaged in any misconduct, so it seems to me just destructive of the claim that Congress set up when it passed these antidiscrimination laws.

Mr. Wayland: --The question, Your Honor, is to relief.

Congress did not guarantee that every plaintiff who could prove a violation is going to get a remedy.

This Court has recognized this in Albemarle Paper case.

Unknown Speaker: How about even a matter of a declaratory judgment?

Employer discharged this person for an impermissible reason.

That has been proved.

The lawyer who proved it against the employer is going to get counsel fees.

Just that much.

Mr. Wayland: Your Honor, this Court, under my reading of the statute, would have the discretion to award that if it found that that was appropriate, and that would certainly be consistent with what Congress has enacted in the 1991 Civil Rights Act.

Unknown Speaker: Then how can you give summary judgment and not even have that proof in the case?

Mr. Wayland: Well, Your Honor, we submit that in the cases that we're dealing with when we're dealing with misconduct serious enough to warrant discharge, that would have warranted discharge, that that ends the inquiry, because the... that conduct becomes a superseding cause for any injury.

There's no relief, or the redressability question comes into play.

Unknown Speaker: You're running two theories, Mr. Wayland, and I think you're going to have to pick between them.

One is that there's simply no cause of action because there's been no harm done, and if you run that theory, you do, indeed, have to answer my earlier question about whether even an incompetent employee is not entitled to relief, the way you did.

Incompetence, just like intentional misdoing, eliminates the cause of action.

But there is a second theory which you seem to be running in your discussion with Justice Ginsburg, and that is, it doesn't go to whether there's a claim at the outset, but to whether relief is appropriate, and under that theory you could get a declaratory judgment.

But there's no basis for a declaratory judgment under your first theory, that there's simply no cause of action.

That is, no harm has been done.

Mr. Wayland: That is correct, Your Honor.

Unknown Speaker: Well, which theory do you want?

Mr. Wayland: Well, we would submit that the first theory is the correct one.

Unknown Speaker: That's what I thought your brief contained, the first theory, not the remedial theory.

Mr. Wayland: But if the Court determines that there is a violation, then we think you have to go to the remedial theory as a... a, for lack of a better term, a fall-back position, and that's certainly appropriate then.

Unknown Speaker: I thought your starting point is, we can concede the violation.

You have no claim if you engage in the kind of misconduct that would have led to your termination anyway.

I thought your starting premise is, we can concede arguendo that there was age discrimination, but it doesn't matter, because you don't have a claim for relief unless you show that you would not have been terminated for another reason.

Mr. Wayland: Your Honor, the teachings of this Court in the Price Waterhouse case is there are three things that are necessary for a legally cognizable injury under the discrimination law.

There has to be a bad motive, which we are assuming for purposes of argument here, there has to be an action pursuant to that bad motive, and there has to be an injury.

There has to be a tangible, economic injury that results before there is liability.

Now, that's the teaching of this Court--

Unknown Speaker: I had not understood the Price Waterhouse decision to involve the scenario here, that is, that there is never any proof of discrimination because we go right to the defense.

Mr. Wayland: --The difference between the Price Waterhouse scenario and this one, Your Honor, in the abstract, we submit, is that in Price Waterhouse both motives were present at the same time, whereas in this case by definition the after-acquired knowledge was not present at the time the decision was made, but once you set that aside--

Unknown Speaker: That makes this one a case where, less sympathetic to the discrimination charge?

They both occur simultaneously, then there is proof of the discrimination.

If they... the one occurs later, there should be a different trial scenario.

I don't comprehend that--

Mr. Wayland: --Well, Your--

Unknown Speaker: --why it makes any difference whether they knew, on the very day they discriminated against her on the basis of her age they also knew, say another officer knew that she had taken confidential documents.

Why should it turn on whether the discovery was simultaneous or the discovery of misconduct came later?

Mr. Wayland: --I don't believe it does, Your Honor.

That's the point.

It turns on whether or not there's an injury, and here, the misconduct that would have resulted in her termination becomes a superseding event that results in--

Unknown Speaker: Why is there no injury?

Look, I'm a thoroughly incompetent employee, but my employer has not tumbled to that fact yet.

[Laughter]

I'm drawing a nice salary, week by week, and I get fired because of my age.

Why haven't I suffered an injury?

Mr. Wayland: --Well, Your Honor, you haven't suffered a legally cognizable injury under the discrimination laws.

Unknown Speaker: Why?

You... it's not self-evident to me.

You simply say that there has been no injury, but de facto, there certainly has been an injury.

Mr. Wayland: There is an injury, but there is a superseding cause, or another cause of that injury.

That's the teaching of Mount Healthy, Your Honor.

In the Mount Healthy case--

Unknown Speaker: But that wasn't the cause.

The employer didn't know about my incompetence.

He only found out about it later because of this lawsuit.

Mr. Wayland: --Well, Your Honor, it was a fact at the time, and if the Court ignores the existence of that fact simply by a lack of employer knowledge, then it is rewarding employees for their concealment of misconduct, and that's not--

Unknown Speaker: Well, that goes to the appropriateness of the remedy, but it doesn't go to the existence of a cause of action.

It does not go to whether there was any injury.

It seems to me the more incompetent I've been, the more dishonest I am, and hence less likely to get a later job, the more I've been injured.

[Laughter]

Mr. Wayland: --Well, Your Honor, again, we submit that in terms of looking at the legal injuries, this Court has said there has to be a tie, it has to be traceable to the event.

But turning to--

Unknown Speaker: Legal injury has got to be defined in statutory terms, and the statute uses discharge because of age.

Mr. Wayland: --That's correct, Your Honor.

Unknown Speaker: That is the legal injury, and if there has been a discharge because of age, it seems to me that under the statutory language, that is the end of the inquiry as to whether there has been a legally cognizable injury.

We can fight about relief later, but the injury is within the terms of the statute.

Mr. Wayland: We believe the proper test is, is there has to be a but-for causation, Your Honor.

Unknown Speaker: What do you do with the language, because of age?

Mr. Wayland: Your Honor, we think that the proper interpretation is, that's a but-for test.

But for the discrimination, the injury would not have occurred, that the after-acquired evidence which was a fact at the time that the court should look at, we submit the court should look at the plaintiff as they stand, not the issue they try to raise.

Unknown Speaker: Mr. Wayland, could I interrupt for just a second?

I want to get one thought on the table.

Isn't it true that in the orderly presentation of a trial the plaintiff puts her evidence in first, she puts in the evidence that she was a loyal employee, she was fired, fired because of age, and she lost her job.

Prima facie, she has established injury, and she rests.

Nobody says anything about this that's found out later.

Then, in your case, you put this evidence on, but is it not true that at the time she completes her case, she has established injury, and then you come up with an affirmative defense, trying to say, well, you really didn't get hurt.

Mr. Wayland: I don't know that she's established injury, Your Honor.

Unknown Speaker: She's lost her job.

Mr. Wayland: She's established a presumption that the loss of her job was the result of discrimination.

Unknown Speaker: But if you put in no evidence at that point, judgment would be entered against you.

Is that not correct?

Mr. Wayland: That is correct, Your Honor, but here, using your example, the after-acquired evidence and what we're talking about here goes to that case.

We think it's a flip side, and one of the argument's we made in our brief.

She was not otherwise qualified.

She stole from her employee.

Unknown Speaker: Well, I have other questions similar to Justice Stevens.

Suppose that the evidence of discrimination is very clear, smoking gun in the record.

We fire you because of your age.

That's in the complaint In the pretrial stage, you now go to the district court, and you say, Your Honor, we want to take discovery, because there is some indication here that this employee may have been incompetent.

Under your rule, that discovery has to be allowed?

Mr. Wayland: Yes, Your Honor.

Unknown Speaker: Can I go to the point, which might not be in the case question, but nonetheless is bothering me, on day 1, the person's fired because of age, 10 months later, in discovery, they find out the person was a terrible thief, and 14 months after that, judgment enters.

Assume, contrary to everything you've been arguing, but just assume it with me, that I don't really think Congress wanted to subject people who've made complaints to inquisitions about every feature of their past life, and therefore you're going to lose on that point.

I'm saying, just make an assumption.

The point that's bothering me then, on that assumption, is whether the damages should run to 10 months when the thing turns up, or run to 2 years because it wouldn't have turned up in the absence of this case.

That's what I'd appreciate your addressing, you see, because you could make the same argument about not subjecting people to inquisitions.

If you're going to permit that employer to stop his damages once he finds out this thing on discovery, that also would encourage inquisitions.

Mr. Wayland: Well, Your Honor, I think that the discovery is governed by the normal discovery principles, and it would be job-related discovery.

I don't think anything suggests--

Unknown Speaker: I'm asking you to address the point of when, in your opinion, if you lost on your main point, the damages would be stopped, and why.

Mr. Wayland: --The answer to that question, Your Honor, is the damages should be stopped as of the time that the employee engaged in the misconduct, or the alleged injury occurred, so it would be the time of the lay-off, because otherwise what the court is doing is rewarding an employee for their misconduct.

Moreover--

Unknown Speaker: You understand, I'm making the assumption that you lose on that point.

Mr. Wayland: --I understand that, Your Honor.

Unknown Speaker: I'm making the assumption that for argument's sake that our choice is between stopping it at the time the employer discovers it, or letting the damages run, despite the discovery, until judgment enters.

Now, you don't have to address that, because you might say, since that whole assumption's wrong and so forth... I understand that, but if you want to address that, I'd appreciate it.

Mr. Wayland: Your Honor, on your assumption, then the damages should stop when the employer learned of the misconduct, because if not, then this Court is ignoring the teachings of Mount Healthy and its progeny that a plaintiff should not be better off because they raise a discrimination claim.

If we had found out about Ms. McKennon's misconduct in another lawsuit, or some employee came forward and spilled the beans on her, or she became, at a party one night she let it slip what she had done, then nobody, I think, would seriously argue that we could not have acted at that time.

What the Government and the plaintiff argued is that because this came out in discovery, which was a result of her exercising her right to bring a civil action, that we are precluded from relying on it at that time.

If you accept that, the plaintiff is better off than they would have been otherwise solely because they filed a discrimination claim, and that is not what the law of this Court says is the law of the land.

So in that answer it would be, once the employer finds out about it, damages stops, the end.

We would note that the EEOC has taken the position that initially that there were no damages, that the only thing the court could... would award would be declaratory relief and backpay.

Then they went to the position of saying it stopped when the employer found out about it, and now if I understand what they're saying, it goes on ad inf... until there's a judgment, unless we could prove metaphysically somehow that we would have found out about it otherwise, and I think here we concede that there's no way we would have known about this misconduct.

She was too good at what she did.

Unknown Speaker: Mr. Wayland, can we just go back to the question, the liability question, the basic claim?

Suppose this case had been one where there was clear proof of a pattern and practice established at the top level of this company that we don't want old secretaries around this place, so we're going to get rid of them all, and there's a memo from the boss saying, look for flaws, look for faults, and then we'll be able to have a reason to dismiss them.

You have such a case, and the plaintiff copies certain confidential documents, just what happened here.

Would you say even then there is no claim for relief, even if you had the clearest, wilful violation of the statute?

Mr. Wayland: If the employer could prove, Your Honor, that it would have terminated her absent the illegal intent, if it would have taken the same action based upon the stealing of the confidential documents, then the answer is yes, she would not have a claim for relief under the discrimination laws, and that is the teaching of this Court in the plurality opinion in Price Waterhouse, that's the teaching of the principle in Mount Healthy, and that's what this Court has recognized over and over again.

Turning to the relief aspect, Your Honor--

Unknown Speaker: How do you... can you just explain one thing that I don't understand clearly?

In the Mount Healthy setting, in the Price Waterhouse setting, you have the plaintiff putting on a case.

Here, you say, we can win without the plaintiff ever putting on a case.

It's that difference.

That was not happening in Mount Healthy, it was not happening in Price Waterhouse, but with your case and others like it, the plaintiff never makes a prima facie case.

We never have that showing.

That's something different, and would you explain to me why, in the Mount Healthy setting, in the Price Waterhouse setting, you do have the plaintiff's case, and then the answer to it.

Here, we have the answer and we just assume the case.

Mr. Wayland: --Well, Your Honor, I suspect because in those cases there were disputes of fact that required a trial.

In your hypothetical, the existence of that smoking gun memo may well be sufficient to create a question of fact that would then go to the jury as to, would the company have in fact put aside the discriminatory motive and done the same thing anyway?

In that circumstance, then certainly a trial may be appropriate.

We're not suggesting that summary judgment is always appropriate in these cases, but where there are no disputed facts, and as a matter of law, we submit that we should be entitled to a valid defense because of the employee's misconduct.

The employee has no one to blame but themselves.

Any denial of a remedy or relief is a result of their own misconduct.

We submit that Congress did not intend that the discrimination laws should be used to benefit employees who were bad apples.

Unknown Speaker: Are you saying, then, if you don't have a summary judgment case on the defense, then under your theory, suppose the employer says, objectively there were grounds for discharging her but there's a dispute whether they would in ract have, could, in your view of this kind of case, the trial judge say, well, I'm going to have a trial on that, because if I find that they would have fired her for a reason for which they could have fired her, I save everybody a lot of time, because that's totally dispositive?

Mr. Wayland: Yes, Your Honor.

That's exactly what the Court could do.

Unknown Speaker: So you could do the same thing in Price Waterhouse, and the same thing in the Mount Healthy setting as well?

Mr. Wayland: I'm sorry, Your Honor, I did not hear the second--

Unknown Speaker: In the Mount Healthy type case, the mixed motive case, you could do the very same thing, say, I'm going to have a trial on the defense first, and we'll never have a trial on the discrimination part because that becomes irrelevant?

Mr. Wayland: --The Court certainly could do that in handling the case, Your Honor.

We submit, and I think we put forth in our brief and one of our amicus submits, this is in the form of an affirmative defense of the employer.

The employer has the burden of proving that there was misconduct that objectively would have resulted in termination, and subjectively it would have resulted in termination.

If they can establish that either through undisputed facts on summary judgment or in a trial, then that provides a defense.

Unknown Speaker: Of course, in terms of what is properly disputed, isn't it a relevant fact in determining whether they would have discharged that they are coming forward with this evidence and they are trying to prove this we assume, for the sake of argument, after they have violated the statute, so isn't the fact of the statutory violation always going to be relevant except in a case in which it's stipulated that they would have discharged anyway?

Mr. Wayland: Well, Your Honor, it's relevant but it's not determinative.

It's the same thing as in--

Unknown Speaker: No, but it simply goes to the question whether you can, in fact, litigate solely your affirmative defense, and it seems to me that in the case... except in a case in which it is stipulated that there would have been a discharge absent the discrimination, you really cannot so divide the issues, because the one is relevant to your determination under the other.

Mr. Wayland: --Well, Your Honor, I think the better practice probably would be to have a trial on the merits with this being an affirmative defense, but it's similar to going to the qualification requirement of a plaintiff.

Unknown Speaker: But didn't you move for summary judgment?

Then you couldn't have thought that.

Mr. Wayland: I'm sorry, Your Honor.

Unknown Speaker: You moved for summary judgment on the basis of an affirmative defense.

Mr. Wayland: That's correct, Your Honor.

Just--

Unknown Speaker: But you... so... but you think the better practice would have been to reject your motion and say well, let's have a trial first and then decide it?

Mr. Wayland: --No, Your Honor.

If I understood Justice Souter's question, it went to if there was a question of intent of violation, wouldn't that be wrapped up in this whole question of what you would have done, and I'm saying that I think the better aspect would be if the company cannot prove on the basis of undisputed facts and summary judgment, then the entire case goes to trial, rather than bifurcating the trial just for this issue and then holding the liability issue later.

But if this is proven, if it's proven that the after-acquired evidence would have resulted in the person's termination, was sufficient for that, then that is a valid defense.

You have to... again, I think what the courts have said that have adopted this bar to relief, as you look at the remedy, you look at the claim of injury, and then you look at the relief that they're requesting.

The claim of injury in a wrongful discharge case is that they were terminated, and they've lost wages and benefits.

That's the relief that's available, and the misconduct serves to cut the legs out from under that claim, because it is also a result, or results in that injury, and the plaintiff has no one to blame for theirselves.

On-the-job misconduct, whether it was fact at the time, whether the employer knew it at the time or not, is relevant, and it's properly considered by this Court.

We submit that if you ignore this evidence it would be impractical.

This is not something where there is a blanket bar.

You look at the facts and circumstances of each case, and the Court--

Unknown Speaker: One of the facts of this case, I guess, is no matter how serious your misconduct was, and we assume, of course, it was serious enough to justify discharge, it didn't cause any pecuniary damage to the employer.

Mr. Wayland: --That it did not, Your Honor?

Unknown Speaker: It did not cause any pecuniary, not even a nickel of damages to the employer.

Mr. Wayland: I don't think it would be any provable damages to the employer, Your Honor.

It's not like she stole money.

Unknown Speaker: No.

Mr. Wayland: I think there was certainly an injury and a damage to the employer, but I don't know that's something they could recover for.

Unknown Speaker: She just told her husband some company secrets, basically.

Mr. Wayland: Well, she breached her confidence and trust, Your Honor.

Unknown Speaker: Yes, I understand.

Mr. Wayland: She stole documents from the company.

Unknown Speaker: Thank you, Mr. Wayland.

Mr. Wayland: Thank you, Your Honor.

Unknown Speaker: Mr. Terry, you have 1 minute remaining.

Rebuttal of Michael E. Terry

Mr. Terry: Justice Ginsburg, there are questions of fact in this case.

My client worked there 40 years.

The affidavit signed by the publisher in December, where he said he would have fired her on March 6th, 1992, several months later in his deposition, he could not identify the documents that were taken.

My client worked there 40 years.

She was positively evaluated for 40 years.

There are fact questions on whether or not they would have fired her.

Your Honor, I've nothing further.

Chief Justice Rehnquist: Very well.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Harris v. Forklift Sys. - Oral Argument

Fri, 09 Jan 2009 14:49:50 +0000

Case:

Harris v. Forklift Sys.

Media File:

92-1168_19931013-argument.mp3

Related Transcript:

1993_92_1168_argument.xml

Transcript:

Argument of Irwin Venick

Chief Justice Rehnquist: We'll hear argument next in Number 92-1168, Teresa Harris v. Forklift Systems, Inc. Mr. Venick, we'll hear from you.

Mr. Venick: Mr. Chief Justice and may it please the Court:

This case calls upon this Court to determine whether psychological injury is a necessary requirement for a finding of hostile environment liability under title VII of the Civil Rights Act of 1964.

The district court found that Teresa Harris was subjected to a continuing pattern of sex-based derogatory conduct that was not imposed upon men by the president of Forklift.

The conduct was found to be unwelcome, offensive to Mrs. Harris, and would have offended a reasonable person in her position.

Ms. Harris' claims were dismissed in the trial court and summarily affirmed on appeal based upon the Sixth Circuit rule requiring psychological injury.

In Meritor Savings Bank v. Vinson, this Court stated that a hostile work environment exists if conduct is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

This Court rejected the view that title VII was limited to tangible or economic discrimination, and further observed that title VII affords employees the right to work free from sex-based discriminatory insult and ridicule.

The psychological injury test should be rejected because it conditions liability in a title VII case upon the reaction of the victim of discriminatory conduct in the workplace, rather than the effect of that conduct on the terms and conditions of employment.

It therefore does not further the equal employment opportunity goals of title VII.

Because the district court's findings satisfy the Meritor standard, Ms. Harris requests reversal of the judgment below.

Unknown Speaker: Do you take the position that there should be no requirement of proof of subjective effect?

Mr. Venick: Your Honor, it's our position that there is a subjective element in the unwelcomeness requirement.

Unknown Speaker: Yes.

Mr. Venick: But beyond that, in this particular case, Your Honor, there were findings that there was both subjective harm, and that Ms. Harris was also subjected to conduct that would have offended a reasonable person in her position, so that's not a question that this Court needs to reach in this case.

But with respect to clarifying the Meritor decision, it's our position that the Meritor test should be clarified to the extent that existing societal stereotypes should not be the standard against which hostile environment claims are evaluated.

In my argument, I will first turn to the specific conduct that was found by the district court.

I will then discuss why the psychological injury test should not be required for a finding of a hostile work environment, and finally, I will argue that Forklift's test neither concedes the psychological injury requirement, nor comports with the test announced by this Court in Meritor.

The magistrate below found that Charles Hardy was a crude and vulgar man who demeans female employees in his workplace.

Through his conduct, Charles Hardy questioned the competence of Teresa Harris because she was a woman.

He made statements to her in the midst of meetings of her fellow employees,

"You're a woman. "

"What do you know? "

He would also call her on numerous occasions a

"dumb-ass woman, again within the midst of her fellow employees. "

"He also questioned Ms. Harris' accomplishments as a rental manager, again because she was a woman. "

"He-- "

Unknown Speaker: Mr. Venick--

Mr. Venick: --Yes, Your Honor?

Unknown Speaker: --with respect to those comments that you just quoted, does the sexual harassment caption really fit those?

That has a connotation that perhaps is not quite right, to describe the comments that you just referred to.

Mr. Venick: Your Honor, those comments may be characterized more properly as sex-based comments, but still we believe fall within the sexual harassment--

Unknown Speaker: Hasn't the EEOC picked up on word gender to try to distinguish that kind of comment from the sexual harassment?

Mr. Venick: --They have, Your Honor, and in addition, in their 1990 guidelines, the EEOC sets forth a separate category which it characterizes as sex-based comments, but does not remove them from its general rules regarding the analysis of a sexual harassment case.

Mr. Hardy also directed--

Unknown Speaker: Mr. Venick, suppose I'm a male employee and I am as offended by language and conduct like that as a female employee, or as offended by the posting of really scatological pictures and whatnot around the workplace, do I have a claim?

It makes it as unpleasant a work environment for me as it would for a woman.

Mr. Venick: --Under the wording of title VII, Your Honor, I don't believe you would, because you're not being discriminated because of your sex.

Now, if there were male pictures put up on the walls, perhaps you might have a claim.

Unknown Speaker: Is she being discriminated against because of her sex?

She doesn't like the denigration of sexuality in general.

Mr. Venick: Title VII protects employees against discrimination as to the terms and conditions in their employment because of their sex.

In this case, the conduct that Mr. Hardy conducted and which was found by the trial court in our view exposed Teresa Harris to conduct that discriminated against her because of her sex.

All these comments, all this conduct, was directed only at women, only at Teresa Harris, not at men, and therefore we believe it falls squarely within title VII.

Unknown Speaker: So it would be different if Charles Hardy had been equally scathing and offensive to men, calling them dumb-ass men?

Mr. Venick: I believe in that case, Your Honor, if he treated everyone equally, Mr. Chief Justice, I don't believe Teresa Harris may not have had a claim.

Unknown Speaker: He wouldn't discriminate on the basis of sex.

Mr. Venick: That's right, because he's not discriminating on the basis of sex.

Mr. Hardy also--

Unknown Speaker: Some of these are hard to transpose in that way.

You're a woman, what do you know, means something different if you say you're a man, what do you know?

Mr. Venick: --That's correct, Your Honor.

[Laughter]

But again, Your Honor, if Mr. Hardy perhaps directed all these comments towards men, then the males at the workplace may have had a claim, and not Teresa Harris.

But Mr.... in getting back to your question--

Unknown Speaker: Mr. Venick, you've never had anybody tell you, you're a man, what do you know?

You've never--

[Laughter]

You must live in a different family environment from mine.

Mr. Venick: --Well--

[Laughter]

--Your Honor, not only in my family but in the courtrooms as well.

[Laughter]

Going back to your comment, Justice Ginsburg, there were comments and conduct directed by Mr. Hardy that had a sexual connotation.

He would ask only female employees to remove coins from his front pants pocket.

He would only ask female employees to pick up coins on the floor and then make comments about their physical attributes.

Unknown Speaker: Just before we leave this point, suppose there are sex-based comments in the workplace generally among men.

They talk about sex all the time.

It's not directed to the women.

They talk about male sex, they talk about heterosexual sex... all kinds of sex.

The woman is highly offended by this.

It's not directed at her.

What result?

Mr. Venick: Your Honor, I don't believe in that case that specific factual situation would fall within the sex-based criterion under Meritor.

We don't have discrimination on the basis of sex, we have comments or conduct and discussions that involve sex.

Unknown Speaker: Well, you certainly could have a hostile working environment that makes it very difficult for the female employee to continue to work there, couldn't you, under those circumstances?

Mr. Venick: If the conduct, Your Honor, is directed towards the female employee--

Unknown Speaker: No, that wasn't the assumption, but it nonetheless creates a hostile working environment.

Mr. Venick: --If the conduct is found under Meritor to be sufficiently severe or pervasive to alter the conditions of that employee's work environment, yes, that would be a hostile work environment.

Unknown Speaker: What is the reasonable person standard that we employ?

Is it a reasonable woman, or a reasonable victim, or what is it?

There's some difference in the views of different courts about what the reasonable person standard is, isn't there?

Mr. Venick: Well, Justice O'Connor, there is a great deal of confusion in the lower courts about that standard.

In our brief... again, we don't really... perhaps don't need to get to that point in this case, but in our brief we've characterized it as a reasonable person in the position of the plaintiff, recognizing that hostile environment claims can be brought by both men or women.

It is our view, though, that if the Court decides to address that question and wants to fashion a test, that what the Court needs to bear in mind is, what is the goal that we're trying to achieve, and I think that goal can be perceived in two ways.

First, it is essential that existing societal stereotypes be eliminated from consideration of workplace conduct, and secondly, we have to look towards the goals and objectives of title VII, which is to eliminate discrimination in the workplace, and I think if the Court is the address that point, I would suggest that it look at it from those two principles.

Unknown Speaker: Well, I don't see why it should necessarily be the reasonable woman, reasonable victim, as you put it, rather than the reasonable employer.

Mr. Venick: Mr. Chief Justice, the reasonable employer is the person who is perpetrating the conduct.

In our view--

Unknown Speaker: Well, that's what we're trying to find out, and one way we will find out differently, depending on what test is applied, is whether you say, is it a reasonable employer or a reasonable victim?

Mr. Venick: --Mr. Chief Justice, title VII is intended by its very language to protect employees from discriminatory conduct in the workplace.

It would therefore be our view that--

Unknown Speaker: It doesn't define from whose focus discrimination is to be considered.

Mr. Venick: --That's correct, Mr. Chief Justice, but the focus of the statute is to protect employees, and it would therefore seem in our view that the perspective should be from the perspective of the plaintiff or the victim.

Unknown Speaker: Well, you have any number of personal injury statutes... that are designed to protect employees, but the standard of negligence is not the standard of a reasonable employee but the standard of a reasonable person.

Mr. Venick: That's correct, Mr. Chief Justice, and a number of the amici that have filed briefs have pointed out one of the problems with the reasonableness standard, and that is that it's not found expressly in the language of title VII.

However, I would direct the Court's attention to its language in Meritor that... to the effect that a mere insult would not give rise to title VII liability, and in our view some of the lower courts have imported and implied a reasonableness standard to take into consideration that limiting factor that this Court announced in Meritor.

Unknown Speaker: Of course, I have trouble with this whole debate.

It's hard for me to imagine something that a reasonable employer could do that a reasonable employee could object to.

It just seems to me circular.

It seems to me that if the reasonable employee could object to it, a reasonable employer couldn't do it.

That's the end of the case.

I have great difficulty with this problem, and I agree with the suggestion of the Chief Justice that we look upon the actor whom we are attempting to control, and require that that actor be reasonable in his or her conduct in the workplace.

Mr. Venick: Your Honor, that would create a problem in the context of this case, because Mr. Hardy believed that he was acting reasonably.

He believed that his conduct was--

Unknown Speaker: Well, but he might have been very wrong.

[Laughter]

Mr. Venick: --We would hope he might be found to have been very wrong, but--

Unknown Speaker: And it's not his subjective belief, is it?

If an employer thinks he's being reasonable and he's coarse and vulgar and creates a hostile working environment, he's liable under the law.

Mr. Venick: --That's correct, if his conduct is found to be sufficiently severe or pervasive to alter the working environment, and it's our view that that perspective needs to be from the perspective of the employee, because it's the employee who's subjected to the conduct.

The employer is the one who is causing the conduct, and it's the employee who is the one who is going to be complaining about it.

It's our view that any test--

Unknown Speaker: You're positing a reasonable employer who has been educated and made aware, not... for example, a reasonable employer in the old days might have thought it was perfectly fine to say all kinds of unpleasant things to women.

Even great professors had such things as Ladies Day, and in their day they were considered entirely reasonable, so we're positing a reasonable employer who knows the law, knows the command, thou shalt not discriminate.

Mr. Venick: --That's correct, Justice Ginsburg, but even in the situation where all employers are presumed to know the law, as Charles Hardy was presumed to know the law, they ofttimes, or sometimes don't act in accordance with the law, and that's why, from our perspective, it's the employee who has the interest in bringing forth actions under title VII to enforce the law, and that's why from our view that is the employee's perspective, if the Court's going to reach that point, that should be utilized in analyzing these facts.

It's our view that any test that requires psychological injury as a necessary element of proof to establish a sexually hostile work environment does not further the objectives of title VII to eliminate discriminatory conduct because of an employee's sex.

The psychological injury test requires such an employer... or employee to endure discriminatory conduct without a remedy, and that results for two reasons: first, because employment conditions can be altered by severe or pervasive workplace conduct before any kind of psychological injury manifests itself, and secondly because the psychological injury threshold itself may insulate unlawful activity if employees leave their employment rather than suffer continued workplace harassment because of their sex.

Unknown Speaker: Mr. Venick, you were going to tell us why the respondent, although purporting to concede the psychological injury point, in fact does not concede it.

I hope you'll do that before your--

Mr. Venick: I'll do that right now, Your Honor.

Forklift suggests a test in its brief, that the test that satisfies Meritor, the only test that satisfies Meritor, is that the plaintiff must show interference with his or her work performance, and that test can only be satisfied in one of two ways: either psychological injury, or an inability to do the job.

It's our position that obviously psychological injury as a means of satisfying the interference to impair work performance means psychological injury.

It is hard for us to concede how, or conceive of how a worker may be unable to do their job without manifesting some degree of psychological injury.

It seems to be a circular argument saying one and the same thing, and therefore, in our view, they basically back-door the psychological injury requirement and put it in new garb.

Unknown Speaker: --How do you define interfere with work performance?

Mr. Venick: Your Honor, we don't believe that that test is necessary for a finding of hostile work environment.

It's our belief that this Court under Meritor set forth a proper standard, and that is that the conduct should be evaluated to determine whether it is sufficiently severe or pervasive to alter the conditions of the workplace, and that can involve a whole range of effects, and to try to categorize them--

Unknown Speaker: How about just saying it makes the job more difficult for the person?

Mr. Venick: --Again, we would need to, in that case, Your Honor, try to quantify what that difficulty is, and we harken back to the language in Meritor that title... hostile environment cases don't involve tangible or economic injury.

Unknown Speaker: How about if you take a similarly situated man and a woman, and the woman is constantly told, you're a woman, you think like a woman, and her coworker is not told those things?

Doesn't that make their job more difficult?

Do you need anything further than that?

Is it really more complex?

Mr. Venick: We don't believe it is necessarily more complex if the conduct is sufficiently severe or pervasive.

It is difficult, and I don't think title VII was intended to require a plaintiff to quantify any reduction in their job performance.

Unknown Speaker: You're talking about terms and conditions of employment, and the terms and conditions aren't equal if one is being called names and the other isn't.

Mr. Venick: That's correct, Your Honor, but we don't believe you have to go any further and put a label on it, making it more difficult for her to do that job.

Her terms and conditions have been affected in violation of title VII because she has been subjected--

Unknown Speaker: You would seem to be developing a more complex test, and I was wondering why?

You said severe, and pervasive, and--

Mr. Venick: --That's the language in Meritor, Your Honor, which we heartily embrace.

Unknown Speaker: --I asked you what you thought it meant.

Mr. Venick: In evaluating whether conduct is severe or pervasive, one would look through the factors that have been adopted by most of the courts of appeals in the EEOC--

Unknown Speaker: But you said sufficiently severe to alter the conditions of employment.

That is utterly meaningless to me.

I don't care if we did say it.

[Laughter]

Sufficiently... or circular.

I mean, it's circular.

Sufficiently severe to alter the conditions.

How do I know whether it's severe enough to alter the conditions?

Mr. Venick: --The factors, Your Honor, that would be applied to make a determination, is how often does the conduct occur, whose perpetrating the conduct, who else was exposed to the conduct, who else joined into the conduct?

Unknown Speaker: All right, those are all factors, but how many of them do you need to alter the conditions?

Mr. Venick: That is a determination--

Unknown Speaker: How can you tell?

What magic event said, oh, it's risen to the level of severity to alter the conditions?

Now, the test that says, it affects your work performance, ah, there's something I can identify.

But you just give me this standard, it's sufficiently severe to alter the conditions of employment.

I have no idea what that means.

Mr. Venick: --The interference with work performance test would require a plaintiff to quantifiably prove some reduction in job performance which goes beyond--

Unknown Speaker: Which is identifiable.

Mr. Venick: --Which... but it also goes beyond--

Unknown Speaker: Are you saying you have to show that the quality of work is different, that--

Mr. Venick: --That's what that... excuse me, Your Honor.

Unknown Speaker: --That the output is different, and--

Mr. Venick: That's what that--

Unknown Speaker: --that's the test to do it?

Mr. Venick: --We're not positing that test, Your Honor.

That's the test that--

Unknown Speaker: You're not positing it because you don't... you would have us adopt a test without any subjective element at all.

Mr. Venick: --We believe that the Court can do that, Your Honor.

Unknown Speaker: I thought you said--

--But that's why you don't posit it.

I thought you said that it had to at least be unwelcome, that there was a subjective component.

Mr. Venick: That is--

Unknown Speaker: Didn't you say that?

Mr. Venick: --Yes, I did, Justice O'Connor.

Unknown Speaker: But the... as I understand your view, the employee would not have to prove that job performance was in fact affected deleteriously.

Mr. Venick: That is correct, Justice Souter.

There would not have to be proof that there was a quantifiable reduction in job performance by the plaintiff.

Thank you very--

Unknown Speaker: Thank you, Mr. Venick.

Mr. Minear.

Argument of Jeffrey P. Minear

Mr. Minear: Mr. Chief Justice, and may it please the Court:

This Court held in Meritor Savings Bank v. Vinson that sexual harassment can result in title VII discrimination if the conduct is gender-based, unwelcome, and sufficiently severe or pervasive to alter the conditions of the victim's employment.

There's no question in this case the conduct at issue was gender-based and unwelcome.

Instead, the question is whether it was sufficiently severe or pervasive to satisfy the Vinson test.

We think that a plaintiff can satisfy that requirement by showing that the gender-based conduct made it more difficult for the person to do the job.

Unknown Speaker: Do you have both an objective and a subjective component to "make more difficult"?

Mr. Minear: For that standard, Your Honor, we have only an objective component.

The question is whether it would make it more difficult for a reasonable person vis-a-vis the people who are not discriminated in the workplace to do the work, to perform the job.

Unknown Speaker: Why isn't that predicating liability with an injury?

You're saying... I mean, isn't that the equivalent of saying anyone who drives a car without due care is going to be liable whether or not he bumps into somebody or not?

Mr. Minear: No.

The injury here, Your Honor, is with respect to being denied the right to a discrimination-free employment place, and our test goes to whether or not there is discrimination in the workplace.

The person can be injured even though the person does not have compensable damages.

In fact, until recently, title VII did not provide a damage remedy.

Unknown Speaker: I take it the unwelcome component of the test, which is not involved here, is to satisfy some subjective--

Mr. Minear: That is correct.

Unknown Speaker: --requirement, and makes this not just like negligence in the act.

Mr. Minear: Yes, that is correct, and... but the issue in this case is the question of severity or pervasiveness, trying to understand what that concept means in the workplace.

Unknown Speaker: And the remedy could be simply, stop it, without any... talking about somebody who says the job is more difficult for me to perform than the next guy... not asking for any money, and just says, the remedy is an injunctive order to stop it.

Mr. Minear: That is exactly correct.

Now, this is not the only way to prove that conduct might be severe or pervasive, but we think that is a very useful benchmark in a case like this, because it helps to focus the inquiry on the practical effect of the conduct in the workplace.

Unknown Speaker: What other way is there to prove it?

I was very hopeful.

I thought you had given us a touchstone... makes the work more difficult, it is severe enough to affect the conditions of employment... but you say that's not the only--

Mr. Minear: Well, what we are--

Unknown Speaker: --What else is there besides that?

Mr. Minear: --Oh, this is a matter of proof for the plaintiff, but suppose in fact--

Unknown Speaker: I know that.

What does the plaintiff have to prove?

Mr. Minear: --Suppose the plaintiff had clinical psychosis as a result of a rape in the workplace.

I think she could use that evidence without necessarily needing to show it made the job more difficult to do.

It almost certainly would, but again, this is a matter of choice of proof.

The standard is set forth in Meritor, and we have no quarrel with that standard at all, that is, whether it's sufficiently severe or pervasive.

The question is, how does the plaintiff go about proving it, and we're saying that one way you can prove it--

Unknown Speaker: No, the question is, sufficiently to what, that's what the question is, sufficiently to what?

You give us one thing, sufficiently to make the job more difficult to perform... fine... and you say, but there are other things, and you don't want to tell us all of them.

Mr. Minear: --Well--

Unknown Speaker: One is, sufficiently to produce psychological injury, okay.

You acknowledge that that is one way, okay.

Mr. Minear: --Yes.

Another way to--

Unknown Speaker: What else?

Mr. Minear: --Another example would be, for instance, let's take the concrete example of a woman who drives a taxicab for a taxi company, and she wants to work in the shop.

She wants to work with her hands and be a mechanic.

In that case, she might be deterred from making the job transfer in that situation because there's harassment in the mechanic's shop.

Now, that wouldn't interfere with her current job, but it would, in fact prohibit, or prevent her from moving to a different job.

Unknown Speaker: Mr. Minear, what about the woman who doesn't see herself as a victim, but finds this terribly annoying.

It's a condition that she has to confront every day, and she puts up with it.

She outperforms everyone else.

Does she not have a claim?

I'm not following your--

Mr. Minear: She does have a claim under those circumstances.

Again, annoyance, pervasive annoyance--

Unknown Speaker: --So even though she proves no psychological harm, and that she has been able to do the job as well, indeed, better than her coworkers--

Mr. Minear: --That is correct.

She would still have a claim, because our test is an objective one.

We look to what a reasonable person in her situation, whether or not that person is disadvantaged, vis-a-vis people who are not subject to that treatment.

Now, if the conduct is gender-based, and is unwelcome, then we move on to that question of whether it makes it more difficult for a reasonable person in her situation to do the job.

Unknown Speaker: --Even if it's only mildly offensive, so it's not severe enough... it's just mildly offensive, but it's offensive.

Mr. Minear: Well, that's captured by our notion of a reasonable person in the position of the plaintiff.

Now, we accept that in the workplace there's a certain amount of unpleasantness in any workplace, and that people become accustomed to that one way or another.

We're expected as a matter... society expects us to accept a certain amount of unpleasantness, but the question is, if it is gender-based, and it makes it more difficult to do the job, is that enjoinable, and title VII says, yes, it is.

Unknown Speaker: So your difficulty in doing the job is simply a... is an objective test, and the failure of an employee to work as well under this discriminatory atmosphere as without it is simply relevant evidence, it's not an element of anything.

Mr. Minear: That could be relevant evidence, yes, and in fact we think the correct standard was stated by the court below in the racial harassment context.

In Davis v. Monsanto, the Court said, and I quote,

"In establishing the requisite adverse effect on work performance, the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. "

"The employee need only show that the harassment made it more difficult to do the job. "

Now, we think that the same standard should apply in the racial and the sexual context.

Unknown Speaker: You don't really mean more difficult to do the job, you mean more unpleasant to work there, is what you mean by more difficult to do the job.

Mr. Minear: Well, that can make the job more difficult to do.

Unknown Speaker: So why don't you just say that, more unpleasant to work there?

It doesn't sound as... it doesn't sound as good, but that's really what you mean.

It makes it more unpleasant to work there.

Mr. Minear: I think that it's helpful to look in response to this to the facts of this actual case, and the United States and the EEOC believes that the sex-based abuse that occurred in this case provides an example of enjoinable harassment.

Hardy's sexually demeaning conduct clearly created a work environment that made it more difficult to do the work, to succeed, and to receive credit for the success.

Now, if we look to specifics in this context, Hardy's suggestion in front of others that petitioner have sex with a customer to obtain business for the company would undermine or demoralize a reasonable woman by degrading her in front of her coworkers, and also by denying her credit for results achieved through superior effort or skill.

Now, this is not simply a hurt feelings situation.

In the case of a manager who is undermined before other managers and before her subordinates, it makes it tangibly more difficult for her to do the job.

In fact, Teresa Harris made the statement in--

Unknown Speaker: I'm puzzled by the more difficult to do the job.

Supposing an office had a policy... they found out that people worked more efficiently if they didn't look at the window, so they gave all the windowless offices to the women and the offices with nice views to the men, so it's more pleasant to work there, and they did this as a matter of policy.

Women get the inside offices, men get the outside offices.

Each do their work exactly as efficiently as the other, without difficulty.

Is there a violation or not?

Mr. Minear: --Well, keep in mind, Your Honor... yes, there is a violation, and it is--

Unknown Speaker: Without it being more difficult--

Mr. Minear: --and again, this goes back to my point of saying that this is not the exclusive test, that there are other ways.

The ultimate touchstone here is whether it affects working conditions.

Unknown Speaker: --You don't mean more difficult to do the job, you mean more unpleasant--

[Laughter]

More unpleasant to work there--

Mr. Minear: I mean, Your Honor--

Unknown Speaker: --is all you mean.

Why don't you say that, and that covers everything you're talking about?

Mr. Minear: --Again, let's go back to... again, the ultimate touchstone here is whether it alters working conditions.

Meritor indicated that is the question, and that covers Justice Stevens' situation.

Unknown Speaker: Whether one sex has to put up with something that the other sex doesn't have to put up with.

Mr. Minear: That's right, but it can also make it more difficult to do the job, and in terms of Teresa Harris'--

[Laughter]

I think this is a serious point, and I think... and I want to make this point.

In the case of Teresa Harris, she was undermined in performing her work in the eyes of her subordinates.

She made the point that her authority was undermined as a result of these comments.

She received less respect in the workplace from her subordinates than her... male managers did.

Now, this is the way a glass ceiling is enforced, and this is a very tangible way in which the ability to do the job can be affected.

It is not simply hurt feelings here.

Unknown Speaker: I wonder if alter the environment is the happiest way of putting it.

It was put that way in Meritor, certainly, but it wouldn't be a defense for the employer for him to show that he'd been doing this for 20 years.

There's no alteration of the environment.

He'd always done that.

Mr. Minear: That might be correct, but the question here is, I think we're looking in a more global sense of whether there is different treatment for women and men in the workplace.

Unknown Speaker: Which really doesn't depend on altered treatment at all, does it?

Mr. Minear: Not necessarily, again, it doesn't, and that's why I think it's helpful, again as a benchmark here, to ask whether women and men are being treated differently in terms of whether or not it makes it more difficult to do the job.

This--

Unknown Speaker: What about some sort of de minimis?

There is different treatment, but it's just barely different.

Mr. Minear: --That is why we think that a reasonable person standard is appropriate in this context, and there was some discussion before about whether we looked to the reasonable woman, the reasonable victim, the reasonable man.

I think the important point is there does need to be some objective measure of conduct in the workplace.

Unknown Speaker: Well, Mr. Minear, if the employer just makes it more difficult for everybody to do the job, male or female--

Mr. Minear: Then there is no gender--

Unknown Speaker: --is there a complaint?

Is there a--

Mr. Minear: --Then there--

Unknown Speaker: --cause of action?

Mr. Minear: --In that situation there is no gender-based discrimination, and so the first factor in Meritor is not satisfied.

Thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Minear.

Mr. Chernau.

Argument of Stanley M. Chernau

Mr. Chernau: Mr. Chief Justice, and may it please the Court:

This case presents a situation that is somewhat peculiar.

We concede that the Rabidue case in the Sixth Circuit that requires severe psychological injury is a test that is too stringent.

However, having said that, we also assert that that Rabidue case was decided on another independent ground.

Now, we agree that the Rabidue case is wrong in the requirement of severe psychological injury, but the magistrate clearly applied the test of whether or not the conduct of the defendant interfered with the work performance of the petitioner.

Now, stopping at that point, that's what the EEOC says in their brief should be the standard.

Unknown Speaker: But he... didn't he do that, and isn't the difficulty with your argument both on this and other quotes that you make, that the magistrate did this in the course of a paragraph in which... and I'm referring, by the way to pages A-35... A-33 and 34 of the appendix.

He did this in a paragraph in which he is discussing the requirement of offending the reasonable woman, and so that it's perfectly true that at one point he refers simply to interfering with work performance, but he does it, as it were, in the same breath, albeit in a different sentence from the one in which he is referring to seriously affecting psychological well-being, and he seems to be in effect conflating the two, and I find it difficult to separate them.

Mr. Chernau: If we take the fact that all offensive conduct and all things that may be characterized as harassment are not... do not enable you to seek redress under title VII, which is what the Meritor case says, there are acts that can be characterized as harassment but don't rise to the level of allowing you to obtain successfully redress for what you complain of.

Now, as I read A-34 and 35, beginning on A-33, he says... he discusses offensiveness.

He says,

"I believe some of Hardy's inappropriate sexual comments are-- "

Unknown Speaker: Excuse me, are you referring to the joint appendix, to some page in it, or to the petition, or what?

Mr. Chernau: --Yes, A-33 of the appendix, excuse me.

Unknown Speaker: Well, this is the cert appendix.

Of the petition?

Mr. Chernau: Or the petition for writ.

Unknown Speaker: Of certiorari.

The cert petition.

Mr. Chernau: It's the cert petition, A-33.

Unknown Speaker: Thank you.

Mr. Chernau: Excuse me.

May I proceed?

Unknown Speaker: Yes, thank you.

Mr. Chernau: At A-33 he says,

"I believe that some of Hardy's inappropriate sexual comments, especially this last one, offended plaintiff and would offend a reasonable woman. "

So he finds that indeed... he found the conduct offensive, and that it would offend a reasonable woman.

Then he says,

"However, I do not believe that they were so severe as to be expected to seriously affect plaintiff's psychological well-being. "

Unknown Speaker: Right, but doesn't the positioning of these sentences indicate that he thinks he's applying one element of the test, not two different tests or two different elements?

Mr. Chernau: Well, I... that is not the way I read it, because when he starts the next paragraph, which is a new thought--

Unknown Speaker: If there's any doubt about that, we should send it back, shouldn't we, if we don't accept the psychological injury test?

Mr. Chernau: --If there is any doubt in this Honorable Court's mind as to whether the magistrate focused clearly on all of the tests that have been enunciated as opposed to focusing on the psychological injury test--

Unknown Speaker: Mr. Chernau, the magistrate set out... and this is A-29 and A-30 of the appendix to the petition for certiorari... set out marching orders from the Sixth Circuit and one of those, number 4, says,

"offensive work environment that affected seriously the psychological well-being of the plaintiff. "

That's a requirement set down by the Sixth Circuit.

Is a magistrate free to ignore that and say, well... he says, I'm purporting to follow this rule.

That is the law of the Sixth Circuit.

Is a magistrate free to say, well, I don't like that so I'm going to ignore it?

Mr. Chernau: --No, I don't believe that he's free to ignore it, and indeed, I don't believe he did ignore it.

What I believe the magistrate did was try to apply all of the tests, the Rabidue case from Sixth Circuit, the EEOC guidelines, together with the language of... that came out of Meritor, which included--

Unknown Speaker: But you agree that the Sixth Circuit has said this is not merely a sufficient condition for liability, it's a necessary condition, part of plaintiff's proof... plaintiff must prove serious psychological well-being.

Mr. Chernau: --Yes.

Unknown Speaker: So if that's the law of the Sixth Circuit, mustn't we assume that that's what the magistrate applied?

Mr. Chernau: Yes, but I don't think that it's... you necessarily have to assume that he stopped at that point.

I think that he covered what the Sixth Circuit says, and then went... proceeded beyond that to apply--

Unknown Speaker: Where do you find a clear statement that there's an alternative ruling in this case?

Mr. Chernau: --I don't believe that he used the word, alternative, but in reading at A-34 and A-35, particularly I think at A-35, where he says,

"Although Hardy may at times have genuinely offended plaintiff, I do not believe that he created a working environment so poisoned as to be intimidating or abusive to plaintiff. "

and I believe that he was trying to apply the exact language out of Meritor, so I think that he applied Rabidue, and then went beyond Rabidue.

Now, if... if we agree that psychological injury should not have to be proven, I again state to you that I believe that in this case the magistrate applied every test that he could have applied, including what the EEOC says to apply, which is interfere with a reasonable person's work performance or victim's performance, the Meritor, which I just recited that he said, and that the psychological injury doesn't tie in and that his thought process was not infected... the petitioner says that his thought process was infected by the Rabidue case, and I say that it wasn't.

Now there's one--

Unknown Speaker: Well, he at least said that it had to affect work performance, isn't that right?

Mr. Chernau: --Yes.

Unknown Speaker: And your opponent contends that that isn't even necessary.

Mr. Chernau: That's correct.

Unknown Speaker: Just making a more unpleasant work environment is enough.

Mr. Chernau: Yes, and interesting enough, Your Honor, is that the--

Unknown Speaker: Do you disagree with that?

Mr. Chernau: --I agree that that's what the petitioner asserts.

Unknown Speaker: Right.

Mr. Chernau: And I say to you that the EEOC... we agree with the EEOC, who says that the standard should be related to work performance, that the EEOC and my side of the case agree.

Now, the Meritor case also points--

Unknown Speaker: Mr. Chernau, this magistrate said this is a close case.

If he regards it as a close case, then if the standard is not as hard to meet as the Sixth Circuit stated... seriously affects psychological well-being... and the magistrate regards it as a close case, isn't it likely that if the standard were less strict for the plaintiff, that the case would go the other way?

You read one sentence out of... what is this one in your appendix, over 40 pages--

Mr. Chernau: --Yes, Your Honor.

Unknown Speaker: --If one concentrates on, I believe this is a close case, and then the judge is told, well, the standard is easier for the plaintiff to meet than you think, then wouldn't the close case tip the other way?

Mr. Chernau: I believe that when he stated this was a close case, that what he was talking about was the totality of the case, all of the circumstances, the credibility of the witnesses... as we all know, events don't take place in a vacuum, and I think that one of the really helpful things that comes out of Meritor, in addition to the test that it states, is the totality of circumstance statement, where Meritor says that you have to look to the totality of the circumstances, that the trier of fact must determine the existence of sexual harassment in light of the record as a whole, and the totality of circumstances such as the nature of the sexual advances and the context in which the alleged incidents occurred.

Now, the reason I state that is that the totality of the circumstances in this case--

Unknown Speaker: Why is it... the magistrate made a finding,

"Plaintiff was the object of a continuing pattern of sex-based derogatory conduct from Hardy, including. "

and then he goes on and on for a few pages, so he's found a pattern, a continuing pattern of derogatory conduct.

Mr. Chernau: --He has found a continuing pattern of derogatory conduct, and he is trying to determine from all of the facts and circumstances surrounding this case, and he went to events that are extrinsic to the simple words that were said, and what the petitioner says, how they affected her.

He went to a number of incidents that caused him to wonder if, indeed... if, indeed, she was basing this case on what she was asserting or whether, for example, the business relationship that soured with her husband had more--

Unknown Speaker: He didn't make any finding on that.

Mr. Chernau, I'm curious, if this had finding, instead of plaintiff was the object of a continuing pattern of sex-based derogatory conduct, if it had been race-based or religion-based or national origin, and we had a similar inventory of continuous behavior, would your analysis be any different than... is the sex analysis any different from one if we had race or national origin-based derogatory continuing conduct?

Mr. Chernau: --I think that when you try to... in order to answer... that is a very difficult question to ask... to answer, because one racial epithet, it's been ruled as not enough.

I don't think I can give you--

Unknown Speaker: Well, there was not one epithet here, there was a whole series of them.

Mr. Chernau: --Yes, that is true, but what I was going to say is that I can't give you a mathematical formula, but I can again--

Unknown Speaker: I haven't asked you for a formula.

I asked you is... in your judgment, under this statute, is sex different than race or national origin or religion in terms of the level of unpleasantness, annoyance, differential treatment based on race... is it any different for race, or is the test the same, in your judgment, whether we're talking about race, or national origin, or religion?

Mr. Chernau: --My answer to that question is that I believe that is the same.

Unknown Speaker: So that the Monsanto test that the... I think it was the Sixth Circuit, wasn't it?

Mr. Chernau: I believe the Monsanto was the Sixth Circuit.

Unknown Speaker: Yes.

The one that they applied to race, that would apply to sex as well?

Mr. Chernau: I believe that that's accurate, and I agree that they shouldn't be distinguished, but again I state that if you go to the Meritor case, the Meritor case refers to the gauntlet of sexual harassment, sexual demeaning remarks, so it's not only whatever happens... the Meritor case recognizes this.

It's not only what happens in work performance as that victim sits at her desk, but what she has to go through to get to her desk, and that's a question of degree.

That's why the totality of the circumstances and all of the attending facts become so important.

Unknown Speaker: Mr. Chernau, why do you say that the test affecting work performance, which you're proposing, is the same test the EEOC proposes?

What do you base that on?

Mr. Chernau: Well, because--

Unknown Speaker: I mean, I thought... I was listening to Mr. Minear, and I think what Mr. Minear's saying is it doesn't have to affect work performance.

It's enough if it renders the job more unpleasant, whether it affects performance or not.

Mr. Chernau: --The EEOC--

Unknown Speaker: You say it has to affect performance.

Mr. Chernau: --The EEOC states a sexually... this is in their brief at page 25.

"A sexually demeaning work environment can interfere with a reasonable woman manager's work performance. "

Unknown Speaker: It can, and that would certainly be enough, but I'm not... I don't understand them to say that's a prerequisite.

Mr. Chernau: Well, they state in describing... well, the focus... I believe that the EEOC's position is this: that the focus of title VII is on the employment opportunity and whether or not the party complains employment opportunity... that is to succeed and to do the job--

Unknown Speaker: I don't think--

Mr. Chernau: --is adversely affected.

Unknown Speaker: --I don't think they agree with that.

I think they say even if you can have just as much opportunity for promotion, even though you do the job just as well, if you have to work in a more unpleasant environment... substantially more unpleasant.

Not negligibly, but substantially more unpleasant environment... you have a claim.

Mr. Chernau: Well, the fact--

Unknown Speaker: You disagree with that, right?

You say it has to affect work performance.

Mr. Chernau: --Yes.

Yes, and the reason that I disagree is that I don't think that offensive conduct automatically alters conditions of employment.

I think that you can have offensive conduct that just doesn't rise to the level that this law seeks to protect, and that is your employment opportunity and whether a condition... whether there's a condition imposed, or there's an alteration that rises to the level where you can seek redress successfully.

Unknown Speaker: Suppose a union negotiates a contract and the contract says, we will have Muzak piped in to the... that's one of the conditions of employment.

It's in there, in the contract.

It doesn't necessarily have to affect work performance, but it is a condition of employment.

Mr. Chernau: And I believe that's offensive, but I don't believe--

[Laughter]

--but I don't believe it rises to the level--

Unknown Speaker: I think you missed my point, Mr.--

[Laughter]

Mr. Chernau: --I don't believe it rises to the level where the law is intended to protect you and give you redress.

Unknown Speaker: Mr. Chernau, I just wanted to make sure that Davis v. Monsanto is indeed... you told me that yes, that standard would be the same, and one of the things the Sixth Circuit said in that 1988 decision was,

"In establishing the requisite adverse effect on work performance, the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassments. "

Are you agreeing that that would be so in the sex case as well?

Mr. Chernau: Yes, and in regard to the tangible, the magistrate found that she... indeed, the petitioner suffered no injury, he said, of any kind whatsoever, whether it be tangible or intangible, that really she didn't... she wasn't adversely affected.

Unknown Speaker: I'm not sure that you understood my question.

I asked if you are conceding that it is not any kind of part of the plaintiff's case to show that her work output was adversely affected, because that's the standard that the Sixth Circuit applies in racial harassment cases.

Mr. Chernau: Well, I may have misspoken on that, because I do feel that one of the ways to offer evidence to establish that indeed the discrimination that you're suffering rises to the level is to show that you have to go through a gauntlet to get to your desk, or when you get to your desk you're adversely affected.

Unknown Speaker: We all agree on what would be sufficient.

The question is, what's necessary.

Mr. Chernau: I think that it is... I don't believe that it is necessary to specifically assert and prove interference with your work performance in order to be successful.

Unknown Speaker: You don't.

Oh, well, that's new.

That's new to me, then.

You're changing your position that was in your brief.

Mr. Chernau: I do not believe that it is absolutely necessary that in all circumstances you would have to prove that--

Unknown Speaker: Oh.

Mr. Chernau: --Because I think--

Unknown Speaker: Well, we don't have any disagreement here then.

I think both sides are saying the same thing.

Mr. Chernau: --No, I believe that that is an essential element, but under certain circumstances, for instance--

Unknown Speaker: But you disagreed with this standard where the Sixth Circuit made it quite plain that it isn't under any circumstances, it's not... plaintiff need not prove, and that's why I asked you, because I wanted to be sure that you were associating yourself with the identical standard... it is the same statute, title VII.

What applies to race would apply to gender, right... and that this standard says that that's no part of plaintiff's case to prove that productivity was adversely affected.

Mr. Chernau: --The reason that I can't state that it is an absolute essential element is because that was never mentioned in the Meritor case, which is the only case that we have from this Court to give us guidance.

The work performance was not mentioned in the Meritor case.

It was the altered conditions and the hostile environment conjunctively, and therefore, if I say that it is an absolute essential that you prove that in order to win, I'm saying something that has not been stated by this Court.

Unknown Speaker: But then why should you win in this case?

Mr. Chernau: Well, the issue that's been presented by this case and why I'm here is whether or not psychological damage, severe psychological damage has to be proven by the petitioner, and I... and I say to you I don't believe that the magistrate rested this case on that finding, and I concede--

Unknown Speaker: The magistrate rested that case, and did no actual interference with work performance, and he did say that, but you say that's not necessary, either.

Mr. Chernau: --I say--

Unknown Speaker: Why do you win, is what I'm trying to ask?

Mr. Chernau: --I think because the magistrate applied the language and test of the Meritor case, which is the only case we have.

Unknown Speaker: He applied more than that.

Mr. Chernau: I'm sorry.

Unknown Speaker: He applied more than that.

He applied two elements that are not in it, 1) the severe psychological injury, and secondly, interference with work performance, neither of which is in Meritor.

Mr. Chernau: Well, if he applied every test, including the Meritor test, which I say that he did, then how could he be clearly erroneous on the standards that he applied?

Unknown Speaker: Where did he apply the Meritor test?

Mr. Chernau: At A-35 of the petition for writ of certiorari, he says,

"Although Hardy may at times have genuinely offended plaintiff, I do not believe that he created a working environment so poisoned as to be intimidating or abusive to plaintiff. "

and I believe that under Meritor, that is the conjunctive part where Meritor says,

"For sexual harassment to be actionable it must be sufficiently severe or persuasive to alter the conditions of the victim's employment and create an abusive working environment. "

and I believe that that language on page A-35 was the magistrate's attempt to comply with the only case we have giving us guidance, which is Meritor.

Unknown Speaker: One other question, if I may.

The magistrate said, not abusive to plaintiff, so that would have been subjective.

Do you think that's equivalent to saying not abusive to a reasonable person?

Mr. Chernau: The magistrate I believe said, to a reasonable woman manager in this position.

I believe that the reasonable person test is the proper test if--

Unknown Speaker: Well, but the paragraph to which you refer is devoted to her subjective reaction.

Mr. Chernau: --Which--

Unknown Speaker: A-34, running over to A-35.

It begins,

"Neither do I believe the plaintiff was subjectively so offended. "

and then ends with

"not too abusive to the plaintiff. "

so the finding is that if the Meritor test is subjective, you're right, he did make that finding, but if the Meritor test is objective, this paragraph does not address the question.

Mr. Chernau: --The confines of that paragraph, I would agree with you, it does not.

I do think, if I could quickly make this point, that the proper test is the reasonable person test, because what we're looking at under this law is the effect of the complained-of conduct on the party that's aggrieved.

I don't think that we're looking into the character of what was done as much as we're trying to assess what the consequences or the effect of that conduct was, and I believe that what I just stated comports with the EEOC guidelines and what the EEOC believes in this case, so again, this is a difficult situation.

A hostile environment is such an amorphous subject that it's very difficult, and as I said, you can't reduce it to a mathematical formula.

Each case I believe has to be decided on the facts of that case, that these cases are fact-intensive, they are not easy to decide, and the trier of the fact indeed has to look to the totality of all of the circumstances, just as was pointed out in the Meritor case, which I think is a very, very, very valid and necessary observation for this Court to have had to make, and which, indeed, it did.

I have no--

Chief Justice Rehnquist: Very well.

Thank you, Mr. Chernau.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Automobile Workers v. Johnson Controls, Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:43 +0000

Case:

Automobile Workers v. Johnson Controls, Inc.

Media File:

89-1215_19901010-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Marsha S. Berzon

Chief Justice Rehnquist: We'll hear argument first this morning in No. 89-1215, United Automobile Workers Union v. Johnson Controls.

Ms. Berzon.

Is it BER-zon or Ber-ZON?

Mr. Berzon: Ber-ZON.

Unknown Speaker: Ber-ZON.

Mr. Berzon: Mr. Chief Justice, and may it please the Court:

The issue before the Court today is the validity under title VII of a policy that bans from lead-exposed jobs because of fetal health concerns any woman who cannot provide medical evidence that she is physically incapable of bearing a child.

The policy applies regardless of the woman's age, marital status, the fertility of her spouse, her intent to have a child, her use of contraception, and how careful she is in using the hygiene practices that the company has prescribed and which, according to the company, should keep blood lead levels if properly used below the level safe for fetuses.

And the company applies this policy as well despite evidence that lead at the same levels, blood lead levels, produces in men reproductive injury, including infertility, and produces in people generally cardiovascular disease and neurological harm.

Our position is that this policy violates title VII because it explicitly and broadly excludes women and, as such, violates... basic title VII principles and because for three independent reasons the policy does not come within the only available defense under title VII, the defense that this Court has called the narrowest of exceptions in Dothard v. Rawlinson, section 703(e), the bona fide occupational qualification defense, known as the BFOQ defense.

First, the policy that Johnson Controls is seeking to justify today is fundamentally inconsistent with the basic precepts and principles of title VII, especially as title VII was amended in 1978 by the Pregnancy Discrimination Act.

This Court stated emphatically in a number of cases, including the City of Los Angeles v. Manhart, Price Waterhouse v. Hopkins last term, Arizona Governing Committee v. Norris, that an employer cannot disadvantaged a woman simply because of her membership in the group of women... because she is a woman.

And here, the overwhelming number of the women who are being excluded because of the policy at issue present no risk to the health of any child either because they have no intention to have a child or any more children, or because they will delay having children until they are safely removed or out of lead-exposed job, or because they will keep their lead levels down, blood lead levels down through efficient hygiene.

Unknown Speaker: Ms. Berzon, correct me if I'm wrong.

As I understand your position, that's true, and... and... and I suppose that could be one basis on which we decided this case.

But... but your position really is that it wouldn't matter if the policy were limited to women who actually were pregnant.

Mr. Berzon: Our... our--

Unknown Speaker: It wouldn't matter for your analysis if the policy said a pregnant woman may not work in this unit.

Mr. Berzon: --That is true with respect to the broadest of the three propositions that we have before the Court.

Unknown Speaker: Indeed, it wouldn't matter if it said a woman more than... more than 4 months pregnant or 6 months pregnant would not work?

Mr. Berzon: That is true with respect to the broadest of the three positions that we have before the Court today.

However--

Unknown Speaker: The position that Judge Easterbrook took in the--

Mr. Berzon: --That's correct.

However, I... I would like to admonish the Court of three things in that regard.

First of all, there are two other reasons which I will discuss later which would not necessarily implicate a pregnancy-limited policy and which are more than sufficient to require reversal of the policy before the Court today.

In addition, though, and quite importantly, I don't think this is a case in which the most extreme hypothetical should determine the issue before the Court in this... for the following reasons:

First of all, a pregnancy-limited policy would be... could be devised in a way that is nondiscriminatory in the first place because if the employer treated pregnancy-related harms similarly to other temporary instances of hypersusceptibility, one might have a nondiscriminatory policy.

That is more or less what OSHA has done in its lead standard.

Unknown Speaker: --Are you saying that there would be reasonable nondiscriminatory alternatives that would be much easier to identify if it were a policy that applied just to people that were pregnant?

Mr. Berzon: Yes, because one could remove the people temporarily.

That's not an option in this case.

And if a temporary removal of that kind was applied across the board to similar temporary hypersusceptible situations, we might have a nondiscriminatory policy.

But, in addition, the science of the situation--

Unknown Speaker: Excuse me.

Other... other... other disabilities, temporary disabilities, don't have the benefit of the pregnancy act which was adopted.

I mean, doesn't that reflect a congressional determination that that particular disability, if you want to consider it that, is not to be the basis of... of special treatment?

Mr. Berzon: --Yes, but what I'm saying--

Unknown Speaker: Unlike that of--

Mr. Berzon: --is that if it isn't special treatment... that is, if men who have reproductive... possible reproductive harm as well as women who are pregnant are treated similarly as the OSHA--

Unknown Speaker: --But it's special treatment with respect to all other workers who don't have that particular disability, if you consider it a disability, right?

And I thought the purpose of the pregnancy act was to prevent precisely that, to treat--

Mr. Berzon: --That's... that's true.

What I'm saying is that that was... would presents another question that's not here.

But in addition, the science of the situation is such that it is at least unlikely that one would have an injury which in fact affects pregnant women only and not others.

So there are a number of reasons why the pregnancy hypothetical is not one which we feel ought to be driving this case because this involves a much more egregious and central infringement of title VII values and principles.

The... indeed, the policy that we have... actually have before the Court is based not on... so much on a biological risk difference as on a negative behavioral... behavioral stereotype about how women who are faced with possible fetal harm will behave.

That is, in today's day and age, women in general can control whether or not they are going to have children, and, therefore, in supposing that they will not the policy is incorporating a negative behavioral... behavioral stereotype.

Unknown Speaker: --Ms. Berzon, I have only one factual question, and maybe the record doesn't disclose it.

Does the record indicate how long unacceptable lead levels remain in the bloodstream--

Mr. Berzon: We--

Unknown Speaker: --or do we know much about that?

Mr. Berzon: --We know that it is for some time period after a person is removed from lead exposure, and there are various estimates in the record.

What is not in the record is any precise indication of how long one has to be in a lead-exposed job before those blood lead levels build up.

The reason that's--

Unknown Speaker: Well, on the first part of the equation, how many months are the estimates for the removal of the... of the contaminant?

Mr. Berzon: --Some of the estimates were two to three times as long as it took to build up.

One person said 100 days.

Another person said that he wasn't sure whether a removal of 2 months would be sufficient.

Somebody said as much as a year.

In any event, at some point a woman who is being adequately warned could remove herself, let her blood lead levels go down, and then have a child.

In addition, the policy embodies a stigmatic harm of the kind that Justice O'Connor said was at the core of title VII in her concurring opinion in Price Waterhouse v. Hopkins, because it subjects women, as the complaint said, to embarassment and humiliation because of their private reproductive functions being made public.

That is, everyone in the plant knows which women are fertile and which women are not fertile by which jobs they are placed in.

Finally, a central purpose of the Pregnancy Discrimination Act and of title VII was to prevent practices that, as Senator Williams explained--

Unknown Speaker: Excuse me.

That last argument would apply, as well, to a pregnancy-limited rule as well, wouldn't it?

Mr. Berzon: --The very last one I'm not sure would, because people can see who's pregnant.

Unknown Speaker: Well, they'd know which woman was pregnant and which not pregnant as soon as she--

Mr. Berzon: Yes, but there are other ways to know which woman are... is pregnant.

Unknown Speaker: --Well, eventually, but not... not... not too much.

Mr. Berzon: That's true, but it seems to me to be substantially less severe.

In any event, the purpose of title VII and the Pregnancy Discrimination Act was to prevent practices that, in the words of Senator Williams, a chief proponent of the Pregnancy Discrimination Act,

"because she might become pregnant, relegate women in general to a second-class status with regard to career advancement and continuity of employment and wages, render women marginal workers and oust them from the workplace. "

The fetal-risk policies of this kind... that is, those that apply to all fertile women... if upheld, would keep women from a broad range of jobs because there are, in fact, a broad range of jobs that present potential fetal risks due to toxics, but also due to disease, stress, noise, radiation, and also to ordinary physical accidents, like car accidents, falls, et cetera.

One example of this is that there was a recent study which showed that doctors have four times the prematurity rate... women doctors... of other women, and as we understand the arguments that Johnson Controls is making today, that might well be sufficient... studies of those kind... to ban women from being doctors.

The net effect of upholding a policy of this type, therefore, would be to sanction the resegregation of the work force, particularly because the economics of the situation are that employers are going to instill fetal protection policies in instances in which they are not dependent on women workers for their work force and not instigate them where they are highly dependent on women workers, because then they would have nobody to do the job.

So the effect is that women will end up in the jobs where they began before title VII was passed... that is, in child care centers, hospital nurses, teachers... not because there are fewer fetal risks in those jobs but because those are the jobs in which they are indispensable.

The net effect is that this policy, if upheld, would cut the heart out of title VII and out of the Pregnancy Discrimination Act.

The question, then, is whether Congress intended to nonetheless allow employers to pursue policies of this kind within the language of the bona fide occupation qualification exception which reads very narrowly.

It says that it applies in those certain instances in which sex is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business.

Johnson Controls argues that despite this extraordinarily narrow language and the vast damage done to title VII, this has to be a BFOQ, because otherwise one couldn't protect fetal health.

I will proceed in a moment to outline the three reasons why we think that that is simply wrong, but first I'd like to respond briefly to the emotional content of Johnson Controls' argument.

That is, by placing this case in its real context as part of the social problem of protecting fetal health.

First of all, the issue of fetal health is far more complicated than the employer admits.

To understand why, let's consider two possible scenarios.

First of all, the Pregnancy Discrimination Act history demonstrates that women work because they have to, and it demonstrates as well and emphatically, and this was discussed at some length on the floor and also in the hearings, that there is a major danger to fetal health due to maternal poverty and also due to an inability of women to have prenatal care if they're unemployed, and that those dangers are similar to the sorts of dangers Johnson Controls is claiming here.

They are dangers of retardation, neurological damage, and so on.

If many employers adopt fetal protection policies, as I've suggested they might if Johnson Controls' principles were upheld here today, the net result will be that many women will not have adequate income and will be relegating their children to precisely those fetal harms which Congress was in fact trying to prevent in passing the Pregnancy Discrimination Act.

The other possibility is that many... some employers protect these... won't institute fetal protection policies for reasons of the sort I alluded to earlier.

That is, because they are the employers who are dependent on female workers.

If that happens, women may have jobs in those workplaces, but they are traditionally lower paid, and also they do not necessarily have lesser fetal risks.

They simply have different fetal risks.

A related point about the social context of this case, or the larger context of this case, is that the issue here really, therefore, is not whether fetal health is going to be protected, but how and by whom.

Obviously, an employer is welcome and ought to be protecting fetal health to the highest degree possible, as long as he doesn't exclude women from the workplace, but in addition, there are two other decision makers here.

There's the woman, and there's the Government.

The Government in this instance, in OSHA... the Occupational Safety and Health Administration... deciding the lead standard in 1978 emphatically decided, under its own statute... section 38 of its own statute... that it is not reasonably necessary for employers to exclude all fertile women from the workplace because of occupational safety and health concerns.

Interestingly, note that the language of OSHA is the same... section 38 of OSHA... as the BFOQ: reasonably necessary.

So what OSHA decided is really exactly the same issue that is before the Court today.

OSHA decided that it is not reasonably necessary to have an exclusion of this kind.

Unknown Speaker: Excuse me.

How does that come within OSHA's charter?

I don't... I'm just not familiar with enough... I thought OSHA set standards for... for levels of toxic substances in the workplace.

Does it also prescribe who may be allowed in the workplace and who may not?

Mr. Berzon: It does prescribe in certain instances that certain people should be removed, at least temporarily, because of a medical problem.

The... OSHA said in the preamble to its lead standard that no issue was discussed more completely in the thousands of pages of testimony than the question of women and lead.

There were specific proposals before OSHA to either apply or allow the exclusion of fertile women, and thereby to have the higher overall lead standard, and OSHA rejected that proposition emphatically and decided that it was not reasonably necessary to occupational safety and health for women to... fertile women to be excluded from the workplace.

Unknown Speaker: Ms. Berzon, this is tied into that.

One of the things that troubles me about... about the case is that it seems to me unlikely that Congress is going to adopt a standard that whipsawed the... the employer, that put him between a rock and a hard place.

That is to say, if he allows the women to take the jobs he is subject to enormous suits for damages, and maybe even punitive damages, if the child is born deformed, and if he doesn't he's punished under title VII.

Does the OSHA law... ruling that you just spoke of in your view prevent State damage suits by the child when the child is born deformed, against the employer for--

Mr. Berzon: I think it well might, but I think that title VII itself prevents it, for the following reason.

What... the proposition that the employer, as I understand it, is putting before the Court on the liability or legal duty question, is that it could be held liable strictly for employing the woman in a lead-exposed job.

I mean, I assume we would all agree that if they were... actually negligent in how lead was controlled in the workplace, or gave inadequate warnings, that title VII should not protect them, and therefore the only possibility is that they are being... could be held liable simply from hiring the woman.

That is... so they are positing a State rule that they may not hire women in this job.

There were lots of rules like that before title VII was passed.

They were statutes that were called protective laws, and they were held invalid under title VII.

In other words, there were laws that said, you may not hire women in jobs that have too much lifting, or you may not hire women in other sorts of jobs.

Unknown Speaker: --I don't think that's how the suit would... would be framed.

I think the suit would be framed saying that he was negligent in not reducing the lead level even further so that it would... would have been safe for even pregnant women.

That's how the suit would be formulated, I think.

Now, would OSHA preempt that?

Mr. Berzon: I would suppose that--

Unknown Speaker: Would OSHA preempt the State from establishing as a rule of tort law that you were negligent in not reducing your lead level even further?

Mr. Berzon: --It would seem to me that it would be extremely good evidence as to what a reasonable person would do.

On the other hand, one of the reasons that we're all speculating here is that there has never been a case like this; and the fact that there's never been a case like this is itself somewhat indicative of the fact that it is not reasonably necessary to the normal operation of the business for an employer to turn somersaults in order to avoid a theory of liability that does not yet exist.

More than that, I... I really do think that if the employer is actually negligent in the way in which he is running the workplace according to a reasonable person's standard, there is absolutely no way that title VII's BFOQ ought to absolve him.

It's both bad law in terms of the way the statute is written.

It's also very poor occupational health policy, because it means that an employer is allowing... being allowed to discriminate in order to avoid being... responsible as to its occupational health responsibilities.

Unknown Speaker: Ms. Berzon--

Mr. Berzon: It's as if the employer said I would rather have hired blacks because if I hire them I'm going to have to have... act toward them in a nonnegligent fashion.

Unknown Speaker: --Ms. Berzon, is there anything in the record to tell us whether insurance is available to the company against this perceived risk or, if so, how much it would cost?

Mr. Berzon: There is absolutely nothing in the record that deals with that question.

Unknown Speaker: Did they defend on the ground of potential tort liability?

Mr. Berzon: Not really, and the reason is because liability as such... that is, the cost that they might have to pay... they understand and we understand as a monetary factor cannot be a bona fide occupational qualification.

The argument that's being made now, as I understand it, is somewhat different.

It's not the economics as such.

It is, rather, some notion that there is a perceived legal duty flowing from a hypothetical common law rule which, as I say, doesn't exist because no case exists.

No one has yet--

Unknown Speaker: Well, I don't think it's bizarre to assume that a State court in a tort suit would impose very severe liability on an employer for knowingly placing the woman in the position where the fetus is injured if the fetus is actually injured.

If we can assume that for the moment, is it your position that any such liability should be preempted--

Mr. Berzon: --It's my position--

Unknown Speaker: --by reason of a decision that's in your favor here?

Mr. Berzon: --That is precisely what a series of cases that this Court has affirmatively cited held--

Unknown Speaker: But is it your position--

Mr. Berzon: --and it is my position, and it's also the employer's position, by the way.

Unknown Speaker: --So your... your position is that a failure to find a BFOQ and a requirement that the employer be placed... that the employee have the position should preempt any tort liability for any injury to the fetus?

Mr. Berzon: It's my position, and it is also the employer's position.

Not any tort liability.

Any tort liability for behavior which is not negligent or the warning--

Unknown Speaker: Not negligent, yes.

Mr. Berzon: --Yes.

Which is not negligent and where there were adequate warnings.

Unknown Speaker: So that in your position, the fetus should not be able to recover, or the newly born child, absent negligence?

Mr. Berzon: That's correct.

Unknown Speaker: You'd allow recovery against the mother who... who put the fetus in that position, I presume?

Mr. Berzon: That assumes that the mother would be negligent if she put the fetus in that position, and, for the reasons that I stated earlier, that is an extremely unlikely context.

And it's also true that the, again, the theory in which the mother could become liable does not yet exist, and I would argue strongly against it largely because... and as I was about to say... the woman herself is a decision maker in this situation, and the woman is--

Unknown Speaker: So there's... so there's no possible grounds for recovery for the injured child under your view?

Mr. Berzon: --I think that would be correct.

On the other hand, as I was about to say, we are assuming a level of fetal injuries here that excludes the fact that women are going to act responsibly, and that society in general, as this Court said emphatically in Parham v. J.R., places in the hands of parents the responsibility to save their children from risk, recognizing that sometimes... occasionally they will make mistakes, but that if they do make mistakes or if a problem develops along that way, one does not put in the hands of a private individual the decision whether they ought to be overridden.

It's the Government that ordinarily has the power to override parental decisions, not the Government.

Nothing in this case implicates that relationship and would prevent OSHA or some other agency or the Congress from making determinations of that kind.

The only issue here is whether the employer can do it; and what's noteworthy is that the employer's position here is really, as Judge Easterbrook said below, a not-on-our-watch position.

In other words, we don't want to be tied into this harm.

What happens to this fetus and the rest of the world is just not our problem.

And that's why the woman is a much more, both traditional but also completely informed decision maker.

She also knows her own personal situation as to whether she is likely to have a child or not.

Unknown Speaker: May I ask you if you are asking for a judgment in your favor without a trial, or do you think the case should be tried?

Mr. Berzon: We do not move for summary judgment; and, therefore, the net result of a reversal would be a remand to the trial court.

I would like to reserve the remainder of my time.

Unknown Speaker: Thank you, Ms. Berzon.

Mr. Jaspan.

Argument of Stanley S. Jaspan

Mr. Jaspan: Mr. Chief Justice, and may it please the Court:

The central issue in this case... excuse me... is whether Congress intended through title VII to require an employer to knowingly expose the offspring of its employees to a toxic substance which causes permanent harm to the child's developing brain and central nervous system.

Petitioners claim that whenever such an exclusion treats men and women differently, it is, per se, illegal.

However, every Federal court of appeals to have addressed the issue, along with the EEOC, and now the United States as amicus in this case, has rejected petitioners' position.

Neither the statutory language, nor sound public policy, supports such an approach.

The legal issue must be evaluated in this case against one overriding, undisputed fact: exposure of the fetus to the lead levels regarded as safe under the current OSHA lead standard poisons the fetus and causes permanent brain damage.

Every expert in this case--

Unknown Speaker: Let me just interrupt you there.

How often does this happen?

Does the record tell us?

Mr. Jaspan: --The record doesn't give specific--

Unknown Speaker: It says it may poison some fetus some time.

Mr. Jaspan: --The record indicates, Your Honor, that the studies, epidemiological studies comparing children and fetuses, mothers with... the cord blood of the mother... with different levels of lead, shows that an increasing quantity of lead in the system will cause deficiency and behavioral disorders, learning disabilities and other such problems--

Unknown Speaker: Right, and the question is, can you reduce the lead level enough so you can avoid that risk in a substantial number of cases?

Mr. Jaspan: --And the answer--

Unknown Speaker: The answer... the record doesn't tell us how many cases there are, how many women work in the factory, or what the history has been, does it?

Mr. Jaspan: --No, the record does show that the company attempted a voluntary program.

Approximately 1977 to 1982, the company advised women of the--

Unknown Speaker: How many women?

Mr. Jaspan: --The exact number isn't in the record.

There is in evidence in the record from a UAW affidavit that in the UAW plants, which is the majority of the plants, 2 years later there were 275 women, that number.

That would not totally reflect what was there at the time of this policy, but the company attempted during that period to advise women of the dangers and indicated to them that if there was any chance that they might become pregnant, they should remove themselves from high-lead areas.

The company went further, and had each woman sign a statement saying that she understand that the company recommends that she not work in that high-lead area if she might become pregnant.

The total... in the last 3-1/2 years of that policy, a total of eight women... at least eight women became pregnant with blood leads in excess of 30 micrograms, the level set by the Centers for Disease Control as the level at which lead poisoning occurs in a small child.

Unknown Speaker: May occur, or always occurs?

Mr. Jaspan: That it was an unsafe level.

It would... it's not--

Unknown Speaker: Well, why doesn't OSHA consider it an unsafe level?

Why doesn't OSHA require a higher... a lower level, or require pregnant women to be excluded?

I mean, I'm a little troubled by the notion that the district court is supposed to evaluate all these medical experts on its own.

Usually, when you're reviewing OSHA, you... it's easy for a district judge and for the appellate court on review to say whether... whether it seems reasonable, what OSHA has done, given all the expert evidence.

But you're asking district courts to figure out whether... you know, such questions as what the safe level is, and whether... whether males are subject to exactly the same risk.

I don't think we're very good at that.

Mr. Jaspan: --I think Congress has asked the district courts to do that in adopting the bona fide occupational qualification defense.

Unknown Speaker: Well--

Mr. Jaspan: This Court--

Unknown Speaker: --Maybe if we accept your interpretation of it, Congress has, but one thing that makes me reluctant to accept your interpretation is that very fact, that it puts us in a very unusual position of becoming medical experts on some very difficult questions.

Mr. Jaspan: --But prior decisions of this Court, such as Criswell and Dothard, in the bona fide occupational qualification field, have certainly put the district courts in that position.

Unknown Speaker: Well, what about OSHA?

Why wouldn't OSHA... if what you say is true, how do you explain OSHA's rule?

Mr. Jaspan: OSHA, as the statute makes clear, sets a floor, not a ceiling, for occupational health.

The OSHA statute encourages voluntary programs beyond the actual standards.

The OSHA lead standard itself, adopted in 1978, required part of the standard is silent as to fetal health.

In the preamble to the standard, OSHA says that we have not adopted a separate standard for women because... and explains that silence.

It specifically finds, as the experts in this case have said, that a fetus exposed to lead, blood lead above 30 micrograms, is in danger of serious permanent injury to the developing central nervous system.

Unknown Speaker: Mr. Jaspan, I... it seems to me that you are not coming to grips with the effect of the Pregnancy Discrimination Act... the PDA... which says that female employees affected by pregnancy shall be treated the same for all employment-related purposes as other persons not affected but similar in their ability or inability to work.

And I think you have to address that act and its effect on your position, and I think also the effect of this Court's holding in the Dothard opinion, which certainly points in the direction of saying that safety concerns are not going to rise to the level of a defense under BFOQ, in essence.

Mr. Jaspan: Let me address both issues--

Unknown Speaker: Yes.

Mr. Jaspan: --Justice O'Connor.

As to the PDA, ability to work certainly includes the ability to perform a job safely and efficiently.

No employer goes out and hires employees who may be able to produce the product in some rapid fashion, but if it causes injury to fellow employees, to the employee who's doing the work, to neighbors, to other third parties, certainly that individual does not have the ability to perform the job.

So the language of ability to perform the job, as expressed in the Pregnancy Discrimination Act, certainly includes the ability to perform it safely as well as efficiently.

We think when Congress adopted the Pregnancy Discrimination Act, it made clear that the existing title VII analysis, other than this Court's decision in Gilbert, would remain in effect; that all defenses, including the bona fide occupational qualification defense, would remain available to an employer under that act.

Unknown Speaker: But I thought the policy reviewed here applies to women who are not pregnant and--

Mr. Jaspan: The purpose of the policy is to protect the health of the fetus.

Unknown Speaker: --Who can... who can perform the work.

Mr. Jaspan: This Court in Criswell made clear that a bona fide occupational qualification defense is available when all, or substantially all, of the employees cannot perform the job safely, and also when the employer is unable to determine which employees in the excluded class possess the trait that creates the safety problem.

In this case, the employer is not able to determine which employees will become pregnant.

The only way an employer could attempt to do so, first of all a voluntary program, which was attempted and failed in this company, and second would be some constant monitoring of the sex lives of the employees, which even Petitioners agree would be inappropriate.

Unknown Speaker: Mr. Jaspan, in interpreting the Pregnancy Discrimination Act, as you just have, that is, as making an exception, or considering it part of the job qualification that you not harm the fetus' health... it seems to me you're making a dead letter of it.

That was always the justification used for discriminating against pregnant women, that they shouldn't work extra long hours because it would be bad for the fetus.

I mean, to... to... to continue to allow that exception is to make a farce of the Pregnancy Discrimination Act.

What... what other bases of treating pregnant women specially were there, except that?

It's bad for the child.

You're... You're making it a ridiculous piece of legislation.

Mr. Jaspan: Well, Justice Scalia, with all due respect, I disagree.

I think clearly the Pregnancy Discrimination Act took care of such concerns as benefits, it took care of such concerns that were raised in this Court's Gilbert decision.

But I think it's clear that the Pregnancy Discrimination Act was not intended to overrule the other defenses and the existing analysis contained in title VII, the legislative history, indicates that there's nothing in the language that indicates otherwise.

The Pregnancy Discrimination Act is an amendment to the definition of sex discrimination.

It certainly... it excludes some specific affirmative defenses involving the Equal Pay Act.

It has no exclusion in its language for the bona fide occupational qualification defense.

To take such an approach as is taken by petitioners here and as is suggested by Judge Easterbrook in effect says that an employer can never exclude a woman based upon her pregnancy, no matter how dangerous it is to her fetus, that that woman has the absolute right.

Because the legal analysis if one accepts that position is that even... for example, in a nuclear power plant if there were a room or an... a specific area where the radiation through medical evidence is clear that it's safe for adults and not for the fetus and you have a woman who is pregnant, the employer under that analysis would be precluded from denying that woman that position.

It would be odd, in fact, for the Pregnancy Discrimination Act to be treated... to be interpreted in such a manner.

One of the purposes of the Pregnancy Discrimination Act was fetal health.

The legislative history is replete with the concern for fetal health.

To interpret that act as requiring an employer to knowingly expose the offspring of its employees to injury, permanent injury to the central nervous system, would be contrary to that intent.

Moreover, that same Pregnancy Discrimination Act specifically states that an employer shall not be required to pay for an abortion.

Now, if Congress went out of its way to say the employer shouldn't be required to pay for an abortion, it wasn't also saying that the employer should be required to injure the child.

I think that's an improper interpretation of the Pregnancy Discrimination Act certainly not called for by its language or its legislative history.

Unknown Speaker: Mr. Jaspan, can I ask this.

One of the reasons this case is so hard is because at each end of the spectrum there seem to be an impossible... an impossible hypothetical such as the one you pose.

Would you comment on the other end of the spectrum that Judge Easterbrook argued so... strongly about, the zero-risk business?

If there is any risk, no matter how infinitesimal, that one out of 100,000 workers might get this very... if the harm does arise, it's very serious.

Everybody agrees to that.

What... what is your position on that?

Is it... is the slightest quantified risk enough to justify your policy?

Mr. Jaspan: No, it's not, and we haven't suggested that, Your Honor.

Unknown Speaker: How do you... how do we decide what's enough?

Mr. Jaspan: I think in this case there was no reason for the courts to address it because the parties stipulated, conceded at the court of appeals... it's in the petitioners' brief... that there was substantial risk.

Unknown Speaker: Well, it's a substantial harm when it occurs.

They didn't... they did not concede, as I understand the papers, that it occurs with sufficient frequency to be considered substantial in a quantifiable sense.

Or am I wrong about that?

Mr. Jaspan: I believe you're wrong on that, because the court, the district court and the court of appeals adopted the existing case law from the Fourth and Eleventh Circuit.

They talked about a three-factor test.

The first factor was substantial risk of harm to the offspring.

In its brief to the court of appeals, petitioners said we do not challenge that harm.

The, I think, specific language is we concede that... that factor, language to that effect.

But it was clear there was no discussion of that factor.

That was never developed beyond that.

It wasn't developed at the district court level because all the experts agreed that it's substantial risk.

And the question of frequency simply didn't come up because the risk was so great, and I think to that extent--

Unknown Speaker: Well, how--

Mr. Jaspan: --I think that their concession went beyond that.

So in this case, I don't think it's an issue that really has to be addressed.

Unknown Speaker: --Well, I'm still concerned about it, because if we approve the result of this case, what are we saying about the frequency that would cross the threshold?

One in a million; one in a thousand; one in ten?

Mr. Jaspan: I think what we're saying is that a court in evaluating what is the first prong, as recognized by all the parties, and it's recognized by the lower courts that have addressed the issue, must determine whether the risk is so substantial that whether it... in terms of the severity and the frequency and has to measure both.

I think that's consistent with Tamiami and this Court's direction in Criswell.

In this case there were two factors present that... why it was not addressed more fully.

One was the voluntary program.

It wasn't theoretical here.

There were at least eight women in a 3-1/2-year period.

Unknown Speaker: Who got pregnant but no evidence that... that the fetuses were harmed.

Mr. Jaspan: No.

Women who were pregnant with blood leads at... in excess of--

Unknown Speaker: Right, but there is no evidence--

Mr. Jaspan: --30 milligrams.

There were additional pregnancies--

Unknown Speaker: --There is no evidence that their children were harmed.

Mr. Jaspan: --That's not true.

There is evidence, the testimony of Dr. Fishburn in the record identifying that he was aware on at least one of those where there--

Unknown Speaker: One of them was not a totally normal child, but he didn't say it was totally attributable to this cause, did he?

Mr. Jaspan: --And what he did say is we're dealing with an... epidemiological studies that are the basis for the entire concern with childhood lead, is that if a child's IQ is reduced by 10 or 20 points, we don't know... if it's reduced, we don't know what it would have been.

We can't prove that the child would have been that much smarter or that much better behaved or had lesser problems in school if he didn't have this permanent damage.

That's why you can't prove it with any single individual.

And the studies that are relied upon by the experts, by the Centers for Disease Control are the epidemiological studies dealing with thousands of children.

We must remember that we're dealing in this case with such a severe and substantial danger that the Centers for Disease Control in 19--

Unknown Speaker: Well, does that one case... identify the severity of the danger that we're talking about?

Mr. Jaspan: --I don't think the single case does.

I think we have to look at the larger studies, such that the Centers for Disease Control in 1985 made the unequivocal statement that women of childbearing age should be excluded from working at jobs where significant lead exposure occurs.

It was an unequivocal statement by the Centers for Disease Control, and the basis for the statement was their study or restudy of the dangers and the problems with childhood lead poisoning.

Unknown Speaker: Well, they... they should... women... women in that condition should not smoke cigarettes and drink substantial amounts of alcohol, either, but the Government does not have laws that take the judgment of whether to do it or not away from them.

And do you know how this risk compares to the risk of harm to the fetus from heavy smoking?

Mr. Jaspan: I don't know the exact comparison, Your Honor, but there's a difference here between the Government prohibiting it and insisting that a... private employer do it.

We don't provide cigarettes to our pregnant employees or fertile employees or any other employees.

Unknown Speaker: Or make an exception from the employers... from the prohibition of the employers otherwise controlling the... the lives of the employees by prohibiting them from employment.

That's what we're talking about, an exception to the general rule.

What I'm suggesting is that the Government has not shown in other indications an unwillingness to leave the health of the fetus up to the judgment of the mother, including situations where the fetus might be placed at substantial risk, maybe greater risk than would occur from lead poisoning.

Mr. Jaspan: And I... I agree with you on that point.

However, we are not dealing with whether the Government puts a restriction on an individual.

Here, we're dealing whether an employer, a manufacturer, is required to expose the individual, to expose the child.

Unknown Speaker: Do you take the position that you could refuse to sell cigarettes to pregnant women employees?

Mr. Jaspan: Certainly.

I think the employer takes the position that, consistent with its entire health and safety program, that it won't sell cigarettes to anyone.

Unknown Speaker: No, but that wasn't my question.

[Laughter]

Mr. Jaspan: Could it single out pregnant employees?

If selling cigarettes were part of its normal business and--

Unknown Speaker: No, it's in your company cafeteria and it's been done for 20 years, let's assume.

Mr. Jaspan: --An assumption that's not true.

I assume they could do so, yes, but I don't think that's the facts here.

Unknown Speaker: You assume they could--

Mr. Jaspan: They could prohibit that sale, and I think--

Unknown Speaker: --I think that's consistent with the theory of your case.

Mr. Jaspan: --And that's why I suggest that.

[Laughter]

But it's not the facts here.

I think what we're dealing with here is the question of occupational health.

I think it is clear that employers, manufacturers, have now long been told that they are responsible for the consequences of their manufacturing substances.

Manufacturers are liable, responsible if they injure their employees, they injure the children of their employees, their customers, their neighbors, and the environment.

Unknown Speaker: Surely not if the Government made them do it.

Isn't... Isn't the Government made me do it always a good defense?

I thought we, you know--

Mr. Jaspan: It arguably should be a defense.

However, bona fide occupational qualification defense doesn't talk about the employer may do something if it's required to do it by law.

The question under the bona fide occupational qualification defense is whether it is reasonably necessary to the normal operation.

The normal operation of manufacturers today is to provide for the health and safety of their employees, the children of their employees, and their neighbors and other third parties.

The issue under title VII, going back to the language of the statute, bona fide occupational qualification language, is what is the normal operation of the employer.

To suggest that normal operation does not include concern for health and safety would certainly be a strange notion to most manufacturers today.

It certainly is true here.

You have a manufacturer who for years, before OSHA and beyond what OSHA requires, has provided extensive health and safety protection, lead protection, to its employees and the children of its employees.

The company spends substantial sums of money lowering the blood... the air leads in the plant through use of engineering controls, through use of make-up air units, through ventilation systems.

The district court found, and it was unchallenged, the company is doing all it can to clean up and to reduce the lead exposure.

We're not dealing with a situation where the company is saying I'm going to exclude the women as a way of avoiding cleaning up the workplace.

This is a clean workplace.

But the acceptable lead levels are so low as determined by the various agencies, as determined by... agreed by all the experts here, that it is impossible to do so, and that was a finding unchallenged of the district court.

Unknown Speaker: --Mr. Jaspan, is lead level in the ambient air something that can be monitored constantly, like temperature or humidity or something like that, or is it you have to--

Mr. Jaspan: It's monitored on an individual... on an 8-hour time-weighted average basis, so it can be monitored daily.

It wouldn't be looking at a particular point in time--

Unknown Speaker: --But you don't look... you can't look at the instrument at 6:00 and say the lead level has now reached a point where we've got to get out of the plant or something like that?

Mr. Jaspan: --No.

Typically, it's a pump that's attached to the individual employee or stationary pump that would filter air through it, and it would be... it's an 8-hour time-weighted average, the OSHA lead standard for air--

Unknown Speaker: Is an average rather than a... than amount at a fixed point in time.

Mr. Jaspan: --Yes.

That's the way that works.

Unknown Speaker: I see.

Mr. Jaspan: But we're dealing not only with the engineering controls this company put in but the biological monitoring.

Employees are monitored regularly.

They're subject to medical examinations, blood testing, the effects of lead.

They also get paid wash-up time and work clothing provided by the employer.

The purpose of that is to make sure the lead is not taken home with the employee so that the family is not exposed.

This fetal protection policy is not a policy that was adopted in isolation from the health and safety concerns of this employer.

On the contrary, the impetus for this program came... exclusively from the medical consultants of the company.

The medical consultants unanimously said, look, you're doing all of these other things, you're being irresponsible in exposing these children to these levels of lead.

Now OSHA does not prohibit that.

I think the... that issue came up before.

OSHA explained that the... that it was its desire, notwithstanding the silence in the standard itself, to have all children or fetuses not exposed to any level above 30 micrograms.

They agreed with the findings on which this study is based.

Unknown Speaker: Mr. Jaspan, suppose we agree with your theory.

How does the Court go about determining what level of protection for fetuses is enough?

I'm not concerned about this case.

You answered that for this case by saying here it's conceded that it was a substantial risk.

But in... in another case, suppose you have an employer who says I am so concerned for fetal health I don't want any risk, I want zero risk.

And he can show that, you know, that... that there is a very, very tiny risk.

Mr. Jaspan: I think the--

Unknown Speaker: The workplace is full of risks.

What... how is a court to determine how careful the employer may be without violating title VII?

Mr. Jaspan: --I think the language of the statute talks about reasonably necessary.

That doesn't provide much more guidance on that.

But I think what's clear from this Court in Criswell is that it becomes a case... case-by-case analysis.

What clearly must be shown and the reason why the abuse that seems to be suggested by petitioners that might occur from a decision affirming the court of appeals simply is not true is that we're dealing with sound medical evidence.

We're not dealing with stereotypes.

We're not dealing with situations--

Unknown Speaker: This doesn't sound... I'm not talking about the medical evidence.

I'm talking about how many deformities is worth letting women work in the department.

How many is worth it?

Let's assume the medical evidence is uncontradicted.

There will be one in a million.

Is that too many?

Mr. Jaspan: --I don't think that we can put a precise number.

I think what has to be measured is how serious is the deformity, how likely it is, if it's one in a million, is there another way of avoiding it--

Unknown Speaker: I'm just trying to figure out how courts are going to manage this... this rule that you're urging us to take onto ourselves.

How are we to determine what the proper balance of risk to fetus and freedom for the women to work in the marketplace is?

Mr. Jaspan: --I think that it's going to depend on the specific facts, but there's no percentage--

Unknown Speaker: Well, I know that, but I don't know what standards we apply.

I don't know--

Mr. Jaspan: --Well, I think the standards we should talk about is substantial risk and whether it's reasonably necessary for the particular operation and to provide the safety--

Unknown Speaker: --It has to be substantial risk?

Mr. Jaspan: --I think in most cases--

Unknown Speaker: So one... one in a million wouldn't be enough?

Mr. Jaspan: --I don't know where the numbers would fall.

If--

Unknown Speaker: I see.

So long as you can put the label substantial on it, you're sure what the answer is?

[Laughter]

Mr. Jaspan: --Justice Scalia, I think what we'd have to do is look in terms of the individual fact situation.

It was suggested in petitioners' brief that Criswell should be limited to mass catastrophe, and it comes out of the Tamiami case of the Fifth Circuit suggesting that it is okay if there's a bus accident that injures 10 or 20 people and that's... Criswell formula is appropriate, but if we're dealing with an injury that only affects 5 or 10 children it may not be.

I don't think we're in a position or any employer is in a position or should be in a position to make the decision that will allow 5 serious injuries but not 10.

I think the tort law and I think those type of considerations, I think you have to look at the entire set of circumstances--

Unknown Speaker: He has to make those decisions.

He has to make those decisions.

Mr. Jaspan: --That's right, and I think in this case we are so far beyond where that line should be drawn, as both parties conceded, that it's not an issue that this Court has to face in this case, and it's not an issue that the district court or the court of appeals needed to face because it was a conceded issue here.

Difficult question, I totally agree with you.

Let me go on that zero-risk point just for a moment.

There is no zero risk.

The studies indicate that for adults generally the 50-microgram blood lead level is safe, especially if the effects, individual effects are monitored.

For the fetus, we're dealing with 30 or 25 micrograms.

Women are allowed to work below that.

It's conceivable, notwithstanding the likelihood and past experience, that an... accident will occur and the blood lead of an individual woman who's fertile may shoot up.

It's not zero risk here.

We do exclude men and unfertile women from areas as well, a zero risk, because the OSHA standard imposes those risks on the employer, those limits on the employer.

So we're not dealing with the comparison of zero risk versus in one case and not... and a different type of risk in another case.

Let me also go back to the OSHA standard for a moment.

Appendix C of that OSHA standard is very explicit.

It assumes that company physicians--

Unknown Speaker: Does this appear in the... in the materials that we have here?

Is it in your brief?

Mr. Jaspan: --It is referenced in the brief.

It is referenced in the brief.

It's not spelled out in the brief.

Its response--

Unknown Speaker: It's not set forth anywhere in any of the papers?

Mr. Jaspan: --No.

It's in... it's in response to the argument that OSHA in some way preempts this position that we're taking here.

Appendix C assumes broad flexibility by a company physician in dealing with pregnancy and potential pregnancy.

It talks about explicitly... the OSHA's appendix talks about companies going beyond what the OSHA limit requires.

It encourages that particularly in dealing with pregnancy and potential pregnancy.

The Department of Labor has taken the position, approved by one court of appeals, the D.C. Circuit, that if an employer knows that an occupational... an OSHA standard is insufficient to provide adequate protection, the employer is required to take additional steps.

Here, we had our medical consultants telling us that we must take additional steps.

The Department of Labor would take the position that all this was mandatory.

Finally, I call your attention to the Solicitor General's brief.

In there, they make clear that as far as the U.S., the United States, is concerned, the 1978 OSHA conclusions are in no way dispositive of this case.

In fact, the analysis in the Solicitor General's brief representing the EEOC as well as the United States is consistent with the analysis taken by the company here.

Our only disagreement with that brief is on the issue of whether or not the court of appeals adequately examined the issue of male mediation.

The court of appeals found that a rational trier of fact could not come to an unspeculative... nonspeculative decision that male mediation is similar to the female mediation, that the risks to the offspring of the male employees is substantially similar to the risks to the female, the offspring of female employees.

The Solicitor General suggests that it's not clear that the court of appeals decided that issue with the burden on the employer.

We think it is.

We think that's an issue where the EEOC possesses no special expertise, and this Court can certainly review the decision of the court of appeals.

Beyond that, though, the legal analysis, we're in agreement with the Solicitor General that occupational health--

Unknown Speaker: Well, if it's a motion for summary judgment, how much... what is the effect of placing the burden of proof on something like that?

Mr. Jaspan: --In this case it would not have any effect, Your Honor, because in this case the Court addressed it both with the burden of proof on the plaintiffs under their interpretation of business necessity in light of Wards Cove and burden of proof on the employer in bona fide occupational qualification.

And on this particular issue, the Court found that a trier... a rational trier of fact could not come to a nonspeculative conclusion that the risk to... through the male to the offspring was similar to that to the female.

Unknown Speaker: Even though the burden of proof was on the defendant?

Mr. Jaspan: In either case, because a rational trier of fact could not come to that... that conclusion, it wouldn't make any difference where the burden is.

But they did look at it both ways, and they looked at it both with the burden of proof on the plaintiff and the burden on the defendant.

That's where the Solicitor General claims that it's not sufficiently clear, and his suggestion is to remand to the court of appeals for that purpose.

We don't think that purpose exists.

But, beyond that, the interpretation given the statute... consistently given the statute, by the way... by the EEOC that such policies as this are permissible is the appropriate one and is consistent with the case law as previously set down by this Court.

In Price Waterhouse this Court indicated that we're not to leave common sense at the doorstep when interpreting title VII.

It would violate common sense and the overriding interest in occupational health and safety to require an employer to damage unborn children.

Johnson's policy, part of a longstanding policy of concern for the health and safety of its employees, strikes the appropriate balance.

And that's what we're talking about, balancing, as required by Price Waterhouse, the interests involved of the employer, the employee and the woman.

An employer, a manufacturer that creates a hazard, has an obligation to protect against injury from that hazard.

The employer here is simply exercising its... its obligations and its rights consistent with its normal operations as permitted by the bona fide occupational qualification defense.

That's what's at stake here.

Thank you.

Unknown Speaker: Thank you, Mr. Jaspan.

Ms. Berzon, you have 6 minutes remaining.

Rebuttal of Marsha S. Berzon

Mr. Berzon: Several comments.

First of all, we certainly do not concede that the brisk comparison here was done properly.

The... our contention is that in order to adequately assess the risk involved, one has to look at the class of people who are being excluded and not simply the question of whether, if there are actual fetuses, which is what we were talking about when we said there was a substantial risk, is... is injured.

In other words, while we did agree that the kind of injury to fetuses as to actually pregnant women if the risk occurred was substantial, and we certainly did not concede that looking at fertile women as a whole, the likelihood that any injury would actually occur would be any greater than the level of adult risk accepted in the workplace.

And in answer to Justice Scalia's questions about how one should tell how much risk is enough, we suggest that the best test is what does the employer normally accept in the workplace as to health risks generally.

That comparative standard is not factored into the test that was applied by the court of appeals here to the test... or to the test that the company here suggests.

In other words, there is absolutely nothing in this record to indicate that adult risks are being perfectly protected, but the company is insisting on perfectly protecting fetal risks.

For example--

Unknown Speaker: Of course, on what you... on the basis of what you've just... we would have a different case, in other words, if the employer adopted a different policy which simply said as soon as... as soon as you are pregnant you are out of this job?

Mr. Berzon: --On... on that aspect of... that defect in their BFOQ policy, yes.

In other words, if one were to cite only that there was that defect and not go on to our broader proposition based upon the occupational qualification requirement... that is, the notion that because of the language of the BFOQ, the focus on occupational qualifications, because of the language of the PDA, the reference to the ability or inability to work, the fact that Dothard, as Justice O'Connor said, indicates that the woman's own health is not a safety... is not a BFOQ and the fact that the PDA, it seems to us, indicates that this case is to be treated like a Dothard case and not, for example, like a Criswell case in which the safety concern was the essence of the business, as the Court greatly stressed both in that case and in Dothard.

Unknown Speaker: Did you... did you move for summary judgment?

Mr. Berzon: We do not move for summary judgment, and we are not asking--

Unknown Speaker: What do you think our judgment should be here?

To get it back to the district court?

Mr. Berzon: --Yes, to get it back to the district court.

Unknown Speaker: For a trial?

Mr. Berzon: At that point, it appears that we... we would look at the record, and we would decide whether to... for us to move for summary judgment at that point.

But--

Unknown Speaker: Of course... of course, if we agree with your first argument, I suppose summary judgment would be... would... you would have good ground for summary judgment?

Mr. Berzon: --That's right, but we also think we would have good ground for summary judgment in our other two arguments as well--

Unknown Speaker: Yes, I know.

Mr. Berzon: --because--

Unknown Speaker: It would be a foregone conclusion under your first position--

Mr. Berzon: --I think that is probably correct.

But I'm suggesting as well that--

Unknown Speaker: --So in effect, we would be saying as a matter of law you're entitled to judgment in the case?

Mr. Berzon: --Yes, but the... the actual disposition would simply be a remand.

Unknown Speaker: To trial... for trial?

Mr. Berzon: To the trial court for further proceedings.

Unknown Speaker: Yes, to find the... all right.

Mr. Berzon: I was going to say that the... so on the one hand, this... the standard which Johnson Controls is arguing does not factor in any comparative risk notion or any reason why an employer cannot insist upon perfect protection for fetal health while not protecting adult health perfectly, not to say adequately, but not perfectly.

There is... and contrary to what the company has been suggesting, here there is clear evidence in the record of cardiovascular dangers, neurological dangers and male fertility dangers... which, by the way, are conceded... with respect to adult health, and those are not being perfectly protected against.

In addition, this policy fails for another reason, which is that it does not... it excludes a class all or substantially all of whom are not within the group that actually presents the risk.

Criswell doesn't apply here or, if applied here, leads to an opposite conclusion, not for the reason that Mr. Jaspan suggested but because this is not a situation in which it is impossible to individualize the risk assessment.

It's just impossible for the employer to individualize the risk assessment because the employer doesn't want to ask the private questions.

The woman, herself, knows what her situation is, and, therefore, we're not dealing, as I said before, with a biological fact.

We're dealing with a behavioral fact which cannot be presumed against the woman.

In addition and connected to that is that the extreme case hypothetical which Mr. Jaspan suggested assumes that if one went to an actually pregnant woman in a nuclear power plant and said the following five things are going to happen to you if you stay in this workplace and also, for example, provided her with another comparable job that she would stay there, there is absolutely no basis for that; and in any event, if there is one woman like that in the world, we are talking about an extremely minuscule risk.

In addition and again related, Mr. Jaspan suggests that this company tried that.

Well, the fact is the company didn't try it.

Justice Posner said in his dissent below that the warning that the company gave to women was more likely to allay than to arouse concern.

I think if the Court reads that warning--

Unknown Speaker: Thank you, Ms. Berzon.

Mr. Berzon: --it would agree with that proposition.

Chief Justice Rehnquist: Your time has expired.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Price Waterhouse v. Hopkins - Oral Argument

Sun, 06 Feb 2011 03:45:07 +0000

Case:

Price Waterhouse v. Hopkins

Media File:

87-1167_19881031-argument.mp3

Related Transcript:

87-1167_19881031-argument.xml

Transcript:

ORAL ARGUMENT OF KATHRYN A. OBERLY ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-1167, Price Waterhouse v. Ann B. Hopkins.

Ms. Oberly, you may begin whenever you're ready.

Mr. Oberly: Mr. Chief Justice, and may it please the Court:

This is a challenge under Title VII of the Civil Rights Act to Price Waterhouse's decision not to make Respondent a partner in the firm.

The District Court in this case, after a five-day trial, found that Price Waterhouse had legitimate non-discriminatory reasons for that decision.

The District Court also found that Respondent failed to prove that those reasons were a pretext for discrimination.

Under this Court's Title VII decisions, including the ones that have been discussed in the last hour, those findings should have resulted in a judgment for Price Waterhouse.

But then something inexplicable happened in the District Court's reasoning.

After making the findings that should have ended the case in favor of Price Waterhouse, the District Court went on to hold that three factors, each of which was innocent by itself, somehow combined to produce a Title VII violation in this case.

None of those factors was found to be evidence of intentional discrimination, or evidence that discrimination had in fact caused Respondent any injury.

But the District Court nevertheless concluded that Price Waterhouse violated Title VII because the firm failed to take affirmative steps to purge or purify its decision-making process of an unquantifiable, unconscious, and unintentional element of sex stereotyping.

This finding of a tainted process at Price Waterhouse led the District Court to characterize the case as one involving mixed motives for the employment decision.

On that basis of the mixed motive characterization, the Court then held that it became Price Waterhouse's burden to prove, and to prove by clear and convincing evidence, that its decision would have been the same even if the process hadn't been tainted.

Unidentified Justice: As you put it, the District Court must have... if there was a mixed motive, didn't it necessarily find that one of the reasons for the refusal was, was gender based?

Mr. Oberly: Justice White, that's the part of the opinion that I frankly find inexplicable, and somewhat I like an O'Henry novel, because he first found all the factors that should have resulted in Price Waterhouse's winning this case.

He then found that he was unable to conclude what role the supposedly illegitimate motive played in the decision.

He didn't say it played a significant role.

He didn't say it played a substantial role.

He said it played an undefined role.

Unidentified Justice: Well then, I'd better wait until you tell me what the Court of Appeals did.

Mr. Oberly: I'll tell you now that the Court of Appeals affirmed it.

But I'll come back to that.

Unidentified Justice: You interpret an undefined role to mean some role?

Mr. Oberly: Yes.

Unidentified Justice: Or--

Mr. Oberly: Yes, I interpret it to mean some role.

Unidentified Justice: --Some role.

Mr. Oberly: And I also interpret, as I'll be arguing to the Court, that some role is not enough to satisfy the Plaintiff's burden in this case, that at a minimum it has to be a significant or a substantial role, and that the District Court was unable to make those findings on the record in this case.

Unidentified Justice: Well, you argue for some "but for" standard of causation?

Or are you willing to settle for a, substantial factor?

Mr. Oberly: Choosing between those labels, we argue for a "but for" standard.

But I actually think that all of the labels of causation floating around in this case, including those supplied by the Solicitor General, just add an element of confusion to what to me is a relatively straightforward question.

Unidentified Justice: Well, what, what is the liability situation in a case when there are two independently sufficient causes for a particular employer's action, either one of which would be sufficient in and of itself, and one of which is an illegitimate reason, such as racial or gender discrimination?

Mr. Oberly: Then the situation we have, Justice O'Connor, is basically who wins in the case of a tie?

Who wins if the District Court, as was the case here, is unable to decide which motive actually caused the decision?

And our position on that issue is that the answer has to be for the Defendant.

The Plaintiff brought this case, and if the Plaintiff can't prove by a preponderance of the evidence, and we don't suggest that she be held to any higher standard than preponderance, even though she would hold us to a clear and convincing standard, if she can't show by a preponderance that the discriminatory motive actually caused the result she's complaining about, then there's no sound reason either in policy or in this Court's prior precedence for holding that the employer has violated the law.

Because you have on the other side of the ledger an overwhelming proof, accepted by the District Court here, that the employer acted for legitimate reasons.

And you have throughout both the language and the legislative history of Title VII, you have starting with the language, you have Congress saying, it is only unlawful for an employer to act because of a prohibited reason.

You have the legislative history which shows that the opponents of the bill were extremely concerned that the statute was going to cut much too deeply into employers' traditional freedom to make employment decisions for any reason they wanted to, as long as it wasn't a prohibited reason.

The effect of the Court of Appeals' mixed motive analysis, which basically awards the tie to the plaintiff in a case where you can't decide what the cause was.

Unidentified Justice: Well, you tell us you don't like labels, but it seems to me we have to use labels at times in order to describe to District and trial courts what they should do, and that the answer you have just given to Justice O'Connor is that the Plaintiff must show "but for" causation.

Mr. Oberly: If we need a label, that is the answer I would give.

But I submit that for district courts and litigants to actually trying this case, or this type of case, the much simpler formulation is to say to those parties and to the Court, the question you're looking at is did the prohibitive motive make a difference?

That's the same as "but for" causation.

Unidentified Justice: Well, maybe the meaning.

Maybe the meaning, though, and maybe what lower courts have done in if there are two reasons established, one legitimate, one illegitimate, maybe the burden shifts to the employer at that stage to do something.

Mr. Oberly: That--

Unidentified Justice: Maybe not by clear and convincing evidence, but maybe to do something.

Maybe then the burden shifts to the employer.

Is that what the--

Mr. Oberly: --That is certainly what the--

Unidentified Justice: --Solicitor General is suggesting?

Mr. Oberly: --I think that's what the Solicitor General is suggesting.

It's certainly what the Court of Appeals held in this case.

We find that there are numerous problems with that approach.

The first one is before we even get to who has the burden, we have a substantive question of what is the standard of liability under Title VII.

Is it "but for" causation?

It is causation that made a difference to the outcome?

If that's the case, then this Court's Title VII decisions hold, then it always remains the plaintiff's burden.

It never shifts on the plaintiff's burden to show that she was the victim of intentional discrimination.

If she can't establish causation, in other words if she can't establish that the action she's challenging has caused by the prohibitive motive, then there's no sound reason compatible with Title VII's purposes to give the judgment to her.

So that what you're doing, one of the phrases, besides the many different causation labels floating around in this case, one of the phrases that also permeates the case is the notion that the employer in this situation is a "proven wrongdoer".

And I think that's in part the question you're asking.

But I would point out that the employer in this case is simultaneously a proven right doer, if you will.

In other words, the Court has found that the employer has acted at least as much for a legitimate motive, which Congress clearly didn't intend to punish, as it has for an illegitimate motive.

And again, I come back to it being the Plaintiff's burden to bring the ball over the 50-yard line.

If she can't, show by a preponderance of the evidence that the prohibitive motive caused the injury she's suing to redress, then it's quite unclear why you are awarding her a judgment--

Unidentified Justice: Well, there's language in a number of cases out there that it's enough to show that the discriminatory reason was a substantial factor.

Mr. Oberly: --There this, that language appears, and in this Court's cases I think it doesn't translate to the Title VII setting.

In this Court's cases it appears in two cases, the Transportation Management case and the Mt. Healthy case.

Neither of those cases dealt with either Title VII-specific language or with the legislative history of Title VII, which shows extensive Congressional debate about, on the one hand preserve, making sure that employers were not allowed to act for prohibited reasons but at the same time ensuring employers complete freedom to make employment decisions based on any other reason than a prohibited reason.

And what the Court of Appeals analysis does here by resorting to significant factor or motivating factor, as opposed to "but for" causation, is allow a plaintiff to establish liability even though the record also establishes that the employer acted for a perfectly legitimate reason.

The second problem besides the distinction between Title VII and the other two cases of this Court, which didn't address Title VII's history and language, is that Transportation Management, for example, was in my view purely an agency deference case.

The Court upheld the significant factor and then burden-shifting approach in that case, because the Board, the National Labor Relations Board, presented that to the Court as its interpretation of its own statute.

The Court simultaneously said that it would have been perfectly acceptable, and perfectly plausible and reasonable and something the Court would have upheld, had the Court, had the Board taken the position under the NLRA that we take here under Title VII.

Essentially, the Court said it was a matter for the Board's discretion, and it was unwilling to overturn the policy judgment that the Board had made in that case.

But none of that bears on how Title VII should be interpreted.

And then a final factor that makes this case quite different from Transportation Management and Mt. Healthy is that in those cases, as you've noted, at least the triggering predicate for shifting the burden was a finding that the prohibited motive was either a substantial or a significant or a motivating factor in the decision.

Here we don't even have that.

Here we have the District Court saying that at most this was an undefined... the prohibited motive played an undefined role, an unquantifiable role.

We don't have a finding that it was a significant factor.

We have the Court of Appeals saying that it was a significant factor, but the Court of Appeals wasn't the one hearing the evidence and making the findings.

Unidentified Justice: It interpreted the District Court's opinion and findings.

Mr. Oberly: One can, as I have read the District Court's opinion--

Unidentified Justice: Isn't that what the Court did, the Court of Appeals?

Mr. Oberly: --The Court of Appeals took, made findings, which is in its role, that the District Court never made.

The District Court--

Unidentified Justice: Should we, should we judge this case on the basis of, are we reviewing the Court of Appeals or the District Court?

Mr. Oberly: --You obviously are reviewing the Court of Appeals' judgment.

But to the extent that the the Court--

Unidentified Justice: And, I take it that part of what it based its judgment on was its understanding of the facts as found by the District Court that there was--

Mr. Oberly: --We're not asking--

Unidentified Justice: --That there was a mixed motive, and that there was an unacceptable, something unacceptable caused the... contributed to this refusal.

Mr. Oberly: --Contributed to, that's, Justice white, that is a significant and crucial difference between contributed to and caused the decision.

And although this starts off--

Unidentified Justice: Well, what if I put it part of the cause for the decision?

Mr. Oberly: --Part of the cause is not enough, if the decision would have been the same in any event.

Part of the cause is some factor, some role--

Unidentified Justice: So then I take it you agree that we should review the case on the basis that the Court of Appeals at least found that part of the cause was, and then you say, well, that isn't enough.

Is that what we--

Mr. Oberly: --That's correct.

It's not enough under the Court's own prior cases that have addressed similar issues under different statutes.

Or under the Constitution.

Part of the cause skips the causal link that we contend is essential between the action the Plaintiff is challenging and what actually happened to her in this case.

I'd like to back up for a moment, because although these burden of proof and burden-shifting issues are quite significant, there is in this case a fundamental threshold question of whether this even is a mixed motive case in the first place.

And before the Court wrestles with the difficult burden-shifting issues, it's quite important that it understand the consequences as applied by the Court of Appeals of attaching the mixed motive label to any particular case.

In this case, we have overwhelming evidence, accepted by the District Court, not overturned by the Court of Appeals, of a legitimate motive in Price Waterhouse's favor.

The evidence showed, the District Court found, and the Court of Appeals did not disagree, that from the very beginning of Respondent's tenure at Price Waterhouse there were significant problems in her ability to get along with staff and peers.

The evidence further shows that she was warned about those problems, that she was told she needed to correct them, that she agreed she needed to correct them.

But at the time of the partnership decision in this case she had not in fact taken any action to correct them at all.

So the issue in this case really wasn't, should Ann Hopkins be made a partner, but should Ann Hopkins either be rejected outright or placed on hold for future consideration?

We basically don't have in this case enough evidence of the type that the Court had in Transportation Management or in Mt. Healthy to characterize this as a mixed motive case.

All that we have on Respondent's side of the ledger, on the illegitimate motive side of the ledger, is a few isolated comments, virtually all of them sex neutral, virtually all of them from her supporters, that psychologist characterized as the product of stereotype thinking.

We don't in this case deny that there were a few sex-based comments about Respondent, and that those comments were probably inappropriate.

But they simply don't shed any light on the existence of a mixed motive in this case.

Unidentified Justice: --Well, Ms. Oberly, do you say that the comments by partners about women, past women candidates, and also evidence about the way in which the employer system was structured, are irrelevant to a showing of discriminatory motive?

Mr. Oberly: No, Your Honor.

They clearly would be relevant evidence.

But they don't in this case amount to supplying what's crucial, which is the causal link between the comments and the action that happened, that the firm took in the case of Ann Hopkins.

The comments come from the supporters, the comments that are criticized as stereotypes come from her supporters.

They come from men who wanted her to become a partner in this firm.

There's no linkage between those comments.

First of all, it takes a great leap of imagination to say that stereotype comments, even if inappropriate, from people who wanted her to become a partner, somehow hurt her.

And the Court of Appeals was unable to make that conclusion.

The Court of Appeals said, we can't tell that those comments hurt her.

The Court of Appeals instead took those comments of evidence, as evidence of discrimination in the process.

That we submit is discrimination in the air.

That doesn't mean that the discrimination didn't touch the plaintiff when you talk about discrimination in the air, it may well have touched the plaintiff.

But there's no causal connection between the comments and Hopkins' fate at Price Waterhouse.

Unidentified Justice: Did anybody testify to that?

Mr. Oberly: Pardon?

Unidentified Justice: Did anybody testify that that was not the policy?

Mr. Oberly: Price Waterhouse put on evidence that its policy was non-discriminatory.

Unidentified Justice: Did anybody say that those specific statements made by people in authority were not the statements of Price Waterhouse?

Mr. Oberly: The record is quite clear, Justice Marshall, that the statements that are being criticized here were not the statements of the ultimate decision makers.

Unidentified Justice: Where is that, what does the record say?

Mr. Oberly: The record shows an elaborate process, so I can't give you one page.

Unidentified Justice: The record, the record at no place says that those statements were untrue.

Mr. Oberly: You mean that they weren't made?

We agree they were made.

Unidentified Justice: That they were untrue.

Is there anything in the statement, in the record that says those statements were untrue?

Mr. Oberly: I'm not... you need to help by telling me which statements you're referring to.

Unidentified Justice: Well, was there any statement in the record that said that she didn't have to be less macho.

Mr. Oberly: I'm not aware of... there probably isn't.

But that's not the point here.

The point is that that statement--

Unidentified Justice: But it's my point, if you don't mind.

Mr. Oberly: --I understand it's your point.

But my point is that that statement was made by someone who wanted her to become a partner.

Unidentified Justice: But is there anything--

Mr. Oberly: And the statement, I would like to focus, Justice Marshall, for a minute on the negative comments, on the comments from opponents of Ann Hopkins, which are the ones that were characterized by the expert in this case as being the product of stereotype thinking.

Those comments, which reflect--

Unidentified Justice: --Is there anything that says that Price Waterhouse would consider her better if she had her hair done?

Mr. Oberly: --It's clear, Your Honor, we've covered that thoroughly in our brief, that that comment was made by her strongest supporter in the firm, after the fact, after the decision was made in this case, that however ill-advised it may have been, and I personally regard it as an inappropriate comment, but however ill-advised it may have been it was his personal reaction to her situation.

And there is no linkage between that comment and the ultimate decision made about her.

He was not the ultimate decision maker.

Unidentified Justice: Same time, practically.

Mr. Oberly: Pardon?

Unidentified Justice: It came practically at the same--

Mr. Oberly: No, it came after the decision had been made.

Unidentified Justice: --It did, but it was how long after?

Mr. Oberly: I think a matter of months.

Maybe somewhat less than that.

Unidentified Justice: Much less than that.

Isn't the point, Ms. Oberly, that the statement, although not indicating the point of, the frame of mind of the person who made the statement, is taken by your opponents as evidence of the fact that this reveals the kind of thinking that went into the decisional process and this was more or less as an explanation of how this unfortunate thing happened?

Mr. Oberly: That's certainly--

Unidentified Justice: That's their argument.

Mr. Oberly: --That's their characterization of what was happening.

But what they're confusing, I think, is the type of case she brought with an entirely different case that she didn't bring, she didn't try, that the District Court never heard, and the Court of Appeals didn't review.

And isn't before this Court either.

She brought a case challenging disparate treatment in her individual situation.

The focus of that kind of case under this Court's precedence is on the particular employment decision about her.

If she'd wanted, and this evidence is relevant, the evidence you're talking about is relevant to a different type of case.

If she'd wanted to attack the decision-making process at Price Waterhouse, there were a number of other ways she could have proceeded.

The most obvious would have been a case under Section 703(a)(2) of Title VII.

That section focuses on employment practices that deprive, or tend to deprive, employees of opportunities without limiting the focus to a specific employment decision made about the particular plaintiff bringing the suit.

If she'd brought that type of case it would have been--

Unidentified Justice: I understand that.

But supposing the case she did bring, the trier of fact was persuaded that nobody really deliberately, intentionally wanted to disfavor female applicants for partnership, but that unconsciously there was this threat of stereotype thinking that may have affected the decisional process, and in her case was critical, even though it was not deliberate.

Would she prevail or not?

Mr. Oberly: --I'd have to first tell you that that isn't our case at all.

We have no findings that this was critical.

Unidentified Justice: I understand that.

I understand that.

Mr. Oberly: And we of course don't agree that may have affected is a relevant causation standard.

But taking all that away, then it's possible that she has a cause of action.

But that's not the case, and it's not the--

Unidentified Justice: So it's not a question of the, you're not really emphasizing the intentional factor in that--

Mr. Oberly: --One of the key components of the case she brought, which is an individual plaintiff disparate treatment case, is intent.

Unidentified Justice: --Right.

Mr. Oberly: She didn't prove intent.

If she had brought the case I was describing under Section 703(a)(2), where she challenged the decision-making process at Price Waterhouse, it would not have been necessary for her to show intentional discrimination at the liability stage.

It would have been sufficient for her to establish that there was a tainted process at work, and then you would have a separate inquiry into whether she in particular or if she brought a class action any other members of class, were entitled to relief, because they themselves had been harmed by the process.

But she didn't bring a process case--

Unidentified Justice: Well, you don't deny that showing a tainted process is certainly relevant to the disparate treatment case.

Mr. Oberly: --It's relevant, but it's--

Unidentified Justice: You're just saying it's not enough to get you over the hill.

Mr. Oberly: --That's correct.

It's like, it's very much like the Court's case at the end of last term in Watson, where there was evidence of substantial racial stereotyping, which the Court said may not have been enough to prove a disparate, an intentional disparate treatment case, but may in fact have been quite relevant to proving a case under Section 703(a)(2) of disparate impact attacking the fairness of the employer's subjective decision-making process.

Plaintiff, or Respondent, could have brought that type of case here, and she, and the evidence we're talking about would have been relevant in that type of case.

We're not focusing here on simply a technical pleading defect, saying she pled the wrong subsection of the statute.

The problem is much bigger than that, because no one knew until her brief in this Court, which is the first time that Section 703(a)(2) has ever been mentioned in this litigation, that we were litigating a process case that not only focused on the employment decision about her but purported to be an indictment of Price Waterhouse's entire decision-making process.

If that type of case is to be brought, then obviously you need something that didn't happen in the District Court.

You need a focused and fair and full inquiry into the fairness of Price Waterhouse's entire decision-making process.

If she succeeds in proving, she or someone else succeeds in proving a tainted decision-making process, it may well be that at that point specific relief, such as an injunction or a declaratory judgment, might be appropriate.

But here we're talking about a plaintiff who is unable, who brings an individual disparate treatment case, who is unable to establish that the conduct she challenges actually caused the results she's complaining about, and yet she nevertheless claims that she's entitled at least to a liability judgment, and to some sort of partial relief, such as an injunction, declaratory judgment, and attorneys' fees, even though she can't make the necessary causal link.

Unidentified Justice: What do we do with the Court of Appeals' statement that Hopkins demonstrated and the District Court found that she was treated less favorably than male candidates because of her sex?

Mr. Oberly: The District Court, in fact, didn't find that.

The District Court rejected--

Unidentified Justice: I know.

But this is what the Court of Appeals says, and that's the Court of Appeals' interpretation of the District Court's findings.

And that's, that's just one of several places where the Court of Appeals says this.

Mr. Oberly: --The Court of Appeals says that repeatedly, Your Honor.

But if you're looking at the findings, they come only from the District Court.

The District Court, he expressly rejects--

Unidentified Justice: I know, but the Court of Appeals would have had to have found... was looking at the judgment below, the facts from the standpoint of whether they were clearly erroneous.

Mr. Oberly: --Well, the Court of Appeals was drawing its own legal conclusions on the same facts that the District Court said, don't support the claim you just read.

The District Court specifically rejected the notion that she had established a claim showing she was treated differently than comparably situated men.

The District Court specifically rejected a claim that, based on her introduction of statistical evidence to show that she was treated differently, that women in general were treated differently than men at Price waterhouse.

So that, to take findings which clearly are the province of the District Court and have the Court of Appeals elevate them into something that the District Court never found doesn't--

Unidentified Justice: So you suggest we make our own judgment on what the--

Mr. Oberly: --I suggest that when you're looking--

Unidentified Justice: --What the District Court said or found, I guess we're supposed to anyway.

Aren't we?

Mr. Oberly: --When you're looking for findings, you will find them in the District Court's opinion.

And for the Court of Appeals to characterize them as something other than the District Court found does not turn them into findings.

The final issue in this case, which I'll just devote a minute to and then save the minute of my time for rebuttal, is simply the Court of Appeals' error in switching the burden of persuasion, if it's to be switched at all, to Price Waterhouse by clear and convincing evidence.

Respondent makes only a half-hearted attempt to defend that portion of the Court of Appeals' judgment, and with good reason.

That standard is rarely invoked.

It's certainly, to our knowledge, never been invoked to require a defendant to disprove a plaintiff's case.

And the Court of Appeals here offered no explanation for departing from the normal preponderant standard.

And certainly that aspect of the Court of Appeals' Judgment requires reversal.

I'll save the remainder of my time.

Unidentified Justice: Thank you, Ms. Oberly.

We'll hear now from you, Mr. Heller.

ORAL ARGUMENT OF JAMES H. HELLER ON BEHALF OF THE RESPONDENT

Mr. Heller: Mr. Chief Justice, and may it please the Court:

I guess I had not expected to spend this much time on findings as I now think it's expected I should do.

This Court has so often talked about not engaging in second-guessing of the findings, and I don't think the Court of Appeals did that, even if it used slightly different language.

But the District Judge in this case did, I think, a remarkably careful job, and I think unfortunately Ms. Oberly has rather scanted what the findings say.

He found in the final order, which is on page 62 of the appendix to the petition, the discrimination caused in part a denial of this partnership.

It did so because Price Waterhouse did not protect the partnership evaluation process from stereotyped attitudes.

Before he got to that he built very carefully the reason why it took three elements to find that Price waterhouse had done this with what is the equivalent of a corporate or a firm intent.

Unidentified Justice: Do you suppose that this finding as historical fact sort of saying that is subject to the clearly erroneous standard in the Court of Appeals?

Mr. Heller: I would have thought it was subject to the clearly erroneous standard, and I will, I see very little mention of Anderson v. City of Bessemer City and Pullman v. Swint in the briefs either of the government, as a matter of fact, or of Price Waterhouse.

Yes, we have thought all along that what, what we are perhaps being assailed for, or what Judge Gesell is being assailed for, is being careful in this case, not overstating what he found, that this is a classic mixed motives case.

And unfortunately they don't subject themselves to the kind of analysis that the bean-counting approach of the government's brief seems to suggest, because there is no way that votes get counted here.

What happens is this is a process in which there is in effect a veto power in a relatively small group of objectors among the partners who comment on this, because that is what the policy committee takes note of.

And we had that from the senior partner, Joseph Connor, when we took his deposition de bene esse.

That is the decisive factor here.

Using subjective standards, collegial decision-making, which is as hard to penetrate as the kind of legislative and administrative decision making that this Court talked about in the Arlington Heights case, Price Waterhouse relies very heavily and gives great weight and leverage to the comments of these partners.

Now, the evidence that was given about what those comments mean is quite full, and it's all in the joint appendix.

Not all of it.

There are some obvious things.

There is that comment about dressing more femininely, walking more femininely, talking more femininely.

That's said by one of the two messengers in this case.

That is the messenger from the policy board in the partnership, and that's what Judge Gesell found, to Ms. Hopkins.

There is also another messenger who comes from the local office where she's being nominated to the policy board, and that was Roger Marcellin.

And he's the man who said, I have no doubt that Tom Beyer, the man who made those remarks, knew exactly what to tell her, where the problems lay.

That was in response to a question by the Judge, by the way.

But the predicate for this, "caused in part", and do think that that is really stronger than played a role or a motivating factor or a substantial factor, and I see no reason why any of those tests wouldn't work.

One could even use the definition of material in the Kungys case as a natural tendency to influence the decision.

But whatever, whatever formulation of that is used, here there was a finding that was caused in part and the predicate for that finding was a series of decisions, of statements in Judge Gesell's decision itself.

He said, although the stereotyping by individual partners may have been unconscious on their part, the maintenance of a system that gave weight to such biased criticisms was a conscious act of the partnership as a whole.

And he said then almost in the next sentence, and I'm reading at 56 and 57, the Plaintiff appears to have been a victim of emissive and subtle discrimination created by a system that made evaluations based on outmoded attitudes, that is stereotyping, determinative.

Determinative.

Hard to find a more decisive word.

And then finally, before he went on to talk about mixed motives where he said again, discrimination played a role in the employment decision.

Before he went on to say that, he said, the court finds that the policy board's decision not to admit the Plaintiff to partnership was tainted by discriminatory evaluations that were the direct result of its failure, the policy board's, to address the evident problem of sexual stereotyping in partnership evaluations.

Now, this isn't a question of the 50-yard line.

This is a question of two motives possibly playing a part, and what must the Plaintiff show.

That we thought was the first main issue in this case.

What we believe the Plaintiff must show is clearly marked by this Court's decisions.

A motivating factor, a substantial factor.

And Transportation Management, I believe, characterized Mt. Healthy as saying, played a role.

This is if anything a statute which is--

Unidentified Justice: Suppose an, suppose an employee gets his, gets reinstated on the basis of such a suit, having established that the dismissal was for a mixed motive, I assume that having won that wonderful victory the employee could thereupon immediately be re-fired for the valid reasons that, that were themselves self-sufficient.

Wouldn't that follow?

Mr. Heller: --You might... that certainly is possible.

You might have the same case again, but you might have the retaliation problem as well.

Unidentified Justice: Well, yes, but... but in theory there is, it's a hollow victory, to get reinstated and say you, the effective factor was not necessarily unlawful.

Take me back and fire me for the other effective factors, leaving out the unlawful one.

Mr. Heller: That's a little bit, I think, Justice Scalia, that's a little bit like what the findings and testimony were about whether or not a partnership price, such as Price Waterhouse, really tries to control this sort of thing.

If the courts give smart money or equitable relief because it has happened, it is not likely to happen again.

We have no thought that Price Waterhouse, like other intelligent firms in this world, doesn't learn by its past mistakes and doesn't learn that this process as it was conducting it at the time of Ms. Hopkins' candidacy is really, is really just unacceptable.

But, so I don't think, I think yes, in theory that can happen again.

There can be a serial kind of mystery or murder story going on--

Unidentified Justice: I wonder.

Do you, do you agree with the, with the bottom line in the District Court and the Court of Appeals that if the employer nevertheless said, well, this was a mixed motive case, but the lawful motive was sufficient in itself and we would have denied this person a partnership anyway, following Mt. Healthy.

Do you agree with that?

Mr. Heller: --Well, we agree that that is, we certainly agree that that is open to them.

We have said that it should be a stronger burden of proof--

Unidentified Justice: Well, nevertheless, it is open to them.

Mr. Heller: --There's no question.

Unidentified Justice: It's just not enough, it's just not enough in any particular case that it's a mixed motive case.

Mr. Heller: Oh no.

You don't win just because it's a mixed motive case.

That gets you to--

Unidentified Justice: Although there is some submissions in this case that indicate that that should be the standard.

Mr. Heller: --Well, we have not taken that position.

We tried to distinguish between the liability stage and the relief stage.

When you get to the relief stage, and 706(g) of the act we think is structured very clearly to say that, the second sentence just reeks of a defendant's responsibility to come forward and say, that's not the reason we did it.

We would have done it anyway.

The question I think there is whether it's to be clear--

Unidentified Justice: And Mt. Healthy goes to liability, doesn't it?

Mr. Heller: --No.

We think, we think in all fairness that it doesn't go to liability.

They showed liability, they showed that there were two motives.

Judge Gesell ended up saying there are two possible explanations for this, each of them may have caused it in part.

At that point we think that the wording, the policy, the intent of Title VII, the dealings of the case--

Unidentified Justice: Well, that's not what Mt. Healthy held.

Mr. Heller: --Mt. Healthy--

Unidentified Justice: Mt. Healthy said there was no Constitutional violation if the employer could show that he would have fired the person for the non-Constitutional reason.

Mr. Heller: --That, that is true, in Mt. Healthy, that that is what Mt. Healthy held.

But we think that it comes really at the remedy stage, because Title VII is very explicitly structured that way.

And that's where it should come.

That one does not simply say there are two possible factors, and therefore you lose.

This is not a football game.

Something has tended to deprive her of it.

And by the way, I don't think--

Unidentified Justice: What do you think the two courts below said, meant when they said that the employer could have shown that it would have engaged in this denial of the partnership anyway, but it didn't do it?

What do you think they meant?

Mr. Heller: --I think they meant to say, show us some standards that you've written out, some history that's clear--

Unidentified Justice: Right, right.

Well, what if, what if the employer had come back and said, and proved to the satisfaction of the Court, would it have gone to liability?

I would have supposed it would.

Mr. Heller: --I wouldn't have supposed it would, no.

It would go because 706(g) says that if you prove discrimination affected the employment decision, that is, that is grounds for some relief.

That is the first sentence.

When you get to the second sentence, it says, however, there shall be no reinstatement or back pay if you show, if there was another reason.

And that seems to me to be a very intelligent structuring of the way one deals with relief rather than liability.

Unidentified Justice: And no reinstatement.

Mr. Heller: And no reinstatement, If you make that showing by the necessary standard, which we've said should be clear and convincing.

Unidentified Justice: What about attorneys' fees?

Mr. Heller: Excuse me.

Unidentified Justice: What about attorneys' fees?

Mr. Heller: Attorneys' fees and a general injunction are declaratory judgment.

That is correct--

Unidentified Justice: Well, perhaps no attorneys' fees, if, there's only injunctive relief, says Hewitt against Helms.

Right?

Mr. Heller: --Possibly, no attorneys' fees.

But we would have though that that's a matter of, of analyzing to what extent you've succeeded on claims.

Unidentified Justice: Aren't most cases mixed motive situations, for example, even in McDonnell Douglas and Burdine, in a sense they are so-called mixed motives.

You have to decide, the trier of fact has to choose between a legitimate reason and an illicit reason.

Isn't that right?

Mr. Heller: They are all that way until you get to the third stage and the trial Judge says, I find that this was either-or, and I believe this or that.

Unidentified Justice: Well, why didn't the trial court have to make such a finding here?

Mr. Heller: Partly because of the complexity of the process that was going on here, and because I don't believe that there is anything that, in Title VII, that says you must say either-or, and this Court's decisions seem to say they're--

Unidentified Justice: Well, wouldn't wouldn't the evidence of gender stereotyping go to the question of whether the interpersonal skills criteria of the employer was a pretext, in effect?

Mr. Heller: --Well--

Unidentified Justice: Or was pretextual as applied here?

Mr. Heller: --Professor Fiske's testimony went partly to the intensity as well as the kind of comments that were being said.

Yes, it goes to it, and that's another reason, that's another reason why it could be possibly come out as a pretext case.

But it did not.

Judge Gesell found there was some grounds for that, but when he looked at the nature of the comments of a very significant number of the objectors to this candidacy, and the way they were phrased, one the intensity, calling her potentially dangerous, nobody likes her, universally disliked, he then came to a conclusion, a very careful conclusion, that there was something of both here.

Unidentified Justice: Did he ever quantify that something?

Mr. Heller: No.

That seems to me to be the government's approach, and I think it's pretty much unquantifiable.

Price Waterhouse does not run a counted vote system, and people aren't required to get up and explain their votes.

So we're back with this problem that Arlington Heights addresses.

Unidentified Justice: Well, that's pretty difficult when you combine that with Mt. Healthy.

I mean, where are we on liability?

Mr. Heller: I believe we are on liability--

Unidentified Justice: And who has what burden?

Mr. Heller: --I believe we are on liability that she had met the burden of showing that it caused, in part, or was a significant, substantial factor, a motivating factor, that there may well have been another factor.

Now the question I think is to say, how much relief, what relief, if any, is she entitled to in the circumstances.

Unidentified Justice: Do you have any support for the clear and convincing standard that the court shifted ever to the employer?

Mr. Heller: What we think the support is is the common law principles of making the person who has been found to have had at least one wrong motive disentangle from--

Unidentified Justice: Any support from any of our cases?

Mr. Heller: --I don't think there is from any of your cases--

Unidentified Justice: No.

Mr. Heller: --Any of the Court's cases in a discrimination or--

Unidentified Justice: Did the Plaintiff ever make out in the trial court a disparate impact claim under 703(a)(2)?

Mr. Heller: --No.

I think Judge Gesell's footnote, which you'll find at page 60, is quite right.

That seems to, seemed to us at the time, at least, to call for statistical proof, and I'm not sure Watson changes that.

And we did not succeed on the statistics.

So I don't think... and, but we just don't think Title VII gets boxed that way, so that 7(a)(2) is, 703(a)(2) is disparate impact and not disparate treatment as well.

In other words, the statute does not work in these nice cubby holes that way.

So what we do believe, if the clear and convincing is perhaps the one point where we think we are well out beyond the decisions of this Court, is that that is the proper solution to a case in which there is a kind of smog over a motivation now, because there have been two factors probably, and one of them is a forbidden one.

And that the employer has the records, the employer has the history, the employer has a knowledge of its own motives.

It ought to be able to make a clear and convincing case.

It should be able to do that by pointing to history, it should be able to do that by pointing to a written standard, if that's so.

But... I'm sorry, Justice White.

Unidentified Justice: Oh, I wasn't... I was thinking about something else entirely.

Mr. Heller: Oh, excuse me.

I thought I was burning you.

But that, if one says that, I also think clear and convincing says something about the kind of proof that is wanted.

We are, we are perhaps in the last analysis less concerned about the quantum than we are this Court Instructing lower courts that you've got to say something more than what, in the Teamsters it said were general affirmations of good faith.

That's not where the case is now.

You must come forward and say, we would have done this but for.

And as to 87 male candidates, not one of them could have established that they were going to become partners but for a single factor in the world.

Actually 47 did and 21 didn't.

That is the kind of impossible burden of proof that will simply extinguish Title VII suits and collegial decision making would likely, by subjective standards, would likely become a very common form of practice, because it would be impenetrable.

And that too, given the policy of the act, the history of the act, the defeat of the McClellan Amendment, with Senator Case, is a very clear statement about it.

The 1972 amendment, when this Court said that a new statute that said, any discrimination is, violates this act, and said that is assimilated to the standards under old Title VII.

All of that, we think, argues for saying, liability is not a demanding standard, or anywhere near the demanding standard that Price Waterhouse insists.

Remedy is where they may be able to show that they did something that should not have a consequence of the sort that we ask for in the complaint in this case.

If there are no other questions, I will then sit down.

Unidentified Justice: Thank your, Mr. Heller.

Ms. Oberly, you have four minutes remaining.

REBUTTAL ARGUMENT OF KATHRYN A. OBERLY ON BEHALF OF THE PETITIONER

Mr. Oberly: There are just two points I'd like to address, Your Honor.

The first is Plaintiff's contention that our position puts an impossible burden of proof on the Plaintiff in a Title VII action.

That's simply not the case.

This Court in Burdine recognized that the Plaintiff has full access to the EEOC's investigatory files, as well as to discovery in a civil case.

And this case well bears that out, because by the time this case went to trial, Plaintiff knew as much about Price Waterhouse's decision-making process as Price Waterhouse itself knobs.

She was not laboring under any handicap.

And to make her prove her case is simply not unfair.

The second point I'd like to address is Plaintiff's theory that the way to deal with this class of cases is to draw a distinction between liability and remedy.

That distinction does not work and does not make sense in the type of case Plaintiff brought, of an individual disparate treatment claim.

If she succeeds in proving causation in that type of claim, then she's entitled to full relief.

You may need to measure, you may need to have quantification on the amount of back pay.

You may need to work out the specifics of the relief.

But there's no doubt that she gets full relief.

On the other hand, it she cant, establish causation, there is no justification, and in fact there are serious Article III problems with giving her partial relief, Article III problems giving her an injunction when she's no longer there to enforce it, when she hasn't brought a class action, and there are no other women who can show that they're affected by Price Waterhouse's future conduct.

And you certainly would not give her attorneys' fees for establishing a process violation when she can't show that that process harmed her.

So that the liability/remedy dichotomy that the Plaintiff is urging the Court to adopt makes sense in a different type of Title VII case.

It makes sense in disparate impact cases, it makes sense in class action cases, it makes sense in pattern or practice cases, where the liability showing does not require the establishment of "but for" causation, and you leave to a separate remedy stage whether particular individuals have been harmed and should be the beneficiaries of specific relief, such as reinstatement or back pay.

But in her type of case, those inquiries merge into the liability determination, And if she can't get over the liability hurdle, you simply don't reach the remedial phase of the case.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Oberly.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Attribution:

The OYEZ Project

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