LECOM Primary Care 2016 CME Conference at Peek’n Peak. · EEOC vs. Abercrombie & Fitch Stores 15 6. Decision: a. Religion has favored treatment under anti-discrimination law and

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The Supreme Court in 2015Decisions That May Affect You

Richard E. Ferretti, EsquireJeffrey E. Myers, Esquire

LECOM Primary Care 2016 CME Conference at Peek’n Peak.

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The Court in 2015

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The Court in 2015Justice Home State Appointed by Philosophy

John Roberts, CJ New York Bush II Conservative

Antonin Scalia New Jersey Reagan Conservative

Anthony Kennedy California Reagan Leans Conservative

Clarence Thomas Georgia Bush I Conservative

Ruth Ginsberg New York Clinton Liberal

Stephen Breyer California Clinton Leans Liberal

Samuel Alito New Jersey Bush II Conservative

Sonia Sotomayor New York Obama Liberal

Elena Kagan New York Obama Liberal

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The Process: How does a CaseGet to the Supreme Court?

1. Original Jurisdiction: Cases involving ambassadors, consular matters or suits by one state against another.

2. Certiorari: a Latin word meaning "to be informed of, or to be made certain in regard to…”

a. This is discretionary with 100-150 cases taken out of almost 7000 submitted, on average each year;

b. Jurisdiction is appellate;c. Initiated by “Writ”;d. Must involve “important federal question”; and

Conflicts between the Circuits Courts of Appeal or between a Court of Appeals and a state Supreme Court; or

Decisions declaring a statute unconstitutional; or Decisions inconsistent with a prior decision of the Court.

http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1

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Can I Help You With That Ma’am?Young vs. United Parcel Service1. Parties and Facts.

a. Young was a part time driver for UPS. She became pregnant and her doctor put her under a 20 lbs. lifting restriction. UPS has a 70 lifting requirement and refused to accommodate Ms. Young.

b. UPS did have a policy of accommodating workers injured on the job; those with ADA disabilities; and those who lost DOT certifications. It typically did not accommodate pregnant women and refused to do so here.

c. Ms. Young was put on leave and lost her heath insurance. She sued for discrimination under the Pregnancy Discrimination Act after the EEOC issued her a “right to sue letter.”

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Can I Help You With That Ma’am?Young vs. United Parcel Service2. The Law:

a. Pregnancy is not treated as s disability under the ADA, but is protected under the Pregnancy Discrimination Act.

b. In an employment discrimination case, the plaintiff must initially make out a prima facie case:

i. The employee is in a protected class;

ii. The employee was qualified for the position held or sought;

iii. The employee loses or is rejected for the job or suffers some adverse action: and

iv. An employee(s) outside of the protected class replaces the claimant or is treated better in similar circumstances.

c. The employer then must show a legitimate, non-discriminatory reason for its action.

d. The employee has a final chance to prevail by showing that the employer’s reason is a mere pretext or not worthy of belief.

What do you think?6

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Can I Help You With That Ma’am?Young vs. United Parcel Service3. Action Below: the Federal District Court granted summary judgment for

UPS and the Fourth Circuit affirmed, finding that Young could not identify any appropriate “comparators”.

4. Issue: Did Young create a genuine issue of material fact that similarly situated non-pregnant employees were treated better than her?

5. Holding: the Court, per Justice Breyer, said “Yes she did” in a 5-4 ruling.

6. Decision:

a. The Court saw no meaningful difference between the three groups of employees that UPS chose to accommodate and Ms. Young, a pregnant, and hence protected, employee.

b. UPS tried to claim expense, convenience and a lack of precedent for “accommodating” pregnant employees. The Court found no merit in any of these.

c. Rather, the Court saw the case as a straight discrimination matter. It explicitly noted that it was not trying to change the ADA nor grant pregnancy a “most favored nation” status.

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Did you even try to do your job?Mach Mining vs. the EEOC1. Parties and Facts.

a. The EEOC sued the Petitioner for systemic sex discrimination in refusing to hire a female applicants for mining jobs.

b. Prior to suing, the EEOC had told the company that it believed that there was discrimination and offered conciliation without any specific details.

c. A year went by and nothing happened. Then, the company received a second letter stating “such conciliation efforts as are required by law have occurred and have been unsuccessful.”

d. The lawsuit followed shortly thereafter.

e. A key defense of the company was that the EEOC failed to engage in a good faith effort to resolve the case prior to filing suit.

f. The EEOC took the position that it had fulfilled its duty and its effort was not reviewable by federal court.

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Did you even try to do your job?Mach Mining vs. the EEOC2. The Law:

a. The matter was governed by Title VII of the Civil Right Act of 1964, which forbids discrimination, harassment or retaliation in connection with employment predicated on an individual’s race, color, creed, sex or national origin.

b. The EEOC is charged with conducting a pre-litigation investigation of any charge of discrimination that falls under its jurisdiction.

c. Title VII also provides: the agency first must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

3. Action Below: the district court in which the EEOC had filed suit held the agency had failed to discharge it statutory duty. The Seventh Circuit reversed holding that the agency’s actions were not even subject to review.

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Did you even try to do your job?Mach Mining vs. the EEOC4. Issues: Are the administrative actions of a federal agency, such as the EEOC,

subject to judicial review? If so, what constitutes a statutorily sufficient conciliation effort by the EEOC?

5. Held: the Court, in a unanimous decision, written by Justice Kagan, held that the EEOC’s actions are indeed reviewable and that they failed in their statutory obligations here.

6. Decision:

a. There is a “strong presumption” that in enacting laws Congress intends that there be judicial review of the actions of agencies assigned to draft regulations under the law and to enforce the laws. Why?

b. In simply sending a couple of letters and being prepared to authenticate them in court, the EEOC fell far short of its statutory duty.

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Did you even try to do your job?Mach Mining vs. the EEOC6. Decision (cont.).

c. A proper conciliation must include the following:

i. The EEOC must inform the employer about the specific discrimination allegation (s).

ii. Such notice must describe what the employer has done and which employees (or class of employees) have suffered.

iii. The EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice.

iv. “A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.”

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Don’t like her looks: show her the door!EEOC vs. Abercrombie & Fitch Stores

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1. Parties and Facts:

a. A young Muslim woman in Oklahoma applied for a job with A&F.

b. She wore a head scarf but said nothing about her religious beliefs during her interview.

c. The interviewer found the applicant fully qualified. However, the interviewer was concerned that the scarf might conflict with the company’s “Look Policy”.

d. Her district manager said it would and ordered the application to be rejected saying a head scarf is just like “a cap” which A&F employees, at least in that district, were forbidden to wear at work.

e. The woman filed a charge of discrimination . The EEOC found merit in her charge and filed suit on her behalf on a failure to accommodate theory.

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2. The Law.

a. This case deals with the implied duty to accommodate certain individuals under anti-discrimination provisions: usually in the areas of disability or religion.

b. The duty as to religion is derived from a secondary provision of Title VII, which forbids employers: “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

3. Action Below: the EEOC prevailed on summary judgement and a Judge awarded the plaintiff the audacious sum of $20,000. A & F still appealed. The Tenth Circuit reversed as the applicant had never sought an accommodation. There goes 20K!


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4. Issues: must there be an actual request for an accommodation for the duty to attach? What is the standard for finding a failure to make a religious accommodation?

5. Held: in an 8-1 decision by Justice Scalia (of all people), the Court found that a case had been made by the EEOC for a failure to accommodate and that the Tenth Circuit had misapplied the law.

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6. Decision:

a. Religion has favored treatment under anti-discrimination law and is to be broadly defined..

b. “In a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.”

c. An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

d. Title VII contains no knowledge requirement to prove violations (except in retaliation cases).

Note: Justice Scalia in issuing his decision from the bench described it as “Easy”.

What’s a Shooting Web worth?Kimble vs. Marvel Entertainment

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1. Parties and Facts.

a. This case involves patent royalty litigation between the inventor of “shooting webs” and the company that brings us Spider Man.

b. Kimble invented certain toys that related to Marvel’s Spider Man character. They were quite inventive, so much so that Marvel copied them.

c. The inventor—Kimble– sued for patent infringement and won. The parties then, as parties usually do, settled.

d. Kimble would assign the patent to Marvel for a tidy sum (500K) and a3% royalties on future sales of his toys—a tidier sum, especially since the commitment had no end date.

e. Based on a 50 year old precedent, Marvel decided to test its continuing obligation to pay royalties as the expiration date of the patent approached.

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2. The Law:a. Ownership of a patent gives the patent owner the right to exclude others

from making, using, offering for sale, selling, or importing into the United States the invention claimed in the patent. 35 U.S.C. 154(a)(1).

b. Patent rights can be assigned (sold) or licensed: use is allowed.c. What can be patented: any person with "any new and useful process,

machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” Also, designs and asexually produced plants are subject to patent.

d. Patents typically last no more than twenty years; some exceptions exist in pharmaceuticals per the Hatch-Waxman Act.

e. Conversely, contracts have a special place in American jurisprudence dating back to the Dartmouth College case of 1819: “Sanctity Of Contract” is a general idea that once parties duly enter into a contract, they must honor their obligations under that contract.

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3. Action Below: In an action for declaratory judgment by Marvel, both the District Court and the Ninth Circuit held that it would no longer have to pay Kimble royalties once the original patent expired, based on the 1964 SCOTUS decision in Brulotte vs. Thys.

4. Issue: will a precedent of the Supreme Court overcome a valid contractual commitment between two private parties?

5. Held: The Court said YES and held in favor of Marvel in a 6-3 decision authored by Justice Kagan.

6. Decision:a. Post-patent royalties are unlawful per se.b. It is important that once a patent expires that the right “to make or use the

article passes to the public.”c. The Court also put heavy weight on “stare decisis:” respect for established

judicial precedents, especially where Congress has opportunities to pass a contrary law and declines to do so.

Obamacare III:King vs. Burwell

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a. Four residents of Virginia did not want to have to purchase health insurance. They demonstrated their displeasure by challenging the propriety of ACA tax subsidies in Virginia, a state which has a federal health care Exchange. The defendant is the Secretary of HHS.

b. To help pay for costs of the individual mandate, the Affordable Care Act (aka “Obamacare”) contains subsidies and tax credits for lower income individuals and small businesses.

c. 7.3 million people, or about 62 percent of the 11.8 million people expected to enroll in federally facilitated marketplaces by 2016, could receive $36.1 billion in subsidies. Five million CHIPS beneficiaries would also be impacted.

d. Federally controlled exchanges were not envisioned when the Act passed. Now, they cover most of the nation.

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2. The Law:a. The ACA is a law of five mandates.b. One mandate is that almost all citizens must buy insurance. To facilitate

this, the Act requires the creation of an “Exchange” in each State—basically, a marketplace that allows people to compare and purchase insurance plans. The Act gives each State the opportunity to establish its own Exchange, but provides that the Federal Government will establish “such Exchange” if the State does not. 42 U. S.C. §§18031, 18041.

c. The Act also provides that tax credits “shall be allowed” for any “applicable taxpayer,” but only if the taxpayer has enrolled in an insurance plan through “an Exchange established by the State…”

d. A subsequent IRS regulation interprets the foregoing language as making tax credits available on “an Exchange… “regardless of whether the Exchange is established and operated by a State . . . or by HHS,” 45 CFR §155.20.


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3. Action Below:

a. The trial court dismissed the case. The normally conservative Fourth Circuit held that all subsidies are valid and affirmed, giving deference to the IRS interpretation.

b. Conversely, a three judge panel of the normally liberal leaning D.C. Circuit held in another case that only subsidies paid to individuals who obtain insurance through state run exchanges are valid based on the language of the ACA.

4. Issue: are subsidies and tax credits available to ACA Exchange enrollees in states with federally managed exchanges?

5. Held: Chief Justice Roberts again ruled in favor of the ACA and held that tax credits are available in states with federal exchanges, citing to the overall intent of Congress, in a 6-3 decision.

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6. The Decision:

a. Chief Justice Roberts started with the concept that statutory terms are normally to be read according to their plain meaning.

b. However, he also found that a “fundamental canon of statutory construction is that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

c. Here the court found that the fundamental purpose and scheme of the Act was to allow for three reforms: insurance reform, universal coverage, and tax credits to help pay for the coverage. All were inter-dependent as demonstrated by previous state attempts at reform that had failed.


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6. The Decision (cont.):

d. Thus, the Court held that the overall statutory scheme and the Congressional intent behind it compelled the Court to reject the interpretation of those challenging the legitimacy of subsidies for federally operated exchanges:

“Under petitioners’ reading, the Act would not work in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way, because so many individuals would be exempt from the requirement without the tax credits. If petitioners are right, therefore, only one of the Act’s three major reforms (insurance) would apply in States with a Federal Exchange.”

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What about the Exchanges?

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Who Wants to Get Married?Obergefell vs. Hodges, et. al.

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1. Parties and Facts:a. Fourteen same sex couples sued four states, Kentucky, Michigan, Ohio and

Tennessee, to have the right to be married in their home state or to have out of state same sex marriages recognized.

b. All four states had a strict definition of marriage: “a union of one man and one woman.”

2. The Law:a. In the Windsor decision two years prior, the Court had held that benefits under

federal laws may not be denied to same sex couples in states where their marriages are legal. It invalidated one provision of the Defense of Marriage Act.

b. Amendment XIV, section 1 of the US Constitution reads: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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Who Wants to Get Married?Obergefell vs. Hodges, et. al.

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3. Action Below: The couples won in numerous district court actions. All courts were in the Sixth Circuit. The Circuit Court reversed holding that the states could not be forced to recognize same sex marriages.

4. Issue: Do same sex couples have an inherent right to be married and have their marriages recognized by a state?

5. Held: the Court, in a 5-4 decision, written by Justice Kennedy, stated that “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

Who Wants to Get Married?Obergefell vs. Hodges, et. al

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6. Decision:

a. The 14th Amendment protects the fundamental liberties of all US citizens.

b. The right to marry has long been held to be a privilege of Americans as it was under the common law of England.

c. Principles that underlie the right to marry apply equally to heterosexual and same sex couples: autonomy, privacy (Griswold vs. Connecticut), family safety and sanctity and maintaining societal order.

d. Equal protection guarantees in the 14 Amendment demand that states not bar same sex marital unions.

e. Petitioners were not seeking to devalue marriage, but rather, to share in the respect, privileges and responsibilities of marriage.

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Class (Action) is OUT!DIRECTTV vs. Imburgia, et. al.

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a. This is a case between a service provider and a class of customers from the People’s Republic of California.

b. The customers sought recompense for termination fees that were allegedly invalid under state law. They sued in state court for damages.

c. Earlier they had signed a contract with DIRECTTV which had an arbitration provision that, inter alia, banned class actions.

d. The provision had some unique language, however: it rendered itself “unenforceable if the ‘law of your state’ made class-arbitration waivers unenforceable.” Conversely, the agreement also stated that the arbitration clause was governed by the Federal Arbitration Act, which favors arbitration and allows for waivers.

e. DIRECTTV sought to have the case sent to arbitration per the clause.


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2. The Law:

a. California, alone among the states of the Union, dis-favors arbitration clauses.

b. The Federal Arbitration Act states that a “written provision” in a contract providing for settle[ment] by arbitration of a controversy . . . arising out of ” that “contract . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2.

c. Two years ago in a case involving American Express, the Court held that the FAA does not permit a court to invalidate class action waivers in valid arbitration agreements.

d. The California Supreme Court had held otherwise, but it was reversed by the Supreme Court in 2011: “California’s Discover Bank rule ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ embodied in the Federal Arbitration Act. AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 352 (2011).”

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3. Action Below: the trial court denied DIRECTTV’s request for arbitration and the California appellate courts affirmed.

4. Issues: Was the California court’s refusal to allow arbitration proper? Is the decision sustainable in the face the Federal Arbitration Act?

5. Holding: the Court, per Justice Breyer, held 6-3 that the Federal Arbitration Act does control the matter and per the terms of that law there existed no “grounds as exist . . . for the revocation of any contract.” Thus, the Court reversed the decision of the California appellate court.


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6. Decision:

a. The Court reaffirmed the public policy that arbitration is a favored means of dispute resolution. Why?

b. The Court held that the Federal Arbitration Act “allows parties to an arbitration contract considerable latitude…”

c. In every case, at a minimum, arbitration clauses must be treated the same as all other contracts.

d. The self-destructive language here was of no moment, as the Supreme Court had invalidated California’s ban on class action waivers.

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What does the Future Hold?Upcoming Issues

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1. Implied certification as a theory of liability in fraud and abuse cases (certgranted in Universal Health Services vs. US).

2. Additional faith based challenges to Obamacare.

3. Transgender issues and whether sexual orientation falls under the sex discrimination provision of Title VII.

4. Wellness Programs under the ADA.

5. “Ban the box” legislation (e.g., Pa Commonwealth Court decision in Peake et al. vs. the Commonwealth).

6. Spokeo vs. Robins on the parameters of the Fair Credit Reporting Act (argument scheduled).

7. Potentially the first abortion decision since Casey, coming out of Texas (Whole Woman’s Health Center).

Takeaways1. The Court is at present drifting to the left. Maybe the last eight years are

getting to them?

2. The Court is still generally business and employer friendly.

3. The balance is delicate as seen in the number of 5-4 decisions.

4. There are, at most, two swing votes and Justice Breyer “swings” less than Kennedy and the latter seems to have gone to the left a bit.

5. Next Justice to leave may be Ginsberg. Look for a quick resignation if the Donald wins.

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Documents

LECOM Primary Care 2016 CME Conference at Peek’n Peak. · EEOC vs. Abercrombie & Fitch Stores 15 6. Decision: a. Religion has favored treatment under anti-discrimination law and