Jun.06

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Legal News: Another One Bites the Dust

There's been a fair bit of news, courtesy of the judicial branch, in the last couple of days. Much of it came from the Supreme Court; what was remarkable there was... how unremarkable the rulings are! They were mostly unanimous! Maybe the Court took pity on the country and wanted to give us a break from all the drama. Anyhow, here is a rundown of the biggest legal news (including the three most notable of the six decisions the Supremes handed down):

• SCOTUS, Part I: The case that's getting the most attention is Ames v. Ohio Youth Department, which was brought by a straight woman named Marlean Ames who said she lost a promotion and was demoted due to a bias against straight people in her workplace, and that the jobs she wanted were given to two gay men, instead. Despite the fact that the people making the hiring/promoting decisions were themselves straight, she argued that she had been unlawfully discriminated against on the basis of sexual orientation.
  
  The Sixth Circuit Court of Appeals had dismissed the suit on summary judgment, finding that she could not establish a prima facie case, the first step in a discrimination claim, without satisfying a higher evidentiary standard than is required for cases involving traditionally marginalized groups. Associate Justice Ketanji Brown Jackson, writing for a unanimous court, reversed the Sixth Circuit. The Supremes found that it is a violation of Title VII to require Ames to satisfy a higher evidentiary standard than is required of members of minority groups. "Our case law thus makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group," Jackson noted. SCOTUS remanded the case back to the Sixth Circuit to evaluate the motion for summary judgment in light of the Court's holding.
  
  Presumably, this claim will now survive summary judgment and get in front of a jury, but the plaintiff still has a long way to go to win her case. Under what's called the McDonnell Douglas burden-shifting framework, there is a three-step inquiry. The first step is whether the plaintiff can produce enough evidence to support an inference of a discriminatory motive; the second step shifts the burden to the defendant to rebut that initial showing; and the third step rests with the plaintiff to show that the asserted justification was a pretext for intentional discrimination. Obviously, that third step is the most difficult to prove—there is rarely a "smoking gun" in these situations. The SCOTUS ruling points out that the first step is not onerous: "A plaintiff may satisfy it simply by presenting evidence 'that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." All that SCOTUS said yesterday was that Title VII claims do not require members of majority groups to show more to get past that initial step.
  
  Some commenters believe this will result in more reverse-discrimination lawsuits and weaken efforts to increase diversity in the workplace. We have a different take and believe it simply creates a more uniform approach to discrimination claims across all the federal circuits under Title VII. Most circuits already apply the standard that members of majority groups do not have to meet a burden higher than those for minority groups, so we're not convinced this decision will open the floodgates to lots of white men bringing reverse discrimination claims against DEI policies. In fact, even under this less rigorous standard, it's possible Ames' case will still be thrown out. At oral argument, Ohio Solicitor General T. Elliot Gaiser said "Ames's claim would have failed regardless of the standard because she was not able to marshal evidence of anti-straight bias. Ames said in an interview that no one at the state agency made derogatory comments about her sexual orientation and she was unaware of any other instances of alleged discrimination against straight people in the department."
  
  
• SCOTUS, Part II: The Supremes also issued a decision in Catholic Charities v. Wisconsin Labor and Industry Review Commission. At issue was a Wisconsin law, which grants an exemption to the state's unemployment tax for employers that operate "primarily for religious purposes." Catholic Charities is obviously religious in nature (note the "Catholic" in the name), but the work it does is primarily secular (e.g., soup kitchens for unhomed people). So, Wisconsin denied the exemption. This despite the fact that a similar (Protestant) group, which performs many of the same functions but also proselytizes their religion, was granted the exemption.
  
  This could theoretically have been a BIG case in which SCOTUS made a BIG statement about religious groups and the extent to which they must adhere to state laws. However, the justices chose to keep things very narrow. The unanimous decision of the Court, written by Associate Justice Sonia Sotomayor, found that Catholic Charities is entitled to the exemption, and that the denial amounted to religious discrimination in violation of the First Amendment. Sotomayor held that the denial of the exemption, based on the fact that Catholic Charities USA does not engage in proselytizing, which the religion specifically prohibits, "thus grants a denominational preference by explicitly differentiating between religions based on theological practices. There may be hard calls to make in policing that rule, but this is not one" of them.
  
  
• SCOTUS, Part III: The Supremes also dismissed a suit brought by the Mexican government, one that attempts to hold gun manufacturers liable for violence committed by U.S.-made weapons. Associate Justice Elena Kagan, writing for a (once again) unanimous court, reiterated that a 2005 federal law shields the gun industry from lawsuits based on the misuse of guns by others. Congress intended to deny these types of "downstream damages" with the passage of that law, and the dismissal of the suit is consistent with the law's purpose. So, she observed, if you want the gun industry to answer for the violence caused by the weapons it makes, write your member of Congress and get the law changed.
  
  
• Another One Bites the Dust: This is actually the legal development that the headline refers to. Donald Trump tried to deny Harvard University's right to enroll foreign-born students a couple of weeks ago, Harvard had its request for an injunction filed at the start of business the next morning, and a judge granted the request about an hour later. Yesterday, it happened again, with the same judge (U.S. District Court Judge Allison D. Burroughs) extending her injunction to cover the new executive order from Trump, in addition to the previous revocation of the school's Student and Exchange Visitor Program attempted by the Department of Homeland Security. You know what they say about doing the same thing over and over and expecting different results. Maybe if next time, Trump arranges for the order to come from someone really popular, like Oprah, or Taylor Swift, or Santa Claus, it will stick.
  
  
• And Finally, an Update...: The case in front of Chief Judge of the United States District Court for the District of Columbia James Boasberg, who heard the original challenge of the CECOT detainees in El Salvador and enjoined deportations without due process and told Donald Trump to turn the planes around, is still alive and well despite SCOTUS vacating his temporary restraining order and requiring each of the detainees to bring individual habeas petitions in the district where they are being detained.
  
  As we asked at the time: Well, what about those who were already shipped out, including the men on those planes that were decidedly not turned around, and dumped in a gulag before they could bring a habeas petition? The ACLU is on the case. They filed an amended complaint in Boasberg's court to bring a class action on behalf of those men at CECOT. The government is arguing, once again, that there's nothing they can do since the men are now essentially the property of the El Salvadoran government. Boasberg is not buying it and wants to conduct an expedited fact-finding inquiry to ascertain if the U.S. government has "constructive custody" of the men, especially given Trump officials' statements, including those from Trump himself, that the U.S. does control their fate. Trump admitted to ABC News' Terry Moran, for instance, that he could get Kilmar Abrego Garcia back if he wanted to, but he just doesn't want to. Karoline Leavitt admitted that the U.S. is paying $6 million to El Salvador to detain the men; DHS Secretary Noem has said that CECOT "is one of the tools in our toolkit if you commit crimes against the American people."
  
  That's where things stood at the start of May. Earlier this week, Judge Boasberg granted the detainees being held in El Salvador class status and ruled that they were deprived of their due process rights when they were snatched up and flown out of the country without an opportunity to challenge their removal. Regrettably, he did not find that the Trump administration has constructive custody of the men such that they can be brought back to the U.S. Instead, he ordered that the government bring a proposal to him by June 11 as to how their due process rights can be provided outside the U.S. Essentially, Boasberg is saying that he has to take Trump's word for it when he says Trump has no control over the men anymore, despite the $6 million the U.S. is paying El Salvador to keep them locked up.

So, it's been a busy week. Now you know what Batman meant when he said "justice never sleeps." (L & Z)