TMGMT 418 Cases

https://www.globalcitizen.org/en/content/gender-equality-laws-quotes-ruth-bader-ginsburg/ By Leah Rodriguez Sept. 21, 2020

5 Laws Ruth Bader Ginsburg Championed to Support Gender Equality Plus inspirational quotes from the late Supreme Court Justice. The world just lost a lifelong advocate for LGBTQ+ rights, women's rights, and equality for all. US Supreme Court Justice Ruth Bader Ginsburg died from metastatic pancreas cancer complications in Washington, D.C., on Sept. 18. Ginsburg dedicated her career to ensuring that marginalized groups received justice and was known for tactfully dissenting in court. "Fight for the things that you care about, but do it in a way that will lead others to join you," she said. Ginsburg's own experiences with sexism inspired her work as a lawyer. She was one of nine women at Harvard Law School in 1956 and struggled to find a job once she graduated. Then during her time as a professor at Rutgers Law School in 1963, she learned that she was being paid less than her male colleagues. Ginsburg ended up joining an equal pay campaign at Rutgers which eventually led to a salary increase for herself and other female staff. "We are at last beginning to relegate to the history books the idea of the token woman," Ginsburg said. She went on to volunteer at the American Civil Liberties Union (ACLU) in the 1970s, where she became director of the Women's Rights Project. Ginsburg won five landmark cases on gender equality in the US Supreme Court, based on the protections of the Equal Protection Clause of the 14th Amendment. President Bill Clinton later appointed Ginsburg to the Supreme Court in 1993, making her the second female justice to serve. Here's a list of five laws Ginsburg helped pass to achieve gender equality in the US. 1. Employers cannot discriminate against employees based on gender or reproductive choices. ACLU Women's Rights Project attorney Susan Deller Ross and Ginsburg pushed to have pregnancy discrimination recognized as a form of sex discrimination, according to the ACLU. The pair is credited for helping pass the Pregnancy Discrimination Act, an amendment to Title VII in 1978 which acknowledges pregnancy discrimination as unlawful. Women are now more protected against getting fired, or not considered for a job because they are pregnant or have plans to get pregnant. Throughout the 1970s, the Women's Rights Project also fought against forced sterilizations. The procedures disproportionately impacted poor women in the South who had been told sterilization was a requirement to keep their jobs, according to the ACLU. The group advocated for federal sterilization regulations and consent requirements. "The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity," Ginsburg said during her 1993 Senate confirmation. "It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices." 2. State-funded schools must admit women. In 1996, Ginsburg led the ruling decision in the United States v. Virginia case. Until then, women had been prohibited from attending the Virginia Military Institute. Ginsburg argued that rather than create a separate women's program, they should be allowed to join the same program as men. "A gender line ... helps to keep women not on a pedestal, but in a cage," she said. 3. Women have the right to financial independence and equal benefits. Ginsburg's work paved the way for the Equal Credit Opportunity Act, which passed in1974 and allowed women to apply for bank accounts, credit cards, and mortgages without a male co-signer. She also helped ensure that women could receive the same military housing allowances as men, and women are no longer required to pay more for pension plans than men to receive the same benefits, according to the ACLU. "Feminism [is the] notion that we should each be free to develop our own talents and not be held back by man made barriers," Ginsburg said in her 2016 book "My Own Words." 4. Men are entitled to the same caregiving and Social Security rights as women. Throughout her career, Ginsburg stressed how gender equality benefits both men and women. In 1968, Ginsburg represented Charles Moritz, a man who had never been married and claimed a tax deduction for caring for his mother, according to Smithsonian Magazine. The Internal Revenue Service (IRS) denied his deduction because he was a man and unmarried. The US Court of Appeals for the Tenth Circuit ruled that the IRS had violated the Equal Protection Clause of the US Constitution and in 1971 Section 214 of the IRS Code was amended to allow individuals to claim caregiving deductions, regardless of sex. In the 1970s, Ginsburg later won two cases representing men who were not granted survivor benefits under Social Security because they were men. The case set the standards for how sex-based lawes are evaluated under the constitution. 5. Juries must include women. Up until 1979, jury duty was considered optional for women in the US. Several states argued that women should be exempt from participating due to family and household obligations. Ginsburg fought to require women to serve on juries on the basis that their civic duty should be valued the same as men's. "Women belong in all places where decisions are being made," Ginsburg told USA Today in 2009. "It shouldn't be that women are the exception."

Amendment 27 - Congressional Pay Limitation

No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened. This document is sponsored by the United States Senate on the United States Government Printing Office web site. Footnotes 1 In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court stated that it would take judicial notice of the date on which a State ratified a proposed constitutional amendment. Accordingly the Court consulted the State journals to determine the dates on which each house of the legislature of certain States ratified the Eighteenth Amendment. It, therefore, follows that the date on which the governor approved the ratification, or the date on which the secretary of state of a given State certified the ratification, or the date on which the Secretary of State of the United States received a copy of said certificate, or the date on which he proclaimed that the amendment had been ratified are not controlling. Hence, the ratification date given in the following notes is the date on which the legislature of a given State approved the particular amendment (signature by the speaker or presiding officers of both houses being considered a part of the ratification of the ''legislature''). When that date is not available, the date given is that on which it was approved by the governor or certified by the secretary of state of the particular State. In each case such fact has been noted. Except as otherwise indicated information as to ratification is based on data supplied by the Department of State. 2 Brackets enclosing an amendment number indicate that the number was not specifically assigned in the resolution proposing the amendment. It will be seen, accordingly, that only the Thirteenth, Fourteenth, Fifteenth, and Sixteenth Amendments were thus technically ratified by number. The first ten amendments along with two others that were not ratified were proposed by Congress on September 25, 1789, when they passed the Senate, having previously passed the House on September 24 (1 Annals of Congress 88, 913). They appear officially in 1 Stat. 97. Ratification was completed on December 15, 1791, when the eleventh State (Virginia) approved these amendments, there being then 14 States in the Union. The several state legislatures ratified the first ten amendments to the Constitution on the following dates: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The two amendments that then failed of ratification prescribed the ratio of representation to population in the House, and specified that no law varying the compensation of members of Congress should be effective until after an intervening election of Representatives. The first was ratified by ten States (one short of the requisite number) and the second, by six States; subsequently, this second proposal was taken up by the States in the period 1980-1992 and was proclaimed as ratified as of May 7, 1992. Connecticut, Georgia, and Massachusetts ratified the first ten amendments in 1939. 3 The Eleventh Amendment was proposed by Congress on March 4, 1794, when it passed the House, 4 Annals of Congress 477, 478, having previously passed the Senate on January 14, Id., 30, 31. It appears officially in 1 Stat. 402. Ratification was completed on February 7, 1795, when the twelfth State (North Carolina) approved the amendment, there being then 15 States in the Union. Official announcement of ratification was not made until January 8, 1798, when President John Adams in a message to Congress stated that the Eleventh Amendment had been adopted by three-fourths of the States and that it ''may now be deemed to be a part of the Constitution.'' In the interim South Carolina had ratified, and Tennessee had been admitted into the Union as the sixteenth State. The several state legislatures ratified the Eleventh Amendment on the following dates: New York, March 27, 1794; Rhode Island, March 31, 1794; Connecticut, May 8, 1794; New Hampshire, June 16, 1794; Massachusetts, June 26, 1794; Vermont, between October 9 and November 9, 1794; Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7, 1794; Maryland, December 26, 1794; Delaware, January 23, 1795; North Carolina, February 7, 1795; South Carolina, December 4, 1797. 4 The Twelfth Amendment was proposed by Congress on December 9, 1803, when it passed the House, 13 Annals of Congress 775, 776, having previously passed the Senate on December 2. Id., 209. It was not signed by the presiding officers of the House and Senate until December 12. It appears officially in 2 Stat. 306. Ratification was probably completed on June 15, 1804, when the legislature of the thirteenth State (New Hampshire) approved the amendment, there being then 17 States in the Union. The Governor of New Hampshire, however, vetoed this act of the legislature on June 20, and the act failed to pass again by two- thirds vote then required by the state constitution. Inasmuch as Article V of the Federal Constitution specifies that amendments shall become effective ''when ratified by legislatures of three-fourths of the several States or by conventions in three-fourths thereof,'' it has been generally believed that an approval or veto by a governor is without significance. If the ratification by New Hampshire be deemed ineffective, then the amendment became operative by Tennessee's ratification on July 27, 1804. On September 25, 1804, in a circular letter to the Governors of the several States, Secretary of State Madison declared the amendment ratified by three-fourths of the States. The several state legislatures ratified the Twelfth Amendment on the following dates: North Carolina, December 22, 1803; Maryland, December 24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and December 30, 1803; Virginia, between December 20, 1803 and February 3, 1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, between February 27 and March 12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July 27, 1804. The amendment was rejected by Delaware on January 18, 1804, and by Connecticut at its session begun May 10, 1804. Massachusetts ratified this amendment in 1961. 5 The Thirteenth Amendment was proposed by Congress on January 31, 1865, when it passed the House, Cong. Globe (38th Cong., 2d Sess.) 531, having previously passed the Senate on April 8, 1964. Id. (38th cong., 1st Sess.), 1940. It appears officially in 13 Stat. 567 under the date of February 1, 1865. Ratification was completed on December 6, 1865, when the legislature of the twenty-seventh State (Georgia) approved the amendment, there being then 36 States in the Union. On December 18, 1865, Secretary of State Seward certified that the Thirteenth Amendment had become a part of the Constitution, 13 Stat. 774. The several state legislatures ratified the Thirteenth Amendment on the following dates: Illinois, February 1, 1865; Rhode Island, February 2, 1865; Michigan, February 2, 1865; Maryland, February 3, 1865; New York, February 3, 1865; West Virginia, February 3, 1865; Missouri, February 6, 1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts, February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9, 1865; Ohio, February 10, 1865; Louisiana, February 15 or 16, 1865; Indiana, February 16, 1865; Nevada, February 16, 1865; Minnesota, February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865 (date on which it was ''approved'' by Governor); Tennessee, April 7, 1865; Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire, June 30, 1865; South Carolina, November 13, 1865; Alabama, December 2, 1865 (date on which it was ''approved'' by Provisional Governor); North Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, December 11, 1865; California, December 15, 1865; Florida, December 28, 1865 (Florida again ratified this amendment on June 9, 1868, upon its adoption of a new constitution); Iowa, January 17, 1866; New Jersey, January 23, 1866 (after having rejected the amendment on March 16, 1865); Texas, February 17, 1870; Delaware, February 12, 1901 (after having rejected the amendment on February 8, 1865). The amendment was rejected by Kentucky on February 24, 1865, and by Mississippi on December 2, 1865. 6 The Fourteenth Amendment was proposed by Congress on June 13, 1866, when it passed the House, Cong. Globe (39th Cong., 1st Sess.) 3148, 3149, having previously passed the Senate on June 8. Id., 3042. It appears officially in 14 Stat. 358 under date of June 16, 1866. Ratification was probably completed on July 9, 1868, when the legislature of the twenty-eighth State (South Carolina or Louisiana) approved the amendment, there being then 37 States in the Union. However, Ohio and New Jersey had prior to that date ''withdrawn'' their earlier assent to this amendment. Accordingly, Secretary of State Seward on July 20, 1868, certified that the amendment had become a part of the Constitution if the said withdrawals were ineffective. 15 Stat. 706-707. Congress on July 21, 1868, passed a joint resolution declaring the amendment a part of the Constitution and directing the Secretary to promulgate it as such. On July 28, 1868, Secretary Seward certified without reservation that the amendment was a part of the Constitution. In the interim, two other States, Alabama on July 13 and Georgia on July 21, 1868, had added their ratifications. The several state legislatures ratified the Fourteenth Amendment on the following dates: Connecticut, June 30, 1866; New Hampshire, July 7, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (the New Jersey Legislature on February 20, 1868 ''withdrew'' its consent to the ratification; the Governor vetoed that bill on March 5, 1868; and it was repassed over his veto on March 24, 1868); Oregon, September 19, 1866 (Oregon ''withdrew'' its consent on October 15, 1868); Vermont, October 30, 1866; New York, January 10, 1867; Ohio, January 11, 1867 (Ohio ''withdrew'' its consent on January 15, 1868); Illinois, January 15, 1867; West Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas, January 17, 1867; Minnesota, January 17, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 26, 1867 (date on which it was certified by the Missouri secretary of state); Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867; Wisconsin, February 13, 1867 (actually passed February 7, but not signed by legislative officers until February 13); Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 9, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 2, 1868 (after having rejected the amendment on December 13, 1866); Louisiana, July 9, 1868 (after having rejected the amendment on February 6, 1867); South Carolina, July 8, 1868 (after having rejected the amendment on December 20, 1866); Alabama, July 13, 1868 (date on which it was ''approved'' by the Governor); Georgia, July 21, 1868 (after having rejected the amendment on November 9, 1866--Georgia ratified again on February 2, 1870); Virginia, October 8, 1869 (after having rejected the amendment on January 9, 1867); Mississippi, January 17, 1870; Texas, February 18, 1870 (after having rejected the amendment on October 27, 1866); Delaware, February 12, 1901 (after having rejected the amendment on February 7, 1867). The amendment was rejected (and not subsequently ratified) by Kentucky on January 8, 1867. Maryland and California ratified this amendment in 1959.

Amendment 24 - Abolition of the Poll Tax Qualification in Federal Elections

Section. 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment 20 - Commencement of the Terms of President, Vice President, and Members of Congress

Section. 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Sec. 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Sec. 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Sec. 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Sec. 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Sec. 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Amendment 11 - Suits Against States3

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

http://case.lawmemo.com/us/vance.pdf OCTOBER TERM, 2012 Syllabus NOTE: Where it is feasible, a syllabus (head note) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus VANCE v. BALL STATE UNIVERSITY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 11-556. Argued November 26, 2012—Decided June 24, 2013

Under Title VII, an employer's liability for workplace harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a "supervisor," however, different rules apply. If the supervisor's harassment culminates in a tangible employment action (i.e., "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that(1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765. Petitioner Vance, an African-American woman, sued her employer, Ball State University (BSU) alleging that a fellow employee, Saundra Davis, created a racially hostile work environment in violation of Title VII. The District Court granted summary judgment to BSU. It held that BSU was not vicariously liable for Davis' alleged actions be-cause Davis, who could not take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed. Held: An employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim. Pp. 9-30.(a) Petitioner errs in relying on the meaning of "supervisor" in general usage and in other legal contexts because the term has varying meanings both in colloquial usage and in the law. In any event, Congress did not use the term "supervisor" in Title VII, and the way to understand the term's meaning for present purposes is to consider the interpretation that best fits within the highly structured frame-work adopted in Faragher and Ellerth. Pp. 10-14.(b) Petitioner misreads Faragher and Ellerth in claiming that those cases support an expansive definition of "supervisor" because, in her view, at least some of the alleged harassers in those cases, whom the Court treated as supervisors, lacked the authority that the Seventh Circuit's definition demands. In Ellerth, there was no question that the alleged harasser, who hired and promoted his victim, was a supervisor. And in Faragher, the parties never disputed the characterization of the alleged harassers as supervisors, so the question simply was not before the Court. Pp. 14-18.(c) The answer to the question presented in this case is implicit in the characteristics of the framework that the Court adopted in Ellerth and Faragher, which draws a sharp line between co-workers and supervisors and implies that the authority to take tangible employment actions is the defining characteristic of a supervisor. Ellerth, supra, at 762. The interpretation of the concept of a supervisor adopted today is one that can be readily applied. An alleged harasser's supervisor status will often be capable of being discerned before (or soon after) litigation commences and is likely to be resolved as a matter of law be-fore trial. By contrast, the vagueness of the EEOC's standard would impede the resolution of the issue before trial, possibly requiring the jury to be instructed on two very different paths of analysis, depending on whether it finds the alleged harasser to be a supervisor or merely a co-worker.This approach will not leave employees unprotected against harassment by co-workers who possess some authority to assign daily tasks. In such cases, a victim can prevail simply by showing that the employer was negligent in permitting the harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor in determining negligence. Pp. 18-25.(d) The definition adopted today accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments. Petitioner fears that employers will at-tempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions, but a broad definition of "supervisor" is not necessary to guard against that concern. Pp. 25-26. 646 F. 3d 461, affirmed. ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. I turn now to the case before us. Maetta Vance worked as substitute server and part-time catering assistant for Ball State University's Banquet and Catering Division.During the period in question, she alleged, Saundra Davis,a catering specialist, and other Ball State employees subjected her to a racially hostile work environment. Applying controlling Circuit precedent, the District Court and Seventh Circuit concluded that Davis was not Vance's supervisor, and reviewed Ball State's liability for her conduct under a negligence standard. 646 F. 3d 461, 470- 471 (2011); App. to Pet. for Cert. 53a-55a, 59a-60a. Because I would hold that the Seventh Circuit erred in restricting supervisor status to employees formally empowered to take tangible employment actions, I would remand for application of the proper standard to Vance's claim.On this record, however, there is cause to anticipate that Davis would not qualify as Vance's supervisor.8 Supervisor status is based on "job function rather than job title," and depends on "specific facts" about the working relationship. EEOC Guidance 405:7654. See supra, at 13. Vance has adduced scant evidence that Davis con-trolled the conditions of her daily work. Vance stated in an affidavit that the general manager of the Catering Division, Bill Kimes, was charged with "overall supervision in the kitchen," including "reassign[ing] people to perform different tasks," and "control[ling] the schedule."App. 431. The chef, Shannon Fultz, assigned tasks by preparing "prep lists" of daily duties. Id., at 277-279, 427. There is no allegation that Davis had a hand in creating these prep lists, nor is there any indication that, in fact,Davis otherwise controlled the particulars of Vance's workday. Vance herself testified that she did not know whether Davis was her supervisor. Id., at 198. True, Davis' job description listed among her responsi-bilities "[l]ead[ing] and direct[ing] kitchen part-time,substitute, and student employee helpers via demonstration, coaching, and overseeing their work." Id., at 13. And another employee testified to believing that Davis was "a supervisor." Id., at 386. But because the supervisor-status inquiry should focus on substance, not labels or paper descriptions, it is doubtful that this slim evidence would enable Vance to survive a motion for summary judgment. Nevertheless, I would leave it to the Seventh Circuit to decide, under the proper standard for supervisory status, what impact, if any, Davis' job description and the co-worker's statement should have on the determination of Davis' status. V Regrettably, the Court has seized upon Vance's thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII's protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII. Congress has, in the recent past, intervened to correct this Court's wayward interpretations of Title VII. See Lilly Led better Fair Pay Act of 2009, 123 Stat. 5, superseding Led better v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007). See also Civil Rights Act of 1991, 105 Stat.1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755 (1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). The ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment theCourt weakens today. * * * For the reasons stated, I would reverse the judgment of the Seventh Circuit and remand the case for application of the proper standard for determining who qualifies as a supervisor.

When both laws (ADA & FMLA) could apply

When both laws could apply Generally, public sector employers and private business employers with more than 50 workers are covered under both the ADA and FMLA. Employees in these workplaces can have rights under both laws if they meet the definition of "disability" (ADA) and "serious health condition" (FMLA). Workers who have used up FMLA leave can still have rights under the ADA if they meet the ADA definition of a person with a disability. Accommodation is one such right. Additional leave (beyond the worker's FMLA leave) could be an accommodation that must be provided under the ADA.

OCTOBER TERM, 2019 SUPREME COURT OF THE UNITED STATES Syllabus BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 17-1618. Argued October 8, 2019—Decided June 15, 2020*

(Slip Opinion)OCTOBER TERM, 2019 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 17-1618. Argued October 8, 2019—Decided June 15, 2020* In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Geor-gia, fired Gerald Bostock for conduct "unbecoming" a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Ste-phens, who presented as a male when she was hired, after she in-formed her employer that she planned to "live and work full-time as a woman." Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock's suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4-33. (a) Title VII makes it "unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, re-ligion, sex, or national origin." 42 U. S. C. §2000e-2(a)(1). The straightforward application of Title VII's terms interpreted in accord with their ordinary public meaning at the time of their enactment re-solves these cases. Pp. 4-12.(1) The parties concede that the term "sex" in 1964 referred to the biological distinctions between male and female. And "the ordinarymeaning of 'because of' is 'by reason of' or 'on account of,' " University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability justby citing some other factor that contributed to its challenged employ-ment action. The term "discriminate" meant "[t]o make a difference in treatment or favor (of one as compared with others)." Webster's New International Dictionary 745. In so-called "disparate treatment" cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute's repeated use of the term "indi-vidual" means that the focus is on "[a] particular being as distin-guished from a class." Webster's New International Dictionary, at 1267. Pp. 4-9.(2) These terms generate the following rule: An employer violatesTitle VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plain-tiff's sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgenderstatus requires an employer to intentionally treat individual employ-ees differently because of their sex, an employer who intentionally pe-nalizes an employee for being homosexual or transgender also violatesTitle VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmak-ing. Pp. 9-12.(b) Three leading precedents confirm what the statute's plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a com-pany was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also de-pended on being a parent of young children and the fact that the com-pany favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer's policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstand-ing the policy's evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex. The lessons these cases hold are instructive here. First, it is irrele-vant what an employer might call its discriminatory practice, how oth-ers might label it, or what else might motivate it. In Manhart, the employer might have called its rule a "life expectancy" adjustment, andin Phillips, the employer could have accurately spoken of its policy as one based on "motherhood." But such labels and additional intentions or motivations did not make a difference there, and they cannot makea difference here. When an employer fires an employee for being ho-mosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff'ssex need not be the sole or primary cause of the employer's adverseaction. In Phillips, Manhart, and Oncale, the employer easily couldhave pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff's attrac-tion to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer's decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intention-ally fires an individual homosexual or transgender employee in partbecause of that individual's sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12-15. (c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even in-tentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court's precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15-33.(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired forbeing gay or transgender and not because of sex. But conversational conventions do not control Title VII's legal analysis, which asks simplywhether sex is a but-for cause. Nor is it a defense to insist that inten-tional discrimination based on homosexuality or transgender status isnot intentional discrimination based on sex. An employer who discrim-inates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individualwithout learning that person's sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employ-ers also stress that homosexuality and transgender status are distinctconcepts from sex, and that if Congress wanted to address these mat-ters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that be-cause the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argu-ment unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII,a suggestion at odds with the statute. Pp. 16-23.(2) The employers contend that few in 1964 would have expectedTitle VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII's terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoptionor might mean something different in another context, the employersdo not seek to use historical sources to illustrate that the meaning of any of Title VII's language has changed since 1964 or that the statute'sterms ordinarily carried some missed message. Instead, they seem tosay when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to en-force the law's plain terms in the meantime. This Court has long re-jected that sort of reasoning. And the employers' new framing mayonly add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, sug-gesting that the Court proceed without the law's guidance to do whatit thinks best. That is an invitation that no court should ever take up. Pp. 23-33. No. 17-1618, 723 Fed. Appx. 964, reversed and remanded; No. 17-1623,883 F. 3d 100, and No. 18-107, 884 F. 3d 560, affirmed. GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion. *Together with No. 17-1623, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18-107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Op-portunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit. Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist, J., dissenting). I have the greatest, and unyielding, respect for my col-leagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public un-derstandably becomes confused about who the policymak-ers really are in our system of separated powers, and inev-itably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on per-sonal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome. * * * In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. After all, even back in 2007—a veritable life-time ago in American attitudes about sexual orientation—the House voted 235 to 184 to prohibit sexual orientation discrimination in employment. H. R. 3685, 110th Cong., 1st Sess. In 2013, the Senate overwhelmingly approved a sim-ilar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orienta-tion. H. R. 5, 116th Cong., 1st Sess. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebra-tory Presidential signing ceremony in the East Room or on the South Lawn. It is true that meaningful legislative action takes time—often too much time, especially in the unwieldy morass on Capitol Hill. But the Constitution does not put the Legis-lative Branch in the "position of a television quiz show con-testant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solu-tion." Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). The proper role of the Judi-ciary in statutory interpretation cases is "to apply, not amend, the work of the People's representatives," even when the judges might think that "Congress should reenter the field and alter the judgments it made in the past." Hen-son, 582 U. S., at ___-___ (slip op., at 10-11). Instead of a hard-earned victory won through the demo-cratic process, today's victory is brought about by judicial dictate—judges latching on to a novel form of living literal-ism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court's ruling "comes at a great cost to repre-sentative self-government." Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). And the implications of this Court's usurpation of the legislative process will likely reverberate in unpredictable ways for years to come. Notwithstanding my concern about the Court's trans-gression of the Constitution's separation of powers, it is ap-propriate to acknowledge the important victory achieved to-day by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have ex-hibited extraordinary vision, tenacity, and grit—battling of-ten steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result. Un-der the Constitution's separation of powers, however, I be-lieve that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment.

Amendment 6 - Rights of Accused in Criminal Prosecutions

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

https://www.law.cornell.edu/supct/cert/17-1618 Bostock v. Clayton County, Georgia

Issues Does employment discrimination on the basis of an employee's sexual orientation constitute a form of sex discrimination prohibited by Title VII of the Civil Rights Act? Oral argument: October 8, 2019 Court below: United States Court of Appeals for the Second Circuit This case consolidates two lawsuits, each containing a claim by an employee alleging that he was terminated by his employer because of his sexual orientation. These employees argue that Title VII of the Civil Rights Act, which proscribes discrimination "because of . . . sex," inherently prohibits sexual orientation discrimination because one's sexual orientation necessarily depends on one's sex. To further support this argument, the employees contend that Title VII's plain language, statutory and judicial history, and other provisions all support interpreting the statute to prohibit discrimination on the basis of sexual orientation. The employers counter that the plain meaning of "because of . . . sex" at the time of Title VII's enactment, and courts' reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. The case's outcome will have heavy implications for LGBT workers and business' bottom lines. Questions as Framed for the Court by the Parties Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination "because of . . . sex" within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. Facts This case consolidates two cases: the first brought by Gerald Lynn Bostock ("Bostock") and the second by Altitude Express, Inc. and Raymond Maynard (collectively "Altitude Express"). In Bostock v. Clayton County, Georgia, Gerald Lynn Bostock—a gay man—worked for Clayton County, Georgia ("Clayton County") as a Child Welfare Services Coordinator at the Juvenile Court of Clayton County. Bostock began participating in the Hotlanta Softball League—a gay recreational softball league. Bostock alleges that powerful individuals in Clayton County publicly criticized his participation in the softball league and his sexual orientation, including defamatory comments made during a Clayton County Advisory Board Meeting. After a few months, Clayton County conducted an internal audit on Bostock's program. Clayton County subsequently terminated Bostock, stating that his conduct was "unbecoming of a County employee." Bostock sued Clayton County arguing that he was fired because of his sexual orientation, which violated Title VII of the Civil Rights Act of 1964. Bostock later amended his complaint to include a claim for sex discrimination based on his failure to obey a sex stereotype. Clayton County moved to dismiss Bostock's claim arguing that Title VII does not cover sexual orientation. The United States District Court for the Northern District of Georgia granted the County's motion and dismissed Bostock's complaint. Bostock then appealed to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit affirmed the District Court's decision under the prior panel precedent rule—where a court chooses to abide by its past reasoning even though it now disagrees with it. Bostock appealed the Eleventh Circuit's holding to the Supreme Court. In Altitude Express, Inc. v. Zarda, Donald Zarda, a gay man, worked at Altitude Express Inc. as a skydiving instructor. To alleviate any concerns that female clients might have about being strapped to a male instructor during tandem skydives, Zarda sometimes informed female clients about his sexual orientation. On one occasion, a female client claimed that Zarda inappropriately touched her and only told her about his sexual orientation to excuse his behavior. Altitude Express fired Zarda after the client's boyfriend reported the incident to Zarda's boss. Zarda sued in the United States District Court of the Eastern District of New York alleging that his termination violated Title VII and New York law. The District Court granted Altitude Express's motion for summary judgment on Zarda's Title VII claim and denied the motion on Zarda's state-law claim. Zarda appealed the District Court's ruling to the United States Court of Appeals for the Second Circuit which overruled the summary-judgement decision and held that the action could proceed. Altitude Express then appealed the Court of Appeals' ruling to the Supreme Court. Analysis TITLE VII'S PLAIN LANGUAGE MEANING OF "SEX" Bostock asserts that the plain language of Title VII's clause "because . . . of sex" prohibits sexual orientation discrimination because it is a form of sex discrimination. Bostock argues that an employer must first ascertain an employee's sex before determining the employee's sexual orientation. Therefore, Bostock contends that any discrimination based on sexual orientation inherently relies on a consideration of sex which Title VII prohibits. Bostock also asserts that discrimination based on an employee's association with a person of the same sex is a form of sex discrimination.According to Bostock, when an employer discriminates against an employee for associating with a person of the same sex, the employer is effectively discriminating against the employee because of the employee's sex. Bostock further contends that discrimination against an employee for declining to abide by sex stereotypes amounts to sex discrimination. For example, Zarda emphasizes that an employer who discriminates against an employee for not being attracted to members of the opposite sex engages in sex discrimination because it discriminates against the employee for failing to have a sex-based trait. Clayton County counters that the original public meaning of "because . . . of sex" only prohibits discrimination on the basis of sex, not sexual orientation. Clayton County asserts that the interpretation of sex must be based on a common, ordinary understanding of the term as Congress would have read it at the time that Title VII was enacted, in 1964. Additionally, Altitude Express argues that otherwise the Court would be rewriting the statute, a task that should be exclusively within Congress's purview. Accordingly, Clayton County contends that the Court should interpret Title VII based on the public's understanding at the time that it was originally enacted in 1964, rather than rely on a present-day interpretation. Consequently, Clayton County argues that at the time of Title VII's enactment in 1964, sex was commonly understood as the trait of being male or female and did not refer to sexual orientation. Even if the Supreme Court were to rule on the meaning of sex based on a present-day interpretation, Clayton County asserts that the meaning of sex in 1964 has retained the same meaning that it has today. Moreover, Clayton County rejects Bostock's argument that sexual-orientation discrimination depends on an employee's sex and is thus prohibited by Title VII because sex and sexual orientation are distinct terms and are not commonly conflated with one another. Furthermore, since sex is listed alongside other traits and characteristics in Title VII—race, color, religion, and national origin—rather than behaviors, Clayton County maintains that Title VII only prohibits discrimination on the basis of a sex-based trait—being male or female—rather than sexuality. TITLE VII'S STATUTORY HISTORY AND CONTEXT Bostock contends that Title VII's statutory history and context indicate that the clause "because . . . of sex" prohibits discrimination on the basis of sexual orientation. Bostock explains that Congress's understanding of "because . . . of sex" has evolved over time, first in 1978 after it passed the Pregnancy Discrimination Act in response to the courts' narrow interpretation of Title VII, and again when it amended Title VII in 1991 to reflect the Supreme Court's broader interpretation of the relevant language. Specifically, Bostock argues that before 1991 the Supreme Court had previously held in a string of cases that discrimination "because . . . of sex" encompassed more than the statute's explicit types of discrimination, and Congress implicitly incorporated those rulings by not altering the relevant language of the Civil Rights Act of 1991. Additionally, Zarda asserts that Title VII goes beyond what Congress originally contemplated in 1964 as discrimination "because . . . of sex," especially in light of the Court's decision in Oncale v. Sundowner Offshore Services, Inc. to extend sex-based discrimination to include other "reasonably comparable evils."Moreover, Bostock notes that the Oncale decision was in line with the Supreme Court's trend of interpreting statutory language more broadly than Congress's original understanding at the time of enactment. Clayton County argues that Title VII's statutory and judicial history suggests that the Court should interpret Title VII consistent with the original public meaning of sex. Altitude Express also asserts that Title VII's original public meaning of sex was to prevent the disparate treatment of men and women, not to forbid sexual-orientation discrimination. Additionally, Clayton County contends that the Oncale decision reaffirmed Title VII's original public meaning: to prohibit disadvantageous employment conditions for one sex. Furthermore, Clayton County argues that Bostock's line of cases do not support interpreting sex more broadly, but instead affirm Title VII's original meaning. For example, it stresses that none of these cases involved sexual-orientation discrimination, but rather instances of unequal treatment because the employee was male or female. CONSISTENCY OF THE BROADER STATUTE Bostock asserts that interpreting Title VII to not cover sexual orientation discrimination would conflict with § 2000e-2(m) in Title VII which prohibits employment practices motivated by both legitimate and illegitimate considerations, including race, color, religion, sex, or national origin. Specifically, Bostock explains that because sexual orientation is dependent on sex, a decision discriminating based on sexual orientation involves an illegitimate motive—an employee's sex—violating § 2000e-2(m). Thus, Bostock argues that it would be inconsistent for Title VII to contain both § 2000e-2(m) prohibiting employment practices that consider sexual orientation and § 2000e-2(a) language "because . . . of sex" allowing for sexual-orientation discrimination in the workplace. Additionally, Zarda contends that because sexual-orientation discrimination is a subset of sex discrimination, the two are sometimes confused. Similarly, Bostock asserts that courts have produced confusing and conflicting decisions because they struggle to distinguish between sex-motivated decisions and sexual-orientation discrimination. Bostock explains that the resulting Title VII jurisprudence has led to unpredictable court decisions and invasions of privacy when determining employees' sexual orientation—both of which were likely not Congress' intended outcomes. Clayton County counters that there is no clash between § 2000e-2(a) and § 2000e-2(m). It stresses that the § 2000e-2(m) provision—which proscribes employment decisions motivated in part by sex—determines the extent to which discrimination was based on sex, not the means to define sex discrimination. In support of this argument, Altitude Express argues that § 2000e-2(m) does not define what is encompassed in sex-based discrimination, but rather establishes a causation standard regarding which types of motives qualify as impermissible sex discrimination. Clayton County asserts that because sexual-orientation discrimination does not depend on sex, sexual orientation is not an illegitimate consideration, and therefore does not violate § 2000e-2(m). Furthermore, Clayton County argues that interpreting Title VII to permit sexual-orientation discrimination is workable for lower courts' analysis and decision-making. According to Clayton County, the confusion around the distinction between sex-stereotype discrimination and sexual-orientation discrimination stemmed from the lower courts' misapplication of past Supreme Court cases. Clayton County notes that despite the lower courts' confusion, the proper remedy is disseminating further guidance to those courts, not reinterpreting Title VII to forbid sexual-orientation discrimination. Discussion BUSINESS CONCERNS In support of Bostock, 206 Businesses from diverse sectors of the national and local economy ("Businesses") assert that excluding sexual orientation from Title VII's protection against sex discrimination would impair national business interests. Businesses contend that workforce diversity is beneficial to U.S. businesses because it encourages creativity and innovation in the workplace, which improves businesses' connection with consumers, enhances employee work performance, and generates greater financial outcomes. The Southern Poverty Law Center and other organizations ("SPLC") further maintain that LGBT people still encounter grave workplace discrimination. The SPLC argues that without Title VII's protections, LGBT employees will encounter unemployment, leading to individual harms such as decreased income, barriers to accessing healthcare, and worsening health, as well as broader societal harms. Likewise, Businesses assert that the failure to include sexual orientation discrimination under Title VII's protections would cause LGBT employees to conceal their sexual orientation, which would likely worsen their health and prevent them from performing effectively in the workplace. Thus, Businesses contend that the exclusion of sexual-orientation discrimination from Title VII's protections harms businesses' bottom lines and overall economic growth. Business Organizations, in support of Clayton County, counter that newly interpreting Title VII to include sexual-orientation discrimination disregards the considerations Congress may have made for businesses at the time that it passed this legislation. Business Organizations argue that Congress is best situated to investigate and evaluate the facts and concerns presented by businesses, a function that is beyond the judiciary's capacity. Additionally, Business Organizations assert that including sexual-orientation discrimination under Title VII's protections would create a range of complex issues that the Court is not equipped to address and would complicate the ability of employers to effectively comply with the law.The H.T. Hackney Co. ("Hackney") affirms this idea and asserts that overturning the Court's 55 years of uniform interpretation of Title VII is an unjust deprival of companies' due process and prevents them from relying on the legislation. For example, Hackney explains that reinterpreting Title VII to include sexual orientation would render their health insurance's definition of marriage—based on sexual orientation—unlawful and thus would subject the company to unanticipated liability. SAFEGUARDING LGBT INTERESTS The SPLC, in support of Bostock, argues that LGBT workers will be harmed without Title VII protections. It asserts that approximately 47% of LGBT workers have been discriminated against on account of their sexual orientation or transgender status. Moreover, it notes that 37% of lesbian and gay individuals and 90% of transgender individuals have experienced workplace harassment. The American Bar Association ("ABA") affirms these statistics and points to a recent study indicating that one in five LGBTQ individuals have been discriminated against while seeking a job, equal pay, or a promotion. The ABA asserts that LGBT individuals are subject to intense discrimination because there is no explicit national protection. For example, it explains that of the 8.1 million LGBT workers in the United States, approximately half live in states that have no express legislation protecting them. The State of Tennessee et al. ("Tennessee"), in support of Clayton County, counters that Title VII does not protect against sexual-orientation discrimination and the Court may not read such protections into the statute. Tennessee emphasizes that the judiciary may not interpret the statute based on moral judgments that LGBT individuals should receive protection. Instead, Tennessee argues that Congress or individual states should enact such provisions because they are better equipped to protect LGBT individuals. It asserts that Congress' function is to write federal statutes because Congress—not the judiciary—is more attuned to the needs of constituents, like LGBT individuals. For example, Tennessee points to federal laws that already protect LGBT individuals in other contexts, such as the Violence Against Women Act preventing discrimination based on sexual orientation in receiving federal grants, and a 2010 statute prohibiting hate crimes motivated by sexual orientation. Tennessee also notes that states are even better equipped to enact legislation protecting LGBT workers than Congress because they are more aware of and receptive to local interests and individual LGBT concerns. Written by Zora Franicevic Soo Min Ko Edited by Russell Mendelson Additional Resources Harry Litman, The Trump Administration Jumps Into a High-Stakes Court Case in Support of Intolerance, The Washington Post (Aug. 27, 2019). Robin Kemp, Clayton County Gay Rights Case Could Set Precedent, Clayton News Daily (July 23, 2018).

Amendment 16 - Income Tax

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Job Accommodation Network (JAN)

The Job Accommodation Network (JAN) is a free service sponsored by DOL's Office of Disability Employment Policy that provides information on specific job accommodations, including leave. JAN can be contacted by calling 1-800-526-7234 or 1-800-ADA-WORK (1-800-232-9675) (voice/TTY). https://askjan.org/

Amendment 4 - Search and Seizure

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ernst and Young v. Morris https://ballotpedia.org/Ernst_and_Young_v._Morris Ernst and Young v. Morris was a case argued during the October 2017 term of the U.S. Supreme Court. Argument in the case was held on October 2, 2017. The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. The court consolidated arguments in the case with arguments in Epic Systems Corporation v. Lewis and NLRB v. Murphy Oil.

HIGHLIGHTS The case: Ernst and Young required its employees to sign agreements that mandated any work-related claims be submitted to individual arbitration. The agreements contained a waiver against any concerted action; that is, the employees could neither initiate nor join any class action or collective action proceedings against the company in any forum. Further, claims in arbitration were required to be brought in separate proceedings. Two employees filed a class action against the firm. A district court granted Ernst and Young's motion to dismiss and to compel arbitration in the case in accordance with the terms of the arbitration agreement, but a divided panel of the United States Court of Appeals for the 9th Circuit reversed and remanded the decision of the district court, holding that the agreement was unenforceable under Section 7 of the National Labor Relations Act. The issue: Can an employer prohibit employees from pursuing work-related claims in a class or collective action? The outcome: The Supreme Court reversed the Ninth Circuit, holding that under the Arbitration Act, agreements to arbitrate must be enforced.[2] As a condition of employment to work with Ernst and Young, Stephen Morris and a colleague, Kelly McDaniel, were required to sign agreements that mandated any work-related claims be submitted to individual arbitration. The agreements contained a waiver against any concerted action; that is, the employees could neither initiate nor join any class action or collective action proceedings against the company in any forum. Further, claims in arbitration were required to be brought in separate proceedings. Subsequent to signing the waiver during his work at Ernst and Young, Morris filed a class and collective action against Ernst and Young in a federal court in New York. McDaniel joined the suit some time later. Morris alleged that he was misclassified by the firm under the Fair Labor Standards Act and was denied overtime pay for which he was eligible. The case was transferred to the United States District Court for the Northern District of California. There, Ernst and Young filed a motion to dismiss Morris' lawsuit and to compel individual arbitration. The district court granted Ernst and Young's motion to dismiss and to compel arbitration in the case. Morris and McDaniel appealed to the United States Court of Appeals for the 9th Circuit. The appeal was heard by a three-judge panel of the Ninth Circuit. On the panel were the court's Chief Judge Sidney Thomas and circuit judges Sandra Ikuta and Andrew Hurwitz.[3] In his opinion for a divided 2-1 panel, Judge Thomas reversed and remanded the district court's decision. The court held that the concerted action waiver violated Section 7 of the National Labor Relations Act (hereafter, NLRA) protecting such activities. The court further held that the National Labor Relations Board's interpretation of concerted activities includes the filing of class action or collective action lawsuits, and that the Board's interpretation must be afforded Chevron deference by federal courts. In Judge Thomas' words,[3] " The NLRA establishes a core right to concerted activity. Irrespective of the forum in which disputes are resolved, employees must be able to act in the forum together. The structure of the Ernst and Young contract prevents that. Arbitration, like any other forum for resolving disputes, cannot be structured so as to exclude all concerted employee legal claims. As the Supreme Court has instructed, when 'private contracts conflict with' the NLRA, 'they obviously must yield or the Act would be reduced to a futility.'[4] " Judge Thomas addressed a separate challenge raised by Ernst and Young, that the Federal Arbitration Act (hereafter, FAA) superseded the NLRA's requirements. Specifically, Ernst and Young presented their argument relying on a provision the FAA known as the FAA's savings clause. That clause stipulates that any written contract "evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract." Ernst and Young argued that in the absence of a contrary congressional command, its arbitration agreement must be enforced under the FAA and that nothing in the NLRA prohibited such an agreement. Judge Thomas, however, citing the Seventh Circuit's judgment in Epic Systems Corporation v. Lewis, stated that "we join the Seventh Circuit in treating the interaction between the NLRA and the FAA in a very ordinary way: when an arbitration contract professes to waive a substantive federal right, the saving clause of the FAA prevents the enforcement of that waiver." In holding that concerted activity constituted a substantive right under the NLRA, the court did not accept Ernst and Young's FAA argument.[3] Writing for herself in dissent, Judge Sandra Ikuta stated that the majority opinion was "breathtaking in its scope and in its error." Judge Ikuta argued that the Supreme Court's precedent would permit the enforcement of the separate proceedings clause at issue here under the FAA, because Section 7 of the NLRA does not prevent arbitration agreements containing class action waivers. She wrote,[3] " when a party claims that a state law prevents the enforcement of an arbitration agreement, the court must determine whether that law is preempted by the FAA or is rescued from preemption by the FAA's savings clause. ... But when a party claims that a federal statute makes an arbitration agreement unenforceable, the Supreme Court takes a different approach. In determining whether the FAA's mandate requiring 'courts to enforce agreements to arbitrate according to their terms' has been overridden by a different federal statute, the Supreme Court requires a showing that such a federal statute includes an express 'contrary congressional command.' ... the Supreme Court consistently rejects claims that a 'contrary congressional command' precludes courts from enforcing arbitration agreements according to their terms, including when such agreements waive the use of class mechanisms. In analyzing such arguments, the Court has focused primarily on a single question: whether the text of the federal statute at issue expressly precludes the use of a predispute arbitration agreement for the underlying claims at issue. If the statute does not, the Court's 'healthy regard for the federal policy favoring arbitration,' ... leads it to conclude that there is no such contrary command, and the Court reads the purportedly contrary federal statute to allow the enforcement of the agreement to arbitrate. The Court has likewise rejected claims that the legislative history or policy of the federal statute requires a different result. ... nothing in the text, legislative history, or purposes of § 7 precludes enforcement of an arbitration agreement containing a class action waiver. ... Because I would follow the Supreme Court precedent and join the majority of the circuits concluding that § 7 of the NLRA does not prevent the collective action waiver at issue here, I would hold that Morris's contract must be enforced according to its terms. I therefore dissent.[4] Decision On a vote of 5 - 4, the Supreme Court reversed the ruling of the Ninth Circuit. The Supreme Court held that under the Arbitration Act, agreements to arbitrate must be enforced.[2] Majority opinion Justice Neil Gorsuch authored the opinion for the court majority, joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas. Gorsuch began by framing what he saw as the question at the heart of the case: whether employers and employees can contract to require arbitraiton, or whether an employee may always bring a collective action regardless of an agrement to arbitrate individually. Gorsuch ruled that the Federal Arbitration Act requires courts to enforce agreements to arbitrate and that the collective bargaining rights established in the National Labor Relations Act did not contravene the FAA's enforcement requirement: " As a matter of policy these questions are surely debatable. But as a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings. Nor can we agree with the employees' suggestion that the National Labor Relations Act (NLRA) offers a conflicting command. It is this Court's duty to interpret Congress's statutes as a harmonious whole rather than at war with one another. And abiding that duty here leads to an unmistakable conclusion. The NLRA secures to employees rights to organize unions and bargain collectively, but it says nothing about how judges and arbitrators must try legal disputes that leave the workplace and enter the courtroom or arbitral forum . . Far from conflicting, the Arbitration Act and the NLRA have long enjoyed separate spheres of influence and neither permits this Court to declare the parties' agreements unlawful.[2][4] " Gorsuch rejected the employees' arguments that the savings clause of the NLRA invalidated agreements to arbitrate in cases like this, stressing that the cause only "permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability." Gorsuch also rejected the dissent's argument that the majority had overridden Congress' intent in passing the NLRA. Gorsuch wrote, "Today's decision merely declines to read into the NLRA a novel right to class action proedures that the Board's own general counsel disclaimed as recently as 2010."[2] Concurrence by Justice Thomas Justice Clarence Thomas joined the majority opinion in full and also wrote separately. Thomas wrote, "I write separately to add that the employees also cannot prevail under the plain meaning of the Federal Arbitration Act."[2] Dissent by Justice Ginsburg Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Framing the case as she saw it, Ginsburg wrote, "Does the Federal Arbitration Act (Arbitration Act or FAA) permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA) 'to engage in . . . concerted activities' for their 'mutual aid or protection'? The answer should be a resounding 'No.'"[2] She wrote: " The Court ignores the reality that sparked the NLRA's passage: Forced to face their employers without company, employees ordinarily are no match for the enterprise that hires them. Employees gain strength, however, if they can deal with their employers in numbers. That is the very reason why the NLRA secures against employer interference employees' right to act in concert for their 'mutual aid or protection.' . . . The FAA demands no such suppression of the right of workers to take concerted action for their 'mutual aid or protection.'[2][4] " Ginsburg would have concluded that the FAA does not protect contracts requiring individual arbitration because contracts to require individual arbitration violate the rights guaranteed by the NLRA and are therefore illegal. Citing earlier precedent for "the ordinarily superseding rule that 'illegal promises will not be enforced,'" she reasoned that the FAA could not allow for contracts that were illegal under other existing laws.[2]

Amendment 3 - Quartering Soldiers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment 21 - Repeal of the Eighteenth Amendment

Section. 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

14 The Twenty-second Amendment was proposed by Congress on March 24, 1947, having passed the House on March 21, 1947, Cong. Rec. (80th Cong., 1st Sess.) 2392, and having previously passed the Senate on March 12, 1947. Id., 1978. It appears officially in 61 Stat. 959. Ratification was completed on February 27, 1951, when the thirty-sixth State (Minnesota) approved the amendment, there being then 48 States in the Union. On March 1, 1951, Jess Larson, Administrator of General Services, certified that it had been adopted by the requisite number of States. 16 Fed. Reg. 2019. A total of 41 state legislatures ratified the Twenty-second Amendment on the following dates: Maine, March 31, 1947; Michigan, March 31, 1947; Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1, 1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3, 1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey, April 15, 1947; Vermont, April 15, 1947; Ohio, April 16, 1947; Wisconsin, April 16, 1947; Pennsylvania, April 29, 1947; Connecticut, May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, January 28, 1948; Mississippi, February 12, 1948; New York, March 9, 1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949; Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29, 1951; Idaho, January 30, 1951; New Mexico, February 12, 1951; Wyoming, February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17, 1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Utah, February 26, 1951; Nevada, February 26, 1951; Minnesota, February 27, 1951; North Carolina, February 28, 1951; South Carolina, March 13, 1951; Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4, 1951.

15 The Twenty-third Amendment was proposed by Congress on June 16, 1960, when it passed the Senate, Cong. Rec. (86th Cong., 2d Sess.) 12858, having previously passed the House on June 14. Id., 12571. It appears officially in 74 Stat. 1057. Ratification was completed on March 29, 1961, when the thirty-eighth State (Ohio) approved the amendment, there being then 50 States in the Union. On April 3, 1961, John L. Moore, Administrator of General Services, certified that it had been adopted by the requisite number of States. 26 Fed. Reg. 2808. The several state legislatures ratified the Twenty-third Amendment on the following dates: Hawaii, June 23, 1960; Massachusetts, August 22, 1960; New Jersey, December 19, 1960; New York, January 17, 1961; California, January 19, 1961; Oregon, January 27, 1961; Maryland, January 30, 1961; Idaho, January 31, 1961; Maine, January 31, 1961; Minnesota, January 31, 1961; New Mexico, February 1, 1961; Nevada, February 2, 1961; Montana, February 6, 1961; Colorado, February 8, 1961; Washington, February 9, 1961; West Virginia, February 9, 1961; Alaska, February 10, 1961; Wyoming, February 13, 1961; South Dakota, February 14, 1961; Delaware, February 20, 1961; Utah, February 21, 1961; Wisconsin, February 21, 1961; Pennsylvania, February 28, 1961; Indiana, March 3, 1961; North Dakota, March 3, 1961; Tennessee, March 6, 1961; Michigan, March 8, 1961; Connecticut, March 9, 1961; Arizona, March 10, 1961; Illinois, March 14, 1961; Nebraska, March 15, 1961; Vermont, March 15, 1961; Iowa, March 16, 1961; Missouri, March 20, 1961; Oklahoma, March 21, 1961; Rhode Island, March 22, 1961; Kansas, March 29, 1961; Ohio, March 29, 1961, and New Hampshire, March 30, 1961.

https://www.supremecourt.gov/opinions/18pdf/17-587_n7ip.pdf OCTOBER TERM, 2018 SUPREME COURT OF THE UNITED STATES Syllabus MOUNT LEMMON FIRE DISTRICT v. GUIDO ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 17-587. Argued October 1, 2018—Decided November 6, 2018

John Guido and Dennis Rankin filed suit, alleging that the MountLemmon Fire District, a political subdivision in Arizona, terminatedtheir employment as firefighters in violation of the Age Discrimina-tion in Employment Act of 1967 (ADEA). The Fire District respondedthat it was too small to qualify as an "employer" under the ADEA, which provides: "The term 'employer' means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a Stateor political subdivision of a State . . . ." 29 U. S. C. §630(b).Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previ-ous, 1972, amendment to Title VII added States and their subdivi-sions to the definition of "person[s]," specifying that those entities are engaged in an industry affecting commerce. The Title VII amend-ment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By con-trast, the 1974 ADEA amendment added state and local governments directly to the definition of "employer." The same 1974 enactment al-so amended the Fair Labor Standards Act (FLSA), on which manyaspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x). Held: The definitional provision's two-sentence delineation, set out in §630(b), and the expression "also means" at the start of §630(b)'s sec-ond sentence, combine to establish separate categories: persons en-gaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation. The words "also means" in §630(b) add new categories of employersto the ADEA's reach. First and foremost, the ordinary meaning of"also means" is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster's New Collegiate Dictionary 34). The words "also means" occur dozens of times throughout the U. S.Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z-1(i)(4). Furthermore, the second sentence of the ADEA's def-initional provision, §630(b), pairs States and their political subdivi-sions with agents, a discrete category that carries no numerical limi-tation. Reading the ADEA's definitional provision, §630(b), as written toapply to States and political subdivisions regardless of size may givethe ADEA a broader reach than Title VII, but this disparity is a con-sequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the num-ber of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover politicalsubdivisions regardless of size, and a majority of the States imposeage discrimination proscriptions on political subdivisions with no numerical threshold. Pp. 4-6. 859 F. 3d 1168, affirmed. GINSBURG, J., delivered the opinion of the Court, in which all otherMembers joined, except KAVANAUGH, J., who took no part in the consid-eration or decision of the case. "[T]he term 'elderly families' means families which consist of two or more persons the head of which (orhis spouse) is sixty-two years of age or over or is hand-icapped. Such term also means a single person who is sixty-two years of age or over or is handicapped." "[A] single person" plainly adds to, rather than clarifies,the preceding statutory delineation, "two or more per-sons." Just so with States and their political subdivisions in the ADEA's definition of "employer." Notably, in§1715z-1(i)(4), Congress repeated the "sixty-two years ofage or over or is handicapped" qualifier to render it appli-cable to "a single person." In the ADEA, by contrast, Congress did not repeat the "twenty or more employees"qualifier when referencing state and local government entities. This Court is not at liberty to insert the absent qualifier.Furthermore, the text of §630(b) pairs States and their political subdivisions with agents, a discrete category that,beyond doubt, carries no numerical limitation. See Tr. of Oral Arg. 55-56. The Fire District does not gainsay that the 20-employee restriction applies to §630(b)'s first sen-tence. Its construction, however, would lift that re-striction for the agent portion of the second sentence, and then reimpose it for the portion of that sentence address-ing States and their political subdivisions. We resist a reading so strange.2 The Fire District presses the argument that the ADEAshould be interpreted in line with Title VII, which, as noted supra, at 3, applies to state and local governments only if they meet a numerosity specification. True, read-ing the ADEA as written to apply to States and politicalsubdivisions regardless of size gives the ADEA, in this regard, a broader reach than Title VII. But this disparityis a consequence of the different language Congress chose to employ. See Gross v. FBL Financial Services, Inc., 557 U. S. 167, 174 (2009) (differences between Title VII's and the ADEA's language should not be ignored). The better comparator is the FLSA, on which many aspects of theADEA are based. See 29 U. S. C. §626(b) (ADEA incorpo-rates the "powers, remedies, and procedures" of the FLSA). Like the FLSA, the ADEA ranks States and polit-ical subdivisions as "employer[s]" regardless of the number of employees they have. The Fire District warns that applying the ADEA tosmall public entities risks curtailment of vital public services such as fire protection. Experience suggestsotherwise. For 30 years, the Equal Employment Oppor-tunity Commission has consistently interpreted the ADEAas we do today. EEOC Compliance Manual: Threshold Issues §2-III(B)(1)(a)(i), and n. 99. See also Kelly, 801 F. 2d, at 270, n. 1. And a majority of States forbid age discrimination by political subdivisions of any size; some 15 of these States subject private sector employers to age discrimination proscriptions only if they employ at least athreshold number of workers. See Brief for Respondents28-29, and n. 6 (collecting citations). No untoward service shrinkages have been documented. In short, the text of the ADEA's definitional provision, also its kinship to the FLSA and differences from Title VII, leave scant room for doubt that state and local gov-ernments are "employer[s]" covered by the ADEA regard-less of their size. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is Affirmed. JUSTICE KAVANAUGH took no part in the considerationor decision of this case.

Amendment 15 - Right of Citizens to Vote

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

https://caselaw.findlaw.com/us-9th-circuit/1767890.html PERFECT 10 INC v. GIGANEWS INC LIVEWIRE SERVICES INC United States Court of Appeals, Ninth Circuit. PERFECT 10, INC., Plaintiff-Appellant, v. GIGANEWS, INC.; LIVEWIRE SERVICES, INC., Defendants-Appellees. PERFECT 10, INC., a California corporation, Plaintiff-Counter-Defendant-Appellant, v. GIGANEWS, INC., a Texas corporation; LIVEWIRE SERVICES, INC., a Nevada corporation, Defendants-Counter-Claimants-Appellees. PERFECT 10, INC., a California corporation, Plaintiff-Counter-Defendant-Appellee, v. DR. NORMAN ZADA, Third Party-Appellee, GIGANEWS, INC., a Texas corporation; LIVEWIRE SERVICES, INC., a Nevada corporation, Defendants-Counter-Claimants-Appellants. No. 15-55500, No. 15-55523, No. 15-56026 Decided: January 23, 2017

Before: Harry Pregerson, Dorothy W. Nelson, and John B. Owens, Circuit Judges. COUNSEL David N. Schultz (argued), Law Offices of David N. Schultz, Los Angeles, California; Eric J. Benink, Krause Kalfayan Benink & Slavens LLP, San Diego, California; for Plaintiff-Counter-Defendant-Appellant/Cross-Appellee and Third Party-Appellee. Andrew Phillip Bridges (argued), Jedediah Wakefield, Joseph S. Belichick, and Todd R. Gregorian, Fenwick & West LLP, San Francisco, California, for Defendants-Appellees/Cross-Appellants. Thomas G. Hentoff (argued) and Nicholas G. Gamse, Williams & Connolly LLP, Washington, D.C.; George M. Borkowski, Recording Industry Association of America Inc., Washington, D.C.; for Amicus Curiae Recording Industry Association of America, Inc. Kelly A. Woodruff, Deepak Gupta, and Anthony P. Schoenberg, Farella Braun + Martel LLP, San Francisco, California, for Amici Curiae Electronic Frontier Foundation, Public Knowledge, American Library Association, Association of College and Research Libraries, and Association of Research Libraries. Corynne McSherry, Electronic Frontier Foundation, San Francisco, California, Of Counsel to Amicus Curiae Electronic Frontier Foundation. Jonathan Band, Policybandwidth, Washington, D.C., Of Counsel to Amici Curiae American Library Association, Association of College and Research Libraries, and Association of Research Libraries. Charles Duan, Public Knowledge, Washington, D.C., Of Counsel to Amicus Curiae Public Knowledge. Seth D. Greenstein, Robert S. Schwartz, and Leigh O. LaMartina, Constantine Cannon LLP, Washington, D.C., for Amici Curiae i2Coalition, Internet Association and Computer & Communications Industry Association. OPINION SUMMARY * Copyright The panel affirmed the district court's judgment in favor of the defendants in a copyright case involving the Usenet, an international collection of organizations and individuals whose computers connect to one another and exchange messages posted by Usenet users. Defendant Giganews, Inc., owns and operates several Usenet servers and provides its subscribers with fee-based access to content stored on its own servers as well as content stored on the servers of other Usenet providers. Defendant Livewire Services, Inc., provides its subscribers with access to the Usenet content stored on Giganews's servers. Plaintiff Perfect 10, Inc., owns the exclusive copyrights to tens of thousands of adult images, many of which have been illegally distributed over Giganews's servers. The panel affirmed the district court's partial dismissal and partial grant of summary judgment on Perfect 10's direct copyright infringement claim. The panel held that causation, also referred to as "volitional conduct," by the defendant is one of the elements of a prima facie case of direct infringement. The panel held that the volitional conduct requirement was not met on Perfect 10's theories that the defendants directly infringed its display rights and distribution rights. The panel concluded that the evidence showed only that Giganews's actions were akin to passively storing material at the direction of users in order to make that material available to other users upon request, or automatically copying, storing, and transmitting materials upon instigation by others. The volitional conduct requirement also was not met as to the claim that Giganews directly infringed on Perfect 10's right to reproduce by uploading infringing content onto the Usenet or Giganews's servers. The panel held that Giganews was not liable for contributory copyright infringement because Perfect 10 failed to raise a triable issue of fact as to whether Giganews materially contributed to or induced infringement of Perfect 10's copyrights. The panel held that there were no simple measures available that Giganews failed to take to remove Perfect 10's works from its servers. The panel affirmed the district court's summary judgment on Perfect 10's vicarious infringement claim. The panel held that Perfect 10 failed to demonstrate a causal link between the infringing activities and a financial benefit to Giganews. The panel affirmed the district court's award of attorney's fees to the defendants under the Copyright Act and its denial of defendants' request for supplemental fees. The panel also affirmed the district court's denial of defendants' request to amend the judgment to add a judgment debtor as Perfect 10's alter ego. Appellant Perfect 10, Inc. ("Perfect 10" or "P10") challenges the district court's partial dismissal of its direct copyright infringement claim and grant of summary judgment in favor of Appellees Giganews, Inc. ("Giganews") and Livewire Services, Inc. ("Livewire") as to all remaining claims. Perfect 10 also appeals the district court's award of attorney's fees and costs under the Copyright Act. On cross-appeal, Giganews and Livewire contend the district court erred by denying their request for supplemental fees and failing to add Perfect 10's sole shareholder and founder, Norman Zada ("Zada"), to the judgment as Perfect 10's alter ego. For the reasons set forth below, we affirm the district court. BACKGROUND 1. The Usenet and Appellees' Operations The heart of this complex copyright dispute revolves around the Usenet (or USENET), "an international collection of organizations and individuals (known as 'peers') whose computers connect to one another and exchange messages posted by USENET users." Ellison v. Robertson, 357 F.3d 1072, 1074, n.1 (9th Cir. 2004). "To obtain access to the USENET, a user must gain access through a commercial USENET provider, such as Defendant [Giganews], or an internet service provider." Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 130 (S.D.N.Y. 2009). Giganews owns and operates several Usenet servers and provides its subscribers with fee-based access to content that Giganews stores on its own servers as well as content stored on the servers of other Usenet providers. Unlike Giganews, Livewire does not own any Usenet servers, but instead provides its subscribers with access to the Usenet content stored on Giganews's servers. The Usenet content offered through Giganews's servers is almost exclusively user-driven, in that USENET users upload the majority of the content stored on a USENET provider's server. This content is posted via text-based articles to online bulletin boards called newsgroups. Each article is associated with a unique Message-ID. Giganews and Livewire contend that the only way to accurately identify a specific Usenet message is with that Message-ID. Although these articles are posted as text files, other types of files such as images, songs, and movies may be encoded into the bodies of the articles as binary files. Through Giganews's browser application, known as "Mimo," or "the Mimo Reader," users can open the binary files, which are then decoded and displayed in their original format. By using a "peering process," messages posted on one Usenet server can automatically propagate to other Usenet servers, which then propagate the messages to another Usenet server, and so on. More specifically, when an individual user with access to a USENET server posts a message to a newsgroup, the message is automatically forwarded to all adjacent USENET servers that furnish access to the newsgroup, and it is then propagated to the servers adjacent to those servers, etc. The messages are temporarily stored on each receiving server, where they are available for review and response by individual users. The messages are automatically and periodically purged from each system after a time to make room for new messages. Responses to messages, like the original messages, are automatically distributed to all other computers receiving the newsgroup or forwarded to a moderator in the case of a moderated newsgroup. The dissemination of messages to USENET servers around the world is an automated process that does not require direct human intervention or review. Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 835 (E.D. Pa. 1996). This peering process only occurs after two Usenet access providers enter into peering agreements to accept materials from each other. The servers are then able to synchronize their information so their content mirrors one another's. Thus, only after Giganews engages in a peering agreement can its servers exercise any control over the messages copied from other servers. However, this control is minimal. As the District Court explained, for example, Giganews servers "compare [ ] the unique Message-IDs of messages on peer servers to ensure that Giganews does not copy duplicate articles to its servers." Perfect 10, Inc. v. Giganews, Inc., No. CV-11-07098-AB (SHx), 2014 WL 8628034, at *3 (C.D. Cal. Nov. 14, 2014). Similarly, "if a peer server contains an article with a Message-ID that Giganews has already deleted from its servers," the Giganews servers will not then copy that article. Id. In addition, because Giganews is a member of the Internet Watch Foundation, which tracks individual articles by Message-ID or entire newsgroups that contain child pornography, certain articles and newsgroups may automatically be deleted or blocked from peering from Giganews's servers. Id. "Other than setting those basic parameters, Giganews does not select any of the content available on its servers." Id. Indeed, "Giganews itself did not post any of the articles at issue in this action ․ to any Usenet server, and all such articles were posted by Usenet users. Nor does Giganews tell any third parties what to upload to the Usenet, including Giganews'[s] Usenet servers." Id. (internal citations omitted). Similarly, because Livewire "merely contracts with Giganews for access to [its] servers," Livewire also has no control over the uploaded, downloaded, transmitted, or stored content on Giganews's servers. Id. And Livewire itself has neither uploaded material onto the Usenet nor directed anyone else to do so. 2. Perfect 10 Images on the Usenet Perfect 10 owns the exclusive copyrights to tens of thousands of adult images, many of which have been illegally distributed over Giganews's servers. Upon locating infringing materials on those servers, Perfect 10 sent Giganews numerous letters fashioned as takedown notices pursuant to the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512, et seq. While some of these notices merely instructed Giganews to "locate all of the infringing messages and images ․ by doing [a] mimo search" for a particular term, others attached screen shots of the Mimo application that displayed posts in which Perfect 10's copyrighted images were distributed. When Perfect 10 sent Giganews machine-readable Message-IDs, Giganews quickly removed those messages from its servers. When Perfect 10 faxed Giganews notices containing illegible Message-IDs, Giganews responded with a letter asking Perfect 10 to provide the Message-IDs in a legible, machine-readable format. Perfect 10 repeatedly declined to do so. 3. Procedural History On April 28, 2011, Perfect 10 brought suit against Giganews and Livewire in the U.S. District Court for the Central District of California, alleging direct and indirect copyright infringement claims as well as trademark and state law claims. Only the copyright infringement claims are the subject of this appeal. On March 8, 2013, the district court denied Defendants-Appellees' motion to dismiss Perfect 10's indirect copyright infringement claims against Giganews and granted their motion to dismiss those claims against Livewire with leave to amend. The district court also granted the motion to dismiss the direct copyright infringement claims against both Giganews and Livewire with leave to amend, explaining that direct infringement requires "volitional conduct" and finding that Perfect 10 had not alleged that Appellees "were the direct cause of, or actively engaged in, [such] infringement." Perfect 10 v. Giganews, Inc., No. CV11-07098 AHM (SHx), 2013 WL 2109963, at *7 (C.D. Cal. Mar. 8, 2013). On July 10, 2013, the district court granted in part and denied in part Appellees' motion to dismiss Perfect 10's First Amended Complaint ("FAC"). While the district court allowed Perfect 10 to move forward on its direct infringement claim against Livewire and on its direct infringement claim against Giganews on the theory that Giganews violated Perfect 10's exclusive right to reproduce its copyrighted works by itself uploading infringing content, the court dismissed Perfect 10's indirect infringement claims against Livewire. The parties filed eight separate motions for partial summary judgment. In three separate orders, the district court granted Appellees' motions for summary judgment as to the direct and indirect copyright infringement claims and denied Perfect 10's "mirror-image" motions as moot. In an earlier order, the district court denied Perfect 10's motion for summary judgment in which it argued, among other things, that its takedown notices complied with the DMCA and Appellees were ineligible for safe harbor protection under the DMCA. On March 24, 2015, upon entering a judgment in favor of Appellees, the district court ordered Perfect 10 to pay $5,213,117.06 in attorney's fees and $424,235.47 in nontaxable costs. Subsequently, the district court denied Appellees' motion to amend the judgment to add Zada as an additional judgment debtor and for a supplemental award of attorney's fees. Perfect 10 timely appealed. STANDARD OF REVIEW We review a district court's grant of summary judgment and grant of a motion to dismiss de novo. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109 (9th Cir. 2007); Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 526 (9th Cir. 2008). "The district court's interpretations of the Copyright Act are also reviewed de novo." CCBill LLC, 488 F.3d at 1109. "We review a district court's decision to grant or deny attorney's fees under the Copyright Act for abuse of discretion," CCBill LLC, 488 F.3d at 1109, "but any elements of legal analysis and statutory interpretation which figure in the district court's decision are reviewable de novo," Fantasy, Inc. v. Fogerty, 94 F.3d 553, 556 (9th Cir. 1996) ("Fogerty II") (citation and quotation marks omitted). Application of the alter ego doctrine is reviewed for clear error. Towe Antique Ford Found. v. IRS, 999 F.2d 1387, 1391 (9th Cir. 1993). DISCUSSION 1. Direct Infringement Perfect 10 argues the district court erred in concluding that neither Giganews nor Livewire directly infringed Perfect 10's copyrights. We disagree. a. Elements of a Direct Infringement Claim To establish a prima facie case of direct infringement, a plaintiff "must show ownership of the allegedly infringed material" and "demonstrate that the alleged infringers violated at least one exclusive right granted to copyright holders under 17 U.S.C. § 106." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). In addition, direct infringement requires the plaintiff to show causation (also referred to as "volitional conduct") by the defendant. See Fox Broad. Co., Inc. v. Dish Network L.L.C., 747 F.3d 1060, 1067 (9th Cir. 2013). We wish to emphasize that the word "volition" in this context does not really mean an "act of willing or choosing" or an "act of deciding," which is how the dictionary defines the term. Volition, Webster's Third New International Dictionary (1986). Rather, as used by the court in Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995), it "simply stands for the unremarkable proposition that proximate causation historically underlines copyright infringement liability no less than other torts." 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.08[C] [1] (2016) (Matthew Bender, Rev. Ed.); see also Dallas T. Bullard, Note, The Revolution Was Not Televised: Examining Copyright Doctrine After Aereo, 30 Berkeley Tech. L.J. 899, 922-23 (2015) ("While most courts have focused on the language of 'volitional conduct,' the key analytical weight is best derived from 'causation[,]' " because where it is clear that infringement has occurred, courts must determine "who is close enough to the [infringing] event to be considered the most important cause."). As the district court cogently explained: [T]he so-called "volition" element of direct infringement is not a judicially-created element of intent or knowledge; it is a basic requirement of causation. As its name suggests, direct liability must be premised on conduct that can reasonably be described as the direct cause of the infringement[.] Perfect 10, Inc., 2014 WL 8628034 at *7 (emphasis in original). Contrary to Perfect 10's contention, this requirement of causation remains an element of a direct infringement claim. In Fox Broadcasting, we explained that "[i]nfringement of the reproduction right requires copying by the defendant, which comprises a requirement that the defendant cause the copying." 747 F.3d at 1067 (internal citation and quotation marks omitted). In using this language, we indicated that causation is an element of a direct infringement claim. In his dissent in American Broadcasting Cos., Inc. v. Aereo, Inc., Justice Scalia construed our decision in Fox Broadcasting as adopting the volitional-conduct requirement, noting that the Supreme Court's "cases are fully consistent with" such a requirement. 134 S. Ct. 2498, 2513 (2014) (Scalia, J., dissenting); id. at 2512 (Scalia, J., dissenting) ("Every Court of Appeals to have considered an automated-service provider's direct liability for copyright infringement has adopted [the volitional-conduct requirement.]" (citing Fox Broad., 747 F.3d at 1066-68)). District courts interpreting Fox Broadcasting have reached the same conclusion. See Fox Broad. Co. v. Dish Network LLC, 160 F. Supp. 3d 1139, 1160 (C.D. Cal. 2015); Gardner v. CafePress Inc., No. 3:13-CV-1108-GPC-JLB, 2014 WL 6890934, at *3 (S.D. Cal. Dec. 4, 2014) ("There are three elements to a prima facie case of direct infringement: (1) ownership of the allegedly infringed material, (2) violation of at least one exclusive right granted to copyright holders under 17 U.S.C. § 106, and (3) volitional conduct by the defendant." (emphasis added)). Other circuits have adopted the volitional conduct requirement as well. See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 131 (2d Cir. 2008) ("[V]olitional conduct is an important element of direct liability ․"); CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004) ("[T]he Copyright Act ․ requires conduct by a person who causes in some meaningful way an infringement." (emphasis in original)); Parker v. Google, Inc., 242 F. App'x 833, 837 (3d Cir. 2007) (per curiam) ("[T]o state a direct copyright infringement claim, a plaintiff must allege volitional conduct on the part of the defendant."). The volitional-conduct requirement is consistent with the Aereo majority opinion, in which the Supreme Court held that Aereo, a service that streamed broadcast television programming to subscribers over the Internet, "perform[ed] publicly" as defined by the Transmit Clause. 134 S. Ct. at 2503, 2510. First, the Aereo Court did not expressly address the volitional-conduct requirement for direct liability under the Copyright Act, nor did it directly dispute or comment on Justice Scalia's explanation of the doctrine. Thus, as one court in the Central District of California subsequently opined, because "[t]he volitional conduct doctrine is a significant and long-standing rule, adopted by all Courts of Appeal to have considered it, ․ it would be folly to presume that Aereo categorically jettisoned it by implication." Fox Broad., 160 F. Supp. 3d at 1160. Second, the Aereo Court's analysis can be reconciled with the volitional-conduct requirement. Indeed, the Court distinguished between an entity that "engages in activities like Aereo's," and one that "merely supplies equipment that allows others" to perform or transmit. Aereo, 134 S. Ct. at 2504. Further, although the Court held that Aereo was "not just an equipment supplier and that Aereo 'perform[s][,]' " it also noted that "[i]n other cases involving different kinds of service or technology providers, a user's involvement in the operation of the provider's equipment and selection of the content transmitted may well bear on whether the provider performs within the meaning of the Act." Id. at 2507. Thus, "the distinction between active and passive participation remains a central part of the analysis of an alleged infringement." Fox Broad., 160 F. Supp. 3d at 1160. Because Aereo did not expressly address the volitional-conduct requirement and the Court's analysis can be reconciled with it, we conclude that the requirement was left intact and that the district court did not err in requiring Perfect 10 to satisfy it. b. Perfect 10's Direct Infringement Claim Only one theory of direct liability as to Giganews survived the pleadings stage. In its July 10, 2013 order on Appellees' motion to dismiss the FAC, the district court rejected Perfect 10's theories that Giganews directly infringed Perfect 10's display rights and distribution rights, concluding that the volitional-conduct requirement was not met. However, the district court denied Appellees' motion as to the claim that Giganews directly infringed on Perfect 10's right to reproduce by uploading infringing content onto the Usenet or Giganews's servers. Subsequently, the district court granted summary judgment on the direct infringement claim, concluding Perfect 10 failed to prove volitional conduct with respect to either Giganews or Livewire. On appeal, Perfect 10 challenges the district court's motion to dismiss and summary judgment orders. i. Display Rights Under the Copyright Act, the owner of a copyright has the exclusive right to display its work. 17 U.S.C. § 106(5). "[D]isplay" means "to show a copy of [a work], either directly or by means of a film, slide, television image, or any other device or process[.]" Id. § 101. Relying primarily on Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), Perfect 10 claims Giganews is directly liable for displaying Perfect 10's images and thumbnails via the Mimo reader. Specifically, Perfect 10 asserts its evidence showed Giganews was not merely a passive host, but rather directly caused the display of Perfect 10 images by making copies of those images and displaying them using its Mimo reader. As a preliminary matter, we note that the district court concluded Perfect 10's display rights-based direct infringement claim failed at the pleadings stage. Thus, Perfect 10's argument on appeal that the district court "ignored P10's evidence" is irrelevant. Instead, the pertinent question is whether the FAC alleged "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). As the district court correctly concluded, the allegation that Giganews directly infringes Perfect 10's display rights through the Giganews Mimo reader does not state a claim because the fact that "users may use Giganews's reader to display infringing images does not constitute volitional conduct by Giganews." Perfect 10, Inc. v. Giganews, Inc., No. CV-11-7098 ABC (SHx), 2013 WL 3610706, at *2 (C.D. Cal. July 10, 2013). This is because "Mimo is just a reader, a piece of software that allows a user to view an image," and therefore, "[t]o the extent that Mimo is used to view infringing images, this is done by the user." Id. Moreover, even if we were to consider Perfect 10's evidence, the claim would still fail. The sole evidence Perfect 10 points to in support of its argument that Giganews was not merely a passive host shows only that images and thumbnails were accessed through the Giganews platform. The evidence does not demonstrate that Giganews - as opposed to the user who called up the images -caused the images to be displayed. Further, our decision in Amazon does not render Giganews liable for direct infringement of Perfect 10's display rights. In Amazon, there was "no dispute that Google's computers store[d] thumbnail versions of Perfect 10's copyrighted images and communicate[d] copies of those thumbnails to Google's users." Amazon, 508 F.3d at 1160. We concluded Perfect 10 established "a prima facie case that Google's communication of its stored thumbnails directly infringe[d] Perfect 10's display right." Id. However, citing CoStar, we also noted that "[b]ecause Google initiates and controls the storage and communication of these thumbnail images, we do not address whether an entity that merely passively owns and manages an Internet bulletin board or similar system violates a copyright owner's display and distribution rights when the users of the bulletin board or similar system post infringing works." Id. at 1160 n.6. This case falls into the category of cases we declined to address in Amazon. The evidence before us shows only that Giganews's actions were akin to "passively storing material at the direction of users in order to make that material available to other users upon request," or automatically copying, storing, and transmitting materials upon instigation by others. CoStar, 373 F.3d at 555. Accordingly, we affirm the district court's dismissal of Perfect 10's display rights-based direct infringement claim. ii. Distribution Rights Perfect 10 also contends Giganews and Livewire directly violated its exclusive distribution rights under 17 U.S.C. § 106(3), emphasizing that its evidence showed that, at the request of their subscribers, Giganews and Livewire delivered content to download, including copies of Perfect 10 images. As with Perfect 10's display rights-based theory of direct liability, the district court concluded Perfect 10's distribution rights-based theory as to Giganews failed at the pleadings stage. Again, the proper inquiry is whether Perfect 10's complaint alleged "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. As the district court correctly held, the allegation "that Giganews directly distributes [Perfect 10's] images when a user requests images from Giganews's servers ․ does not state a claim, because this distribution happens automatically," meaning that "Giganews has not engaged in volitional conduct by which it 'causes' the distribution." Perfect 10, Inc., 2013 WL 3610706, at *3. However, even if we were to consider the evidence with respect to Giganews, we would still conclude there was no direct infringement of Perfect 10's distribution rights because Perfect 10 failed to show that the distribution does not happen automatically. Indeed, an analysis of Perfect 10's evidence shows only that users uploaded infringing content onto Giganews servers, not that Giganews played any sort of active role in causing the distribution. With respect to Livewire, we similarly conclude there was no evidence that Livewire had any direct role in any act of infringement, "let alone any act of infringement relating to Perfect 10's copyrighted works." Perfect 10, Inc., 2014 WL 8628034, at *10. First, the evidence Perfect 10 cites - the same evidence cited in support of its distribution rights-based claim against Giganews - does not demonstrate any volitional conduct by Livewire. Again, there is no indication that the distribution does not happen automatically. Second, we are unpersuaded by Perfect 10's argument that Livewire engaged in volitional conduct because it sold access to Giganews servers, including infringing Perfect 10 images, for a monthly fee. As the district court concluded, "the undisputed evidence affirmatively shows Livewire sells access to all the content available on Giganews' servers. There is no evidence that Livewire sells any of Perfect 10's copyrighted material." Id. (emphasis in original). Contrary to Perfect 10's assertion, New York Times Co., Inc. v. Tasini, 533 U.S. 483 (2001), does not establish that Giganews or Livewire directly violated Perfect 10's distribution rights by selling access to infringing images on Giganews's servers. As the district court noted, the question "is not whether posting content online is a 'distribution' but rather, even assuming there was a distribution, whether the Defendants can be regarded as having committed the distribution, as opposed to, or in addition to, the third party users who actually uploaded the infringing content onto USENET." Perfect 10, Inc., 2013 WL 2109963, at *9 n.7; see also Aereo, 134 S. Ct. at 2512 n.1 (Scalia, J., dissenting) ("[Tasini] dealt with the question whether the defendants' copying was permissible, not whether the defendants were the ones who made the copies."). Accordingly, we affirm the district court's rejection of Perfect 10's distribution rights-based direct infringement claim. iii. Reproduction Rights With respect to the final purported basis for direct infringement, the district court correctly held that Giganews did not infringe Perfect 10's exclusive reproduction rights under 17 U.S.C. § 106(1). As the Fourth Circuit held, agreeing with the reasoning of Netcom, "automatic copying, storage, and transmission of copyrighted materials, when instigated by others, does not render an [Internet service provider] strictly liable for copyright infringement[.]" CoStar, 373 F.3d at 555; see also Netcom, 907 F. Supp. at 1369 ("Netcom's act of designing or implementing a system that automatically and uniformly creates temporary copies of all data sent through it is not unlike that of the owner of a copying machine who lets the public make copies with it. Although some of the people using the machine may directly infringe copyrights, courts analyze the machine owner's liability under the rubric of contributory infringement, not direct infringement."). Here, Perfect 10 argues it satisfied the volitional-conduct requirement because Giganews itself instigated the copying, storage, and distribution of Perfect 10's images. We disagree. The evidence Perfect 10 cites does not demonstrate "copying by [Giganews]." Fox Broad., 747 F.3d at 1067; see also id. ("[O]perating a system used to make copies at the user's command does not mean that the system operator, rather than the user, caused copies to made."). Perfect 10 provides no evidence showing Giganews exercised control (other than by general operation of a Usenet service); selected any material for upload, download, transmission, or storage; or instigated any copying, storage, or distribution. Accordingly, the district court correctly held there was no triable issue of material fact as to Perfect 10's claim that Giganews directly infringed Perfect 10's reproduction rights. In sum, the district court correctly rejected Perfect 10's direct infringement claim because Giganews was not the proximate cause of any infringement in this case. We affirm the district court's motion to dismiss and summary judgment rulings in favor of Appellees as to the direct infringement claim. 2. Contributory Infringement Perfect 10 also claims Giganews is liable for contributory copyright infringement, "a form of secondary liability with roots in the tort-law concepts of enterprise liability and imputed intent." Perfect 10, Inc. v. Visa Int'l Serv., Ass'n, 494 F.3d 788, 794-95 (9th Cir. 2007). "[O]ne contributorily infringes when he (1) has knowledge of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement." Id. at 795. Because the district court held that Giganews did not know of the alleged infringement at issue in this case, it concluded that Giganews was not liable for contributorily infringing Perfect 10's copyrights without addressing the second prong of the test. We decline to reach the issue of whether the district court erred in finding that Giganews lacked actual knowledge, because we find that Perfect 10 failed to establish that Giganews materially contributed to or induced infringement of Perfect 10's copyrights. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) ("The district court's grant of summary judgment may be affirmed if it is supported by any ground in the record, whether or not the district court relied upon that ground."). a. Material Contribution to or Inducement of Infringing Activities As the district court held that Giganews lacked actual knowledge of infringement, it declined to address whether Giganews materially contributed to or induced the infringement at issue. Because we find the issues of material contribution and inducement to be dispositive, it is unnecessary to determine whether the district court correctly found that Giganews lacked knowledge. Even assuming that Perfect 10's takedown notices were sufficient to confer actual knowledge on Giganews, Perfect 10 failed to raise a triable issue of fact as to whether Giganews materially contributed to or induced infringement. i. Material Contribution In the online context, we have held that a "computer system operator" is liable under a material contribution theory of infringement "if it has actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works." Amazon, 508 F.3d at 1172 (internal citations and quotation marks omitted). According to Perfect 10, Giganews could have used search terms that Perfect 10 recommended in several of its takedown notices to extract machine-readable Message-IDs "in mere seconds" and remove the infringing material. Perfect 10 also claims that other Usenet operators processed Perfect 10 takedown notices that were essentially the same as those sent to Giganews "in as little as one day." According to Giganews, however, absent machine-readable Message-IDs, there were no simple measures available to remove infringing material. Giganews also disputes whether other Usenet operators were able to take such simple measures based on the takedown notices provided by Perfect 10, and cites the district court's conclusion that "the evidence ․ is undisputed that the only method for consistently identifying a specific Usenet message that Giganews could promptly remove is the post's Message-ID." Perfect 10, Inc. v. Giganews, Inc., No. CV-11-07098 AB SHX, 2014 WL 8628031, at *8 (C.D. Cal. Nov. 14, 2014). Reviewing this issue de novo, we hold that there were no simple measures available that Giganews failed to take to remove Perfect 10's works from its servers. Giganews presented sufficient evidence that Perfect 10's proposed method for locating infringing messages was onerous and unreasonably complicated. Indeed, Giganews spent more than 20 hours processing 565 Message-IDs from Perfect 10 because they were not machine-readable. Giganews calculates that Perfect 10's method would therefore require 354,000 hours of manual work for every 10 million Message-IDs - the number of Message-IDs that Giganews receives every month. Moreover, the record is clear that when Giganews did receive machine-readable Message-IDs, it immediately processed them and subsequently removed the messages from its servers. Perfect 10 asserts that its evidence demonstrates the simplicity of its proposed method and that Perfect 10 only learned of the automated Message-ID feature after sending its takedown notices. Perfect 10 does not dispute, however, that Giganews can easily remove infringing content if it is provided with automated Message-IDs, and Perfect 10's evidence only appears to relate to its argument that, by providing search results and search terms, Giganews could have searched for and found Message-IDs. Yet, as Giganews argues and the district court agreed, this method is unreliable and burdensome and therefore is not a "reasonable and feasible means" of "prevent[ing] further damage to Perfect 10's copyrighted works." Amazon, 508 F.3d at 1172. Accordingly, although the district court did not address the issue, we conclude that Giganews was not able to take simple measures to remove infringing materials from its servers. We therefore reject Perfect 10's first theory of contributory infringement liability. ii. Inducement Perfect 10 has also failed to demonstrate that Giganews induced any infringement of Perfect 10's copyrighted works. With respect to this alternate theory of contributory infringement liability, the Supreme Court has held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 936-37 (2005). We have described the inducement theory as having "four elements: (1) the distribution of a device or product, (2) acts of infringement, (3) an object of promoting its use to infringe copyright, and (4) causation." Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1032 (9th Cir. 2013). Based on the record, no reasonable juror could conclude Giganews distributed its product "with the object of promoting its use to infringe copyright." Cf. Grokster, 545 U.S. at 936. Perfect 10 points to entirely inconclusive evidence of any such objective to infringe copyrights. For example, Perfect 10 identifies Giganews's advertising materials, which state that its product "has built-in MP3 and File Locators that search all Giganews newsgroups for music, pictures, and movies without having to download millions of messages." Perfect 10 also points to a web page where a Giganews advertisement appears next to text written by another entity, which states that Giganews "provide[s] an uncensored news feed with up to 20 ssl encrypted connection and over 460 days worth of retention. That is over a years [sic] worth of access to downloadable music, movies and games." However, neither of these advertisements nor any other evidence in the record indicates that Giganews itself promoted its product "with the object" of infringing copyright. Perfect 10 further argues that Giganews has the object of promoting infringement because it: (1) "offers 25,000 terabytes of copyrighted materials ․ without permission," (2) "continues to commercially exploit the content of known repeat infringers," and (3) "advertises that it does not keep track of subscriber downloads, effectively encouraging infringement." Even if true, none of this conduct suggests that Giganews clearly expressed an intent to promote infringement or took "affirmative steps ․ to foster infringement." Cf. Grokster, 545 U.S. at 936-37. For the foregoing reasons, we affirm the district court's grant of summary judgment in favor of Giganews as to Perfect 10's contributory infringement claim. 3. Vicarious Infringement Perfect 10 also argues that the district court erred in granting summary judgment to Giganews on Perfect 10's vicarious infringement claim by (1) applying an incorrect legal standard as to financial benefit, and (2) concluding there was insufficient evidence to find Giganews vicariously liable. We hold that the district court applied the correct legal standard and properly granted summary judgment on the vicarious infringement claim in favor of Giganews. To prevail on a claim for vicarious infringement, a plaintiff must prove "the defendant has (1) the right and ability to supervise the infringing conduct and (2) a direct financial interest in the infringing activity." Visa, 494 F.3d at 802 (footnote omitted). With respect to the second element - the only element the district court addressed - we have explained that a "[f]inancial benefit exists where the availability of infringing material acts as a draw for customers." Ellison, 357 F.3d at 1078 (citation and internal quotation marks omitted). Further, as the district court correctly stated, "[t]he size of the 'draw' relative to a defendant's overall business is immaterial." Perfect 10, Inc., 2014 WL 8628031, at *3. Indeed, "[t]he essential aspect of the 'direct financial benefit' inquiry is whether there is a causal relationship between the infringing activity and any financial benefit a defendant reaps, regardless of how substantial the benefit is in proportion to a defendant's overall profits." Ellison, 357 F.3d at 1079. Therefore, Perfect 10 must demonstrate a causal link between the infringing activities and a financial benefit to Giganews. As the district court noted, "[t]his action is a specific lawsuit by a specific plaintiff against a specific defendant about specific copyrighted images; it is not a lawsuit against copyright infringement in general on the Usenet." Perfect 10, Inc., 2014 WL 8628031, at *4. Thus, the direct financial benefit prong of the vicarious infringement test "demands more than evidence that customers were 'drawn' to Giganews to obtain access to infringing material in general." Id. In Ellison, we rejected a plaintiff's vicarious copyright infringement claim based on the uploading of copyrighted material to a Usenet newsgroup because the plaintiff failed to show the defendant "received a direct financial benefit from the infringement in this case." Ellison, 357 F.3d at 1079 n.10. The district court correctly interpreted the references to "the infringing activity" and "the infringement in this case," id. (emphasis added), to mean infringement of the plaintiff's copyrighted material, rather than general infringement. This interpretation is supported not only by our repeated use of the definite article ("the infringing activity") in Ellison, but also by our analysis in that decision. In Ellison, after receiving the plaintiff's complaint, AOL blocked access to the specific newsgroup that contained the infringing material at issue in the complaint. Id. at 1075. In our discussion of the "direct financial benefit" prong, we concluded "[t]he record lacks evidence that AOL attracted or retained subscriptions because of the infringement or lost subscriptions because of AOL's eventual obstruction of the infringement." Id. at 1079. Particularly given AOL's actions upon receipt of the plaintiff's complaint - blocking access to the newsgroup at issue - the phrase "AOL's eventual obstruction of the infringement" logically refers to the infringement of the plaintiff's material, rather than to general copyright infringement. Therefore, contrary to Perfect 10's suggestion, Ellison does not compel the Court to hold a defendant vicariously liable regardless of whether there is any causal link between the infringement of the plaintiff's own copyrighted works and any profit to the service provider. Perfect 10's view of vicarious infringement is not only inconsistent with Ellison, but also difficult to reconcile with Article III's standing requirements. Standing under Article III requires that a plaintiff have "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Here, Perfect 10 argues for a rule that would allow a court to hold Giganews liable under a theory of vicarious liability by showing only that Giganews benefits financially from the infringement of another's works, regardless of whether Giganews received any financial benefit from the specific infringement alleged. Such a rule would allow cases to be built on the rights of owners and the actions of users not before the court. At the very least, Perfect 10's proposed rule is in significant tension with Article III's standing requirement. At most, Perfect 10's view runs counter to the requirement that there be a "causal connection between the injury and the conduct complained of[.]" Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Accordingly, we reject Perfect 10's formulation of the direct financial benefit inquiry and hold that Perfect 10 was required to provide evidence that customers were drawn to Giganews's services because of the infringing Perfect 10 material at issue. We also conclude that there was no evidence indicating that anyone subscribed to Giganews because of infringing Perfect 10 material. See Ellison, 357 F.3d at 1079. Indeed, Perfect 10 provides evidence that suggests only that some subscribers joined Giganews to access infringing material generally; Perfect 10 does not proffer evidence showing that Giganews attracted subscriptions because of the infringing Perfect 10 material. As the district court noted, "[t]hat a Giganews customer may have posted or accessed copyrighted Perfect 10 material as 'an added benefit' to a subscription is insufficient." Perfect 10, Inc., 2014 WL 8628031, at *4; see Ellison, 357 F.3d at 1079 ("There are ․ cases in which customers value a service that does not 'act as a draw.' ․ [T]he central question of the 'direct' financial benefit' inquiry ․ is whether the infringing activity constitutes a draw for subscribers, not just an added benefit."). Because the district court did not err in finding that Giganews did not receive a direct financial benefit from the infringement in this case, "we need not address whether [Giganews] had the right and ability to supervise the infringing conduct." Ellison, 357 F.3d at 1079 n.10. Perfect 10 apparently does not appeal the dismissal of its vicarious infringement claim against Livewire at the pleadings stage. Indeed, Perfect 10 does not mention Livewire in the sections of its brief devoted to its vicarious infringement claim. Nonetheless, to the extent Perfect 10 appeals this dismissal and its argument is not waived, we hold that the district court correctly dismissed the vicarious infringement claim against Livewire because Perfect 10 failed to adequately plead that Livewire exercised the requisite control over the infringing activity of its clients. 4. Fee Award In its fee award order, the district court concluded that Giganews and Livewire were the prevailing parties and found that an award of attorney's fees would serve the purposes of the Copyright Act. The district court also awarded attorney's fees pursuant to California Civil Code § 3344(a) because Appellees successfully defended against Perfect 10's common right of publicity claim. Ultimately, the district court awarded Giganews and Livewire a total of $5,213,117.06 in attorney's fees and $424,235.47 in nontaxable costs. Perfect 10 argues the district court abused its discretion in awarding attorney's fees under the Copyright Act because (1) the fee award was contrary to the purposes of the Act, (2) the district court made erroneous findings of fact regarding the factors outlined in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) ( "Fogerty I"), and (3) the total award was not reasonable. We reject these arguments and affirm the fee award. The Copyright Act provides that, in a copyright action, "the court in its discretion may allow the recovery of full costs by or against any party other than the United States," including "a reasonable attorney's fee to the prevailing party as part of the costs." 17 U.S.C. § 505. "The Supreme Court [has] identified the following nonexclusive list of factors to guide the award or denial of attorney's fees: 'frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case), and the need in particular circumstances to advance considerations of compensation and deterrence.' " Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (quoting Fogerty I, 510 U.S. at 534 n.19). We have "added as additional considerations: the degree of success obtained, the purposes of the Copyright Act, and whether the chilling effect of attorney's fees may be too great or impose an inequitable burden on an impecunious plaintiff." Id. (citing Fogerty II, 94 F.3d at 559-60). These factors "may be considered but are not exclusive and need not all be met." Fogerty II, 94 F.3d at 558. We conclude that the district court did not abuse its discretion in awarding fees to Appellees because "the reasons given by the district court ․ are well-founded in the record and are in keeping with the purposes of the Copyright Act." Id. at 560. The district court's decision appropriately recognized "the important role played by copyright defendants." Fogerty I, 510 U.S. at 532 n.18; see also Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098-AB (SHx), 2015 WL 1746484, at *3 (C.D. Cal. Mar. 24, 2015). In this vein, [b]ecause copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. To that end, defendants who seek to advance a variety of meritorious copyright defenses should be encouraged to litigate them ․ Thus a successful defense of a copyright infringement action may further the policies of the Copyright Act every bit as much as a successful prosecution of an infringement claim by the holder of a copyright. Fogerty I, 510 U.S. at 527. Further, we are unpersuaded by Perfect 10's arguments that the district court made clearly erroneous findings of fact regarding the Fogerty factors and the other factors articulated by this circuit. The district court did not give undue weight to the degree of success Appellees obtained. Nor did the district court abuse its discretion in finding that Perfect 10 had an improper motivation, that the "objective unreasonableness" factor weighed slightly in Appellees' favor, that considerations of compensation and deterrence weighed in favor of a fee award, and that it would not be inequitable to award attorney's fees to Appellees. Finally, we conclude that the district court did not abuse its discretion in awarding fees and costs in the total amount of $5,637,352.53. "Although opposing counsel's billing records may be relevant to determining whether the prevailing party spent a reasonable number of hours on the case, those records are not dispositive," and "[a court] has the discretion not to rely on them." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The district court did not abuse its discretion in concluding that the hours Perfect 10 spent litigating the case were not a good barometer of whether Appellees' billed hours were reasonable, nor did it abuse its discretion by finding that there was no basis to impose a 50 percent across-the-board cut. For the foregoing reasons, we affirm the district court's fee award. 5. Supplemental Fee Request On cross-appeal, Appellees argue that the district court erred in denying their request for supplemental fees. We disagree. Federal Rule of Civil Procedure 54 provides that a request for attorney's fees "must be made by motion[,] ․ [and] [u]nless a statute or court order provides otherwise, the motion must[ ] ․ be filed no later than 14 days after the entry of judgment." Fed. R. Civ. P. 54(d)(2)(A)-(B)(i). "Although the 14-day period is not jurisdictional, the failure to comply [with Rule 54] should be sufficient reason to deny the fee motion, absent some compelling showing of good cause." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 889-90 (9th Cir. 2000) (citation and internal quotation marks omitted) (alteration in original). Further, under Rule 54, motions for attorney's fees must "state the amount sought or provide a fair estimate of it," Fed. R. Civ. P. 54(d)(2)(B)(iii); however, the fee motion need not "be supported at the time of filing with the evidentiary material bearing on the fees." Fed. R. Civ. P. 54, 1993 Advisory Comm. Notes. Here, the parties do not dispute that the request for supplemental fees was filed after the deadline for motions for attorney's fees set by the court. Instead, Appellees contend their supplemental fee request was timely because, in their original (timely) fee motion, they asked the district court "to set a date for [Appellees] to supplement their request with 'later fees and costs' for inclusion in a final award." We agree with the district court that this amorphous request is inadequate under Rule 54(d)(2)(B)(iii), which at minimum requires a party to "provide a fair estimate" of the amount of fees sought. See Johnson v. Leading Edge Recovery Sols., L.L.C., No. 12-CV-03103-CMA-CBS, 2013 WL 5313255, at *2 (D. Colo. Sept. 23, 2013) ("[T]he Court declines to grant attorney fees because Plaintiff did not include a fair estimate of fees in his initial motion, making the instant motion untimely."); King v. Midland Credit Mgmt., Inc., No. 11-CV-02808-CMA-BNB, 2013 WL 2236934, at *2 (D. Colo. May 21, 2013), aff'd, 549 F. App'x 791 (10th Cir. Dec. 10, 2013) ("Although Plaintiff's motion requested 'any additional amounts as determined by the Court', this language is insufficient as it specifies neither the impetus for, nor any calculation of, such 'additional amounts.' " (internal citation omitted)). We are unpersuaded by Appellees' argument that because "[p]redicting future fees in litigation is notoriously difficult," Appellees could not have provided a "fair estimate" of their future fees in their initial motion. As the district court emphasized, at the time of their original fee motion, Appellees "could have reasonably anticipated that they would file a reply to the fees motion, continue litigating the sanctions motion which was already pending before Magistrate Judge Hillman at the time, seek to add [Norman] Zada to the judgment, and respond to various post-judgment proposals." Perfect 10, Inc. v. Giganews, Inc., No. 734 CV 11-07098-AB SHX, slip op. at 11 (C.D. Cal. June 3, 2015). "Simply put, [Appellees] did not face an insurmountable obstacle in providing an estimate in [their] first [fee] motion." King v. Midland Credit Mgmt., Inc., 549 F. App'x 791, 794 (10th Cir. Dec. 10, 2013). We also note that, as the district court explained, the vast majority of Appellees' "supplemental fees and expenses ․ were incurred, and therefore known to [Appellees], prior to the district court's" March 24, 2015 order granting in part Appellees' original motion for attorney's fees. United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 210 (3d Cir. 2000). Thus, to the extent that Appellees incurred fees that were unforeseeable or impossible to estimate when they filed their original fee request, they "could and should have supplemented their fee request prior to the court's decision [on the original fee motion]." Id. Appellees did not do so. In sum, we conclude that the supplemental fee request was untimely and that Appellees failed to make a "compelling showing of good cause" to excuse this untimeliness. Kona Enters., 229 F.3d at 889-90. We affirm the district court's denial of Appellees' supplemental fee request. 6. Alter Ego Liability Lastly, Appellees argue that the district court erred in denying Appellees' request to amend the judgment to add Norman Zada as Perfect 10's alter ego. We affirm the district court's decision not to add Zada as an additional judgment debtor. Under Federal Rule of Civil Procedure 69, district courts enforce money judgments in accordance with the procedures of the states where they are located. Fed. R. Civ. P. 69(a)(1). In California, a judgment can be amended to add a nonparty as a judgment debtor if the new party (1) is the alter ego of the old party, and (2) controlled the litigation. In re Levander, 180 F.3d 1114, 1121 (9th Cir. 1999). An alter ego relationship is established under California law when "(1) there is such a unity of interest and ownership that the individuality, or separateness, of the said person and corporation has ceased, and (2) an adherence to the fiction of the separate existence of the corporation ․ would sanction a fraud or promote injustice." S.E.C. v. Hickey, 322 F.3d 1123, 1128 (9th Cir. 2003) (internal quotation marks and emphasis omitted). However, mere "[d]ifficulty in enforcing a judgment or collecting a debt does not satisfy" the injustice standard for alter ego liability. Sonora Diamond Corp. v. Superior Court, 83 Cal. App. 4th 523, 539 (2000). "The alter ego doctrine ․ instead affords protection where some conduct amounting to bad faith makes it inequitable for the corporate owner to hide behind the corporate form." Id. (emphasis added). Insolvency or inadequate capitalization may satisfy this standard "when a corporation is so undercapitalized that it is unable to meet debts that may reasonably be expected to arise in the normal course of business." Laborers Clean-Up Contract Admin. Trust Fund v. Uriarte Clean-Up Serv., Inc., 736 F.2d 516, 525 (9th Cir. 1984) (internal quotation marks omitted); see also Automotriz del Golfo de California S. A. de C. V. v. Resnick, 47 Cal. 2d 792, 797 (1957) ("If the capital is illusory or trifling compared with the business to be done and the risks of loss, this is a ground for denying the separate entity privilege."). Here, Giganews has not demonstrated that an injustice would result if Zada is not added to the judgment. As the district court explained, in its nearly 20 years of operations, Perfect 10 has always been able to satisfy judgments against it, and the corporation maintained approximately $1.7 million in net assets and equity when it sued Giganews and Livewire in 2011. The district court further noted that Perfect 10's ability to sell some or all of its intellectual property could also help the corporation satisfy any judgment against it. Attempting to undermine these findings, Giganews essentially argues that Perfect 10's admission that it could not currently pay the judgment against it, combined with Zada's history of removing capital from Perfect 10 and the fact that Perfect 10 operates under a risky business model, should have resulted in alter ego liability for Zada. But Giganews misses the point. Nothing in the record suggests that Perfect 10 was so undercapitalized that it could not meet its reasonably expected debts, and particularly in light of Perfect 10's ability to satisfy past judgments against it, there is no evidence of bad faith. Indeed, this is not a case where a sole shareholder operated a company with little or no assets, nor is this a case where a company was stripped of its assets to shield its sole shareholder from adverse judgments. And finally, although Giganews argues that the district court erred in referring to the value of Perfect 10's intellectual property as evidence of potential assets with which Perfect 10 could satisfy a judgment against it, the fact remains that Perfect 10 has regularly maintained enough capital to consistently pay its debts for almost 20 years. Therefore, regardless of the alleged illiquidity of some of Perfect 10's assets, the district court did not clearly err in holding that Perfect 10 is not the "empty corporate shell" that Appellees argue it is. Accordingly, we affirm the district court's order declining to add Zada to the judgment against Perfect 10. We decline to take judicial notice of certain post-judgment debtor examination transcripts in this case that occurred after the district court ruled on the motion to amend the judgment and after this appeal was filed. However, even if we were to grant Appellees' request, those transcripts would not alter our conclusion that the district court did not clearly err. CONCLUSION In sum, we conclude the district did not err in dismissing much of Perfect 10's direct infringement claim at the pleadings stage, nor did it err in granting summary judgment in favor of Giganews and Livewire on the direct, vicarious, and contributory infringement claims. We further conclude that the district court did not abuse its discretion in awarding fees to Appellees and denying Appellees' supplemental fee request. Finally, we hold that the district court did not clearly err in refusing to add Zada to the judgment against Perfect 10. AFFIRMED. FOOTNOTES FOOTNOTE. This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. D.W. NELSON, Senior Circuit Judge:

https://cwa-union.org/news/releases/class-action-lawsuit-hits-tmobile-amazon-cox-for-alleged-age-discrimination

Class Action Lawsuit Hits T-Mobile, Amazon, Cox and Hundreds of Large Employers for Allegedly Using Facebook to Exclude Millions of Older Americans from Job Ads in Violation of Age Discrimination Laws Wednesday, December 20, 2017 Today, the Communications Workers of America (CWA) and three workers filed a class action lawsuit against T-Mobile US, Amazon.com, Inc. (Amazon), Cox Communications and Media Group (Cox), and hundreds of other large employers and employment agencies who allegedly engaged in the unlawful practice of excluding older workers from receiving job ads on Facebook for open positions at their companies. The lawsuit, which challenges how Facebook's paid ad platform is allegedly being used to hide job ads and opportunities from older workers nationally, has been filed in the U.S. District Court for the Northern District of California. The case comes several days after the 50th anniversary of Congress passing the Age Discrimination in Employment Act (ADEA), which prohibited age discrimination in employment nationwide, raised public awareness of this widespread problem, and inspired state and local governments to enact similar legislation. In the Complaint, CWA and the workers allege that, through an in-depth investigation, they have discovered that hundreds of employers and employment agencies are illegally targeting their employment ads on Facebook to exclude older workers who fall outside specified age ranges (such as ages 18 to 40, or ages 22 to 45), purposely preventing these older workers from seeing the ads or pursuing job opportunities. The Complaint alleges that this practice constitutes a violation of federal, state, and local laws that bar age discrimination in employment advertising, recruiting, and hiring. Exhibit A to the Complaint shows pictures of these companies' employment ads. The Complaint and Exhibits showing the discriminatory employment ads can be found here. The Plaintiffs aim to represent millions of job seekers, age 40 and older, who have been denied the ability to even learn of potential job openings. The defendants are large employers and employment agencies in a variety of industries including technology, entertainment, retail, health care, energy, real estate, staffing firms and agencies, and others. The Complaint alleges that T-Mobile US, a lead defendant, used Facebook ads to recruit applicants for retail stores and other positions nationwide, stating in its employment ads that T-Mobile "wants to reach people ages 18 to 38." The other lead defendants sent similar ads. Amazon sent employment ads to reach people ages "ages 22 to 40" and "ages 18 to 50," and Cox sent employment ads to reach people "ages 20 to 45" and "ages 20 to 50." Plaintiff Lura Callahan, 67, and Plaintiff Linda Maxwell Bradley, 45, are former call center workers with extensive experience in the telecommunications industry and other fields. Plaintiff Maurice Anscombe, 57, is a former cable technician and law enforcement officer. All three Plaintiffs are recently unemployed workers who use Facebook and other websites to search for work, but have allegedly been denied the opportunity to receive employment ads on Facebook due to their age. CWA represents 700,000 workers across the United States, Canada, and Puerto Rico. In recent weeks, CWA made headlines with its call for major employers to promise $4,000 raises for every employee if the corporate tax cut bill passes, as the bill's proponents have claimed employers would do. This lawsuit is CWA's latest effort to fight for workers' rights, job opportunities, and bargaining power across the country. The Plaintiffs are represented by Outten & Golden LLP, an employment and civil rights law firm with 60-plus attorneys and offices in New York, Washington, DC, San Francisco, and Chicago. The lawyers on this case include: David Lopez, who served as the General Counsel of the Equal Employment Opportunity Commission from 2010 to 2016; Adam Klein, the head of the firm's Class Action Practice Group; and Peter Romer-Friedman, who served as labor counsel to former Senate Labor Committee Chairman Edward M. Kennedy, a co-sponsor of the ADEA. "Today, the primary way workers find out about job openings is online, including by getting job ads on Facebook. It's not right if people my age are deliberately screened out, and I don't even get the chance to hear about jobs that I know I have the skills to do," Plaintiff Linda Bradley said. "Living in Ohio, it's hard to find a good job that pays a living wage. I'm upset that so many companies are blocking me and other workers from even learning about job opportunities," said Plaintiff Lura Callahan. "In decades as a civil rights lawyer, I have never seen job ads like these that expressly target young workers and exclude older workers. The law requires equal opportunity in advertising, recruiting, and hiring," said David Lopez of Outten & Golden. "It's illegal and immoral to exclude older workers from receiving a company's job ads," added Peter Romer-Friedman of Outten & Golden. "This harmful practice must stop today. We are hopeful that this class action will end systemic age discrimination in online job recruiting." The Complaint identifies a number of additional large companies that allegedly exclude older workers from receiving their job ads on Facebook, including Capital One, Citadel, Defenders, Fairfield Residential, Leidos, Sleep Number, Triplebyte, and Weichert Realtors. A year ago, an investigation by the news organization ProPublica found that Facebook's platform made it possible for African Americans, Latinos, and Asian Americans to be excluded from receiving ads for various economic opportunities, including housing and employment ads. In the Complaint filed today, CWA and the workers have alleged that Facebook continues to profit from employment discrimination by helping employers and employment agencies to unlawfully exclude older workers from receiving job ads and information. CWA, the workers, and their attorneys are asking the Court to: Declare that the practice of excluding older workers from receiving job ads on Facebook violates laws that prohibit age discrimination in employment. Issue an injunction to stop T-Mobile, Amazon, Cox, and all other large employers and employment agencies from continuing to engage in acts that violate anti-discrimination laws. Require the defendants to compensate older workers who have been denied job opportunities. The action is known as Communications Workers of America et al. v. T-Mobile US, Inc. et al.

http://case.lawmemo.com/us/mclane.pdf OCTOBER TERM, 2016 SUPREME COURT OF THE UNITED STATES Syllabus MCLANE CO., INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 15-1248. Argued February 21, 2017—Decided April 3, 2017

Damiana Ochoa worked for eight years in a physically demanding job for petitioner McLane Co., a supply-chain services company. McLane requires employees in those positions—both new employees and those returning from medical leave—to take a physical evaluation.When Ochoa returned from three months of maternity leave, she failed the evaluation three times and was fired. She then filed a sex discrimination charge under Title VII of the Civil Rights Act of 1964.The Equal Employment Opportunity (EEOC) began an investigation, but McLane declined its request for so-called "pedigree information": names, Social Security numbers, addresses, and telephone numbers of employees asked to take the evaluation. After the EEOC expanded the investigation's scope both geographically (to cover McLane's national operations) and substantively (to investigate possible age discrimination), it issued subpoenas, as authorized by 42 U. S. C.§2000e-9, requesting pedigree information relating to its new investigation. When McLane refused to provide the information, the EEOC filed two actions in Federal District Court—one arising out of Ochoa's charge and one arising out of the EEOC's own age-discrimination charge—seeking enforcement of its subpoenas. The District Judge declined to enforce the subpoenas, finding that the pedigree information was not relevant to the charges, but the Ninth Circuit reversed. Reviewing the District Court's decision to quash the subpoena de novo, the court concluded that the lower court erred in finding the pedigree information irrelevant. Held: A district court's decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. Pp. 6-12. (a) Both factors that this Court examines when considering whether such decision should be subject to searching or deferential appellate review point toward abuse-of-discretion review. First, the longstanding practice of the courts of appeals is to review a district court's decision to enforce or quash an administrative subpoena for abuse of discretion. Title VII confers on the EEOC the same authority to issue subpoenas that the National Labor Relations Act (NLRA)confers on the National Labor Relations Board (NLRB). During the three decades between the NLRA's enactment and the incorporation of its subpoena-enforcement provisions into Title VII, every Circuit to consider the question had held that a district court's decision on enforcement of an NLRB subpoena is subject to abuse-of-discretion review. Congress amended Title VII to authorize EEOC subpoenas against this uniform backdrop of deferential appellate review, and today, nearly every Court of Appeals reviews a district court's decision whether to enforce an EEOC subpoena for abuse of discretion. This "long history of appellate practice," Pierce v. Underwood, 487 U. S. 552, 558, carries significant persuasive weight. Second, basic principles of institutional capacity counsel in favor of deferential review. In most cases, the district court's enforcement decision will turn either on whether the evidence sought is relevant to the specific charge or whether the subpoena is unduly burdensome in light of the circumstances. Both of these tasks are well suited to a district judge's expertise. The first requires the district court to evaluate the relationship between the particular materials sought and the particular matter under investigation—an analysis "variable in relation to the nature, purposes and scope of the inquiry." Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 209. And whether a subpoena is overly burdensome turns on the nature of the materials sought and the difficulty the employer will face in producing them—" 'fact-intensive, close calls' " better suited to resolution by the district court than the court of appeals. Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 404. Other functional considerations also show the appropriateness of abuse-of-discretion review. For one, the district courts' considerable experience in making similar decisions in other contexts, see Buford v. United States, 532 U. S. 59, 66, gives them the "institutional ad-vantag[e]," id., at 64, that comes with greater experience. Deferential review also "streamline[s] the litigation process by freeing appel-late courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court," Cooter & Gell, 496 U. S., at 404, something particularly important in a proceeding designed only to facilitate the EEOC's investigation. Pp. 6-9.(b) Court-appointed amicus' arguments in support of de novo review are not persuasive. Amicus claims that the district court's primary task is to test a subpoena's legal sufficiency and thus requires no exercise of discretion. But that characterization is not inconsistent with abuse-of-discretion review, which may be employed to insulate the trial judge's decision from appellate review for the same kind of functional concerns that underpin the Court's conclusion that abuse of discretion is the appropriate standard. It is also unlikely that affording deferential review to a district court's subpoena decision would clash with Court of Appeals decisions that instructed district courts to defer to the EEOC's determination about the relevance of evidence to the charge at issue. Such decisions are better read as resting on the established rule that the term "relevant" be understood "generously" to permit the EEOC "access to virtually any material that might cast light on the allegations against the employer." EEOC v. Shell Oil Co., 466 U. S. 54, 68-69. Nor do the constitutional underpinnings of the Shell Oil standard re-quire a different result. While this Court has described a subpoena as a " 'constructive' search," Oklahoma Press, 327 U. S., at 202, and implied that the Fourth Amendment is the source of the requirement that a subpoena not be "too indefinite," United States v. Morton Salt Co., 338 U. S. 632, 652, not every decision touching on the FourthAmendment is subject to searching review. See, e.g., United States v. Nixon, 418 U. S. 683, 702. Cf. Illinois v. Gates, 462 U. S. 213, 236; Ornelas v. United States, 517 U. S. 690, distinguished. Pp. 9-11.(c) The case is remanded so that the Court of Appeals can review the District Court's decision under the appropriate standard in the first instance. In doing so, the Court of Appeals may consider, as and to the extent it deems appropriate, any of McLane's arguments regarding the burdens imposed by the subpoena. Pp. 11-12. 804 F. 3d 1051, vacated and remanded. SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, BREYER, ALITO, and KAGAN, JJ., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[April 3, 2017] JUSTICE GINSBURG, concurring in part and dissenting in part. While I agree with the Court that "abuse of discretion" is generally the proper review standard for district court decisions reviewing agency subpoenas, I would never the-less affirm the Ninth Circuit's judgment in this case. As the Court of Appeals explained, the District Court's refusal to enforce the Equal Employment Opportunity Commission's (EEOC) subpoena for pedigree information rested on a legal error. Lower court resolution of a question of law is ordinarily reviewable de novo on appeal. Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. ___, ___, and n. 2 (2014) (slip op., at 4, and n. 2). According to the District Court, it was not yet "necessary [for the EEOC] to seek such information." 2012 WL 5868959, *6 (D Ariz., Nov. 19, 2012). As the Ninth Circuit correctly conveyed, however: "The EEOC does not have to show a 'particularized necessity of access, beyond a showing of mere relevance,' to obtain evidence." 804 F. 3d 1051, 1057 (2015) (quoting University of Pa. v. EEOC, 493 U. S. 182, 188 (1990)). Because the District Court erred as a matter of law in demanding that the EEOC show more than relevance in order to gain enforcement of its subpoena, I would not disturb the Court of Appeals' judgment.

http://case.lawmemo.com/us/homeland.pdf SUPREME COURT OF THE UNITED STATES Syllabus DEPARTMENT OF HOMELAND SECURITY v. MACLEAN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 13-894. Argued November 4, 2014—Decided January 21, 2015

In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135.That Act provides that the Transportation Security Administration(TSA) "shall prescribe regulations prohibiting the disclosure of information . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation." 49 U. S. C. §114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of "sensitive security in-formation," 67 Fed. Reg. 8351, which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations," 49 CFR §1520.7(j). In July 2003, the TSA briefed all federal air marshals—including Robert J. MacLean—about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA's decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization. MacLean challenged his firing before the Merit Systems Protection Board. He argued that his disclosure was whistle blowing activity under 5 U. S. C. §2302(b)(8)(A), which protects employees who dis-close information that reveals "any violation of any law, rule, or regulation," or "a substantial and specific danger to public health or safety." The Board held that MacLean did not qualify for protection under that statute because his disclosure was "specifically prohibited by law," §2302(b)(8)(A)—namely, by 49 U. S. C. §114(r)(1). The Court of Appeals for the Federal Circuit vacated the Board's decision, holding that Section 114(r)(1) was not a prohibition. Held: MacLean's disclosure was not "specifically prohibited by law." Pp. 5-16.(a) The Government argues that MacLean's disclosure was "specifically prohibited by law" in two ways: first, by the TSA's regulations on sensitive security information, and second, by Section 114(r)(1) it-self, which authorized the TSA to promulgate those regulations.Pp. 5-14.(i) MacLean's disclosure was not prohibited by the TSA's regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as "law" under that statute. Throughout Section 2302, Congress repeatedly used the phrase "law, rule, or regulation." But Congress did not use that phrase in the statutory language at issue here;it used the word "law" standing alone. Congress's choice to say "specifically prohibited by law," instead of "specifically prohibited by law,rule, or regulation" suggests that Congress meant to exclude rules and regulations. In addition, Section 2302(b)(8)(A) creates a second exception for disclosures "required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs." That the second exception is limited to actions by the President himself suggests that the first exception does not include action taken by executive agencies. Finally, interpreting the word "law" to include rules and regulations could defeat the purpose of the whistle-blower statute. That interpretation would allow an agency to insulate itself from Section 2302(b)(8)(A) simply by promulgating a regulation that "specifically prohibited" all whistle blowing. The Government proposes two alternative interpretations, but neither is persuasive. First, the Government argues that the word "law" includes all regulations that have the "force and effect of law." The Government bases this argument on the decision in Chrysler Corp. v. Brown, 441 U. S. 281, where this Court held that legislative regulations generally fall within the meaning of the word "law" unless there is a "clear showing of contrary legislative intent." Id., at 295-296. But Congress's use of the word "law," in close connection with the phrase "law, rule, or regulation," provides the necessary "clear showing" that "law" does not include regulations in this case. Second, the Government argues that the word "law" includes at least those regulations that were "promulgated pursuant to an express congressional directive." The Government, however, was unable to find a single ex-ample of the word "law" being used in that way. Pp. 6-11. (ii) Likewise, MacLean's disclosure was not prohibited by Section 114(r)(1). That statute does not prohibit anything; instead, it authorizes the TSA to "prescribe regulations." Thus, by its terms, Section114(r)(1) did not prohibit the disclosure here. The Government responds that Section 114(r)(1) did prohibit MacLean's disclosure by imposing a "legislative mandate" on the TSA to promulgate regulations to that effect. But the statute affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure.Thus, it is the TSA's regulations—not the statute—that prohibited MacLean's disclosure, and those regulations do not qualify as "law" under Section 2302(b)(8)(A). Pp. 11-14.(b) The Government argues that providing whistle blower protection to individuals like MacLean would "gravely endanger public safety" by making the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA's 60,000 employees. Those concerns are legitimate, but they must bead dressed by Congress or the President, rather than by this Court. Pp. 14-15. 714 F. 3d. 1301, affirmed. ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, THOMAS, GINSBURG, BREYER, ALITO, and KAGAN, JJ., joined. SO-TOMAYOR, J., filed a dissenting opinion, in which KENNEDY, J., joined. 2 DEPARTMENT OF HOMELAND SECURITY v. MACLEAN SOTOMAYOR, J., dissenting The Court reasons, first, that Section 114(r)(1) does not "prohibit anything," but instead simply "authorizes" the TSA to prescribe regulations. Ante, at 11. But this con-tention overlooks the statute's use of the word "shall," which, as we have observed, "generally means 'must.'" Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 432, n. 9 (1995); see also, e.g., Federal. Express Corp. v. Holowecki, 552 U. S. 389, 400 (2008) ("Congress' use of the term 'shall' indicates an intent to 'impose discretionless obligations'")(some internal quotation marks omitted)); A. Scalia & B.Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) ("[W]hen the word shall can reasonably read asmandatory, it ought to be so read"). Section 114(r)(1) doesnot merely authorize the TSA to promulgate regulations; itdirects it to do so, and describes what those regulations must accomplish.The Court focuses, second, on the fact that Section 114(r) authorizes the TSA to "'decid[e]'" whether the disclosure of a particular item of information would in fact be "'detrimental to the security of transportation.'" Ante, at 11-12 (emphasis deleted). I certainly agree that thislanguage vests some discretion in the agency.1 But the agency is required to prevent the disclosure of any infor-mation it determines is within Congress' prohibition; itsdiscretion pertains only to identifying whether a particu-lar piece of information falls within the scope of Congress' command. In concluding that such residual agency discre-tion deprives Section 114(r) of prohibitory effect, the Court overlooks the degree of agency involvement that is neces-sary in the administration of many antidisclosure stat-utes. Congress cannot be expected to identify with partic-ularity each individual document or datum the release of which it wants to preclude. Often, it will have to leave to an agency or other enforcing authority the tasks of defin-ing—perhaps through regulations—exactly what type ofinformation falls within the scope of the congressional prohibition, and of determining whether a particular item of information fits the bill. The enforcing authority may,as the Court puts it, sometimes be required to make some "fine-grained distinction[s]" in fulfilling this charge, ante, at 12, but that does not change the fact that Congress itself is the source of the prohibition on disclosure.2 Indeed, Congress appears to have anticipated the need for agency involvement in the interpretation and enforcement of antidisclosure statutes at the time it enacted the WPA. The Senate Report to the WPA identified only twostatutes the violation of which would preclude whistle-blower protection, the first being Section 102(d)(3) of theNational Security Act of 1947, 61 Stat. 498, which pro- vided that "the Director of Central Intelligence shall be re- sponsible for protecting intelligence sources and methods from unauthorized disclosure." See S. Rep. No. 95-969, pp. 21-22 (1978). This example clearly suggests Congresscontemplated that a statute directing an agency to protectagainst disclosures and delegating substantial authority tothe agency should nevertheless be deemed to impose the relevant prohibition. Section 114(r)(1)'s delegation to theTSA to "decide" whether the release of particular infor-mation would be "detrimental to the security of transportation" likewise simply reflects Congress' recognition of the inevitable fact that the agency will be tasked, in the first instance, with enforcing its statutory mandate. In sum, with Section 114(r)(1), Congress has require dagency action that would preclude the release of information "detrimental to the security of transportation." In so doing, Congress has expressed its clear intent to prohibit such disclosures. I would respect its intent, and hold that a disclosure contravening that mandate is "prohibited by law" within the meaning of the WPA. Having said all that, I appreciate the narrowness of the Court's holding. The Court's conclusion that Section 114(r) does not itself prohibit any disclosures depends entirely on the statutory language directing the agency to "prescribe regulations," and providing that the agency will"decid[e]" what information falls within the statue's purview. See ante, at 11. From all that appears in the majority opinion, then, this case would likely have turned out differently if Section 114(r) instead provided: "The disclosure of information detrimental to the security of transportation is prohibited, and the TSA shall promulgate regulations to that effect," or "The Under Secretary shall prescribe regulations prohibiting the disclosure of information detrimental to the security of transportation; and such disclosures are prohibited." I myself decline to surrender so fully to sheer formalism, especially where transportation security is at issue and there is little dispute that the disclosure of air marshals' locations is potentially dangerous and was proscribed by the relevant implementing regulation. In so surrendering, however, the Court would appear to have enabled future courts and Congresses to avoid easily the consequences of its ruling, and thus to have limited much of the potential for adverse practical effects beyond this case. But in the interim, at least, the Court has left important decisions regarding the disclosure of critical information completely to the whims of individual employees. I respectfully dissent. 1The Court does not address respondent's alternative argument, accepted by the Court of Appeals below, that Section 114(r)(1) describes the information encompassed in its prohibitory scope with insufficient particularity to qualify the disclosure here as "specifically prohibited by law" within the meaning of the WPA. Some of the legislative history of the WPA linked its specificity requirement to the criteria established in Exemption 3 of the Freedom of Information Act, 5 U. S. C. §552(b)(3),and the Court of Appeals applied this standard. See 714 F. 3d 1301, 1309 (CA Fed. 2013); see also S. Rep. No. 95-969, pp. 21-22 (1978). MacLean has offered no argument that a WPA anti-disclosure statute must define the relevant category of information with any greater degree of particularity. Assuming the Exemption 3 standard is applicable, I note that Section 114(r) is at least as "specific" as the statutory provisions we have previously held to satisfy Exemption 3's requirements. See, e.g., Department of Justice v. Julian, 486 U. S. 1, 9 (1988) (holding that provisions of Federal Rule of Criminal Procedure 32(c)(3)(A) and former 18 U. S. C. §4208(c)(1982 ed.) prohibiting disclosure of portions of presentence reports "relat[ed] to confidential sources,diagnostic opinions, and other information that may cause harm to the defendant or to third parties" could justify withholding under Exemption 3 (emphasis added)). 2For the same reasons, the agency's decision that a disclosure contravened a statute may not necessarily be determinative in any given WPA case: Although an agency may no doubt receive deference in the interpretation and implementation of a prohibitory statute, ultimately WPA protection will not apply if the agency improperly concluded that a given disclosure was prohibited by that statute. Cf. CIA v. Sims, 471 U. S. 159, 168-181 (1985) (according deference to Central Intelligence Agency's expertise, but engaging in an extended analysis of whether the particular information the agency refused to disclose fell within the scope of the statutory prohibition).

https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf OCTOBER TERM, 2017 SUPREME COURT OF THE UNITED STATES Syllabus MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL. CERTIORARI TO THE COURT OF APPEALS OF COLORADO No. 16-111. Argued December 5, 2017—Decided June 4, 2018

Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operatedby Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wed-ding celebration because of his religious opposition to same-sex mar-riages—marriages that Colorado did not then recognize—but that hewould sell them other baked goods, e.g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commis-sion) pursuant to the Colorado Anti-Discrimination Act (CADA),which prohibits, as relevant here, discrimination based on sexual ori-entation in a "place of business engaged in any sales to the public andany place offering services . . . to the public." Under CADA's admin-istrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commis-sion. The Commission then referred the case for a formal hearing be-fore a state Administrative Law Judge (ALJ), who ruled in the cou-ple's favor. In so doing, the ALJ rejected Phillips' First Amendmentclaims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed. Held: The Commission's actions in this case violated the Free Exercise Clause. Pp. 9-18.(a) The laws and the Constitution can, and in some instances must,protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Obergefell v. Hodges, 576 U. S. ___, ___. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artisticskills to make an expressive statement, a wedding endorsement inhis own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincerereligious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages per-formed in the State and before this Court issued United States v. Windsor, 570 U. S. 744, or Obergefell. Given the State's position at the time, there is some force to Phillips' argument that he was notunreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specificmessages they considered offensive. Indeed, while the instant en-forcement proceedings were pending, the State Civil Rights Divisionconcluded in at least three cases that a baker acted lawfully in declin-ing to create cakes with decorations that demeaned gay persons orgay marriages. Phillips too was entitled to a neutral and respectfulconsideration of his claims in all the circumstances of the case. Pp. 9-12.(b) That consideration was compromised, however, by the Commis-sion's treatment of Phillips' case, which showed elements of a clearand impermissible hostility toward the sincere religious beliefs moti-vating his objection. As the record shows, some of the commissioners at the Commission's formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips' faith as despicable andcharacterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Hol-ocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefsfiled here. The comments thus cast doubt on the fairness and impar-tiality of the Commission's adjudication of Phillips' case. Another indication of hostility is the different treatment of Phillips' case and the cases of other bakers with objections to anti-gay mes-sages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the re-quested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the casesinvolving requests for cakes depicting anti-gay marriage symbolism.The Division also considered that each bakery was willing to sell oth-er products to the prospective customers, but the Commission foundPhillips' willingness to do the same irrelevant. The State Court of Appeals' brief discussion of this disparity of treatment does not an-swer Phillips' concern that the State's practice was to disfavor the re-ligious basis of his objection. Pp. 12-16.(c) For these reasons, the Commission's treatment of Phillips' caseviolated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution's guarantee of free ex-ercise, cannot impose regulations that are hostile to the religious be-liefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefsand practices. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. Factors relevant to the assessment of governmental neu-trality include "the historical background of the decision under chal-lenge, the specific series of events leading to the enactment or officialpolicy in question, and the legislative or administrative history, in-cluding contemporaneous statements made by members of the deci-sionmaking body." Id., at 540. In view of these factors, the record here demonstrates that the Commission's consideration of Phillips'case was neither tolerant nor respectful of his religious beliefs. The Commission gave "every appearance," id., at 545, of adjudicating hisreligious objection based on a negative normative "evaluation of theparticular justification" for his objection and the religious grounds forit, id., at 537, but government has no role in expressing or even sug-gesting whether the religious ground for Phillips' conscience-basedobjection is legitimate or illegitimate. The inference here is thus that Phillips' religious objection was not considered with the neutralityrequired by the Free Exercise Clause. The State's interest could have been weighed against Phillips' sincere religious objections in a way consistent with the requisite religious neutrality that must be strictlyobserved. But the official expressions of hostility to religion in someof the commissioners' comments were inconsistent with that re-quirement, and the Commission's disparate consideration of Phillips'case compared to the cases of the other bakers suggests the same.Pp. 16-18. 370 P. 3d 272, reversed. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined. KAGAN, J., filed a concurring opinion, in which BREYER, J., joined. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in whichGORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined. The Court concludes that "the Commission's considera-tion of Phillips' religious objection did not accord with itstreatment of [the other bakers'] objections." Ante, at 15. See also ante, at 5-7 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her reli-gion. And the bakers visited by Jack would have sold himany baked goods they would have sold anyone else. The bakeries' refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips' refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexualorientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wed-ding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, at 3-4, 9-10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohib-its precisely the discrimination Craig and Mullins encoun-tered. See supra, at 1. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any othercustomer would have been treated—no better, no worse.3 The fact that Phillips might sell other cakes and cookiesto gay and lesbian customers4 was irrelevant to the issue Craig and Mullins' case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries' sale of other goods to Chris-tian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 15. Nor was the Colorado Court of Appeals' "difference in treatment of these two instances . . . based on the govern-ment's own assessment of offensiveness." Ante, at 16. Phillips declined to make a cake he found offensive wherethe offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection tothe product was due to the demeaning message the re-quested product would literally display. As the Court recognizes, a refusal "to design a special cake with wordsor images . . . might be different from a refusal to sell any cake at all." Ante, at 2.5 The Colorado Court of Appeals did not distinguish Phillips and the other three bakeriesbased simply on its or the Division's finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground thatCraig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorousprotection from discrimination. See App. to Pet. for Cert.20a, n. 8 ("The Division found that the bakeries did not refuse [Jack's] request because of his creed, but rather because of the offensive nature of the requested mes-sage. . . . [T]here was no evidence that the bakeries based their decisions on [Jack's] religion . . . [whereas Phillips] discriminat[ed] on the basis of sexual orientation."). I do not read the Court to suggest that the Colorado Legisla-ture's decision to include certain protected characteristicsin CADA is an impermissible government prescription ofwhat is and is not offensive. Cf. ante, at 9-10. To repeat,the Court affirms that "Colorado law can protect gaypersons, just as it can protect other classes of individuals, in acquiring whatever products and services they chooseon the same terms and conditions as are offered to other members of the public." Ante, at 10. II Statements made at the Commission's public hearings on Phillips' case provide no firmer support for the Court'sholding today. Whatever one may think of the statements in historical context, I see no reason why the comments ofone or two Commissioners should be taken to overcome Phillips' refusal to sell a wedding cake to Craig and Mul-lins. The proceedings involved several layers of independ-ent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a-6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties' cross-motions for sum-mary judgment. Third, the Commission heard Phillips' appeal. Fourth, after the Commission's ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips' case is thus far removed from theonly precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993),where the government action that violated a principle ofreligious neutrality implicated a sole decisionmaking body, the city council, see id., at 526-528. * * * For the reasons stated, sensible application of CADA toa refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals'judgment. I would so rule. __________________________________________________________________________ Non-Violence, 468 U. S. 288, 294 (1984)). The record in this case is replete with Jack Phillips' own views on the messages he believes hiscakes convey. See ante, at 5-6 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips "considers" and "sees"his work). But Phillips submitted no evidence showing that an objec-tive observer understands a wedding cake to convey a message, muchless that the observer understands the message to be the baker's,rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of theWedding Cake, 22 Man 93, 100-101 (1987) (no explanation of weddingcakes' symbolism was forthcoming "even amongst those who might beexpected to be the experts"); id., at 104-105 (the cake cutting traditionmight signify "the bride and groom . . . as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Courthas suggested the provision of a baked good might be expressive con-duct. Cf. ante, at 7, n. 2 (THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U. S. 557, 568-579 (1995) (citing previouscases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U. S. 560, 565 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington, 418 U. S. 405, 410 (1974) (observing the Court's decades-long recognition of the symbolism of flags). 2The record provides no ideological explanation for the bakeries' re-fusals. Cf. ante, at 1-2, 9, 11 (GORSUCH, J., concurring) (describingJack's requests as offensive to the bakers' "secular" convictions). 3 JUSTICE GORSUCH argues that the situations "share all legally sa-lient features." Ante, at 4 (concurring opinion). But what critically differentiates them is the role the customer's "statutorily protected trait," ibid., played in the denial of service. Change Craig and Mullins'sexual orientation (or sex), and Phillips would have provided the cake. Change Jack's religion, and the bakers would have been no more willing to comply with his request. The bakers' objections to Jack's cakes had nothing to do with "religious opposition to same-sex wed-dings." Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to peopleprotected by CADA. With respect to Jack's second cake, in particular, where he requested an image of two groomsmen covered by a red "X" and the lines "God loves sinners" and "While we were yet sinners Christdied for us," the bakers gave not the slightest indication that religiouswords, rather than the demeaning image, prompted the objection. See supra, at 3. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religiousbelief; and the Commission properly found discrimination in one casebut not the other. Cf. ante, at 4-6 (GORSUCH, J., concurring). 4But see ante, at 7 (majority opinion) (acknowledging that Phillipsrefused to sell to a lesbian couple cupcakes for a celebration of their union). 5The Court undermines this observation when later asserting thatthe treatment of Phillips, as compared with the treatment of the other three bakeries, "could reasonably be interpreted as being inconsistentas to the question of whether speech is involved." Ante, at 15. But recall that, while Jack requested cakes with particular text inscribed,Craig and Mullins were refused the sale of any wedding cake at all.They were turned away before any specific cake design could be dis-cussed. (It appears that Phillips rarely, if ever, produces wedding cakeswith words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes (as last visited June 1, 2018) (gallery with 31 weddingcake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8-9 (GORSUCH, J., concur-ring); it is between a cake with a particular design and one whose formwas never even discussed.

Amendment 9 - Unenumerated Rights

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment 19 - Women's Suffrage Rights

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

18 The Twenty-sixth Amendment was proposed by Congress on March 23, 1971, upon passage by the House of Representatives, the Senate having previously passed an identical resolution on March 10, 1971. It appears officially in 85 Stat. 825. Ratification was completed on July 1, 1971, when action by the legislature of the 38th State, North Carolina, was concluded, and the Administrator of the General Services Administration officially certified it to have been duly ratified on July 5, 1971. 36 Fed. Reg. 12725. As of the publication of this volume, 42 States had ratified this Amendment: Connecticut, March 23, 1971; Delaware, March 23, 1971; Minnesota, March 23, 1971; Tennessee, March 23, 1971; Washington, March 23, 1971; Hawaii, March 24, 1971; Massachusetts, March 24, 1971; Montana, March 29, 1971; Arkansas, March 30, 1971; Idaho, March 30, 1971; Iowa, March 30, 1971; Nebraska, April 2, 1971; New Jersey, April 3, 1971; Kansas, April 7, 1971; Michigan, April 7, 1971; Alaska, April 8, 1971; Maryland, April 8, 1971; Indiana, April 8, 1971; Maine, April 9, 1971; Vermont, April 16, 1971; Louisiana, April 17, 1971; California, April 19, 1971; Colorado, April 27, 1971; Pennsylvania, April 27, 1971; Texas, April 27, 1971; South Carolina, April 28, 1971; West Virginia, April 28, 1971; New Hampshire, May 13, 1971; Arizona, May 14, 1971; Rhode Island, May 27, 1971; New York, June 2, 1971; Oregon, June 4, 1971; Missouri, June 14, 1971; Wisconsin, June 22, 1971; Illinois, June 29, 1971; Alabama, June 30, 1971; Ohio, June 30, 1971; North Carolina, July 1, 1971; Oklahoma, July 1, 1971; Virginia, July 8, 1971; Wyoming, July 8, 1971; Georgia, October 4, 1971.

19 This purported amendment was proposed by Congress on September 25, 1789, when it passed the Senate, having previously passed the House on September 24. (1 Annals of Congress 88, 913). It appears officially in 1 Stat. 97. Having received in 1789-1791 only six state ratifications, the proposal then failed of ratification while ten of the 12 sent to the States by Congress were ratified and proclaimed and became the Bill of Rights. The provision was proclaimed as having been ratified and having become the 27th Amendment, when Michigan ratified on May 7, 1992, there being 50 States in the Union. Proclamation was by the Archivist of the United States, pursuant to 1 U.S.C. Sec. 106b, on May 19, 1992. F.R.Doc. 92-11951, 57 Fed. Reg. 21187. It was also proclaimed by votes of the Senate and House of Representatives. 138 Cong. Rec. (daily ed) S 6948-49, H 3505-06. The several state legislatures ratified the proposal on the following dates: Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; Delaware, January 28, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791; Ohio, May 6, 1873; Wyoming, March 6, 1978; Maine, April 27, 1983; Colorado, April 22, 1984; South Dakota, February 1985; New Hampshire, March 7, 1985; Arizona, April 3, 1985; Tennessee, May 28, 1985; Oklahoma, July 10, 1985; New Mexico, February 14, 1986; Indiana, February 24, 1986; Utah, February 25, 1986; Arkansas, March 13, 1987; Montana, March 17, 1987; Connecticut, May 13, 1987; Wisconsin, July 15, 1987; Georgia, February 2, 1988; West Virginia, March 10, 1988; Louisiana, July 7, 1988; Iowa, February 9, 1989; Idaho, March 23, 1989; Nevada, April 26, 1989; Alaska, May 6, 1989; Oregon, May 19, 1989; Minnesota, May 22, 1989; Texas, May 25, 1989; Kansas, April 5, 1990; Florida, May 31, 1990; North Dakota, Mary 25, 1991; Alabama, May 5, 1992; Missouri, May 5, 1992; Michigan, May 7, 1992. New Jersey subsequently ratified on May 7, 1992.

https://www.supremecourt.gov/opinions/18pdf/18-272_4hdj.pdf Cite as: 586 U. S. ____ (2019) Per Curiam SUPREME COURT OF THE UNITED STATES JIM YOVINO, FRESNO COUNTY SUPERINTENDENT OF SCHOOLS v. AILEEN RIZO ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 18-272. Decided February 25, 2019

PER CURIAM. The petition in this case presents the following question:May a federal court count the vote of a judge who diesbefore the decision is issued? A judge on the United States Court of Appeals for theNinth Circuit, the Honorable Stephen Reinhardt, died onMarch 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.* In the present case, JudgeReinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. Bycounting Judge Reinhardt's vote, the court deemed JudgeReinhardt's opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Cir-cuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Rein-hardt's vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en bancpanel who were still living when the decision was filed. Although the other five living judges concurred in thejudgment, they did so for different reasons. The upshot isthat Judge Reinhardt's vote made a difference. Was that lawful? I Aileen Rizo, an employee of the Fresno County Office ofEducation, brought suit against the superintendent of schools, claiming, among other things, that the county wasviolating the Equal Pay Act of 1963, 77 Stat. 56-57, 29 U. S. C. §206(d). The District Court denied the county's motion for summary judgment, and the Ninth Circuit granted the county's petition for interlocutory review. A three-judge panel of the Ninth Circuit vacated the decision of the District Court based on a prior Ninth Circuit deci-sion, Kouba v. Allstate Ins. Co., 691 F. 2d 873 (1982), thatthe panel "believed it was compelled to follow." 887 F. 3d 453, 459 (2018) (en banc). The court then granted en banc review "to clarify the law, including the vitality and effectof Kouba." Ibid. Like other courts of appeals, the NinthCircuit takes the position that a panel decision like that in Kouba can be overruled only by a decision of the en banc court or this Court, see Naruto v. Slater, 888 F. 3d 418, 421 (2018), and therefore a clear purpose of the en banc decision issued on April 9 was to announce a new binding Ninth Circuit interpretation of the Equal Pay Act issue previously addressed by Kouba. The opinion authored by Judge Reinhardt and issued 11 days after his death pur-ports to do that, but its status as a majority opinion of the en banc court depends on counting Judge Reinhardt's vote. The opinions issued by the en banc Ninth Circuit statethat they were "Filed April 9, 2018," and they were en-tered on the court's docket on that date. A footnote at the beginning of the en banc opinion states: "Prior to his death, Judge Reinhardt fully participatedin this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to hisdeath." 887 F. 3d, at 455, n. *. II The Ninth Circuit did not expressly explain why itconcluded that it could count Judge Reinhardt's opinion as"[t]he majority opinion" even though it was not endorsed by a majority of the living judges at the time of issuance, but the justification suggested by the footnote noted above is that the votes and opinions in the en banc case wereinalterably fixed at least 12 days prior to the date on which the decision was "filed," entered on the docket, and released to the public. This justification is inconsistent with well-established judicial practice, federal statutorylaw, and judicial precedent.As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges' votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very mo-ment when a decision is released. We endorsed this rule in United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960), which interpreted an earlier version of 28 U. S. C. §46(c), the statutory provi-sion authorizing the courts of appeals to hear cases en banc. The current version of this provision permits a circuit to adopt a rule allowing a senior circuit judge to siton an en banc case under certain circumstances, but at the time of our decision in American-Foreign S. S. Corp., this was not allowed. Instead, only active judges could sit en banc. See 28 U. S. C. §46(c) (1958 ed.).In American-Foreign S. S. Corp., Judge Harold Medinawas one of the five active judges on the Second Circuitwhen the court granted a petition for rehearing en banc. After briefing was complete but before an opinion issued, Judge Medina took senior status. When the en banc court issued its decision, the majority opinion was joined by Judge Medina and two active Circuit Judges; the two other active Circuit Judges dissented. We vacated the judgment and remanded the case, holding that "[a]n 'ac-tive' judge is a judge who has not retired 'from regularactive service,'" and "[a] case or controversy is 'deter-mined' when it is decided." 363 U. S., at 688. Because Judge Medina was not in regular active service when theopinion issued, he was "without power to participate" in the en banc decision. Id., at 687, 691; cf., id., at 691-692 (Harlan, J., dissenting).Our holding in American-Foreign S. S. Corp. applieswith equal if not greater force here. When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court's decision at the time it was rendered. In addition to §46(c), §46(d) also shows that what theNinth Circuit did here was unlawful. That provision states: "A majority of the number of judges authorized to con-stitute a court or panel thereof, as provided in para-graph (c), shall constitute a quorum." Under §46(c), a court of appeals case may be decided by a panel of three judges, and therefore on such a panel twojudges constitute a quorum and are able to decide an appeal—provided, of course, that they agree. Invokingthis rule, innumerable court of appeals decisions hold thatwhen one of the judges on a three-judge panel dies, retires,or resigns after an appeal is argued or is submitted for decision without argument, the other two judges on thepanel may issue a decision if they agree. See, e.g., United States v. Allied Stevedoring Corp., 241 F. 2d 925, 927 (CA2 1957); Murray v. National Broadcasting Co., 35 F. 3d 45, 47 (CA2 1994); Singh v. Ashcroft, 121 Fed. Appx. 471, 472, n. (CA3 2005); ASW Allstate Painting & Constr. Co. v. Lexington Ins. Co., 188 F. 3d 307, 309, n. (CA5 1999); Clark v. Metropolitan Life Ins. Co., 67 F. 3d 299, n. ** (CA6 1995); Kulumani v. Blue Cross Blue Shield Assn, 224 F. 3d 681, 683, n. ** (CA7 2000). See also Nguyen v. United States, 539 U. S. 69, 82 (2003) ("[S]ettled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified."). With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt's death but subsequently withdrawn, see supra, at 1 n., we are aware of no cases in which a court of ap-peals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time. * * * Because Judge Reinhardt was no longer a judge at thetime when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United Statesafter his death. But federal judges are appointed for life,not for eternity.We therefore grant the petition for certiorari, vacate thejudgment of the United States Court of Appeals for theNinth Circuit, and remand the case for further proceed-ings consistent with this opinion. It is so ordered. JUSTICE SOTOMAYOR concurs in the judgment. *In Altera Corp. v. Commissioner, 2018 WL 3542989 (CA9, July 24, 2018), decided four months after Judge Reinhardt died, his vote was initially counted as one of the two judges in the majority. A footnote in the opinion stated: "Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death." Id., at *1, n. **. Later, however, the court vacated the opinion and issued an order reconstituting the panel. Altera Corp. v. Commissioner, 898 F. 3d 1266 (CA9 2018). No similar action was taken in this case.

http://case.lawmemo.com/us/eeoc.pdf OCTOBER TERM, 2014 SUPREME COURT OF THE UNITED STATES Syllabus EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. ABERCROMBIE & FITCH STORES, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 14-86. Argued February 25, 2015—Decided June 1, 2015

Respondent (Abercrombie) refused to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie's employee dress policy. The Equal Employment Opportunity Commission (EEOC) filed suit on Elauf's behalf, alleging a violation of Title VII of the Civil Rights Act of 1964, which, inter alia, prohibits a prospective employer from refusing to hire an applicant because of the applicant's religious practice when the practice could be accommodated without undue hardship. The EEOC prevailed in the District Court, but the Tenth Circuit reversed, awarding Abercrombie summary judgment on the ground that failure-to-accommodate liability attaches only when the applicant provides the employer with actual knowledge of his need for an accommodation. Held: To prevail 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. Title VII's disparate-treatment provision requires Elaufto show that Abercrombie (1) "fail[ed] . . . to hire" her (2) "because of " (3) "[her] religion" (including a religious practice). 42 U. S. C. §2000e-2(a)(1). And its "because of" standard is understood to mean that the protected characteristic cannot be a "motivating factor" in an employment decision. §2000e-2(m). Thus, rather than imposing a knowledge standard, §2000e-2(a)(1) prohibits certain motives, regardless of the state of the actor's knowledge: An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII's definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices. Pp. 2-7. 731 F. 3d 1106, reversed and remanded. SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in the judgment. THOMAS, J., filed an opinion concurring in part and dissenting in part. Lower courts following Hardison likewise did not equate a failure to accommodate with intentional discrimination. To the contrary, many lower courts, including the TenthCircuit below, wrongly assumed that Title VII creates a freestanding failure-to-accommodate claim distinct from either disparate treatment or disparate impact. See, e.g., 731 F. 3d 1106, 1120 (2013) ("A claim for religious discrimination under Title VII can be asserted under several different theories, including disparate treatment and failure to accommodate" (internal quotation marks omitted)); Protos v. Volkswagen of Am., Inc., 797 F. 2d 129, 134, n. 2 (CA3 1986) ("In addition to her religious accommodation argument, [the plaintiff] maintains that she prevailed in the district court on a disparate treatment claim"). That assumption appears to have grown out of statements in our cases suggesting that Title VII's definitional provision concerning religion created an independent duty. See, e.g., Ansonia Bd. of Ed. v. Philbrook, 479 U. S. 60, 63, n. 1 (1986) ("The reasonable accommodation duty was incorporated into the statute, somewhat awkwardly, in the definition of religion"). But in doing so, the lower courts correctly recognized that a failure-to-accommodate claim based on the application of a neutral policy is not a disparate-treatment claim. See, e.g., Reed v. International Union, United Auto, Aerospace and Agricultural Implement Workers of Am., 569 F. 3d 576, 579- 580 (CA6 2009); Chalmers v. Tulon Co. of Richmond, 101 F. 3d 1012, 1018 (CA4 1996). At least before we granted a writ of certiorari in this case, the EEOC too understood that merely applying a neutral policy did not automatically constitute intentional discrimination giving rise to a disparate-treatment claim. For example, the Commission explained in a recent compliance manual, "A religious accommodation claim is distinct from a disparate treatment claim, in which the question is whether employees are treated equally." EEOC Compliance Manual §12-IV, p. 46 (2008). Indeed, in asking us to take this case, the EEOC dismissed one of Abercrombie's supporting authorities as "a case addressing intentional discrimination, not religious accommodation." Reply to Brief in Opposition 7, n. Once we granted certiorari in this case, however, the EEOC altered course and advanced the intentional-discrimination theory now adopted by the majority. The Court should have rejected this eleventh-hour request to expand our understanding of "intentional discrimination" to include merely applying a religion-neutral policy. The Court today rightly puts to rest the notion that Title VII creates a freestanding religious-accommodation claim, ante, at 3, but creates in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim. Because I do not think that Congress' 1972 re-definition of "religion" also redefined "intentional discrimination," I would affirm the judgment of the Tenth Circuit. I respectfully dissent from the portions of the majority's decision that take the contrary view. Contrary to the EEOC's suggestion, Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), did not establish that a refusal to accommodate a religious practice automatically constitutes intentional discrimination. To be sure, Hardison remarked that the "effect of" the 1972 amendment expanding the definition of religion "was to make it an unlawful employment practice under [§2000e-2(a)(1)] for an employer not to make reasonable accommodations, short of undue hard-ship, for the religious practices of his employees and prospective employees." Id., at 74. But that statement should not be understood as a holding that such conduct automatically gives rise to a disparate-treatment claim. Although this Court has more recently described§2000e-2(a)(1) as originally creating only disparate-treatment liability, e.g., Ricci v. DeStefano, 557 U. S. 557, 577 (2009), it was an open question at the time Hardison was decided whether §2000e-2(a)(1) also created disparate-impact liability, see, e.g., Nashville Gas Co. v. Satty, 434 U. S. 136, 144 (1977); General Elec. Co. v. Gilbert, 429 U. S. 125, 153-155 (1976) (Brennan, J., dissenting). In fact, both the employee and the EEOC in Hardison argued before this Court that the employer had violated §2000e-2(a)(1) under a disparate-impact theory. See Brief for Respondent 15, 25-26, and Brief for United States et al. as Amici Curiae 33-36, 50, in Trans World Airlines, Inc. v. Hardison, O. T. 1976, No. 75-1126 etc. In any event, the relevant language in Hardison is dictum. Because the employee's termination had occurred before the 1972 amendment to Title VII's definition of religion, Hardison applied the then-existing EEOC guideline—which also contained an "undue hardship" defense—not the amended statutory definition. 432 U. S., at 76, and n. 11. Hardison's comment about the effect of the 1972 amendment was thus entirely beside the point.

http://case.lawmemo.com/us/tyson.pdf SUPREME COURT OF THE UNITED STATES Syllabus TYSON FOODS, INC. v. BOUAPHAKEO ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 14-1146. Argued November 10, 2015—Decided March 22, 2016

Respondents, employees of petitioner Tyson Foods, work in the kill, cut , and retrim departments of a pork processing plant in Iowa. Re-spondents' work requires them to wear protective gear, but the exact composition of the gear depends on the tasks a worker performs on a given day. Petitioner compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. Respondents filed suit, alleging that thedonning and doffing were integral and indispensable to their hazard-ous work and that petitioner's policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). Respondents also raised a claim un-der an Iowa wage law. They sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certifi-cation of their FLSA claims as a "collective action." See 29 U. S. C. §216. Petitioner objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees' claims were not sufficiently similar to be resolved on a classwide basis. The District Court concluded that common ques-tions, such as whether donning and doffing protective gear was com-pensable under the FLSA, were susceptible to classwide resolutioneven if not all of the workers wore the same gear. To recover for a violation of the FLSA's overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because petitioner failed to keep records of this time, the employees primarily relied on a study per-formed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim de-partments and 21.25 minutes for the kill department. These esti-mates were then added to the timesheets of each employee to ascer-tain which class members worked more than 40 hours a week and the value of classwide recovery. Petitioner argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle's sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The award has not yet been disbursed to individual employees. The Eighth Circuit affirmed the judgment and the award.Held: The District Court did not err in certifying and maintaining the class. Pp. 8-17. (a) Before certifying a class under Rule 23(b)(3), a district court must find that "questions of law or fact common to class members predominate over any questions affecting only individual members." The parties agree that the most significant question common to the class is whether donning and doffing protective gear is compensable under the FLSA. Petitioner claims, however, that individual inquir-ies into the time each worker spent donning and doffing predominateover this common question. Respondents argue that individual in-quiries are unnecessary because it can be assumed each employeedonned and doffed for the same average time observed in Mericle's sample. Whether and when statistical evidence such as Mericle's sample can be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on "the elements of the underlying cause of action," Erica P. John Fund, Inc. v. Hallibur-ton Co., 563 U.S. 804, 809. Because a representative sample may be the only feasible way to establish l iability, it cannot be deemed im-proper merely because the claim is brought on behalf of a class. Re-spondents can show that Mericle's sample is a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action. Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680, shows why Mericle's sample was permissible in the circumstances of this case. There, where an employer violated its statutory duty to keep proper records, the Court concluded the employees could meet their burden by proving that they in fact "performed work for which [they were]improperly compensated and . . . produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and rea-sonable inference." Id., at 687. Here, similarly, respondents sought to introduce a representative sample to fill an evidentiary gap creat-ed by the employer's failure to keep adequate records. Had the e m-ployees proceeded with individual lawsuits, each employee likely would have had to introduce Mericle's study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked. This holding is in accord with Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, where the underlying question was, as here, whether the sample at issue could have been used to establish liability in an indi-vidual action. There, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were dis-criminated against by their particular store managers. In contrast, the employees here, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle's study in a series of individual suits. This case presents no occasion for adoption of broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the ability to use a representative sample to establish classwide liability will depend on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, inferring the hours an employee has worked from a study such as Mericle's has been permitted by the Court so long as the study is otherwise admissible. Mt. Clemens, supra,at 687. Pp. 8-15. (b) Petitioner contends that respondents are required to demon-strate that uninjured class members will not recover damages here. That question is not yet fairly presented by this case, because the damages award has not yet been disbursed and the record does not indicate how it will be disbursed. Petitioner may raise a challenge to the allocation method when the case returns to the District Court for disbursal of the award. Pp. 15-17.765 F. 3d 791, affirmed and remanded. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,C. J ., and GINSBURG,BREYER,SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined as to Part II. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

Amendment 2 - Bearing Arms

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

https://caselaw.findlaw.com/us-supreme-court/524/775.html FARAGHER v. CITY OF BOCA RATON United States Supreme Court FARAGHER v. CITY OF BOCA RATON(1998) No. 97-282 Argued: March 25, 1998Decided: June 26, 1998

After resigning as a lifeguard with respondent City of Boca Raton (City), petitioner Beth Ann Faragher brought an action against the City and her immediate supervisors, Bill Terry and David Silverman, for nominal damages and other relief, alleging, among other things, that the supervisors had created a "sexually hostile atmosphere" at work by repeatedly subjecting Faragher and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms, and that this conduct constituted discrimination in the "terms, conditions, and privileges" of her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Following a bench trial, the District Court concluded that the supervisors' conduct was discriminatory harassment sufficiently serious to alter the conditions of Faragher's employment and constitute an abusive working environment. The District Court then held that the City could be held liable for the harassment of its supervisory employees because the harassment was pervasive enough to support an inference that the City had "knowledge, or constructive knowledge" of it; under traditional agency principles Terry and Silverman were acting as the City's agents when they committed the harassing acts; and a third supervisor had knowledge of the harassment and failed to report it to City officials. The Eleventh Circuit, sitting en banc, reversed. Relying on Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 , and on the Restatement (Second) of Agency §219 (1957) (Restatement), the Court of Appeals held that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassing conduct, that their agency relationship with the City did not facilitate the harassment, that constructive knowledge of it could not be imputed to the City because of its pervasiveness or the supervisor's knowledge, and that the City could not be held liable for negligence in failing to prevent it. Held : An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. Pp. 7-32. (a) While the Court has delineated the substantive contours of the hostile environment Title VII forbids, see, e.g. , Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 -22, its cases have established few definitive rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive. The Court's only discussion to date of the standards of employer liability came in Meritor , supra , where the Court held that traditional agency principles were relevant for determining employer liability. Although the Court cited the Restatement §§219-237 with general approval, the Court cautioned that common-law agency principles might not be transferable in all their particulars. Pp. 7-14. (b) Restatement §219(1) provides that "a master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Although Title VII cases in the Court of Appeals have typically held, or assumed, that supervisory sexual harassment falls outside the scope of employment because it is motivated solely by individual desires and serves no purpose of the employer, these cases appear to be in tension with others defining the scope of the employment broadly to hold employers vicariously liable for employees' intentional torts, including sexual assaults, that were not done to serve the employer, but were deemed to be characteristic of its activities or a foreseeable consequence of its business. This tension is the result of differing judgments about the desirability of holding an employer liable for his subordinates' wayward behavior. The proper analysis here, then, calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, but rather an enquiry into whether it is proper to conclude that sexual harassment is one of the normal risks of doing business the employer should bear. An employer can reasonably anticipate the possibility of sexual harassment occurring in the workplace, and this might justify the assignment of the costs of this behavior to the employer rather than to the victim. Two things counsel in favor of the contrary conclusion, however. First, there is no reason to suppose that Congress wished courts to ignore the traditional distinction between acts falling within the scope of employment and acts amounting to what the older law called frolics or detours from the course of employment. Second, the lower courts, by uniformly judging employer liability for co-worker harassment under a negligence standard, have implicitly treated such harassment outside the scope of employment. It is unlikely that such treatment would escape efforts to render them obsolete if the Court held that harassing supervisors necessarily act within the scope of their employment. The rationale for doing so would apply when the behavior was that of co-employees, because the employer generally benefits from the work of common employees as from the work of supervisors. The answer to this argument might be that the scope of supervisory employment may be treated separately because supervisors have special authority enhancing their capacity to harass and the employer can guard against their misbehavior more easily. This answer, however, implicates an entirely separate category of agency law, considered in the next section. Given the virtue of categorical clarity, it is better to reject reliance on misuse of supervisory authority (without more) as irrelevant to the scope-ofemployment analysis. Pp. 14-23. (c) The Court of Appeals erred in rejecting a theory of vicarious liability based on §219(2)(d) of the Restatement, which provides that an employer "is not subject to liability for the torts of his servants acting outside the scope of their employment unless . . . the servant purported to act or speak on behalf of the principal and there was reliance on apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." It makes sense to hold an employer vicariously liable under Title VII for some tortious conduct of a supervisor made possible by use of his supervisory authority, and the aided-by-agency-relation principle of §219(2)(d) provides an appropriate starting point for determining liability for the kind of harassment presented here. In a sense a supervisor is always assisted in his misconduct by the supervisory relationship; however, the imposition of liability based on the misuse of supervisory authority must be squared with Meritor 's holding that an employer is not "automatically" liable for harassment by a supervisor who creates who creates the requisite degree of discrimination. There are two basic alternatives to counter the risk of automatic liability. The first is to require proof of some affirmative invocation of that authority by the harassing supervisor; the second is to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment. The problem with the first alternative is that there is not a clear line between the affirmative and merely implicit uses of supervisory power; such a rule would often lead to close judgment calls and results that appear disparate if not contradictory, and the temptation to litigate would be hard to resist. The second alternative would avoid this particular temptation to litigate and implement Title VII sensibly by giving employers an incentive to prevent and eliminate harassment and by requiring em ployees to take advantage of the preventive or remedial apparatus of their employers. Thus, the Court adopts the following holding in this case and in Burlington Industries, Inc. v. Ellerth , p. ___, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. See Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Pp. 23-30. (d) Under this standard, the Eleventh Circuit's judgment must be reversed. The District Court found that the degree of hostility in the work environment rose to the actionable level and was attributable to Silverman and Terry, and it is clear that these supervisors were granted virtually unchecked authority over their subordinates and that Faragher and her colleagues were completely isolated from the City's higher management. While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The District Court found that the City had entirely failed to disseminate its sexual harassment policy among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors, and the record makes clear that the City's policy did not include any harassing supervisors assurance that could be bypassed in registering complaints. Under such circumstances, the Court holds as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. Although the record discloses two possible grounds upon which the City might seek to excuse its failure to distribute its policy and to establish a complaint mechanism, both are contradicted by the record. The City points to nothing that might justify a conclusion by the District Court on remand that the City had exercised reasonable care. Nor is there any reason to remand for consideration of Faragher's efforts to mitigate her own damages, since the award to her was solely nominal. Pp. 30-32. (e) There is no occasion to consider whether the supervisors' knowledge of the harassment could be imputed to the City. Liability on that theory could not be determined without further factfinding on remand, whereas the reversal necessary on the supervisory harassment theory renders any remand for consideration of imputed knowledge (or of negligence as an alternative to a theory of vicarious liability) entirely unjustifiable. P. 32. 111 F. 3d 1530, reversed and remanded. SOUTER , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and STEVENS , O'CONNOR , KENNEDY , GINSBURG , and BREYER , JJ., joined. THOMAS , J., filed a dissenting opinion, in which SCALIA , J., joined. JUSTICE THOMAS , with whom JUSTICE SCALIA joins, dissenting. For the reasons given in my dissenting opinion in Burlington Industries v. Ellerth , ante , absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the City is not vicariously liable for the conduct of Chief Terry and Lieutenant Silverman. Because the Court reverses this judgment, I dissent. As for petitioner's negligence claim, the District Court made no finding as to the City's negligence, and the Court of Appeals did not directly consider the issue. I would therefore remand the case to the District Court for further proceedings on this question alone. I disagree with the Court's conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law. See ante, at 31. 1 The City should be allowed to show either that: (1) there was a reasonably available avenue through which petitioner could have complained to a City official who supervised both Chief Terry and Lieutenant Silverman, see Brief for United States and EEOC as Amici Curiae in Meritor Savings Bank, FSB v. Vinson , O.T. 1985, No. 84-1979, p. 26, 2 or (2) it would not have learned of the harassment even if the policy had been distributed. 3 Petitioner, as the plaintiff, would of course bear the burden of proving the City's negligence.

EEOC: Undue Hardship:Limits On Providing Reasonable Accommodations

An employer never has to provide any reasonable accommodation that causes undue hardship, meaning significant difficulty or expense. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the business. Every request for reasonable accommodation should be evaluated separately to determine if it would impose an undue hardship, taking into account: ** the nature and cost of the accommodation needed; ** the overall financial resources of the business; the number of persons employed by the business; and the effect on expenses and resources of the business; ** the impact of the accommodation on the business. If cost is an issue, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference. An employer cannot claim undue hardship based on employees' (or customers') fears or prejudices, or because providing a reasonable accommodation might have a negative impact on employee morale. Employers, however, may claim undue hardship where a reasonable accommodation would be unduly disruptive to other employees' ability to work. 16. Must an employer modify the work hours of an employee with a disability if doing so would prevent other employees from performing their jobs? No. If modifying one employee's work hours (or granting leave) would prevent other employees from doing their jobs, then the significant disruption to the operations of the employer constitutes an undue hardship. 17. Can an employer deny a request for leave when an employee cannot provide a fixed date of return? In some situations, an employee may be able to provide only an approximate date of return because treatment and recuperation do not always permit exact timetables. If an employer is able to show that the lack of a fixed return date imposes an undue hardship, then it can deny the leave. Undue hardship could result if the employer can neither plan for the employee's return nor permanently fill the position. In other situations, an employer may be able to be flexible. Footnote: 1. Employers who are covered by the Family and Medical Leave Act (FMLA) may have obligations under that law, as well as the ADA. https://www.eeoc.gov/laws/policy/docs/accommodation.html#11 For more information on how these two laws apply to leave and modified schedules, employers may consult the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA https://www.eeoc.gov/laws/policy/docs/accommodation.html & the EEOC's Fact Sheet on the FMLA and the ADA. https://www.eeoc.gov/laws/policy/docs/fmlaada.html

http://case.lawmemo.com/us/lane.pdf OCTOBER TERM, 2013 SUPREME COURT OF THE UNITED STATES Syllabus LANE v. FRANKS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 13-483. Argued April 28, 2014—Decided June 19, 2014

As Director of Community Intensive Training for Youth (CITY), a pro-gram for underprivileged youth operated by Central Alabama Community College (CACC), petitioner Edward Lane conducted an audit of the program's expenses and discovered that Suzanne Schmitz, an Alabama State Representative on CITY's payroll, had not been re-porting for work. Lane eventually terminated Schmitz' employment.Shortly thereafter, federal authorities indicted Schmitz on charges of mail fraud and theft concerning a program receiving federal funds.Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. Schmitz was convicted and sentenced to 30 months in prison. Meanwhile, CITY was experiencing significant budget shortfalls. Respondent Franks, then CACC's president, terminated Lane along with 28 other employees in a claimed effort to address the financial difficulties. A few days later, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee. Lane sued Franks in his individual and official capacities under 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for testifying against Schmitz. The District Court granted Franks' motion for summary judgment, holding that the individual-capacity claims were barred by qualified immunity and the official-capacity claims were barred by the Eleventh Amendment. The Eleventh Circuit affirmed, holding that Lane's testimony was not entitled to First Amendment protection. It reasoned that Lane spoke as an employee and not as a citizen be-cause he acted pursuant to his official duties when he investigated and terminated Schmitz' employment. Held: 1. Lane's sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Pp. 6-13.(a) Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, requires balancing "the interests of the[employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."Under the first step of the Pickering analysis, if the speech is made pursuant to the employee's ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547 U. S. 410, 421. But if the "employee spoke as a citizen on a matter of public concern," the inquiry turns to "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id., at 418. Pp. 6-8.(b) Lane's testimony is speech as a citizen on a matter of public concern. Pp. 8-12.(1) Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply be-cause he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Pp. 9-11.(2) Whether speech is a matter of public concern turns on the "content, form, and context" of the speech. Connick v. Myers, 461 U. S. 138, 147-148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. See United States v. Alvarez, 567 U. S. ___, ___. Pp. 11-12.(c) Turning to Pickering's second step, the employer's side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane's testimony was false or erroneous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. Pp. 12-13. 2. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepancies in Eleventh Circuit precedent only serve to highlight the dispositive point that the question was not beyond debate at the time Franks acted. Pp. 13-17.3. The Eleventh Circuit declined to consider the District Court's dismissal of the claims against respondent Burrow in her official capacity as CACC's acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Circuit as to those claims is reversed, and the case is remanded for further proceedings. P. 17. 523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded. SOTOMAYOR, J., delivered the opinion for a unanimous Court. THOM-AS, J., filed a concurring opinion, in which SCALIA and ALITO, JJ., joined. JUSTICE THOMAS, with whom JUSTICE SCALIA and JUSTICE ALITO join, concurring. This case presents the discrete question whether a public employee speaks "as a citizen on a matter of public concern," Garcetti v. Ceballos, 547 U. S. 410, 418 (2006), when the employee gives "[t]ruthful testimony under oath. . . outside the scope of his ordinary job duties," ante, at 9. Answering that question requires little more than a straightforward application of Garcetti. There, we held that when a public employee speaks "pursuant to" his official duties, he is not speaking "as a citizen," and First Amendment protection is unavailable. 547 U. S., at 421- 422. The petitioner in this case did not speak "pursuant to" his ordinary job duties because his responsibilities did not include testifying in court proceedings, see ante, at 8, n. 4, and no party has suggested that he was subpoenaed as a representative of his employer, see Fed. Rule Civ. Proc. 30(b)(6) (requiring subpoenaed organizations to designate witnesses to testify on their behalf). Because petitioner did not testify to "fulfil[l] a [work] responsibility," Garcetti, supra, at 421, he spoke "as a citizen," not as an employee. We accordingly have no occasion to address the quite different question whether a public employee speaks "as a citizen" when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.

Amendment 1 - Religion and Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment 8 - Further Guarantees in Criminal Cases

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

OCTOBER TERM, 2014 SUPREME COURT OF THE UNITED STATES Syllabus OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 14-556. Argued April 28, 2015—Decided June 26, 2015*

Michigan, Kentucky, Ohio, and Tennessee define marriage as a union between one man and one woman. The petitioners, 14 same-sex couples and two men whose same-sex partners are deceased, filed suits in Federal District Courts in their home States, claiming that respondent state officials violate the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition. Each District Court ruled in petitioners' favor, but the Sixth Circuit consolidated the cases and reversed. Held: 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. Pp. 3-28.(a) Before turning to the governing principles and precedents, it is appropriate to note the history of the subject now before the Court. Pp. 3-10.(1) The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases. To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples. But the petitioners, far from seeking to devalue marriage, seek it for themselves because of their respect—and need—for its privileges and responsibilities, as illustrated by the petitioners' own experiences. Pp. 3-6.(2) The history of marriage is one of both continuity and change. Changes, such as the decline of arranged marriages and the abandonment of the law of coverture, have worked deep transformations in the structure of marriage, affecting aspects of marriage once viewed as essential. These new insights have strengthened, not weakened, the institution. Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.This dynamic can be seen in the Nation's experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness. Later in the century, cultural and political developments allowed same-sex couples to lead more open and public lives. Extensive public and private dialogue followed, along with shifts in public attitudes. Questions about the legal treatment of gays and lesbians soon reached the courts, where they could be discussed in the formal discourse of the law. In 2003, this Court overruled its 1986 decision in Bowers v. Hardwick, 478 U. S. 186, which upheld a Georgia law that criminalized certain homosexual acts, concluding laws making same-sex intimacy a crime "demea[n] the lives of homosexual persons." Lawrence v. Texas, 539 U. S. 558, 575. In 2012, the federal Defense of Marriage Act was also struck down. United States v. Windsor, 570 U. S. ___. Numerous same-sex marriage cases reaching the federal courts and state supreme courts have added to the dialogue. Pp. 6- 10. (b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10-27. (1) The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484-486. Courts must exercise reasoned judgment in identifying the interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed.Applying these tenets, the Court has long held the right to marry is protected by the Constitution. For example, Loving v. Virginia, 388 U. S. 1, 12, invalidated bans on interracial unions, and Turner v. Safley, 482 U. S. 78, 95, held that prisoners could not be denied the right to marry. To be sure, these cases presumed a relationship involving opposite-sex partners, as did Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. But other, more instructive precedents have expressed broader principles. See, e.g., Lawrence, supra, at 574. In assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g., Eisenstadt, supra, at 453-454. This analysis compels the conclusion that same-sex couples may exercise the right to marry. Pp. 10-12.(2) Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation. A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate. Finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of the Nation's social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation's society, for they too may aspire to the transcendent purposes of marriage. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. Pp. 12-18. (3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment's guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 460-461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120-121. The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality.The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded by opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18-22. (4) The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry. Baker v. Nelson is overruled. The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. Pp. 22-23. (5) There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced under-standing of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a funda-mental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment. The petitioners' stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents' argument that allowing same-sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples' decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths. Pp. 23-27.(c) The Fourteenth Amendment requires States to recognize same-sex marriages validly performed out of State. Since same-sex couples may now exercise the fundamental right to marry in all States, there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. Pp. 27-28. 772 F. 3d 388, reversed. KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. * Together with No. 14-562, Tanco et al. v. Haslam, Governor of Tennessee, et al., No. 14-571, DeBoer et al. v. Snyder, Governor of Michigan, et al., and No. 14-574, Bourke et al. v. Beshear, Governor of Kentucky, also on certiorari to the same court. "At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials." 570 U. S., at ___ (dissenting opinion) (slip op., at 8-10)(citations and footnotes omitted). III Today's decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g., ante, at 11-13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante, at 26-27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds. Today's decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today's majority claims. Today's decision shows that decades of attempts to restrain this Court's abuse of its authority have failed. A lesson that some will take from today's decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation. Most Americans—understandably—will cheer or lament today's decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends.

https://caselaw.findlaw.com/us-supreme-court/401/424.html United States Supreme Court GRIGGS v. DUKE POWER CO.(1971) No. 124 Argued: December 14, 1970Decided: March 8, 1971

Negro employees at respondent's generating plant brought this action, pursuant to Title VII of the Civil Rights Act of 1964, challenging respondent's requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements were not directed at or intended to measure ability to learn to perform a particular job or category of jobs. While 703 (a) of the Act makes it an unlawful employment practice for an employer to limit, segregate, or classify employees to deprive them of employment opportunities or adversely to affect their status because of race, color, religion, sex, or national origin, 703 (h) authorizes the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate. The District Court found that respondent's former policy of racial discrimination had ended, and that Title VII, being prospective only, did not reach the prior inequities. The Court of Appeals reversed in part, rejecting the holding that residual discrimination arising from prior practices was insulated from remedial action, but agreed with the lower court that there was no showing of discriminatory purpose in the adoption of the diploma and test requirements. It held that, absent such discriminatory purpose, use of the requirements was permitted, and rejected the claim that because a disproportionate number of Negroes was rendered ineligible for promotion, transfer, or employment, the requirements were unlawful unless shown to be job related. Held: 1. The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and, if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent. Pp. 429-433. 2. The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless [401 U.S. 424, 425] they are demonstrably a reasonable measure of job performance. Pp. 433-436. 420 F.2d 1225, reversed in part. BURGER, C. J., delivered the opinion of the Court, in which all members joined except BRENNAN, J., who took no part in the consideration or decision of the case. Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Norman C. Amaker, William L. Robinson, Conrad O. Pearson, Julius LeVonne Chambers, and Albert J. Rosenthal. George W. Ferguson, Jr., argued the cause for respondent. With him on the brief were William I. Ward, Jr., and George M. Thorpe. Lawrence M. Cohen argued the cause for the Chamber of Commerce of the United States as amicus curiae urging affirmance. With him on the brief were Francis V. Lowden, Jr., Gerard C. Smetana, and Milton A. Smith. Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, Deputy Solicitor General Wallace, David L. Rose, Stanley Hebert, and Russell Specter for the United States; by Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and George D. Zuckerman and Dominick J. Tuminaro, Assistant Attorneys General, for the Attorney General of the State of New York; and by Bernard Kleiman, Elliot Bredhoff, Michael H. Gottesman, and George H. Cohen for the United Steelworkers of America, AFL-CIO. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to resolve the question whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education [401 U.S. 424, 426] or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites. 1 Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions for enforcement of provisions of the Act and this proceeding was brought by a group of incumbent Negro employees against Duke Power Company. All the petitioners are employed at the Company's Dan River Steam Station, a power generating facility located at Draper, North Carolina. At the time this action was instituted, the Company had 95 employees at the Dan River Station, 14 of whom were Negroes; 13 of these are petitioners here. The District Court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, the [401 U.S. 424, 427] Company openly discriminated on the basis of race in the hiring and assigning of employees at its Dan River plant. The plant was organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and Test. Negroes were employed only in the Labor Department where the highest paying jobs paid less than the lowest paying jobs in the other four "operating" departments in which only whites were employed. 2 Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position. In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any "inside" department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the "operating" departments. Findings on this score are not challenged. The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfactory scores on two professionally prepared aptitude [401 U.S. 424, 428] tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an "inside" job by passing two tests - the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates. 3 The District Court had found that while the Company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and, consequently, the impact of prior inequities was beyond the reach of corrective action authorized by the Act. The Court of Appeals was confronted with a question of first impression, as are we, concerning the meaning of Title VII. After careful analysis a majority of that court concluded that a subjective test of the employer's intent should govern, particularly in a close case, and that in this case there was no showing of a discriminatory purpose in the adoption of the diploma and test requirements. On this basis, the Court of Appeals concluded there was no violation of the Act. [401 U.S. 424, 429] The Court of Appeals reversed the District Court in part, rejecting the holding that residual discrimination arising from prior employment practices was insulated from remedial action. 4 The Court of Appeals noted, however, that the District Court was correct in its conclusion that there was no showing of a racial purpose or invidious intent in the adoption of the high school diploma requirement or general intelligence test and that these standards had been applied fairly to whites and Negroes alike. It held that, in the absence of a discriminatory purpose, use of such requirements was permitted by the Act. In so doing, the Court of Appeals rejected the claim that because these two requirements operated to render ineligible a markedly disproportionate number of Negroes, they were unlawful under Title VII unless shown to be job related. 5 We granted the writ on these claims. 399 U.S. 926 . The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove [401 U.S. 424, 430] barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices. The Court of Appeals' opinion, and the partial dissent, agreed that, on the record in the present case, "whites register far better on the Company's alternative requirements" than Negroes. 6 420 F.2d 1225, 1239 n. 6. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences in Gaston County v. United States, 395 U.S. 285 (1969). There, because of the inferior education received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any [401 U.S. 424, 431] person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job-seeker be taken into account. It has - to resort again to the fable - provided that the vessel in which the milk is proffered be one all seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the work force. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria [401 U.S. 424, 432] are now used. 7 The promotion record of present employees who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. In the context of this case, it is unnecessary to reach the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine business need. In the present case the Company has made no such showing. The Court of Appeals held that the Company had adopted the diploma and test requirements without any "intention to discriminate against Negro employees." 420 F.2d, at 1232. We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability. The Company's lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. [401 U.S. 424, 433] The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality. The Company contends that its general intelligence tests are specifically permitted by 703 (h) of the Act. 8 That section authorizes the use of "any professionally developed ability test" that is not "designed, intended or used to discriminate because of race . . . ." (Emphasis added.) The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting 703 (h) to permit only the use of job-related tests. 9 The administrative interpretation of the [401 U.S. 424, 434] Act by the enforcing agency is entitled to great deference. See, e. g., United States v. City of Chicago, 400 U.S. 8 (1970); Udall v. Tallman, 380 U.S. 1 (1965); Power Reactor Co. v. Electricians, 367 U.S. 396 (1961). Since the Act and its legislative history support the Commission's construction, this affords good reason to treat the guidelines as expressing the will of Congress. Section 703 (h) was not contained in the House version of the Civil Rights Act but was added in the Senate during extended debate. For a period, debate revolved around claims that the bill as proposed would prohibit all testing and force employers to hire unqualified persons simply because they were part of a group formerly subject to job discrimination. 10 Proponents of Title VII sought throughout the debate to assure the critics that the Act would have no effect on job-related tests. Senators Case of New Jersey and Clark of Pennsylvania, comanagers of the bill on the Senate floor, issued a memorandum explaining that the proposed Title VII "expressly protects the employer's right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color." 110 Cong. Rec. 7247. 11 (Emphasis added.) Despite [401 U.S. 424, 435] these assurances, Senator Tower of Texas introduced an amendment authorizing "professionally developed ability tests." Proponents of Title VII opposed the amendment because, as written, it would permit an employer to give any test, "whether it was a good test or not, so long as it was professionally designed. Discrimination could actually exist under the guise of compliance with the statute." 110 Cong. Rec. 13504 (remarks of Sen. Case). The amendment was defeated and two days later Senator Tower offered a substitute amendment which was adopted verbatim and is now the testing provision of 703 (h). Speaking for the supporters of Title VII, Senator Humphrey, who had vigorously opposed the first amendment, endorsed the substitute amendment, stating: "Senators on both sides of the aisle who were deeply interested in title VII have examined the text of this [401 U.S. 424, 436] amendment and have found it to be in accord with the intent and purpose of that title." 110 Cong. Rec. 13724. The amendment was then adopted. 12 From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC's construction of 703 (h) to require that employment tests be job related comports with congressional intent. Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract. The judgment of the Court of Appeals is, as to that portion of the judgment appealed from, reversed. MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. Footnotes [ Footnote 1 ] The Act provides: "Sec. 703. (a) It shall be an unlawful employment practice for an employer - . . . . . "(2) to limit, segregate, or classify his employees 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. . . . . . "(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. . . ." 78 Stat. 255, 42 U.S.C. 2000e-2. [ Footnote 2 ] A Negro was first assigned to a job in an operating department in August 1966, five months after charges had been filed with the Equal Employment Opportunity Commission. The employee, a high school graduate who had begun in the Labor Department in 1953, was promoted to a job in the Coal Handling Department. [ Footnote 3 ] The test standards are thus more stringent than the high school requirement, since they would screen out approximately half of all high school graduates. [ Footnote 4 ] The Court of Appeals ruled that Negroes employed in the Labor Department at a time when there was no high school or test requirement for entrance into the higher paying departments could not now be made subject to those requirements, since whites hired contemporaneously into those departments were never subject to them. The Court of Appeals also required that the seniority rights of those Negroes be measured on a plantwide, rather than a departmental, basis. However, the Court of Appeals denied relief to the Negro employees without a high school education or its equivalent who were hired into the Labor Department after institution of the educational requirement. [ Footnote 5 ] One member of that court disagreed with this aspect of the decision, maintaining, as do the petitioners in this Court, that Title VII prohibits the use of employment criteria that operate in a racially exclusionary fashion and do not measure skills or abilities necessary to performance of the jobs for which those criteria are used. [ Footnote 6 ] In North Carolina, 1960 census statistics show that, while 34% of white males had completed high school, only 12% of Negro males had done so. U.S. Bureau of the Census, U.S. Census of Population: 1960, Vol. 1, Characteristics of the Population, pt. 35, Table 47. Similarly, with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks. Decision of EEOC, CCH Empl. Prac. Guide, § 17,304.53 (Dec. 2, 1966). See also Decision of EEOC 70-552, CCH Empl. Prac. Guide, § 6139 (Feb. 19, 1970). [ Footnote 7 ] For example, between July 2, 1965, and November 14, 1966, the percentage of white employees who were promoted but who were not high school graduates was nearly identical to the percentage of nongraduates in the entire white work force. [ Footnote 8 ] Section 703 (h) applies only to tests. It has no applicability to the high school diploma requirement. [ Footnote 9 ] EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commission accordingly interprets `professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII." The EEOC position has been elaborated in the new Guidelines on Employee Selection Procedures, 29 CFR 1607, 35 Fed. Reg. 12333 (Aug. 1, 1970). These guidelines demand that employers using tests have available "date demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Id., at 1607.4 (c). [ Footnote 10 ] The congressional discussion was prompted by the decision of a hearing examiner for the Illinois Fair Employment Commission in Myart v. Motorola Co. (The decision is reprinted at 110 Cong. Rec. 5662.) That case suggested that standardized tests on which whites performed better than Negroes could never be used. The decision was taken to mean that such tests could never be justified even if the needs of the business required them. A number of Senators feared that Title VII might produce a similar result. See remarks of Senators Ervin, 110 Cong. Rec. 5614-5616; Smathers, id., at 5999-6000; Holland, id., at 7012-7013; Hill, id., at 8447; Tower, id., at 9024; Talmadge, id., at 9025-9026; Fulbright, id., at 9599-9600; and Ellender, id., at 9600. [ Footnote 11 ] The Court of Appeals majority, in finding no requirement in Title VII that employment tests be job related, relied in part on a [401 U.S. 424, 435] quotation from an earlier Clark-Case interpretative memorandum addressed to the question of the constitutionality of Title VII. The Senators said in that memorandum: "There is no requirement in title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance." 110 Cong. Rec. 7213. However, nothing there stated conflicts with the later memorandum dealing specifically with the debate over employer testing, 110 Cong. Rec. 7247 (quoted from in the text above), in which Senators Clark and Case explained that tests which measure "applicable job qualifications" are permissible under Title VII. In the earlier memorandum Clark and Case assured the Senate that employers were not to be prohibited from using tests that determine qualifications. Certainly a reasonable interpretation of what the Senators meant, in light of the subsequent memorandum directed specifically at employer testing, was that nothing in the Act prevents employers from requiring that applicants be fit for the job. [ Footnote 12 ] Senator Tower's original amendment provided in part that a test would be permissible "if . . . in the case of any individual who is seeking employment with such employer, such test is designed to determine or predict whether such individual is suitable or trainable with respect to his employment in the particular business or enterprise involved . . . ." 110 Cong. Rec. 13492. This language indicates that Senator Tower's aim was simply to make certain that job-related tests would be permitted. The opposition to the amendment was based on its loose wording which the proponents of Title VII feared would be susceptible of misinterpretation. The final amendment, which was acceptable to all sides, could hardly have required less of a job relation than the first. [401 U.S. 424, 437]

https://www.supremecourt.gov/opinions/17pdf/17-494_j4el.pdf OCTOBER TERM, 2017 SUPREME COURT OF THE UNITED STATES Syllabus SOUTH DAKOTA v. WAYFAIR, INC., ET AL. CERTIORARI TO THE SUPREME COURT OF SOUTH DAKOTA No. 17-494. Argued April 17, 2018—Decided June 21, 2018

South Dakota, like many States, taxes the retail sales of goods and ser-vices in the State. Sellers are required to collect and remit the tax tothe State, but if they do not then in-state consumers are responsiblefor paying a use tax at the same rate. Under National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, and Quill Corp. v. North Dakota, 504 U. S. 298, South Dakota may not require a busi-ness that has no physical presence in the State to collect its sales tax.Consumer compliance rates are notoriously low, however, and it is estimated that Bellas Hess and Quill cause South Dakota to lose be-tween $48 and $58 million annually. Concerned about the erosion of its sales tax base and corresponding loss of critical funding for stateand local services, the South Dakota Legislature enacted a law re-quiring out-of-state sellers to collect and remit sales tax "as if theseller had a physical presence in the State." The Act covers only sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transac-tions for the delivery of goods or services into the State. Respond-ents, top online retailers with no employees or real estate in SouthDakota, each meet the Act's minimum sales or transactions require-ment, but do not collect the State's sales tax. South Dakota filed suit in state court, seeking a declaration that the Act's requirements arevalid and applicable to respondents and an injunction requiring re-spondents to register for licenses to collect and remit the sales tax.Respondents sought summary judgment, arguing that the Act is un-constitutional. The trial court granted their motion. The State Su-preme Court affirmed on the ground that Quill is controlling prece-dent. Held: Because the physical presence rule of Quill is unsound and incor-rect, Quill Corp. v. North Dakota, 504 U. S. 298, and National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753, are over-ruled. Pp. 5-24.(a) An understanding of this Court's Commerce Clause principlesand their application to state taxes is instructive here. Pp. 5-9.(1) Two primary principles mark the boundaries of a State's au-thority to regulate interstate commerce: State regulations may notdiscriminate against interstate commerce; and States may not im-pose undue burdens on interstate commerce. These principles guide the courts in adjudicating challenges to state laws under the Com-merce Clause. Pp. 5-7.(2) They also animate Commerce Clause precedents addressingthe validity of state taxes, which will be sustained so long as they (1) apply to an activity with a substantial nexus with the taxing State,(2) are fairly apportioned, (3) do not discriminate against interstatecommerce, and (4) are fairly related to the services the State pro-vides. See Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 279. Before Complete Auto, the Court held in Bellas Hess that a "seller whose only connection with customers in the State is by common car-rier or . . . mail" lacked the requisite minimum contacts with theState required by the Due Process Clause and the Commerce Clause,and that unless the retailer maintained a physical presence in theState, the State lacked the power to require that retailer to collect a local tax. 386 U. S., at 758. In Quill, the Court overruled the due process holding, but not the Commerce Clause holding, grounding thephysical presence rule in Complete Auto's requirement that a taxhave a "substantial nexus" with the activity being taxed. Pp. 7-9.(b) The physical presence rule has long been criticized as giving out-of-state sellers an advantage. Each year, it becomes further re-moved from economic reality and results in significant revenue lossesto the States. These critiques underscore that the rule, both as first formulated and as applied today, is an incorrect interpretation of the Commerce Clause. Pp. 9-17.(1) Quill is flawed on its own terms. First, the physical presencerule is not a necessary interpretation of Complete Auto's nexus re-quirement. That requirement is "closely related," Bellas Hess, 386 U. S. at 756, to the due process requirement that there be "some defi-nite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Brothers Co. v. Mary-land, 347 U. S. 340, 344-345. And, as Quill itself recognized, a busi-ness need not have a physical presence in a State to satisfy the de-mands of due process. When considering whether a State may levy a tax, Due Process and Commerce Clause standards, though not identi-cal or coterminous, have significant parallels. The reasons given in Quill for rejecting the physical presence rule for due process purposes apply as well to the question whether physical presence is a requisitefor an out-of-state seller's liability to remit sales taxes. Other aspects of the Court's doctrine can better and more accurately address poten-tial burdens on interstate commerce, whether or not Quill's physical presence rule is satisfied. Second, Quill creates rather than resolves market distortions. In effect, it is a judicially created tax shelter for businesses that limit their physical presence in a State but sell their goods and services to the State's consumers, something that has become easier and moreprevalent as technology has advanced. The rule also produces an in-centive to avoid physical presence in multiple States, affecting devel-opment that might be efficient or desirable. Third, Quill imposes the sort of arbitrary, formalistic distinction that the Court's modern Commerce Clause precedents disavow in fa-vor of "a sensitive, case-by-case analysis of purposes and effects," West Lynn Creamery, Inc. v. Healy, 512 U. S. 186, 201. It treats eco-nomically identical actors differently for arbitrary reasons. For ex-ample, a business that maintains a few items of inventory in a smallwarehouse in a State is required to collect and remit a tax on all of itssales in the State, while a seller with a pervasive Internet presence cannot be subject to the same tax for the sales of the same items.Pp. 10-14. (2) When the day-to-day functions of marketing and distributionin the modern economy are considered, it becomes evident that Quill's physical presence rule is artificial, not just "at its edges," 504U. S. at 315, but in its entirety. Modern e-commerce does not alignanalytically with a test that relies on the sort of physical presence de-fined in Quill. And the Court should not maintain a rule that ignores substantial virtual connections to the State. Pp. 14-15.(3) The physical presence rule of Bellas Hess and Quill is also an extraordinary imposition by the Judiciary on States' authority to col-lect taxes and perform critical public functions. Forty-one States, twoTerritories, and the District of Columbia have asked the Court to re-ject Quill's test. Helping respondents' customers evade a lawful tax unfairly shifts an increased share of the taxes to those consumers who buy from competitors with a physical presence in the State. It is essential to public confidence in the tax system that the Court avoidcreating inequitable exceptions. And it is also essential to the confi-dence placed in the Court's Commerce Clause decisions. By givingsome online retailers an arbitrary advantage over their competitors who collect state sales taxes, Quill's physical presence rule has lim-ited States' ability to seek long-term prosperity and has preventedmarket participants from competing on an even playing field. Pp. 16-17. (c) Stare decisis can no longer support the Court's prohibition of a valid exercise of the States' sovereign power. If it becomes apparentthat the Court's Commerce Clause decisions prohibit the States fromexercising their lawful sovereign powers, the Court should be vigilant in correcting the error. It is inconsistent with this Court's proper role to ask Congress to address a false constitutional premise of thisCourt's own creation. The Internet revolution has made Quill's orig-inal error all the more egregious and harmful. The Quill Court did not have before it the present realities of the interstate marketplace,where the Internet's prevalence and power have changed the dynam-ics of the national economy. The expansion of e-commerce has alsoincreased the revenue shortfall faced by States seeking to collect their sales and use taxes, leading the South Dakota Legislature todeclare an emergency. The argument, moreover, that the physical presence rule is clear and easy to apply is unsound, as attempts toapply the physical presence rule to online retail sales have proved unworkable. Because the physical presence rule as defined by Quill is no longera clear or easily applicable standard, arguments for reliance based onits clarity are misplaced. Stare decisis may accommodate "legitimate reliance interest[s]," United States v. Ross, 456 U. S. 798, 824, but a business "is in no position to found a constitutional right . . . on the practical opportunities for tax avoidance," Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 366. Startups and small businesses may benefitfrom the physical presence rule, but here South Dakota affords small merchants a reasonable degree of protection. Finally, other aspects of the Court's Commerce Clause doctrine can protect against any un-due burden on interstate commerce, taking into consideration thesmall businesses, startups, or others who engage in commerce acrossstate lines. The potential for such issues to arise in some later casecannot justify retaining an artificial, anachronistic rule that deprivesStates of vast revenues from major businesses. Pp. 17-22. (d) In the absence of Quill and Bellas Hess, the first prong of the Complete Auto test simply asks whether the tax applies to an activitywith a substantial nexus with the taxing State, 430 U. S., at 279.Here, the nexus is clearly sufficient. The Act applies only to sellerswho engage in a significant quantity of business in the State, and re-spondents are large, national companies that undoubtedly maintainan extensive virtual presence. Any remaining claims regarding the Commerce Clause's application in the absence of Quill and Bellas Hess may be addressed in the first instance on remand. Pp. 22-23. 2017 S.D. 56, 901 N. W. 2d 754, vacated and remanded. KENNEDY, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, ALITO, and GORSUCH, JJ., joined. THOMAS, J., and GORSUCH, J., filed concurring opinions. ROBERTS, C. J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. I This Court "does not overturn its precedents lightly." Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___ (2014) (slip op., at 15). Departing from the doctrine of stare decisis is an "exceptional action" demanding "specialjustification." Arizona v. Rumsey, 467 U. S. 203, 212 (1984). The bar is even higher in fields in which Congress"exercises primary authority" and can, if it wishes, over-ride this Court's decisions with contrary legislation. Bay Mills, 572 U. S., at ___ (slip op., at 16) (tribal sovereignimmunity); see, e.g., Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___ (2015) (slip op., at 8) (statutory interpretation); Halliburton Co. v. Erica P. John Fund, Inc., 573 U. S. ___, ___ (2014) (slip op., at 12) (judicially created doctrine implementing a judicially created cause of action). In such cases, we have said that "the burden borne by the party advocating the abandonment of anestablished precedent" is "greater" than usual. Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989). That is so "even where the error is a matter of serious concern, provided correction can be had by legislation." Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)).We have applied this heightened form of stare decisis in the dormant Commerce Clause context. Under our dormant Commerce Clause precedents, when Congresshas not yet legislated on a matter of interstate commerce,it is the province of "the courts to formulate the rules." Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 770 (1945). But because Congress "has plenary power to regulate commerce among the States," Quill, 504 U. S., at 305, it may at any time replace such judicial ruleswith legislation of its own, see Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 424-425 (1946).In Quill, this Court emphasized that the decision to hewto the physical-presence rule on stare decisis grounds was"made easier by the fact that the underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve." 504 U. S., at 318 (footnote omitted). Even as-suming we had gone astray in Bellas Hess, the "very fact"of Congress's superior authority in this realm "g[a]ve uspause and counsel[ed] withholding our hand." Quill, 504 U. S., at 318 (alterations omitted). We postulated that"the better part of both wisdom and valor [may be] to respect the judgment of the other branches of the Gov-ernment." Id., at 319; see id., at 320 (Scalia, J., concurringin part and concurring in judgment) (recognizing that stare decisis has "special force" in the dormant CommerceClause context due to Congress's "final say over regulation of interstate commerce"). The Court thus left it to Con-gress "to decide whether, when, and to what extent the States may burden interstate mail-order concerns with a duty to collect use taxes." Id., at 318 (majority opinion). II This is neither the first, nor the second, but the third time this Court has been asked whether a State may obligate sellers with no physical presence within its bor-ders to collect tax on sales to residents. Whatever salience the adage "third time's a charm" has in daily life, it is apoor guide to Supreme Court decisionmaking. If stare decisis applied with special force in Quill, it should be an even greater impediment to overruling precedent now, particularly since this Court in Quill "tossed [the ball] intoCongress's court, for acceptance or not as that branch elects." Kimble, 576 U. S., at ___ (slip op., at 8); see Quill, 504 U. S., at 318 ("Congress is now free to decide" the circumstances in which "the States may burden interstate . . . concerns with a duty to collect use taxes"). Congress has in fact been considering whether to alter the rule established in Bellas Hess for some time. See Addendum to Brief for Four United States Senators as Amici Curiae 1-4 (compiling efforts by Congress between 2001 and 2017 to pass legislation respecting interstate sales tax collection); Brief for Rep. Bob Goodlatte et al. as Amici Curiae 20-23 (Goodlatte Brief) (same). Three bills addressing the issue are currently pending. See Market-place Fairness Act of 2017, S. 976, 115th Cong., 1st Sess. (2017); Remote Transactions Parity Act of 2017, H. R.2193, 115th Cong., 1st Sess. (2017); No Regulation With-out Representation Act, H. R. 2887, 115th Cong., 1st Sess.(2017). Nothing in today's decision precludes Congressfrom continuing to seek a legislative solution. But by suddenly changing the ground rules, the Court may have waylaid Congress's consideration of the issue. Armed with today's decision, state officials can be expected to redirecttheir attention from working with Congress on a nationalsolution, to securing new tax revenue from remote retail-ers. See, e.g., Brief for Sen. Ted Cruz et al. as Amici Curiae 10-11 ("Overturning Quill would undo much of Con- gress' work to find a workable national compromise under the Commerce Clause.").The Court proceeds with an inexplicable sense of urgency.It asserts that the passage of time is only increasingthe need to take the extraordinary step of overruling Bellas Hess and Quill: "Each year, the physical presencerule becomes further removed from economic reality and results in significant revenue losses to the States." Ante, at 10. The factual predicates for that assertion include aGovernment Accountability Office (GAO) estimate that,under the physical-presence rule, States lose billions of dollars annually in sales tax revenue. See ante, at 2, 19 (citing GAO, Report to Congressional Requesters: Sales Taxes, States Could Gain Revenue from Expanded Authority, but Businesses Are Likely to Experience Compli-ance Costs 5 (GAO-18-114, Nov. 2017) (Sales Taxes Re-port)). But evidence in the same GAO report indicates that the pendulum is swinging in the opposite direction, and has been for some time. States and local governments are already able to collect approximately 80 percent of the tax revenue that would be available if there were no phys-ical-presence rule. See Sales Taxes Report 8. Among thetop 100 Internet retailers that rate is between 87 and 96 percent. See id., at 41. Some companies, including the online behemoth Amazon,* now voluntarily collect and remit sales tax in every State that assesses one—even those in which they have no physical presence. See id., at 10. To the extent the physical-presence rule is harmingStates, the harm is apparently receding with time. The Court rests its decision to overrule Bellas Hess on the "present realities of the interstate marketplace." Ante, at 18. As the Court puts it, allowing remote sellers to escape remitting a lawful tax is "unfair and unjust." Ante, at 16. "[U]nfair and unjust to . . . competitors . . . whomust remit the tax; to the consumers who pay the tax; andto the States that seek fair enforcement of the sales tax." Ante, at 16. But "the present realities of the interstatemarketplace" include the possibility that the marketplaceitself could be affected by abandoning the physical-presence rule. The Court's focus on unfairness and injus-tice does not appear to embrace consideration of that current public policy concern. The Court, for example, breezily disregards the costs that its decision will impose on retailers. Correctly calcu-lating and remitting sales taxes on all e-commerce sales will likely prove baffling for many retailers. Over 10,000 jurisdictions levy sales taxes, each with "different taxrates, different rules governing tax-exempt goods andservices, different product category definitions, and differ-ent standards for determining whether an out-of-state seller has a substantial presence" in the jurisdiction.Sales Taxes Report 3. A few examples: New Jersey knit-ters pay sales tax on yarn purchased for art projects, but not on yarn earmarked for sweaters. See Brief for eBay, Inc., et al. as Amici Curiae 8, n. 3 (eBay Brief). Texas taxes sales of plain deodorant at 6.25 percent but imposes no tax on deodorant with antiperspirant. See id., at 7. Illinois categorizes Twix and Snickers bars—chocolate-and-caramel confections usually displayed side-by-side in the candy aisle—as food and candy, respectively (Twix have flour; Snickers don't), and taxes them differently.See id., at 8; Brief for Etsy, Inc., as Amicus Curiae 14-17 (Etsy Brief) (providing additional illustrations). The burden will fall disproportionately on small busi-nesses. One vitalizing effect of the Internet has beenconnecting small, even "micro" businesses to potential buyers across the Nation. People starting a businessselling their embroidered pillowcases or carved decoys can offer their wares throughout the country—but probably not if they have to figure out the tax due on every sale.See Sales Taxes Report 22 (indicating that "costs will likely increase the most for businesses that do not haveestablished legal teams, software systems, or outside counsel to assist with compliance related questions"). And the software said to facilitate compliance is still in its infancy, and its capabilities and expense are subject to debate. See Etsy Brief 17-19 (describing the inadequacies of such software); eBay Brief 8-12 (same); Sales Taxes Report 16-20 (concluding that businesses will incur "high"compliance costs). The Court's decision today will surely have the effect of dampening opportunities for commerce in a broad range of new markets.A good reason to leave these matters to Congress is that legislators may more directly consider the competinginterests at stake. Unlike this Court, Congress has theflexibility to address these questions in a wide variety of ways. As we have said in other dormant Commerce Clause cases, Congress "has the capacity to investigate and analyze facts beyond anything the Judiciary could match." General Motors Corp. v. Tracy, 519 U. S. 278, 309 (1997); see Department of Revenue of Ky. v. Davis, 553 U. S. 328, 356 (2008).Here, after investigation, Congress could reasonably decide that current trends might sufficiently expand tax revenues, obviating the need for an abrupt policy shift with potentially adverse consequences for e-commerce. Or Congress might decide that the benefits of allowing Statesto secure additional tax revenue outweigh any foreseeableharm to e-commerce. Or Congress might elect to accom-modate these competing interests, by, for example, allow-ing States to tax Internet sales by remote retailers only if revenue from such sales exceeds some set amount per year. See Goodlatte Brief 12-14 (providing varied exam-ples of how Congress could address sales tax collection). In any event, Congress can focus directly on current policyconcerns rather than past legal mistakes. Congress canalso provide a nuanced answer to the troubling questionwhether any change will have retroactive effect.An erroneous decision from this Court may wellhave been an unintended factor contributing to the growth of e-commerce. See, e.g., W. Taylor, Who's Writingthe Book on Web Business? Fast Company (Oct. 31, 1996), https:// www.fastcompany.com/ 27309/ whos-writing-book-web-business. The Court is of course correct that the Nation's economy has changed dramatically since the time that Bellas Hess and Quill roamed the earth. I fear the Court today is compounding its past error by trying to fix it in a totally different era. The Constitution gives Con-gress the power "[t]o regulate Commerce . . . among theseveral States." Art. I, §8. I would let Congress decidewhether to depart from the physical-presence rule thathas governed this area for half a century.I respectfully dissent. * C. Isidore, Amazon To Start Collecting State Sales Taxes Every-where (Mar. 29, 2017), CNN Tech, http://money.cnn.com/2017/03/29/technology/amazon-sales-tax/index.html (all Internet materials as lastvisited June 19, 2018).

http://case.lawmemo.com/us/integrity.pdf OCTOBER TERM, 2014 SUPREME COURT OF THE UNITED STATES Syllabus INTEGRITY STAFFING SOLUTIONS, INC. v. BUSKET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 13-433. Argued October 8, 2014—Decided December 9, 2014

Petitioner Integrity Staffing Solutions, Inc., required its hourly ware-house workers, who retrieved products from warehouse shelves and packaged them for delivery to Amazon.com customers, to undergo a security screening before leaving the warehouse each day. Respondents, former employees, sued the company alleging, as relevant here,that they were entitled to compensation under the Fair Labor Standards Act of 1938 (FLSA) for the roughly 25 minutes each day thatthey spent waiting to undergo and undergoing those screenings. They also alleged that the company could have reduced that time to a de minim is the amount by adding screeners or staggering shift terminations and that the screenings were conducted to prevent employee theft and, thus, for the sole benefit of the employers and their customers. The District Court dismissed the complaint for failure to state a claim, holding that the screenings were not integral and indispensable to the employees' principal activities but were instead postliminary and non-compensable. The U.S. Court of Appeals for the Ninth Circuit reversed in relevant part, asserting that post-shift activities that would ordinarily be classified as noncompensable postliminary activities are compensable as integral and indispensable to an employee's principal activities if the post-shift activities are necessary to the principal work and performed for the employer's benefit. Held: The time that respondents spent waiting to undergo and undergoing security screenings is not compensable under the FLSA. Pp. 3-9.(a) Congress passed the Portal-to-Portal Act to respond to an economic emergency created by the broad judicial interpretation given to the FLSA's undefined terms "work" and "workweek." See 29 U. S. C. §251(a); Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590, 598. The Portal-to-Portal Act exempted employers from FLSA liability for claims based on "activities which are preliminary to or postliminary to" the performance of the principal activities that an employee is employed to perform. §254(a)(2). Under this Court's precedents, the term "principal activities" includes all activities which are an "integral and indispensable part of the principal activities." Steiner v. Mitchell, 350 U. S. 247, 252-253. An activity is "integral and indispensable" if it is an intrinsic element of the employee's principal activities and one with which the employee cannot dispense if he is to perform his principal activities. This Court has identified several activities that satisfy this test—see, e.g., id., at 249, 251; Mitchell v. King Packing Co., 350 U. S. 260, 262—and Department of Labor regulations are consistent with this approach, see 29CFR §§790.8(c), 790.7(g). Pp. 3-7.(b) The security screenings at issue are noncompensable postliminary activities. To begin with, the screenings were not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were they "integral and indispensable" to those activities. This view is consistent with a 1951 Department of Labor opinion letter, which found noncompensable under the Portal-to-Portal Act both a preshift screening conducted for employee safety and a postshift search conducted to prevent employee theft. The Ninth Circuit's test, which focused on whether the particular activity was required by the employer rather than whether it was tied to the productive work that the employee was employed to perform, would sweep into "principal activities" the very activities that the Portal-to-Portal Act was designed to exclude from compensation. See, e.g., IBP, supra, at 41. Finally, respondents' claim that the screenings are compensable be-cause Integrity Staffing could have reduced the time to a de minimis amount is properly presented at the bargaining table, not to a court in an FLSA claim. Pp. 7-9. 713 F. 3d 525, reversed. THOMAS, J., delivered the opinion for a unanimous Court. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, concurring. I concur in the Court's opinion and write separately only to explain my understanding of the standards theCourt applies. The Court reaches two critical conclusions. First, the Court confirms that compensable "'principal'" activities " 'includ[e] . . . those closely related activities which are indispensable to [a principal activity's] performance,'" ante, at 6 (quoting 29 CFR §790.8(c)(2013)), and holds that the required security screenings here were not "integral and indispensable" to another principal activity the employees were employed to perform, ante, at 7. I agree. As both Department of Labor regulations and our precedent make clear, an activity is "indispensable" to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively. Thus, although a battery plant worker might, for example, perform his principal activities without donning proper protective gear, he could not do so safely, see Steiner v. Mitchell, 350 U. S. 247, 250-253 (1956); likewise, a butcher might be able to cut meat without having sharpened his knives, but he could not do so effectively, see Mitchell v. King Packing Co., 350 U. S. 260, 262-263 (1956); accord, 29 CFR §790.8(c). Here, by contrast, the security screenings were not "integral and indispensable" to the employees' other principal activities in this sense. The screenings may, as the Ninth Circuit observed below, have been in some way related to the work that the employees performed in the warehouse, see 713 F. 3d 525, 531 (2013), but the employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired, see ante, at 7. Second, the Court holds also that the screenings were not themselves "'principal . . . activities'" the employees were "'employed to perform.'" Ibid. (quoting 29 U. S. C. §254(a)(1)). On this point, I understand the Court's analysis to turn on its conclusion that undergoing security screenings was not itself work of consequence that the employees performed for their employer. See ante, at 7. Again, I agree. As the statute's use of the words "preliminary" and "postliminary" suggests, §254(a)(2), and as our precedents make clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining the beginning and end of the workday. See IBP, Inc. v. Alvarez, 546 U. S. 21, 34-37 (2005). It distinguishes between activities that are essentially part of the ingress and egress process, on the one hand and activities that constitute the actual "work of consequence performed for an employer," on the other hand. 29 CFR §790.8(a); see also ibid. (clarifying that a principal activity need not predominate over other activities and that an employee could be employed to perform multiple principal activities). The security screenings at issue here fall on the "preliminary . . . or postliminary" side of this line. 29 U. S. C. §254(a)(2). The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so—activities that Congress clearly deemed to be preliminary or postlimininary. See S. Rep. No. 48, 80thCong., 1st Sess., 47 (1947); 29 CFR §790.7(g). Indeed, as the Court observes, the Department of Labor reached the very same conclusion regarding similar security screen-ings shortly after the Portal-to-Portal Act was adopted, see ante, at 7-8, and we owe deference to that determination, see Christensen v. Harris County, 529 U. S. 576, 587 (2000). Because I understand the Court's opinion to be consistent with the foregoing, I join it.

Amendment 26 - Reduction of Voting Age Qualification

Section. 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment 10 - Reserved Powers

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

8 The Sixteenth Amendment was proposed by Congress on July 12, 1909, when it passed the House, 44 Cong. Rec. (61st Cong., 1st Sess.) 4390, 4440, 4441, having previously passed the Senate on July 5. Id., 4121. It appears officially in 36 Stat. 184. Ratification was completed on February 3, 1913, when the legislature of the thirty-sixth State (Delaware, Wyoming, or New Mexico) approved the amendment, there being then 48 States in the Union. On February 25, 1913, Secretary of State Knox certified that this amendment had become a part of the Constitution. 37 Stat. 1785. The several state legislatures ratified the Sixteenth Amendment on the following dates: Alabama, August 10, 1909; Kentucky, February 8, 1910; South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi, March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910; Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911; Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January 26, 1911; Montana, January 27, 1911; Indiana, January 30, 1911; California, January 31, 1911; Nevada, January 31, 1911; South Dakota, February 1, 1911; Nebraska, February 9, 1911; North Carolina, February 11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911; Kansas, March 2, 1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April 7, 1911; Arkansas, April 22, 1911 (after having rejected the amendment at the session begun January 9, 1911); Wisconsin, May 16, 1911; New York, July 12, 1911; Arizona, April 3, 1912; Minnesota, June 11, 1912; Louisiana, June 28, 1912; West Virginia, January 31, 1913; Delaware, February 3, 1913; Wyoming, February 3, 1913; New Mexico, February 3, 1913; New Jersey, February 4, 1913; Vermont, February 19, 1913; Massachusetts, March 4, 1913; New Hampshire, March 7, 1913 (after having rejected the amendment on March 2, 1911). The amendment was rejected (and not subsequently ratified) by Connecticut, Rhode Island, and Utah.

9 The Seventeenth Amendment was proposed by Congress on May 13, 1912, when it passed the House, 48 Cong. Rec. (62d Cong., 2d Sess.) 6367, having previously passed the Senate on June 12, 1911. 47 Cong. Rec. (62d Cong., 1st Sess.) 1925. It appears officially in 37 Stat. 646. Ratification was completed on April 8, 1913, when the thirty-sixth State (Connecticut) approved the amendment, there being then 48 States in the Union. On May 31, 1913, Secretary of State Bryan certified that it had become a part of the Constitution. 38 Stat 2049. The several state legislatures ratified the Seventeenth Amendment on the following dates: Massachusetts, May 22, 1912; Arizona, June 3, 1912; Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January 17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913; California, January 28, 1913; Michigan, January 28, 1913; Iowa, January 30, 1913; Montana, January 30, 1913; Idaho, January 31, 1913; West Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13, 1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913; Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont, February 19, 1913; South Dakota, February 19, 1913; Maine, February 20, 1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri, March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2, 1913; Connecticut, April 8, 1913; Louisiana, June 5, 1914. The amendment was rejected by Utah on February 26, 1913.

Small Employers and Reasonable Accommodation EEOC

Introduction: The Americans with Disabilities Act (ADA) requires an employer with 15 or more employees to provide reasonable accommodation for individuals with disabilities, unless it would cause undue hardship. A reasonable accommodation is any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of "reasonable accommodations": ** changes to a job application process (https://www.eeoc.gov/laws/policy/docs/accommodation.html#1) ** changes to the work environment, or to the way a job is usually done ** changes that enable an employee with a disability to enjoy equal benefits and privileges of employment (such as access to training). (https://www.eeoc.gov/laws/policy/docs/accommodation.html#2) Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, workplace barriers may keep others from performing jobs which they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment), or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how job tasks are performed). Reasonable accommodation removes workplace barriers for individuals with disabilities. This guide answers some of the key questions facing small businesses in connection with reasonable accommodations. It explains the obligations of both employers and individuals with disabilities and reviews the limits on how far employers must go in providing reasonable accommodations. This guide is adapted from the Equal Employment Opportunity Commission's (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA (https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada). Small employers wishing to learn more about reasonable accommodation and undue hardship should call 1-800-669-3362 to request a free copy of the Enforcement Guidance, or review it at EEOC's website, www.eeoc.gov.

EEOC Requesting Reasonable Accommodation

1. How must an individual request a reasonable accommodation? The individual must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. An individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation." Requests for reasonable accommodation do not need to be in writing, though an employer may choose to write a memorandum or letter confirming the request. 2. What must an employer do after receiving a request for reasonable accommodation? When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed. There are extensive public and private resources to help employers and individuals with disabilities who are not familiar with possible accommodations. (See the Appendix to this guide for a resource directory to help identify reasonable accommodations.) 3. Must an employer provide the reasonable accommodation that the individual wants? The employer may choose among reasonable accommodations as long as the chosen accommodation is effective (i.e., it removes the workplace barrier at issue). The employer may offer alternative suggestions for reasonable accommodations to remove the workplace barrier in question. If there are two possible reasonable accommodations, and one costs more or is more difficult to provide, the employer may choose the one that is less expensive or easier to provide, as long as it is effective. 4. How quickly must an employer respond to a request for reasonable accommodation? An employer should respond promptly to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation.

12 The Twentieth Amendment was proposed by Congress on March 2, 1932, when it passed the Senate, Cong. Rec. (72d Cong., 1st Sess.) 5086, having previously passed the House on March 1. Id., 5027. It appears officially in 47 Stat. 745. Ratification was completed on January 23, 1933, when the thirty-sixth State approved the amendment, there being then 48 States in the Union. On February 6, 1933, Secretary of State Stimson certified that it had become a part of the Constitution. 47 Stat. 2569. The several state legislatures ratified the Twentieth Amendment on the following dates: Virginia, March 4, 1932; New York, March 11, 1932; Mississippi, March 16, 1932; Arkansas March 17, 1932; Kentucky, March 17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932; Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14, 1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia, July 30, 1932; Pennsylvania, August 11, 1932; Indiana, August 15, 1932; Texas, September 7, 1932; Alabama, September 13, 1932; California, January 4, 1933; North Carolina, January 5, 1933; North Dakota, January 9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming, January 19, 1933; Iowa, January 20, 1933; South Dakota, January 20, 1933; Tennessee, January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933; Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23, 1933; Utah, January 23, 1933; Colorado, January 24, 1933; Massachusetts, January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26, 1933; Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont, February 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933.

13 The Twenty-first Amendment was proposed by Congress on February 20, 1933, when it passed the House, Cong. Rec. (72d Cong., 2d Sess.) 4516, having previously passed the Senate on February 16. Id., 4231. It appears officially in 47 Stat. 1625. Ratification was completed on December 5, 1933, when the thirty-sixth State (Utah) approved the amendment, there being then 48 States in the Union. On December 5, 1933, Acting Secretary of State Phillips certified that it had been adopted by the requisite number of States. 48 Stat. 1749. The several state conventions ratified the Twenty-first Amendment on the following dates: Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California, July 24, 1933; West Virginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, 1933; Colorado, September 26, 1933; Washington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November 27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah, December 5, 1933; Maine, December 6, 1933; Montana, August 6, 1934. The amendment was rejected by a convention in the State of South Carolina, on December 4, 1933. The electorate of the State of North Carolina voted against holding a convention at a general election held on November 7, 1933.

EEOC: Other Reasonable Accommodation Issues

13. Are there certain things that are not considered reasonable accommodations and are therefore not required? * An employer does not have to eliminate a primary job responsibility. * An employer is not required to lower production standards that are applied to all employees, though it may have to provide reasonable accommodation to enable an employee with a disability to meet them. * An employer does not have to provide personal use items, such as a prosthetic limb, a wheelchair, eyeglasses, hearing aids, or similar devices. * An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. 14. May an employer tell other employees that someone is receiving a reasonable accommodation? No, because this usually amounts to a disclosure that the individual has a disability. The ADA specifically prohibits the disclosure of medical information except in certain limited situations, which do not include disclosure to coworkers. An employer may certainly respond to a question from an employee about why a coworker is receiving what is perceived as "different" or "special" treatment by emphasizing its policy of assisting any employee who encounters difficulties in the workplace. The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer's policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that his/her privacy would similarly be respected if s/he found it necessary to ask the employer for some kind of workplace change for personal reasons. Employers might also find it helpful to provide all employees with information about various laws that require employers to meet certain employee needs (e.g., the ADA and the Family and Medical Leave Act), while also requiring them to protect the privacy of employees. 15. May an employer ask whether a reasonable accommodation is needed when an employee with a disability has not asked for one? If an employer knows that an employee has a disability, it may ask whether s/he needs a reasonable accommodation when it reasonably believes that the employee may need an accommodation. An employer also may ask an employee with a disability who is having performance or conduct problems if s/he needs reasonable accommodation.

16 The Twenty-fourth Amendment was proposed by Congress on September 14, 1962, having passed the House on August 27, 1962. Cong. Rec. (87th Cong., 2d Sess.) 17670 and having previously passed the Senate on March 27, 1962. Id., 5105. It appears officially in 76 Stat. 1259. Ratification was completed on January 23, 1964, when the thirty- eighth State (South Dakota) approved the Amendment, there being then 50 States in the Union. On February 4, 1964, Bernard L. Boutin, Administrator of General Services, certified that it had been adopted by the requisite number of States. 25 Fed. Reg. 1717. President Lyndon B. Johnson signed this certificate. Thirty-eight state legislatures ratified the Twenty-fourth Amendment on the following dates: Illinois, November 14, 1962; New Jersey, December 3, 1962; Oregon, January 25, 1963; Montana, January 28, 1963; West Virginia, February 1, 1963; New York, February 4, 1963; Maryland, February 6, 1963; California, February 7, 1963; Alaska, February 11, 1963; Rhode Island, February 14, 1963; Indiana, February 19, 1963; Michigan, February 20, 1963; Utah, February 20, 1963; Colorado, February 21, 1963; Minnesota, February 27, 1963; Ohio, February 27, 1963; New Mexico, March 5, 1963; Hawaii, March 6, 1963; North Dakota, March 7, 1963; Idaho, March 8, 1963; Washington, March 14, 1963; Vermont, March 15, 1963; Nevada, March 19, 1963; Connecticut, March 20, 1963; Tennessee, March 21, 1963; Pennsylvania, March 25, 1963; Wisconsin, March 26, 1963; Kansas, March 28, 1963; Massachusetts, March 28, 1963; Nebraska, April 4, 1963; Florida, April 18, 1963; Iowa, April 24, 1963; Delaware, May 1, 1963; Missouri, May 13, 1963; New Hampshire, June 16, 1963; Kentucky, June 27, 1963; Maine, January 16, 1964; South Dakota, January 23, 1964.

17 This Amendment was proposed by the Eighty-ninth Congress by Senate Joint Resolution No. 1, which was approved by the Senate on February 19, 1965, and by the House of Representatives, in amended form, on April 13, 1965. The House of Representatives agreed to a Conference Report on June 30, 1965, and the Senate agreed to the Conference Report on July 6, 1965. It was declared by the Administrator of General Services, on February 23, 1967, to have been ratified. This Amendment was ratified by the following States: Nebraska, July 12, 1965; Wisconsin, July 13, 1965; Oklahoma, July 16, 1965; Massachusetts, August 9, 1965; Pennsylvania, August 18, 1965; Kentucky, September 15, 1965; Arizona, September 22, 1965; Michigan, October 5, 1965; Indiana, October 20, 1965; California, October 21, 1965; Arkansas, November 4, 1965; New Jersey, November 29, 1965; Delaware, December 7, 1965; Utah, January 17, 1966; West Virginia, January 20, 1966; Maine, January 24, 1966; Rhode Island, January 28, 1966; Colorado, February 3, 1966; New Mexico, February 3, 1966; Kansas, February 8, 1966; Vermont, February 10, 1966; Alaska, February 18, 1966; Idaho, March 2, 1966; Hawaii, March 3, 1966; Virginia, March 8, 1966; Mississippi, March 10, 1966; New York, March 14, 1966; Maryland, March 23, 1966; Missouri, March 30, 1966; New Hampshire, June 13, 1966; Louisiana, July 5, 1966; Tennessee, January 12, 1967; Wyoming, January 25, 1967; Washington, January 26, 1967; Iowa, January 26, 1967; Oregon, February 2, 1967; Minnesota, February 10, 1967; Nevada, February 10, 1967; Connecticut, February 14, 1967; Montana, February 15, 1967; South Dakota, March 6, 1967; Ohio, March 7, 1967; Alabama, March 14, 1967; North Carolina, March 22, 1967 Illinois, March 22, 1967; Texas, April 25, 1967; Florida, May 25, 1967. Publication of the certifying statement of the Administrator of General Services that the Amendment had become valid was made on February 25, 1967, F.R. Doc. 67-2208, 32 Fed. Reg. 3287.

https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0045p-06.pdf RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0045p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant AIMEE STEPHENS, Intervenor, v. R.G.&.G.R.HARRIS FUNERAL HOMES,INC., Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:14-cv-13710—Sean F. Cox, District Judge. Argued: October 4, 2017 Decided and Filed: March 7, 2018 Before: MOORE, WHITE, and DONALD, Circuit Judges.

COUNSEL ARGUED: Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, for Intervenor. Douglas G. Wardlow, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. ON BRIEF:Anne Noel Occhialino, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. John A. Knight, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Chicago, Illinois, Jay D. Kaplan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Intervenor. Douglas G. Wardlow, Gary S. McCaleb, ALLIANCE DEFENDING FREEDOM, Scottsdale, Arizona, for Appellee. Jennifer C. Pizer, Nancy C. Marcus, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Los Angeles, California, Gregory R. Nevins, LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., Atlanta, Georgia, Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, Elizabeth Reiner Platt, Katherine Franke, PRIVATE RIGHTS / PUBLIC CONSCIENCE PROJECT, New York, New York, Mary Jane Eaton, Wesley R. Powell, Sameer Advani, WILLKIE FARR & GALLAGHER, LLP, New York, New York, Eric Alan Isaacson, LAW OFFICE OF ERIC ALAN ISAACSON, La Jolla, California, William J. Olson, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Curiae. OPINION _________________ KAREN NELSON MOORE, Circuit Judge. Aimee Stephens (formerly known as Anthony Stephens) was born biologically male.1 While living and presenting as a man, she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. ("the Funeral Home"), a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work. Stephens filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which investigated Stephens's allegations that she had been terminated as a result of unlawful sex discrimination. During the course of its investigation, the EEOC learned that the Funeral Home provided its male public-facing employees with clothing that complied with the company's dress code while female public-facing employees received no such allowance. The EEOC subsequently brought suit against the Funeral Home in which the EEOC charged the Funeral Home with violating Title VII of the Civil Rights Act of 1964 ("Title VII") by (1) terminating Stephens's employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes; and (2) administering a discriminatory-clothing-allowance policy. The parties submitted dueling motions for summary judgment. The EEOC argued that it was entitled to judgment as a matter of law on both of its claims. For its part, the Funeral Home argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code that it asserts equally burdens male and female employees, and, in the alternative, that Title VII should not be enforced against the Funeral Home because requiring the Funeral Home to employ Stephens while she dresses and represents herself as a woman would constitute an unjustified substantial burden upon Rost's (and thereby the Funeral Home's) sincerely held religious beliefs, in violation of the Religious Freedom Restoration Act ("RFRA"). As to the EEOC's discriminatory-clothing-allowance claim, the Funeral Home argued that Sixth Circuit case law precludes the EEOC from bringing this claim in a complaint that arose out of Stephens's original charge of discrimination because the Funeral Home could not reasonably expect a clothing-allowance claim to emerge from an investigation into Stephens's termination. The district court granted summary judgment in favor of the Funeral Home on both claims. For the reasons set forth below, we hold that (1) the Funeral Home engaged in unlawful discrimination against Stephens on the basis of her sex; (2) the Funeral Home has not established that applying Title VII's proscriptions against sex discrimination to the Funeral Home would substantially burden Rost's religious exercise, and therefore the Funeral Home is not entitled to a defense under RFRA; (3) even if Rost's religious exercise were substantially burdened, the EEOC has established that enforcing Title VII is the least restrictive means of furthering the government's compelling interest in eradicating workplace discrimination against Stephens; and (4) the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the Funeral Home's clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Stephens submitted to the EEOC. Accordingly, we REVERSE the district court's grant of summary judgment on both the unlawful-termination and discriminatory-clothing-allowance claims, GRANT summary judgment to the EEOC on its unlawful-termination claim, and REMAND the case to the district court for further proceedings consistent with this opinion. III. CONCLUSION Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer's stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim. RFRA provides the Funeral Home with no relief because continuing to employ Stephens would not, as a matter of law, substantially burden Rost's religious exercise, and even if it did, the EEOC has shown that enforcing Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination. We therefore REVERSE the district court's grant of summary judgment in favor of the Funeral Home and GRANT summary judgment to the EEOC on its unlawful-termination claim. We also REVERSE the district court's grant of summary judgment on the EEOC's discriminatory-clothing-allowance claim, as the district court erred in failing to consider the EEOC's claim on the merits. We REMAND this case to the district court for further proceedings consistent with this opinion.

FMLA VS ADA When employees are injured or disabled or become ill on the job, they may be entitled to medical and/or disability-related leave under two federal laws: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

General Purpose ADA:Prohibits discrimination against disabled individuals FMLA:Provides leave to employees Who Is Eligible? ADA:Individuals with a qualifying disability FMLA:Employees who have worked for at least 12 months and at least 1250 hours during the previous 12 monthsat a location within a 75-mile radius of where at least 50 employees work WhatConditions are Covered? ADA:"Disability"that substantially limits one or more major life activities (or a history or perception of having such a disability) FMLA:"Serious health condition"of employee or certain family members of employee. Birth, adoption and foster care placement of employee's child. Certain typesof military-related leave. WhatLeave is Required? ADA:Leave for employee may be required if it would constitute a reasonable accommodation that doesn't impose undue hardship on the employer. Leave typically must be for a defined period and is unpaid unless employer pays for other similar leaves. FMLA:Up to 12 weeks/year for serious health condition-related leave. Up to 26 weeks/year for certain military-related leave. Leave may be intermittent and is unpaidbut the employer can require or the employee can choose to use accrued paid benefits. What About Benefits? ADA:Nospecifics under the law, other than the prohibition of discrimination based on disability. FMLA:Benefits typically don't accrue during leave, but seniority, service and vesting continue. May require use of certain paid leaves depending on type of FMLA leave. What About Reinstatement? ADA:If leave is required as a reasonable accommodation, the employer generally must keep the employee's position open during the leave. FMLA:Generally, employees must be reinstated to the same or a substantially equivalent position. What About Light Duty? ADA:Employers are not required to remove essential job functions as an accommodation, but if an employer reserves light duty jobs for workers' compensation purposes, it may have to offer such jobs to disabled individuals. FMLA:An employer can't require FMLA-qualifying employees to work light duty. Potential Penalties ADA:Back pay, compensatory damages, punitive damages and attorneys' fees FMLA:Backpay, reinstatement, benefits and attorneys' fees.

Amendment 7 - Civil Trials

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Amendment 5 - Rights of Persons

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

No. 16-535 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- HAYDEN HUSE, Petitioner, v. TEXAS, Respondent. https://www.scotusblog.com/wp-content/uploads/2017/01/16-535-BIO.pdf Petitioner's primary basis for requesting that cer-tiorari be granted is his contention that there is a soci-etally-recognized reasonable expectation of privacy in his medical records. The Texas Court of Criminal Ap-peals never addressed that contention, however, be-cause that has never been the issue presented here. The TCCA instead made a narrow holding that Peti-tioner did not have a societally-recognized reasonable expectation of privacy in his blood-alcohol test results when those results were obtained for medical treat-ment purposes following a traffic accident, and that the State issued a lawful grand jury subpoena for pur-poses of the Health Insurance Portability and Account-ability Act (HIPAA) "Privacy Rule." The questions presented here are: 1. Does HIPAA, along with other state and fed-eral regulations, provide the basis for an individual's reasonable expectation of privacy in his medical rec-ords sufficient to invoke Fourth Amendment protec-tions? 2. Does HIPAA preempt Texas's law that a pros-ecutor may independently obtain the medical records of a person suspected of committing a crime because there is no reasonable expectation of privacy in those records?

Petitioner Has Not Shown a Conflict with Other State Supreme Courts or Federal Circuit Courts of Appeals. The TCCA determined that the manner in which Petitioner's blood-alcohol test results were obtained did not violate the Fourth Amendment because Petitioner did not have a legitimate expectation of privacy in the blood-alcohol test results taken by hospital personnel solely for medical purposes after a traffic accident. Pet. App. 21a-23a. Petitioner claims that the TCCA's decision has "deepened the divide among state courts of last resort and federal courts of appeals on a fundamental Fourth Amendment issue." Pet. 7. He states that at least three state courts and four federal circuit courts of appeals have held that a warrantless intrusion into a person's medical records violates the Fourth Amendment, while five state courts and one federal circuit court of appeals have held the other way. Id. Petitioner's effort to create a conflict fails to account for the critical difference between the cases where a reasonable expectation of privacy was found and those where a reasonable expectation of privacy was not found. The critical difference is this: almost all of the first set of cases deal with whether there is a reasonable expectation of privacy in medical records in general while almost all of the second set of cases deal with the narrower issue of whether there is a reasonable expectation of privacy in blood-alcohol test results when the testing is conducted for medical purposes following a traffic accident. 1. Cases where a reasonable expectation of privacy was found. Petitioner first argues that there is case law from state courts in Louisiana, Pennsylvania, and Ohio find-ing a reasonable expectation of privacy in medical records of a person suspected of committing a crime. Pet. 8-10. All of the state court cases cited by Petitioner are distinguishable from the instant case. In the Louisiana case, the Louisiana Supreme Court was focusing on a reasonable expectation of privacy in the defendant's "prescription and medical records" when it found that the defendant had a reasonable expectation of privacy. State v. Skinner, 10 So.3d 1212, 1218 (La. 2009). In the Pennsylvania case, the Pennsylvania Supreme Court expressly based its opinion regarding the release of the defendant's blood-alcohol test results upon the Pennsylvania Constitution, noting in its opinion that "[a] state may provide through its constitution a basis for the rights and liberties of its citizens independent from that provided by the Federal Constitution." Commonwealth v. Shaw, 770 A.2d 295, 299 (2001). Finally, in the Ohio case, the Ohio Court of Appeals was focusing on the defendant's "medical records" when it found that the defendant had a reasonable expectation of privacy. State v. Little, 23 N.E.3d 237, 250-251 (Ohio Ct. App. 2014). Petitioner also argues that there is case law from the Second, Fourth, Seventh, Ninth, and Tenth Circuit Courts of Appeals that stand for the proposition that there is "some degree of a constitutional right to privacy in medical records." Pet. 10-14. As the state court cases, all of the cases cited by Petitioner are distinguishable from the instant case. In the Tenth Circuit Court of Appeals case, the court considered the defendant's right to privacy in "pharmacy prescription records" when it concluded that the records fell within a protected "zone of privacy." Douglas v. Dobbs, 419 F.3d 1097, 1101-1102 (10th Cir. 2005). In the Fourth Circuit Court of Appeals case, the court considered the patient's reasonable expectation of privacy in his "treatment records and files maintained by a substance abuse treatment center" when it concluded that the patient's expectation of privacy was one that society is willing to recognize as objectively reasonable. Doe v. Broderick, 225 F.3d 440, 450-451 (4th Cir. 2000). In the Second Circuit Court of Appeals case, the court considered the release of details of an agreement which revealed the plaintiff's HIV status when it concluded that "the right to confidentiality includes the right to protection regarding information about the state of one's health." Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994). In the Seventh Circuit Court of Appeals case, the court considered whether the defendants had violated the plaintiff's constitutional right to privacy by revealing his AIDS status when the court concluded that there is a "qualified constitutional right" to the confidentiality of "medical records and medical communications." Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995). Finally, in the Ninth Circuit Court of Appeals case, the court considered a statutory scheme that allowed for the warrantless disclosure of patient's medical records at abortion clinics when it concluded that individuals have a constitutionally protected interest in avoiding disclosure of personal matters, including "medical information." Tucson Woman's Clinic v. Eden, 379 F.3d 531, 549-551 (9th Cir. 2004). None of these cases establish a conflict with the TCCA's decision. Each case deals with the reasonable expectation of privacy in medical and/or prescription records/information in general or relies upon state constitutional provisions as opposed to the U.S. Constitution. None of the cases considered whether there is a reasonable expectation of privacy in blood-alcohol test results under the Fourth Amendment, so none can establish a conflict on that point. 2. Cases where a reasonable expectation of privacy was not found. Petitioner cites five state court cases and one federal circuit court of appeals case holding that a warrantless intrusion into medical records does not violate the Fourth Amendment. Pet. 14-16. Unlike the cases discussed in the preceding section, all of the state court cases deal with the issue actually decided by the TCCA - the narrow issue of the reasonable expectation of privacy in blood-alcohol test results when the results were obtained pursuant to testing for medical purposes. As for the federal circuit court of appeals case cited by Petitioner, that case has no application to the present case for several reasons, including the fact that it does not address the issue of the reasonable expectation of privacy in blood-alcohol test results. Michigan, New Hampshire, Indiana, Alabama, and Delaware cases all stand for the proposition that society is not willing to consider reasonable an expectation of privacy in blood-alcohol test results. In the Michigan case, the Michigan Supreme Court determined that the acquisition of the defendant's blood- alcohol test results did not violate the defendant's Fourth Amendment rights because "an expectation of privacy in blood alcohol test results . . . is [not] one which society is willing to consider reasonable." People v. Perlos, 462 N.W.2d 310, 319 (1990).1 In the New Hampshire case, the New Hampshire Supreme Court concluded that the request for and acquisition of the defendant's blood-alcohol test results without a search warrant does not implicate the U.S. or New Hampshire Constitutions because any subjective expectation of privacy in the blood-alcohol test results "is not one which society considers reasonable." State v. Davis, 12 A.3d 1271, 1274, 1277 (2010). In the Indiana case, the Indiana Court of Appeals concluded that the defendant did not have a reasonable expectation of privacy in the blood-alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient. State v. Eichhorst, 879 N.E.2d 1144, 1149-1150 (Ind. Ct. App. 2008). In the Alabama case, the Alabama Court of Criminal Appeals determined that the defendant's Fourth Amendment rights were not violated from the State's acquisition of the blood-alcohol test results because the defendant did not have a reasonable expectation of privacy in his blood-alcohol test results taken by the hospital as part of its consensual treatment of the suspect. Tims v. State, 711 So.2d 1118, 1122-1124 (Ala. Crim. App. 1997). Finally, in the Dela-ware case, the Delaware Superior Court held that "whatever insulation Fourth Amendment privacy considerations provide with respect to the nondisclosure of medical records generally, does not extend to the dis-closure of BAC tests conducted by hospital personnel solely for medical purposes following an automobile accident." State v. Hartmetz, No. 1510007362, 2016 WL 3752564 at *5 (Del. Super. Ct. July 6, 2016) (unpublished op.). Petitioner argues that the TCCA's opinion evinces two ways in which Texas state law is contrary to HIPAA. First, he argues that Texas allows a prosecutor to "act as both prosecutor and the one-man grand jury," which he argues is contrary to HIPAA's disclosure provisions. Pet. 23. Second, he argues that the TCCA's ruling is "an affront to HIPAA's general purpose of properly protecting a person's medical records and overall recognition of the sanctity of medical records in the eyes of society." Id. Neither of Petitioner's arguments shows that the TCCA's opinion is contrary to a provision of HIPAA or the federal regulations that implemented the HIPAA provisions. 20 1. The State did not use a "sham grand jury subpoena" in this case. Petitioner argues that the State obtained his med-ical records via a "sham grand jury subpoena," while the HIPAA permissive disclosure provisions contem-plate only a "true grand jury subpoena." He argues that having a prosecutor sign a grand jury subpoena is a "deceptive artifice designed to circumvent the protections of a magistrate or an actual grand jury." Pet. 23-26. The HIPAA "Privacy Rule" allows "protected health information" to be released in compliance with and as limited by the relevant requirement of a "grand jury subpoena." 45 C.F.R. § 164.512(f )(1)(ii)(B); see also65 Fed. Reg. at 82531 (noting in the HIPAA "Final Rule" that disclosures are permitted "pursuant to a state or federal grand jury subpoena."). This permissive disclosure provision allows a covered entity to disclose protected health information, such as medical records, in order to comply with a state or federal grand jury subpoena. Noticeably, however, neither the federal regulation itself nor the HIPAA "Final Rule" re-quires or dictates any additional procedures, require-ments, or limitations on the normal grand jury function or on the requirements for a valid grand jury subpoena under state law. Thus, what constitutes a state "grand jury subpoena" is determined based on state law without any additional procedures or requirements imposed by HIPAA or the "Privacy Rule." The State did not use a "sham grand jury subpoena" to obtain Petitioner's medical records here. The TCCA determined that the State acquired Petitioner's medical records via a grand jury subpoena that com-plied with Texas state law. Pet. App. 27a-36a. It noted within its discussion that a Texas prosecutor may issue a subpoena on the grand jury's behalf under the au-thority of TEX. CODE CRIM. PROC. ANN. arts. 20.10 & 20.11, as long as the subpoena is not being used as a subterfuge to obtain an investigative interview in the prosecutor's office or for the purpose of preparing an already pending indictment for trial. Pet. App. 28a-32a; see also 1 GRAND JURY LAW AND PRACTICE § 6.2 (2d ed. Nov. 2016) (noting that the role of the prosecutor and the grand jurors in subpoenaing evidence varies from jurisdiction to jurisdiction, with "about a third of the states," including Texas, allowing for grand jury subpoenas to be issued "at the request of either the prosecutor or the grand jury"). Petitioner, however, argues that the TCCA's reasoning is "repugnant to the plain language of HIPAA." Pet. 25. But, Petitioner has not explained how a grand jury subpoena that was validly issued under Texas state law is "repugnant to the plain language of HIPAA" - especially since Petitioner has not shown that the prosecutor abused the grand jury's ordinary investigative function. 2. Texas law is not "contrary" to HIPAA provisions regarding the disclosure of medical records to law enforcement officials. Petitioner argues that the TCCA's ruling is contrary to HIPAA because it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of HIPAA. Pet. 26-27. He argues that the TCCA's ruling is contrary to HIPAA because it "permits one person, acting on behalf of the state for purposes of developing a criminal case against an individual, to search through a man's medical records without any limitations or oversight." Pet. 27. HIPAA and the "Privacy Rule" do not create an absolute right to the protection of medical records from disclosure without consent, recognizing that a pa-tient's right to privacy must be balanced with the needs of society. 65 Fed. Reg. at 82464. The HIPAA "Final Rule" specifically states that "[e]xcept for laws that are specifically exempted by the HIPAA statute, state laws continue to be enforceable unless they are contrary to Part C of Title XI of the standards, requirements, or implementation specifications adopted or pursuant to subpart x" and that state laws are only preempted "when there is a direct conflict between state laws and the regulation, and where the regulation provides more stringent privacy protection than state law." 65 Fed. Reg. at 82797-82798. None of the standards, requirements, or implementations in HIPAA's "Privacy Rule" are contrary to the TCCA's ruling since it does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Part C of Title XI of the Social Security Act (codified at 42 U.S.C. §§ 1320d-1320d-9). As detailed in the preceding section, the Petitioner's med-ical records were properly disclosed pursuant to the grand jury subpoena exception. Petitioner argues that the TCCA's ruling conflicts with the "Privacy Rule" because it "expressly forbids disclosure of a person's 'analysis of body fluids or tissue' to a law enforcement official who has requested disclosure without first obtaining a court order or a grand jury subpoena." Pet. 28. Petitioner's authority for that proposition is Section 164.512(f )(2)(ii), which prohibits disclosure of "any protected health information related to the individual's DNA or DNA analysis, dental records, or typing, samples or analysis of body fluids or tissue" for the purposes of identification or location. See 45 C.F.R. § 164.512(f )(2)(ii). The medical records here were not turned over pursuant to the Section 164.512(f )(2) "identification and location" provision, however; thus, that prohibition does not apply here since the disclosure was made pursuant to the grand jury subpoena exception of Section 164.512(f )(1)(ii)(B). In light of the lack of an "absolute right" to the protection of medical records from disclosure without consent and due to the permissive disclosure provisions of 45 C.F.R. § 164.512(f ), it cannot be said that the TCCA's ruling stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Part C of Title XI of the Social Security Act. III. Petitioner Exaggerates the Consequences of the TCCA's Decision. To create the impression of an Orwellian police state, Petitioner repeatedly suggests that if the TCCA's decision is allowed to stand, prosecutors, will have unlimited discretion to invade a person's medical privacy at will. See, e.g., Pet. 18, 21, 22, 27. Contrary to his prediction, the TCCA's decision is not a catch-all holding allowing for unfettered access to all of a suspect's medical records without limitation or oversight, nor does it abrogate federal and state courts' recognition of a reasonable expectation of privacy in medical records in general. In fact, the TCCA acknowledged that "HIPAA might support a broader claim that society now recognizes (if it did not already) that a patient has a legitimate expectation of privacy in his medical rec-ords in general." The TCCA then went on to say that "that broader issue is not before us here." Pet. App. 21a. The issue was not - and is not - whether society recognizes a reasonable expectation of privacy in medical records in general; the issue is the much more specific and narrow issue of whether there is a reasonable expectation of privacy in blood-alcohol test results obtained after an accident solely for medical purposes. The TCCA expressly limited its consideration to the propriety of the Seventh Court of Appeals' holding that Petitioner lacked a reasonable expectation of privacy in the blood-alcohol test results; it did not reverse or otherwise address the propriety of the trial court's decision to suppress the remainder of Petitioner's medical records. See Pet. App. 16a, 16a n. 6. There is no reason to believe that the TCCA's decision will lead to unconstitutional invasions of a societally-recognized reasonable expectation of privacy in the future. Were prosecutors to abuse the grand jury subpoena process, traditional remedies would be and still are available to a trial court judge - including quashing subpoenas or suppressing any evidence obtained as a result of an overbroad subpoena. Petitioner's hyperbole aside, he has not shown a reason upon which certiorari should be granted. He has not shown a conflict of authority for this Court to resolve, nor has he shown that the TCCA misconstrued or misapplied this Court's Fourth Amendment prece-dent or provisions of the HIPAA "Privacy Rule." 26 CONCLUSION For the foregoing reasons, Respondent respectfully requests that the Court deny the petition for writ of certiorari. Respectfully submitted, MATTHEW D. POWELLLubbock County Criminal District Attorney K. SUNSHINE STANEKFirst Assistant District Attorney JEFFREY S. FORDCounsel of Record Assistant Criminal District Attorney LUBBOCK COUNTY CRIMINAL DISTRICT ATTORNEY'S OFFICEP.O. Box 10536 Lubbock, Texas 79408 (806) 775-1166 FAX (806) 775-7930 [email protected] 11, 2017

Supreme Court Justices

SONIA SOTOMAYOR, 66, fights for underrepresented parts of society andtries to defend unpopular plaintiffs. ELENA KAGAN, 60, along with Sonia Sotomayor, is seen as being on theleft end of the court's political spectrum. The two justices, bothnominated by President Barack Obama, generally agree on most issues.Kagan is only the fourth woman to be a Supreme Court justice. STEPHEN BREYER, 82, looks for compromises and is known as a moderateintermediary who tends towards the left. The judge, nominated by president Bill Clinton, is known for his excellent writingstyle and his elaborate questions at oral hearings. JOHN ROBERTS, 65, heads the Supreme Court as chief justice. Nominated by president George W Bush, the 61-year-old has taken conservative positions on abortion and guns, but has drifted slowly to the left in recent years. NEIL GORSUCH, 53, had the reputation of a clear advocate for lax firearms laws when President Donald Trump proposed him as a Supreme Court judge in one of his first official acts. It is thanks to Gorsuch that parts of Trump's immigration ban for Muslim countries could be implemented, despite much resistance. BRETT KAVANAUGH, 55, is currently the Supreme Court's newest justice. Trump got his preferred candidate through in 2018 despite a visibly angry Kavanaugh having to respond to allegations of sexual assault during his confirmation hearing. SAMUEL ANTHONY ALITO, 70, is the main proponent of the religiousright on the Surpeme Court. You can nearly always predict the position of this justice, who was nominated by George W Bush: He isagainst abortion, same-sex marriage and stricter gun control. CLARENCE THOMAS, 72, is known to be quite conservative, opposing for example same-sex marriage. He rarely speaks at oral hearings, but he is known for writing explosive texts. Amy Coney Barrett is an American lawyer, jurist, and former academic who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Donald Trump and has served since October 27, 2020.

Amendment 13 - Slavery and Involuntary Servitude5

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

Amendment 18 - Prohibition of Intoxicating Liquors

Section. 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Sec. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Amendment 14 - Rights Guaranteed, Privileges and Immunities of Citizenship, Due Process and Equal Protection6

Section. 1. 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. Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Amendment 25 - Presidential Vacancy, Disability, or Incapacity

Section. 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section. 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section. 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section. 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives has written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Amendment 22 - Presidential Tenure

Section. 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Sec. 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

Amendment 23 - Presidential Electors for the District of Columbia

Section. 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Sec. 2. The Congress shall have power to enforce this article by appropriate legislation.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) is a federal law that protects the rights of people with disabilities by eliminating barriers to their participation in many aspects of working and living in America. In particular, Title I of the ADA prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities, from recruitment to advancement to pay and benefits. Covered employers: Title I of the ADA applies to employers (including state or local governments) with 15 or more employees and to employment agencies, labor organizations and joint labor-management committees with any number of employees. Covered individuals: The ADA protects individuals with a disability who are qualified for the job, meaning they have the skills and qualifications to carry out the essential functions of the job, with or without accommodations. An individual with a disability is defined as a person who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment, or (3) is regarded as having such an impairment. Medical and disability-related leave rules: The ADA does not specifically require employers to provide medical or disability-related leave. However, it does require employers to make reasonable accommodations for qualified employees with disabilities if necessary to perform essential job functions or to benefit from the same opportunities and rights afforded by employees without disabilities. Accommodations can include modifications to work schedules, such as leave. There is no set leave period mandated because accommodations depend on individual circumstances and should generally be granted unless doing so would result in "undue hardship" to the employer. Additional information: The U.S. Equal Employment Opportunity Commission (EEOC: https://www.eeoc.gov/) enforces the ADA's employment provisions. The EEOC website offers related information and resources, including specific guidance about accommodations for small businesses (https://www.eeoc.gov/laws/guidance/small-employers-and-reasonable-accommodation)

The Confusion Over Privacy: HIPAA, the Constitution, and COVID-19 https://www.natlawreview.com/article/confusion-over-privacy-hipaa-constitution-and-covid-19 Tuesday, June 2, 2020 Marissa B. Cohen Law Student The right to privacy has always been heavily debated, especially because the Constitution does not provide any definitive right of privacy. But the battle regarding privacy in healthcare seemed to have been resolved with the passing of the Healthcare Insurance Portability and Accountability Act (HIPAA) in 1996. However, reacting to the COVID-19 pandemic the Office of Civil Rights (OCR) and other agencies suspended important aspects of HIPAA and Congress passed the, 'Coronavirus Aid, Relief, and Economic Security Act,' (CARES Act). The CARES Act now creates a paper trail of someone's health status that will follow them through countless areas of life. The reaction to COVID-19 has created the exact atmosphere that HIPAA aspired to eliminate. The present-day incentives for releasing patient information ultimately begs for constitutional analysis. Was HIPAA the Constitution's unofficial Privacy Amendment? Is it unconstitutional to suspend HIPAA? Is the CARES Act in violation of HIPAA and/or the Constitution?

The Constitution and Privacy Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), is one hundred and fifteen years old, but the case will frame many impending constitutional questions regarding the COVID-19 pandemic. The law that Massachusetts passed in Jacobson stated, "the board of health of a city or town, if, in its opinion, it is necessary for public health or safety, shall require and enforce the vaccination and revaccination of all inhabitant thereof, and shall provide them with the means of a free vaccination."1. The rationale behind the law was because "smallpox [had become] prevalent to some extent in the City of Cambridge, and [continued] to increase. Cambridge believed it necessary for "speedy extermination of the disease," that all persons who had not been vaccinated should be required to do so.2 Defendant in Jacobson, claimed degradation of his rights that are secured by the 14th amendment, namely; "[N]o state shall make or enforce any law abridging privileges or immunities of citizens of the United States nor can any person per deprived of life, liberty, or property without due process of the law."3 The Court struck down defendant's argument; "the authority of the state to enact this statue is to be referred to...the police power-a power which the state did not surrender when becoming a member of the union under the Constitution."4 "The Court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a state to enact quarantine laws and 'health laws of every description.'"5 "According to settled principals the police power of a state must be held to embrace at least, such reasonable regulations established directly by legislative enactive as will protect the public health and public safety."6 Considering the COVID-19 pandemic, questions regarding vaccination will surely surface again. However, a question not necessarily addressed in Jacobson, but heavily overlaps with vaccination inquires is, privacy. "Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution." Katz v. United States, 389 U.S. 367, 350 (1967). The Constitution does not explicitly give the right of privacy; rather, it has been the courts who have read privacy into clauses of the Constitution. In Katz v. United States, 389 U.S. 347 (1967), Justice Stewart, wrote for the majority and created the right of personal privacy. He found privacy roots in numerous constitutional amendments freeing the, "[T]he Fourth Amendment [from being] translated into a general constitutional 'right to privacy.'7 The Court held the 14th Amendment protects individual privacy against certain kinds of governmental intrusion, but the Amendment's protections go further, and stray from focusing solely on privacy rights. Moreover, the Court found other provisions of the Constitution which protect personal privacy from forms of governmental invasion.8 In footnote 5, Stewart listed his findings; the First Amendment prevents governments from interfering with the freedom to associate and privacy in one's associations; the Third Amendment prevents the quartering of soldiers during peacetime; lastly, the Fifth Amendment also shows "the right of each individual to a private enclave where he may lead a private life."9 In another landmark privacy case, United States v. Jones, 565 U.S. 400, 404 (2012), Justice Scalia writing for the Supreme Court, proclaimed, "[T]he Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.""10 The Court relied on Katz, "we said that "the Fourth Amendment protects people, not places," and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person's "reasonable expectation of privacy,""11 HIPAA New regulations have expanded patient privacy since the Jacobson case, namely, the Health Insurance Portability and Accountability Act (HIPAA).12 HIPAA had two explicit purposes; "One was to ensure that individuals would be able to maintain their health insurance between jobs."13 This is the Health Insurance Portability part of the Act. "The second part of the Act is the "Accountability" portion. This section is designed to ensure the security and confidentiality of patient information/data."14 In addition, HIPAA mandates uniform standards of privacy for electronic patient health information and data that is transmitted during the normal course of care. Within HIPAA is "The Privacy Rule," which mandates and unifies privacy regulations for patients' protected health information (PHI) with the enumerated goal to protect patients' records during the changing insurance landscape in 1996.15 A new form of safety was provided to patients through HIPAA by explicitly preventing health plans from denying eligibility because of health status; medical condition; mental illness; genetic information; disability; and other evidence of insurability.16 This was a remarkable step toward privacy for patients. Anecdotes like the following were maxims of the pre-HIPAA era. An executive at a finance company during the early '90s recalled how difficult to function it was dealing with his undiagnosed bipolar disorder, I began hallucinating and became suicidal. I wouldn't dare see a psychiatrist, for if I did it would be in my health records and my career would be over. I knew that companies received detailed updates about employee health insurance claims, and that these updates often made it easy to...identify the employees making the claims. I didn't want my employer to know I was going crazy. The only way to protect myself...was to not have this information available at all. The only way to do that was to not get treated for a mental illness.17 Because of pre-HIPAA horror stories, "Individually identifiable health information" was explicitly protected, which included, demographic data that relates to: the individual's past, present or future physical or mental health or condition, the provision of health care to the individual, or the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number)18 HIPAA's unique provision against sharing information that could deduce the patient's identity proves the seriousness of the Privacy Rule. Not only is sharing a patient's demographic data precluded but being able to reasonably identify the patient is also a HIPAA violation.19 Prior to COVID-19, under HIPAA, covered entities could disclose PHI to public health authorities when the dissemination is authorized by law for preventing or controlling disease, injury, or disability...and in regards to individuals who may have contracted or been exposed to a communicable disease when notification is authorized by law.20 The notable aspect of the original regulation is how narrowly tailored the need for disclosure is. Only when authorized by law could any PHI be released to these public health officials. HIPAA also contains a preemption provision titled, "Effect on State law," which states; "Except as provided...a provision or requirement under this part... shall supersede any contrary provision of State law."21 It is imperative to remember the intent behind HIPAA, "In HIPAA, Congress directed the Secretary to promulgate rules and regulations designed to ensure the privacy of patients' medical information."22 There can be no doubt of HIPAA's intent, it is self-proclaimed in the very first line; "This regulation...[is] to protect and enhance the rights of consumers by providing them access to their health information and controlling the inappropriate use of that information."23 The preemption provision of HIPAA proves the strength Congress intended HIPAA to have. Preventing states from undermining provisions of HIPAA, the preemption provision makes HIPAA a blanket rule providing a minimum level of privacy for patient's in all states. COVID-19 and HIPAA The Office for Civil Rights (OCR), U.S. Department of Health and Humans Services (HHS) released a bulletin entitled, HIPAA Privacy and Novel Coronavirus, released February of 2020 (hereinbelow, bulletin), which presented guidelines for how HIPAA will be affected as OCR reacts to the public health emergency. First change is as follows: Under the Privacy Rule, covered entities may disclose, without a patient's authorization, protected health information about the patient as necessary to treat the patient or to treat a different patient (emphasis added) Secondly, A covered entity may share protected health information with a patient's family members, relatives, friends, or other persons identified by the patient as involved in the patient's care. A covered entity also may share information about a patient as necessary to identify, locate, and notify family members, guardians, or anyone else responsible for the patient's care, of the patient's location, general condition, or death. This may include, where necessary to notify family members and others, the police, the press, or the public at large.24 Finally, HHS issued, "Notification of Enforcement Discretion under HIPAA to Allow Uses and Disclosures of Protected Health Information by Business Associates for Public Health and Health;" To facilitate uses and disclosures for public health and health oversight activities during this nationwide public health emergency, effective immediately, OCR will exercise its enforcement discretion and will not impose penalties against a business associate or covered entity under the Privacy Rule. (emphasis added)25 These guidelines completely dilute the "The Privacy Rule" of HIPAA, which had mandated and unified privacy regulations for patients' PHI. Now HIPAA has been disregarded through the latest provision of the United States Code released on March 27,2020 42 U.S.C.§ 1320b-5 entitled, "Authority to Waive Requirements During National Emergencies," which stated "[T]he patient's right to request privacy restrictions; and the patients' right to confidential communications,' has been waived." (emphasis added) Alas, this pandemic does presently exist, and the ultimate question is, 'How much PHI should be publicly shared?' The HIPAA Privacy Rule as it stood required, "when protected health information is used or disclosed, only the information that is needed for the immediate use or disclosure should be made available by the covered entity," this is known as the minimum necessary standard. (emphasis added)26 The minimum necessary standard does not apply to; 1) disclosures or requests by a health care provider for treatment purposes; 2) disclosures to the patient when requested by the patient; and 3) uses and disclosures made with the patient's authorization.27 Further, the minimum necessary standard required covered entities to evaluate their practices and enhance protections as needed to "limit unnecessary or inappropriate access to protected health information. It is intended to reflect and be consistent with, not override, professional judgment and standards."28 Therefore, HIPAA intended medical professionals to decide what information was necessary to disclose. Medical professionals have always been encouraged to have open communication when discussing a patient's treatment, but information requested by public health officials must always be "the minimum necessary for a public health purpose."29 HHS released the following about PHI; "Information is essential fuel for the engine of health care. Physicians, medical professionals, hospitals and other clinical institutions generate, use and share it to provide good care to individuals, to evaluate the quality of care they are providing, and to assure they receive proper payment from health plans."30 The focus was on the individual professional and their relationship to the individualized care of a single patient. COVID-19 HIPAA Violations An example of a notable HIPAA violation can be found in a New York Times Article, published prior to OCR's bulletin. The Health Commissioner of New Jersey released personal information about the first death in New Jersey from the coronavirus.31 "The man, who was 69 and lived in Little Ferry, a small Bergen County town about 15 miles northwest of Manhattan, had gone to his doctor last week complaining of a fever and a cough, the state's health commissioner, Judith Persichilli, said."32 The article continued, "The man, identified by a close friend and an official at Yonkers Raceway as John Brennan, was treated with antibiotics and Tamiflu, an antiviral medication given to alleviate flu symptoms, but Mr. Brennan did not improve." The article stated that Mr. Brennan had been admitted to Hackensack University Medical Center, and stated Mr. Brennan had a "history of serious health problems, including diabetes, high blood pressure and emphysema."33 The public also learned Mr. Brennan was the nighttime field representative for a horse-owner association, and Mr. Brennan's friend of 35 years, Joe Faraldo, was interviewed about their friendship. Further, the health commissioner stated, "[Mr. Brennan] went into cardiac arrest on Monday night, but was revived... Tuesday morning, Mr. Brennan had a second heart attack, this one fatal. Lastly, Mr. Brennan was single and had no children, and regularly traveled into New York City after leaving work.34 Prior to COVID-19, HIPAA had an axiomatic presence in healthcare and therefore, Mr. Brennen even in death could rely on HIPAA to protect his PHI. He could also rely on the reasonable expectation of privacy for people to be secure in theirpersons derived from the Katz case. However, the press was informed by a public official who described, in detail, the life of New Jersey's first COVID-19 victim. Though the disclosure was made in good faith, COVID-19 is leading to reactive regulations. These orders need to be reflected on as the crisis continues, and specifically it is important to consider the need of each piece of PHI that is to be released. Reminding officials of the minimum necessary standard in HIPAA would not place a heavy burden on those officials, rather that standard is being presently implemented on the West Coast. The West Coast has taken a different approach to revealing PHI. Departments in the Bay Area make the case that releasing more granular data could heighten discrimination against certain communities where there might be clusters.35 The first cases in the Bay Area were among ethnic Chinese residents returning from trips to China.36 "Pandemics increase paranoia and stigma," said Dr. Rohan Radhakrishna, the deputy health officer of Contra Costa County, across the Bay from San Francisco, which provides only the total number of cases in the county on its website.37 "We must be extra cautious in protecting individuals and the community."38 Therefore, the county's public information office says it will not publicly disclose the number of cases in each city because doing so could make individuals more easily identifiable.39 Dr. Jeffrey V. Smith, the county executive for Santa Clara County, who is both a medical doctor and a lawyer, argues that more precise geographical information about the spread does not help combat the virus.40 This is significant considering Santa Clara County has recently been reported as the location of the first two deaths in the United States from COVID-19.41 "Reporting positive tests with a census tract or a city name provides data that is not helpful," Dr. Smith said. "In fact, such data has the risk of stigmatizing areas and regions of the country in a way that does not help."42 The approach Dr. Smith discussed relates back to HIPAA's unique provision against sharing information that could deduce the patient's identity.43 Furthermore, Dr. Smith believes sharing regions where patients have been is "not helpful," resulting in unnecessary stigma.44 Regarding stigma, the Centers for Disease Control (CDC) released a note about daily life and coping with the COVID-19 crisis. These are "stressful times for people and communities. Fear and anxiety about a disease can lead to social stigma...for example stigma and discrimination can occur when people associate a disease, such as COVID-19 with a population or nationality...stigma can also occur after a person has been released from quarantine even though they are not considered a risk for spreading the disease to others." The note was clear; "Stigma hurts everyone by creating fear or anger towards other people...stopping stigma is important to make communities and community members resilient."45 Therefore, the dichotomy between these examples from the East and West coast are more than a differences in opinion, rather they are evidence of competing privacy values. PHI in the courts Prior to COVID-19 courts struggled with finding appropriate times to publicize PHI. The court in, People v. Carrier, 309 Mich. App. 92 (2015), admitted to grappling with the decision regarding PHI because of the scarce legal guidance available.46 The case dealt with 911 calls where defendant made a terrorist threat over the phone to a mental health crisis hotline.47 "The prosecution relied, in part, on phone communications between defendant and [the] emergency services specialist while the specialist was manning a mental health crisis hotline."48 After the call, the emergency services specialist called 911 and reported specifics of the threats defendant had disclosed during the specialist's previous phone conversation with defendant.49 "Defendant argued that his conversation with the emergency services specialist and the related 911 recording concerned privileged communications and were thus inadmissible in the criminal case brought against him."50 The court announced their need for guidance, "We are not aware of any precedent from the United States Supreme Court that has addressed the issue of privilege under a set of facts similar to those presented here. The opinions from lower federal courts on the subject [for situations] even arguably comparable [to the facts of this case] are indeed sparse. We thus are not prepared to conclude that defendant's communications...were generally privileged under definitive federal law. On the other hand, with respect to state law and as explained hereinafter, there is clear statutory support for the conclusion that defendant's communications were, in general, confidential and privileged."51 However, the court ultimately held that the specialist acted to protect the safety of a third person from a patient who voiced a threat of physical violence against the person to a treating mental health professional. A mental health professional has a duty to make a "reasonable attempt to communicate a particularized threat to a threatened third person in conjunction with communicating the threat to the police."52 An error performed by the Carrier court was failing to include HIPAA in their analysis. Recall the preemption provision included in HIPAA, "Effect on State law," which states; "Except as provided...a provision or requirement under this part... shall supersede any contrary provision of State law."53 The Carrier court did not use a provision in HIPAA to release the information disclosed during the 911 call. Further, the court would not recognize a "definitive federal law" that would find the phone call privileged. It was clear that the court struggled to come to a conclusion and the overwhelming pressures imposed by hearing a case regarding a terrorist threat ultimately made the decision even harder to reach. The court was willing to allow the release PHI due to a "particularized threat." But the court beseeched the Supreme Court or the legislature to provide more guidance on releasing PHI. Presently, OCR is alleging COVID-19 is a threat which therefore rationalizes suspending HIPAA regulations. However, with HIPAA's overlapping roots with constitutional rights of privacy, is suspending HIPAA constitutional? Is COVID-19 a particularized threat to a third party which requires disclosure like in the Carrier case? Effects of releasing patient names during the COVID-19 crisis will undoubtedly ripple. If someone is known to have the virus, can they be fired? Can they be evicted? Will they be ostracized? When vaccines are available will they be required for all citizens? Will people have to wear proof that they have been vaccinated? Will employers prefer people who have had the virus and recovered because of the alleged immunity the individual will have? The aforementioned questions are the reasons why HIPAA was put in place. HIPAA was the needed amendment to the Constitution that prevented discrimination based on health status and provided true privacy regarding health. The CARES Act 'Coronavirus Aid, Relief, and Economic Security Act,' (CARES Act) shows how ubiquitous releases of PHI will now be. H.R.748-116th Congress (2019-2020)54 Part of the act, Pandemic Unemployment Assistance (PUA) provides "benefits to covered individuals who are not eligible for regular Unemployment Compensation (UC)... because of any one of the following COVID-19-related reasons: You have been diagnosed with or are experiencing symptoms of COVID-19 and are seeking a medical diagnosis; A member of your household has been diagnosed with COVID-19; You are providing care for a family member or a member of your household who has been diagnosed with COVID-19; You are unable to reach your place of employment because you have been advised by a health care provider to self-isolate or quarantine because you are positive for or may have had exposure to someone who has or is suspected of having COVID-19; You were scheduled to start a new job and do not have an existing job or are unable to reach the job as a direct result of the COVID-19 pandemic; You have become the breadwinner/major supporter for a household because the head of your household has died as a direct result of COVID-19; You had to quit your job due to being diagnosed with COVID-19 and being unable to perform your work duties; Your place of employment is closed as a direct result of the COVID-19 pandemic.55 Aside from the eight mentioned disclosures through PUA, the CARES Act in totality has 68 benefits for people who know someone with a CDC verified positive COVID-19 test and filed an appropriate application for further allocation of government provided funds.56 All 68 of the aforementioned benefits in the CARES act provide incentives for individuals to report their own health status; however, that same incentive will now allow family members, employers, healthcare providers, and others who know the identity of an individual who tested positive for COVID-19 to capitalize on that individual's health status.57 The CARES Act now creates a paper trail of someone's health status that will follow them through their taxes, employment, and countless other areas of life. Especially taking into consideration that many of these benefits are intended to stay in effect for the next three taxable years.58 The atmosphere HIPAA wanted to prevent would include the new benefits of the CARES Act because the CARES Act is effectively trading money for PHI. Specifically, the incentives for employers to report an employee's health status and how it affected the employer's business is in direct contravention with the first element of HIPAA; which "was [enacted] to ensure that individuals would be able to maintain their health insurance between jobs."59 Therefore, even if the CARES Act, like the OCR provisions, were made in good-faith, there are aspects of privacy that must be addressed to prevent regression to the pre-HIPAA era. The government has numerous interests in providing these incentives through the CARES Act, notably; 1) maintaining a healthy economy; 2) protecting businesses and individuals whose income has been affected from the virus; and 3) tracking the extent of the virus on the population in the present and future. These interests are not to be belittled; however, even if HIPAA is suspended, "the Fourth Amendment provides..."[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[;]""60 "the First Amendment prevents governments from interfering with the freedom to associate and privacy in one's associations; the Third Amendment prevents the quartering of soldiers during peacetime; lastly, the Fifth Amendment... shows "the right of each individual to a private enclave where he may lead a private life."61 These privacy rights prescribed by the Constitution and affirmed by the Courts, must be given great deference when considering the constitutionality of the CARES Act. Lastly, the 16th Amendment of the Constitution provides, "The Congress shall have Power to lay and collect Taxes...but all Duties, Imposts and Excises shall be uniform throughout the United States."62 (emphasis added). A final constitutional analysis must consider if the CARES Act is a uniform tax provision and therefore, compliant with the 16thAmendment. Conclusion Public health and government officials have acted quickly to ensure public safety during the COVID-19 pandemic; however, despite well-intentioned efforts, reconsideration of these provisions is warranted. [1] Jacobson v. Massachusetts, 197 U.S. 11, 15 (1905). [2] Id. at 13 [3] Id. at 14. [4] Id. [5] Jacobson, 197 U.S. [6] Id. [7] See generally Katz v. United States, 389 U.S. 347, (1967) [8] Id. [9] Id. [10] United States v. Jones, 565 U.S. 400, 404 (2012). [11] Id. [12] 42 U.S.C. § 1301. [13] The University of Chicago Medical Center, Biological Sciences Division, HIPAA Background (Oct. 23, 2006) (updated Feb. 2010) http://hipaa.bsd.uchicogo.edu/background.html. [14] Id. [15] U.S. Dept. of Health and Human Services, Summary of the HIPAA Privacy Rule, https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/ind.... [16] 29 U.S.C.A. § 1182 (West). [17] Anonymous, Life Before HIPAA, Pyschcentral.com, (March, 2019) https://blogs.pyschcentral.com/older-bipolar/2019/03/life-before-hipaa/. [18].S. Dept. of Health and Human Services, supra note 15. [19] Id. [20] Id. [21] R.K. v. St. Mary's Med. Ctr., Inc., 229 W. Va. 712, 717 (2012). [22] State ex rel. Proctor v. Messina, 320 S.W.3d 145, 150 (Mo. 2010), 42 U.S.C.A. §§ 1320d-2(d)(2)(A). [23] 45 C.F.R §§ 160, 164 [24] U.S. Dept. of Health and Human Services, Office for Civil Rights, BULLETIN: HIPAA Privacy and Novel Coronavirus (Feb. 2020) https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-co.... [25] U.S. Dept. of Health and Human Services, Notification of Enforcement Discretion under HIPAA to Allow Uses and Disclosures of Protected Health Information by Business Associates for Public Health and Health Oversight Activities in Response to COVID-19, https://www.hhs.gov/sites/default/files/notification-enforcement-discret... [26] See U.S. Dept. of Health and Human Services, supra note 15. [27] See Compliancy Group, The HIPAA Minimum Necessary Standard, https://compliancy-group.com/the-hipaa-minimum-necessary-standard/. [28] https://www.hhs.gov/hipaa/for-professionals/faq/207/how-are-covered-enti... minimum-necessary/index.html. [29] Compliancy Group, supra note 27. [30] U.S. Dept. of Health and Human Services, supra note 15. [31] Tracey Tully, First Coronavirus Death in New Jersey: Yonkers Raceway Worker, The N.Y. Times, (Mar. 10, 2020) https://www.nytimes.com/2020/03/10/nyregion/coronavirus-death-nj.html. [32] Id. [33] Id. [34] Id. [35] Thomas Fuller, How Much Should the Public Know About Who Has the Coronavirus?, The N.Y. Times (Mar. 28, 2020) https://www.nytimes.com/2020/03/28/us/coronavirus-data-privacy.html?acti... [36] Id. [37] Id. [38] Id. [39] Fuller, supra note 35. [40] Id. [41] Matt Hamilton, Autopsies reveal first confirmed U.S. coronavirus deaths occurred in California in February, The L.A. Times(Apr. 21, 2020), https://www.latimes.com/california/story/2020-04-21/autopsies-reveal-first-confirmed-u-s-coronavirus-deaths-occurred-in-bay-area-in-early-february. [42] Fuller, supra note 35. [43] U.S. Dept. of Health and Human Services, supra note 15.. [44] Fuller, supra note 35. [45] Center for Disease Control and Prevention, Coronavirus Disease 2019, Reducing Stigma https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/reducing-stigma.html. [46] People v. Carrier, 309 Mich. App. 92, (2015). [47] Id. at 93. [48] Id. at 94-95. [49] Id. [50] Id. [51] Id. at 93. [52] Id. at 97 [53] R.K. v. St. Mary's Med. Ctr., Inc., at 717. [54] CARES Act, H.R. 748, 116th Cong. https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf. [55] Id. [56] Id. [57] Id. [58] Id. [59] The University of Chicago Medical Center, Biological Sciences Division, HIPAA Background (Oct. 23, 2006) (updated Feb. 2010) http://hipaa.bsd.uchicogo.edu/background.html. [60] Jones, at 404. [61] Id. [62] The 16th Amendment, March 15, 1913; Ratified Amendments, 1795-1992; General Records of the United States Government; Record Group 11; National Archives.

Amendment 12 - Election of President

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice- President shall act as President, as in the case of the death or other constitutional disability of the President--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. p>

Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA) is a federal law designed to help workers balance job and family responsibilities by giving employees up to 12 weeks of unpaid leave per year for specific reasons, including a serious health condition or to care for an immediate family member who has a serious health condition. During FMLA leave, employers must continue employee health insurance benefits and, upon completion of the leave, restore employees to the same or equivalent positions. Covered employers: The FMLA applies to private employers with 50 or more employees working within 75 miles of the employee's worksite. Employers with fewer than 50 employees can also choose to provide benefits similar to those required by the FMLA, and many find it beneficial to do so. The FMLA also applies to all public agencies and private and public elementary and secondary schools, regardless of the number of employees. Covered individuals: Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the 12 months immediately prior to the leave, if there are at least 50 employees working within 75 miles of the employee's worksite. Medical and disability-related leave rules: Eligible employees can take up to 12 weeks of leave for treatment of or recovery from serious health conditions. The FMLA's definition of a serious health condition is broader than the definition of a disability, encompassing pregnancy and many illnesses, injuries, impairments, or physical or mental conditions that require multiple treatments and intermittent absences. Generally, things like cosmetic surgery, colds, headaches, and routine medical and dental care are not included. FMLA leave is unpaid, but employers may require employees to concurrently take paid leave, such as accrued vacation or sick leave, or employees may elect to do so. Additional information: DOL's Wage and Hour Division enforces the FMLA and has online compliance assistance resources for employers. In addition, DOL has an interactive FMLA Advisor for employers and employees.

Amendment 17 - Popular Election of Senators

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

10 The Eighteenth Amendment was proposed by Congress on December 18, 1917, when it passed the Senate, Cong. Rec. (65th Cong. 2d Sess.) 478, having previously passed the House on December 17. Id., 470. It appears officially in 40 Stat. 1059. Ratification was completed on January 16, 1919, when the thirty-sixth State approved the amendment, there being then 48 States in the Union. On January 29, 1919, Acting Secretary of State Polk certified that this amendment had been adopted by the requisite number of States. 40 Stat. 1941. By its terms this amendment did not become effective until 1 year after ratification.

The several state legislatures ratified the Eighteenth Amendment on the following dates: Mississippi, January 8, 1918; Virginia, January 11, 1918; Kentucky, January 14, 1918; North Dakota, January 28, 1918 (date on which approved by Governor); South Carolina, January 29, 1918; Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4, 1918; Delaware, March 18, 1918; South Dakota, March 20, 1918; Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26, 1918; Louisiana, August 9, 1918 (date on which approved by Governor); Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January 8, 1919; West Virginia, January 9, 1919; California, January 13, 1919; Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919; Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January 15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919; Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina, January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919; Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin, January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21, 1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; New Jersey, March 9, 1922; New York, January 29, 1919; Vermont, January 29, 1919.

7 The Fifteenth Amendment was proposed by Congress on February 26, 1869, when it passed the Senate, Cong. Globe (40th Cong., 3rd Sess.) 1641, having previously passed the House on February 25. Id., 1563, 1564. It appears officially in 15 Stat. 346 under the date of February 27, 1869. Ratification was probably completed on February 3, 1870, when the legislature of the twenty-eighth State (Iowa) approved the amendment, there being then 37 States in the Union. However, New York had prior to that date ''withdrawn'' its earlier assent to this amendment. Even if this withdrawal were effective, Nebraska's ratification on February 17, 1870, authorized Secretary of State Fish's certification of March 30, 1870, that the Fifteenth Amendment had become a part of the Constitution. 16 Stat. 1131.

The several state legislatures ratified the Fifteenth Amendment on the following dates: Nevada, March 1, 1869; West Virginia, March 3, 1869; North Carolina, March 5, 1869; Louisiana, March 5, 1869 (date on which it was ''approved'' by the Governor); Illinois, March 5, 1869; Michigan, March 5, 1869; Wisconsin, March 5, 1869; Maine, March 11, 1869; Massachusetts, March 12, 1869; South Carolina, March 15, 1869; Arkansas, March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869 (New York ''withdrew'' its consent to the ratification on January 5, 1870); Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869; Alabama, November 16, 1869; Missouri, January 7, 1870 (Missouri had ratified the first section of the 15th Amendment on March 1, 1869; it failed to include in its ratification the second section of the amendment); Minnesota, January 13, 1870; Mississippi, January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, 1870 (Kansas had by a defectively worded resolution previously ratified this amendment on February 27, 1869); Ohio, January 27, 1870 (after having rejected the amendment on May 4, 1869); Georgia, February 2, 1870; Iowa, February 3, 1870; Nebraska, February 17, 1870; Texas, February 18, 1870; New Jersey, February 15, 1871 (after having rejected the amendment on February 7, 1870); Delaware, February 12, 1901 (date on which approved by Governor; Delaware had previously rejected the amendment on March 18, 1869). The amendment was rejected (and not subsequently ratified) by Kentucky, Maryland, and Tennessee. California ratified this amendment in 1962 and Oregon in 1959.

11 The Nineteenth Amendment was proposed by Congress on June 4, 1919, when it passed the Senate, Cong. Rec. (66th Cong., 1st Sess.) 635, having previously passed the house on May 21. Id., 94. It appears officially in 41 Stat. 362. Ratification was completed on August 18, 1920, when the thirty-sixth State (Tennessee) approved the amendment, there being then 48 States in the Union. On August 26, 1920, Secretary of Colby certified that it had become a part of the Constitution. 41 Stat. 1823.

The several state legislatures ratified the Nineteenth Amendment on the following dates: Illinois, June 10, 1919 (readopted June 17, 1919); Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16, 1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June 24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July 2, 1919 (date on which approved by Governor); Missouri, July 3, 1919; Arkansas, July 28, 1919; Montana, August 2, 1919 (date on which approved by governor); Nebraska, August 2, 1919; Minnesota, September 8, 1919; New Hampshire, September 10, 1919 (date on which approved by Governor); Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, 1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919 (date on which certified); Colorado, December 15, 1919 (date on which approved by Governor); Kentucky, January 6, 1920; Rhode Island, January 6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9, 1920; Idaho, February 11, 1920; Arizona, February 12, 1920; New Mexico, February 21, 1920 (date on which approved by govrnor); Oklahoma, February 28, 1920; West Virginia, March 10, 1920 (confirmed September 21, 1920); Vermont, February 8, 1921. The amendment was rejected by Georgia on July 24, 1919; by Alabama on September 22, 1919; by South Carolina on January 29, 1920; by Virginia on February 12, 1920; by Maryland on February 24, 1920; by Mississippi on March 29, 1920; by Louisiana on July 1, 1920. This amendment was subsequently ratified by Virginia in 1952, Alabama in 1953, Florida in 1969, and Georgia and Louisiana in 1970.

EEOC: Types Of Reasonable Accommodations

There are many different kinds of reasonable accommodations. Below is information on some of them. 5. Is restructuring a job a reasonable accommodation? Yes. This includes: (1) shifting responsibility to other employees for minor job tasks that an employee is unable to perform because of a disability; and (2) altering when and/or how a job task is performed. If an employee is unable to perform a minor job task because of a disability, an employer can require the employee to perform a different minor job function in its place. 6. Is providing leave necessitated by an employee's disability a form of reasonable accommodation? 1 Yes, absent undue hardship, providing unpaid leave is a form of reasonable accommodation. However, an employer does not have to provide more paid leave than it provides to other employees. 7. May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs additional leave? If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must provide the employee with the additional leave even if it has a "no-fault" policy. An employer, however, does not need to provide leave if: (1) it can provide an effective accommodation that allows the person to keep working, or (2) it can show that granting additional leave would cause an undue hardship. 8. When an employee requests leave as a reasonable accommodation, may an employer provide an accommodation that requires him/her to remain on the job instead? Yes, if the employer's proposed reasonable accommodation would be effective and eliminate the need for leave. Accordingly, an employer may reallocate minor job tasks or provide a temporary transfer instead of leave, so long as the employee can still address his/her medical needs. 9. Is a modified or part-time schedule a reasonable accommodation? Yes, absent undue hardship. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain job tasks are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave. 10. Is it a reasonable accommodation to modify a workplace policy because of an employee's disability? Yes. For example, granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. However, reasonable accommodation only requires that the employer modify the policy for an employee with a disability. The employer may continue to apply the policy to all other employees. 11. Does an employer have to reassign to a vacant position an employee who can no longer perform his/her job because of a disability? Yes, unless the employer can show that it would be an undue hardship. The following criteria apply to reassignment: An employee must be "qualified" for the new position. This means that s/he: (1) satisfies the skill, experience, education, and other job-related requirements of the position, and (2) can perform the primary job tasks of the new position, with or without reasonable accommodation. The employer does not have to assist the employee to become qualified. An employer does not have to bump other employees or create a position. Nor does an employer have to promote the employee. Reassignment should be to a position that is equal in pay and status to the position that the employee held, or to one that is as close as possible in terms of pay and status if an equivalent position is not vacant. 12. Does a reasonable accommodation include changing a person's supervisor? No. The ADA may, however, require that supervisory methods, such as the method of communicating assignments, be altered as a form of reasonable accommodation.

When Medical and Disability-Related Leave Laws Intersect

When Medical and Disability-Related Leave Laws Intersect When employees need time off because of a medical or disability-related issue, it is important to remember that they may have rights under all of these laws at the same time. In certain circumstances, provisions of the ADA, the FMLA and Workers' Compensation laws can apply to the same employee, and employers may find understanding their responsibilities a challenge. For example, a Workers' Compensation injury that requires hospitalization or incapacitates an employee for more than three days and requires continuing treatment by a healthcare provider generally qualifies as a serious health condition under the FMLA. If the injury causes a permanent mental or physical impairment that substantially limits a major life activity, that same employee could be entitled to additional leave as a reasonable accommodation under the ADA. In addition, several states have enacted their own family and medical leave laws, some of which provide greater amounts of leave and benefits than those provided by the FMLA, and/or provide benefits to employees who are not eligible for FMLA. When employees are covered by both federal and state family and medical leave laws, they are entitled to the greater benefit or more generous rights provided under the different parts of each law. Below are the basic steps employers can follow to determine their responsibilities regarding medical and disability-related leave requests: Determine which laws apply to employees as a group. For example, the ADA applies to employers with 15 or more employees. The FMLA applies to private employers with 50 or more employees. Thus, for both laws to apply, a private employer must have 50 employees. Determine which laws cover the particular employee's situation. For example, a short-term or temporary condition does not usually meet the ADA's definition of disability. Below is a quick checklist: Is the injury work-related? (Workers' Compensation) Does the employee have a serious health condition? (FMLA) Does the employee's condition meet the definition of disability? (ADA) In some situations, employers may need to decide if a medical certification or consultation is necessary to ensure that a requested accommodation is necessary and reasonable. Also, the FMLA allows employers to request a medical certification of the serious health condition. Determine the employee's benefits and/or entitlements under the relevant laws. As described above, when more than one law applies, employers must provide leave under whichever law provides the greater rights and benefits to employees. Evaluate whether the employee is entitled to reinstatement once able to return to work. If so, consider whether there are obligations to provide any accommodations, an altered work schedule, and/or a light-duty assignment. Evaluate whether the return to work poses a direct threat to the health or safety of the employee or others in the workplace. The EEOC Web site has further information (https://www.eeoc.gov/laws/guidance/family-and-medical-leave-act-ada-and-title-vii-civil-rights-act-1964) about the interaction between the ADA and FMLA and guidance about the relationship between the ADA and state Workers' Compensation laws (https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada).

Workers Compensation

Workers' Compensation laws apply to almost all employers. Workers' compensation is a form of insurance that provides financial assistance, medical care, and other benefits for employees who are injured or disabled on the job. Except for federal government employees and certain other groups of employees, workers' compensation laws are administered at the state level. Covered employers: Because each state has its own system, coverage varies. As a general rule, Workers' Compensation laws apply to all employers with one or more employees. Covered employees: In most states, all employees are covered. An on-the-job injury triggers coverage. Medical and disability-related leave rules: Injured employees receive varying amounts of paid leave, depending on the state and the nature of the injury. Additional information: Each state has an agency that administers its Workers' Compensation laws. For information about Workers' Compensation for federal government employees and certain other groups of employees, contact the U.S. Department of Labor (DOL) Office of Workers' Compensation Programs.

https://nwsidebar.wsba.org/2020/09/23/i-dissent-the-legacy-of-justice-ruth-bader-ginsburg/ I Dissent: The Legacy of Justice Ruth Bader Ginsburg

erhaps the most impactful of Justice Ruth Bader Ginsburg's famous dissents came in a case about gender pay inequity in the workplace: Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Plaintiff Lilly Ledbetter began working as a supervisor at the Goodyear Tire plant in Gadsen, Alabama, in 1979. She worked there for 19 years and for most of that time was the only woman manager. In her book, Grace and Grit, Ledbetter says she experienced sexual harassment and heard negative comments from male coworkers about women working in the plant. In 1998, much to her surprise and dismay, Ledbetter found a piece of paper in her mailbox at work that showed her salary $44,724 and the salaries of her male peers: $59,028, $58,464, and $58,226. In March 1998, Ledbetter filed a charge with the federal Equal Employment Opportunity Commission (EEOC) alleging that Goodyear paid her less because of her sex, in violation of Title VII of the Civil Rights Act of 1964. She received a right-to-sue letter from the EEOC and sued Goodyear. A jury found in her favor and awarded her $3.5 million: $223,776 in back pay; $4,662 for mental anguish; and $3,285,979 in punitive damages. The award was reduced by the trial judge to $360,000. Goodyear successfully appealed to the 11th Circuit on the grounds of untimeliness. And the case ultimately made its way to the U.S. Supreme Court. The issue for the Court was this: When did the time to file a charge of pay discrimination with the EEOC begin to run? A charge of discrimination must be filed with the EEOC within 180 days (or 300 days in some states like Washington) after the alleged unlawful employment practice occurs. The majority held that each pay-setting decision made by Goodyear started the 180-day clock running. "Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that failure." 550 U.S. at 628-629 (2007). Justice Ginsburg, no stranger to gender discrimination herself as a young lawyer, dissented. She wrote about the realities of gender pay inequity in the workplace: "Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view." 550 U.S. at 645. A pay raise is different from an employment decision like a failure to promote, which is a discrete act that is communicated to the employee. Pay disparities, Justice Ginsburg argued, are recurring acts that are cumulative in impact over time. Ledbetter started in 1979 at a salary in line with her male peers, but over time discriminatory yearly pay raises resulted in her falling dramatically behind. The back-pay provisions of Title VII allow for back pay for two years—so according to Justice Ginsburg's reasoning, Ledbetter should have been able to seek damages for the discriminatory paychecks she received in 1997 and 1998. Justice Ginsburg, who read her dissent from the bench, said, "Once again, the ball is in Congress' court." Congress took the ball and ran with it. The Lilly Ledbetter Fair Pay Act of 2009 provides that the time for filing a charge of pay discrimination starts anew with each discriminatory paycheck. Pub. L. No. 111-2. It was the first law signed by President Barack Obama, with Lilly Ledbetter herself standing next to him. According to an article in the New York Times written shortly after Justice Ginsburg's death, the justice had a framed copy of the Lilly Ledbetter Fair Pay Act on the wall of her chambers and considered the law's passage one of her greatest achievements.