“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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Tedards v. Ducey

Docket: 19-16308

Opinion Date: February 27, 2020

Judge: Milan D. Smith

Areas of Law: Civil Rights, Constitutional Law, Election Law

The Ninth Circuit affirmed the district court's dismissal of an action brought after the death of Arizona Senator John McCain, challenging the constitutionality of an Arizona statute that governs appointments and elections in the aftermath of a vacancy in the United States Senate. Plaintiffs argued that the November 2020 vacancy election date and the 27-month interim appointment duration violate the time constraints implicit in the Seventeenth Amendment. The panel affirmed the district court's dismissal of this challenge based on failure to state a claim, because there was no authority for invalidating the state statute on this basis. Although the panel found plaintiffs' interpretation a possible one based on the text and history of the Seventeenth Amendment, the panel concluded that it was foreclosed by binding precedents. Plaintiffs also argued that the November 2020 vacancy election date impermissibly burdens their right to vote as protected by the First and Fourteenth Amendments. The panel affirmed the district court's dismissal of this challenge based on failure to state a claim, because important state regulatory interests justify what was a reasonable and nondiscriminatory restriction on plaintiffs' right to vote. Finally, plaintiffs challenge Arizona's statutory mandates that the Governor must make a temporary appointment and must choose a member of the same party as the Senator who vacated the office. The panel affirmed the district court's dismissal of this challenge based on failure to state a claim, and rejected plaintiffs' interpretation of the relevant Seventeenth Amendment language. The panel also affirmed the district court's dismissal of the challenge based on lack of standing where there was no harm on the basis of representation by a Republican and no redressability where the Republican Governor would appoint a Republican anyway.

Rizo v. Yovino

Docket: 16-15372

Opinion Date: February 27, 2020

Judge: Morgan Christen

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

On remand from the Supreme Court, the Ninth Circuit affirmed the district court's order denying defendant's motion for summary judgment on plaintiff's claims under the Equal Pay Act (EPA). The en banc court held that plaintiff's prior rate of pay was not a "factor other than sex" that allows Fresno County's Office of Education to pay her less than male employees who perform the same work. The en banc court also held that only job-related factors may serve as affirmative defenses to EPA claims. The en banc court wrote that the express purpose of the Act was to eradicate the practice of paying women less simply because they are women, and that allowing employers to escape liability by relying on employees' prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate. Therefore, the en banc court held that an employee's prior pay cannot serve as an affirmative defense to a prima facie showing of an EPA violation. The en banc court overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), which held that prior pay could qualify as an affirmative defense if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy.

Ramirez v. TransUnion LLC

Docket: 17-17244

Opinion Date: February 27, 2020

Judge: Murguia

Areas of Law: Consumer Law

Consumers filed suit against TransUnion under the Fair Credit Reporting Act (FCRA) after the agency—aware that its practice was unlawful—incorrectly placed terrorist alerts on the front page of the consumers' credit reports and subsequently sent the consumers confusing and incomplete information about the alerts and how to get them removed. The jury assessed $60 million in damages for three willful violations of the statute. The Ninth Circuit held that every member of a class certified under Federal Rule of Civil Procedure 23 must satisfy the basic requirements of Article III standing at the final stage of a money damages suit when class members are to be awarded individual monetary damages. In this case, the panel held that each of the 8,185 class members had standing on each of the class claims. The panel rejected TransUnion's arguments regarding the sufficiency of the evidence, Rule 23 certification, and statutory damages. However, the panel held that the punitive damages award is excessive in violation of constitutional due process. The panel reduced the punitive damages award, but otherwise affirmed the verdict and judgment.

United States v. Arpaio

Docket: 17-10448

Opinion Date: February 27, 2020

Judge: Jay S. Bybee

Areas of Law: Criminal Law

After defendant was found guilty of criminal contempt in a bench trial for willfully violating a preliminary injunction prohibiting him from enforcing federal civil immigration law, he was granted a pardon by the President. The district court granted defendant's motion to dismiss the case with prejudice, but refused to vacate the guilty verdict. The Ninth Circuit affirmed the district court's judgment, holding that United States v. Munsingwear, Inc., 340 U.S. 36 (1950), which provides for vacatur in cases mooted while on appeal, did not apply in this case. Because the mootness issue here arises from the fact that the district court's findings of guilt can be given no future preclusive effect, the panel held that the Munsingwear rule did not apply to defendant and he was not entitled to vacatur. In this case, defendant was never sentenced and thus there was no final judgment of conviction. Furthermore, the verdict was not essential to the judgment, but was inconsistent with, the final judgment, which dismissed the criminal contempt charge. Finally, defendant's challenges to the district court's finding of guilt were moot and thus the panel did not address them.