In September 2018, Governor Jerry Brown signed a series of bills aimed at drastically reshaping California’s approach to claims of discrimination and harassment amidst the “#MeToo” Movement. Among the legislation is Senate Bill 1300 which clarifies and expands employee rights under the California Fair Employment and Housing Act (“FEHA”). SB 1300, which was met with both opposition and support, became effective January 1, 2019. In addition to Senate Bill 1300, Gov. Brown also signed into law a series of bills on issues relating to workplace harassment, gender equality and human trafficking.

CALIFORNIA SENATE BILL 1300: HEIGHTENED EXPOSURE FOR EMPLOYERS

SB 1300 intends to close loopholes in the law that discourage or prevent victims from speaking out, and allow employers to avoid sexual harassment and discrimination laws and leave employees vulnerable to sexual harassment at work. In an attempt to aid these efforts, SB 1300 provides the following enhancements, further described below: 1) a new “single occurrence” standard for sexual harassment cases; 2) increases the challenges of recovering litigation costs for defendants; 3) potentially holds employers liable for third-party harassment; 4) prohibits release of both claims and non-disparagement agreements; and 5) provides for workplace accommodation and bystander training.

“SINGLE OCCURRENCE” STANDARD

One highly significant implication of SB 1300 is that it now makes a single instance of sexually harassing conduct a potentially triable sexual harassment claim by statute. Under FEHA, action was required to be so “severe or pervasive” so as to create a hostile work environment before it was actionable. However, the term “severe or pervasive” was subjective, leaving room for interpretation as to what conduct would be significantly severe or pervasive to support a claim under the existing law. For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the Ninth Circuit Court of Appeals found that an employee touching another employee’s chest under her sweater was not significant enough to rise to the level of “severe or pervasive,” and, thus, granted the employer’s motion for summary judgment.

SB 1300 narrows the definition of “severe or pervasive” by clarifying that a single incident of harassing conduct is sufficient to create a triable issue, so long as the conduct limited the employee’s work performance or created a hostile work environment. The Legislation specifically rejects the court’s holding in Brooks and states that the case opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the FEHA.

Of significance to litigation resulting from employment claims, SB 1300 affirms the court’s opinion in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243. In Nazir, the Plaintiff filed a lawsuit against his former employer, United Airlines, and his former supervisor (“Defendants”). Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues. The appellate court found that hostile work environment cases involve issues that are “not determinable on paper.” SB 1300’s reference to the finding in the Nazir case that employment issues are too complex for motions for summary judgment may be a threat to the validity of future motions for summary judgment in employment law cases which has been a common and successful defense tactic. Continue Reading California Enacts Legislation to Combat Discrimination and Harassment

Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.

Continue Reading Frye Makes a Strong Comeback in Florida

In DeLong v. Rhode Island Sports Center, Inc., et al., a former college hockey player successfully appealed a Rhode Island Superior Court decision granting an ice rink’s motion for summary judgment in a case alleging that he was poisoned by an ice resurfacer after finding that circumstantial evidence present in the record was sufficient to raise a factual dispute. 182 A.3d 1129 (R.I. 2018).

 

The plaintiff alleged that he inhaled noxious fumes that emanated from a malfunctioning ice resurfacer while playing in an ice hockey game at an enclosed arena in February, 2011. However, the plaintiff’s first indication that he had breathed injurious air resurfacing machine air did not come until the following morning when he and a teammate visited an emergency room after coughing up blood, from which doctors deduced that the plaintiff suffered from an acute lung injury as a result of carbon monoxide and nitrogen dioxide poisoning.

 

Accordingly, the plaintiff filed suit alleging that the ice rink defendants: negligently maintained their facility by allowing noxious fumes to permeate the air; failed to exercise reasonable care; or failed to provide adequate warnings. However, following discovery, the defendants successfully persuaded the trial court to grant summary judgment. “They argued that there were no genuine issues of material fact regarding (1) the existence of a dangerous or defective condition; (2) the notice to defendants of any such condition; and (3) the causal connection between that condition and any injury that may have been sustained by plaintiff.” Id. at 1131.

 

Specifically, the defendants pointed to: the plaintiff’s deposition testimony that he neither saw nor smelled any unusual fumes while at the ice rink; the lack of scientific evidence as to the air quality in the arena on the night in question; and evidence that the ice rink attendant’s twice-daily notation of the air quality had shown zero carbon monoxide, which the Rhode Island Department of Health confirmed the following day. Moreover, the ice rink’s facilities manager and the ice resurfacing machine driver each testified that neither was aware of any complaints regarding noxious fumes. The trial court, furthermore, intimated that the plaintiff’s “sickness was from another source, independent of the defendant’s facility” because the Department of Health’s testing was “more objective” and because the only people who fell ill were from the college hockey team. Id. at 1133. Based on this, the trial court granted summary judgment ruling that a lack of evidence that a defective condition existed at the sports center on day of the hockey game and it appeared that no one from the ice rink had notice of any such defect, if there was one.

 

On appeal, however, the plaintiff noted that: (1) the Department of Health does not and did not test nitrogen dioxide levels and did not test carbon monoxide levels until a day after the alleged incident, implying that poisonous ice resurfacer emissions had subsided by the time testing occurred; (2) his teammates and coach stated that they smelled gas in the air the night of the game; (3) the coach executed an affidavit stating that he witnessed the ice resurfacer malfunction and produce visible emissions; and (4) his teammates also ended up suffering very similar symptoms as he did.

 

Moreover—and perhaps most crucially—the plaintiff revealed that the defendants purchased an electric, non-propane-fueled ice resurfacing machine just months after the incident. As such, the plaintiff sought to take advantage of Rhode Island’s minority approach to the subsequent remedial measure rule. That is, unlike the Federal Rules of Evidence and the majority of states, under Rhode Island law:

 

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible.

R.I. R. Evid. 407.

 

Thus, the Supreme Court held that the trial court could and should have considered this evidence to reject the ice rink’s motion for summary judgement.

 

In its review of the plaintiff’s appeal, the court clearly indicated that even circumstantial evidence, such as the ice rink upgrading to an electric ice resurfacer, was sufficient to rise to the level of a materially factual dispute and it held that the ultimate determination of whether a dangerous-or-defective-condition existed or whether the ice rink had notice of any alleged defect was best suited for a jury’s review. Additionally, the Supreme Court repeated its caution that “issues of negligence are ordinarily not susceptible to summary adjudication, but should be resolved by trial in the ordinary manner.” Id. at 1137 (quoting Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005)).

 

DeLong is an instructive reminder that summary judgment is a powerful, but drastic tool. Even though a court may be presented with compelling, “more objective” evidence, “the purpose of summary judgment is issue finding, not issue determination.” Estate of Giuliano v. Giuliano, 949 A.2d 389, 391 (R.I. 2008). Conflating these two principles only confuses the ultimate question to be decided on summary judgment—whether, based on the evidence presented, there are remaining issues of material fact and whether the matter should proceed to trial or face dismissal on some or all issues.

Ramsey v. Georgia Southern University Advanced Development Center, et al., No. 305, 2017, C.A. No. N14C-01-287 ASB (Del. June 27, 2018).

 

On June 27, 2018, the Supreme Court of the State of Delaware issued a fifty-seven-page opinion in the above-mentioned case, creating new precedent for Delaware employer liability in secondary or “take-home” asbestos cases. Below is a summary of both the relevant factual and procedural background, as well as Chief Justice Strine’s opinion.

 

The plaintiff’s spouse, Robert Ramsey, worked for Haveg Industries, Inc. at its industrial plant for twenty-four years. From 1967 to 1979, Mr. Ramsey regularly handled asbestos-containing products manufactured by Georgia Southern University Advanced Development Center and Hollingsworth and Vose Company as part of his job as a maintenance worker at Haveg. Throughout this period his wife, Plaintiff, Dorothy Ramsey, washed Mr. Ramsey’s asbestos-covered clothing. Mrs. Ramsey eventually developed lung cancer, from which she subsequently died in 2015. Her estate sued the manufacturers of the asbestos products, alleging that the cancer was caused by Mrs. Ramsey’s exposure to her husband’s asbestos-riddled clothing. In granting the appellee manufacturers’ motions for summary judgment and dismissing the claims, the Delaware Superior Court relied primarily on two previous Delaware Supreme Court cases, Riedel v. ICI Americas Inc., 968 A.2d 17 (Del. 2009), and Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162 (Del. 2011), in which the Delaware Supreme Court held that an employer owed no duty to non-employees, including their spouses, for failure to adequately warn of the dangers of handling clothing exposed to asbestos, minus a special relationship between the employer and the non-employee, because the failure to warn was nonfeasance rather than misfeasance. Mrs. Ramsey appealed, arguing that in distinguishing an employer from a manufacturer: 1) a manufacturer of asbestos products creates the danger of asbestos-related harm and therefore commits misfeasance by failing to warn foreseeable victims; and 2) to the extent the holdings in Riedel and Price would block recovery on take-home claims against manufacturers, those holdings should be overruled. The appellant defendants argued that Riedel and Price controlled, and prevented Mrs. Ramsey from recovering from manufacturers because they are even further removed from an employer’s spouse than the employer itself. Additionally, they argued that allowing such claims would impose upon manufacturers an essentially limitless duty to warn that would be both impractical and unfair.

 

The Supreme Court acknowledged the compelling arguments on each side, but ultimately agreed with Mrs. Ramsey. First, the Court held that manufacturers owe a duty to warn to reasonably foreseeable users of their products, stating that “[b]ecause the risk of harm from take-home asbestos exposure when laundering asbestos-covered clothing is reasonably foreseeable, a plaintiff in Mrs. Ramsey’s position has a viable claim against a manufacturer . . . . Ramsey. at p. 44 of 57. However, the Court limited this duty by stating that the “sophisticated purchaser” defense would cut off a manufacturer’s liability to ultimate end users once the manufacturer has warned the employer of the risk of harm, stating that such an approach would establish “a fair and efficient accountability system . . . by limiting the duty of asbestos product manufacturers and employers in take-home asbestos exposure cases to providing fair warning about the dangers of laundering to those with whom they have the most proximate relationship. Manufacturers may discharge their duty by warning employers, and employers may discharge their duty by warning employees.” Ramsey, p. 39 of 57.

 

The Court did not end its analysis there, however, recognizing that, without “further alteration to [Delaware’s] jurisprudence, manufacturers would face liability in circumstances when employers would not.” Id. at p. 50 of 57. Thus, the Court overruled, to the extent necessary, its holdings in Riedel and Price, finding that employers commit misfeasance, rather than nonfeasance, when exposing their employees to dangerous asbestos products. The Court differentiated between the classic case of nonfeasance – a passerby failing to save a person from harm not of the passerby’s making – from employers who have created the risk of harm to both the employee and the launderer of the employee’s clothes by putting them in contact with asbestos. In such a case, the Court stated that “[o]nce an employer has engaged in misfeasance, recognized principles of tort law impose upon it a duty to ‘act reasonably, as a reasonably prudent man (or entity) would,’ which ‘encompasses protecting against reasonably foreseeable events.’”  Id. at p. 55 of 57 (citation omitted).  In other words, the Court held that a household member who claims exposure to asbestos through laundering the clothing of an employee, may sue the household member’s employer for a failure to warn, though recovery may be denied if the employer can demonstrate that it took steps to warn the employee, protect the employee and address potential harms associated with asbestos exposure.

 

While the Court clarified that “plaintiffs in cases like this will be of the most foreseeable kind: those who for many years laundered the dirty clothes of the employee with whom they shared a household,” it also acknowledged Defendants’ concern that “claims from plaintiffs with more momentary exposure to and tenuous relationship to an exposed employee [may be] filed in the future.” Id. at p. 56 of 57. The Supreme Court’s holding in Ramsey, although attempting to limit the scope of its impact, has likely opened the door to a new array of take-home asbestos claims against manufacturers and employers, which were previously unavailable under Delaware law. However, it is important to note that this holding will not affect asbestos claims filed in Delaware where the alleged asbestos exposure took place outside of the state and Delaware substantive law does not apply.

 

If you have questions regarding the Delaware Supreme Court’s opinion in Ramsey or litigation in general, we invite you to contact The MG+M Law Firm’s Wilmington, Delaware office.

The Supreme Court’s May 14, 2018, decision in Murphy v. NCAA was focused on sports betting, however, the case at its core served as a stress test on the Tenth Amendment and state sovereignty. No. 16-476, 2018 WL 2186168 (U.S. May 14, 2018). Constitutional law prohibits the federal government from “commandeering,” or compelling the states to take regulatory action that the Tenth Amendment would otherwise reserve to them. In Murphy v. NCAA, consolidated with its companion case, New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA (referred to herein collectively as “Murphy”), the Supreme Court held that the Professional and Amateur Sports Protection Act (PASPA) violates the anti-commandeering doctrine. Id. at *20. Its decision not only allows states to legalize sports betting, but if applied broadly, could be construed as conferring substantially more power on states, in general, on issues ranging from gun control to legalization of marijuana.

Anti-Commandeering Doctrine

When the original states declared their independence from England, they did so with an aim toward dual sovereignty — granting sovereign powers to both the federal government and the states. Consistent with dual sovereignty, the framers etched into the Constitution that Congress cannot issue orders directly to the states. The addition of the Tenth Amendment solidified this basic premise by declaring, “[t]he 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.” The anti-commandeering doctrine represents the recognition of this limit on congressional authority.

Before 2018, the anti-commandeering doctrine had only been addressed twice by the Supreme Court. New York v. United States, 505 U.S. 144, 166 (1992); Printz v. United States, 521 U.S. 898 (1997).  In New York, the Supreme Court struck down a federal law that ordered the state to regulate in accordance with federal standards. Similarly, in Printz, the Supreme Court struck down a federal law that compelled state officers to enforce federal law.

In both opinions, the Supreme Court explained that the Constitution “confers upon Congress the power to regulate individuals, not States.” New York v. United States, 505 U.S. 144, 166 (1992). “No Member of the Court ha[d] ever suggested” that even “a particularly strong federal interest” “would enable Congress to command a state government to enact state regulation.” Id. at 178 (emphasis in original). “We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” Id. at 166.

Professional and Amateur Sports Protection Act

In 1992, Congress passed the Professional and Amateur Sports Protection Act (“PASPA”).  PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” 28 U.S.C. § 3701 et seq. PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect. Id. New Jersey chose not to legalize sports gambling within the statutory time constraint. Notably, PASPA does not make sports gambling a federal crime, but instead, allows the Attorney General, as well as professional and amateur sports organizations, to bring civil actions to enjoin violations. Id.

Murphy v. NCAA

In 2014, New Jersey passed a law to repeal its ban on sports gambling with the intent of legalizing sports gambling at casinos and horseracing tracks. In response, the NCAA and professional sports leagues filed suit in federal district court to strike down the New Jersey law arguing that it unlawfully “authorized” sports betting, in violation of PASPA. Murphy, No. 16-476, at *6. The NCAA and professional sports leagues contended that the Tenth Amendment does not apply to PASPA for two reasons: (1) PASPA does not require states to take any action, and therefore no commandeering is taking place; and (2) there is a distinction between banning the states from legalizing sports gambling and banning the “affirmative authorization” of sports gambling. Id. at *8.

The U.S. District Court and the Third Circuit sided with the NCAA and professional sports leagues. Id. at *7. Ultimately, the case went before the Supreme Court to decide if PASPA violates the anti-commandeering doctrine. Id. A question before the Court was whether the federal law unconstitutionally regulated New Jersey’s exercise of its lawmaking power by prohibiting it from modifying or repealing laws prohibiting sports gambling. Id. at *8. As explained by the Supreme Court, contrary to the federal laws analyzed in New York and Printz, PASPA prohibits a state from enacting new laws, rather than compels a state to enact a federal law. Id. at *13.

The Supreme Court reversed the Third Circuit, finding that PASPA “unequivocally dictates what a state legislature may and may not do.” Id. In doing so, it declared PASPA unconstitutional, illustrating the nefariousness of the law:  “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” Id. As explained by the Murphy Court, under the anti-commandeering doctrine, there is no distinction between a federal law that commands state legislatures to enact federal law as opposed to refrain from enacting state law. Id.

The Murphy Court cited three key reasons for the anti-commandeering principle. Id. at *12. First, the rule provides a balance of power between the states and the federal government, thereby minimizing the risk of tyranny and abuse from either side. Second, it promotes “political accountability.” Id. When Congress regulates its own laws, it must account for the benefits and burdens of the regulation. Id. Voters who favor or disfavor the effects of the regulation know who to credit or blame. Id. Such accountability is distorted if the state is forced to impose the federal government’s regulations. Id. Third, the anti-commandeering principle precludes the federal government from forcing states to pay for the costs of regulating federal governmental laws. Id. In light of this, the Court expressed that Congress must assess the costs and benefits of certain programs prior to enacting them. Id.

In its decision to strike down PASPA, the Supreme Court emphasized that part of the anti-commandeering analysis is whether the federal law regulates private actors. Id. at *15. If the federal law regulates private actors, the anti-commandeering doctrine is not implicated and is likely constitutional, but if it regulates the states, then it is implicated and is likely unconstitutional. Id. PASPA is neither a regulation of private actors nor a federal restriction on private actors. Id. at *16. As such, the Supreme Court found that PASPA “leaves in place a state law that the state does not want, so the citizens of the state . . . are bound to obey a law that the state does not want but that the federal government compels the state to have.”[1]

Murphy’s Potential Impact Outside of Sports Gambling

As stated by the Supreme Court in striking down PASPA, “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” Id. at *20.  The Murphy decision makes it clear that Congress cannot dictate policy outcomes in states without ever having to legislate on the issue directly. Had the Court found PASPA constitutional, the federal government would be able to block any state effort to legalize activities previously forbidden under state law. Accordingly, the Supreme Court’s holding may allow the states to regulate, without the threat of federal government intervention, a host of issues that are the subjects of intense public debate, including gun control, marijuana legalization, and sanctuary cities.

Going forward, the Murphy Court explains that to enact successfully federal regulations, Congress must: (1) incentivize states to adopt federal policies, or (2) prohibit certain conduct directly. Id. at *13–16.  However, if it opts for prohibition, Congress must bear the cost of enforcing the regulation. Id. at *12.  By way of example, marijuana is illegal under federal law. However, a growing number of states are decriminalizing the drug.[2]  Based on the federal government’s lack of intervention, it can be argued that it has concluded it is not in its best interest to expend money and resources to enforce law that is in conflict with state laws.  It would logically follow that, under Murphy, such states would likely not have an expectation that the federal government will compel them to apprehend their own citizens for the violation of violating federal marijuana law while in compliance with state law.

Gun regulation may exemplify another potential scenario in which states and the federal government may have opposing views.  Under Murphy, a state’s decision to institute gun reform, may also escape an effort by the federal government to pass a law that makes it illegal for states to “authorize” certain gun control measures.

The Murphy ruling could also have an impact on sanctuary cities – cities that refuse to cooperate with federal immigration officials to enforce immigration laws – and the federal government’s ability to apply conditions on money grants for state and local law enforcement. Specifically, the federal government has relied on the following statute to enjoin and penalize sanctuary cities:  “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373. This statute is similar in nature to PASPA and, under Murphy, may also be construed as a violation of the anti-commandeering doctrine if it is challenged.

 

Conclusion

The Murphy decision makes clear that Congress cannot transfer the regulatory burden to the states on polarizing matters. However, the federal government is far from powerless in its ability regulate, as it may regulate certain areas authorized by the Constitution or it may use its spending power to provide incentives to states to adopt more restrictive schemes. Nevertheless, the Supreme Court’s holding will likely have a significant impact on future state regulatory activities and legislation.

 

[1] Justice Anthony Kennedy during Murphy oral argument.

[2] The following states have passed laws decriminalizing certain marijuana possession offenses:  Alaska, California, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, Ohio, Oregon, Rhode Island, and Vermont.