[00:00:00] Speaker 04:
case number 23-7141 et al.

[00:00:04] Speaker 04:
Samuel Shanks, appellant, versus International Union of Breaklayers and Allied Crowd Workers.

[00:00:10] Speaker 04:
Ms.

[00:00:10] Speaker 04:
Mansbach, amicus gerii for the appellant.

[00:00:13] Speaker 04:
Ms.

[00:00:13] Speaker 04:
Coleman, amicus gerii in support of the appellant.

[00:00:16] Speaker 04:
Ms.

[00:00:16] Speaker 04:
Keller for the appellate.

[00:00:19] Speaker 05:
Good morning, Mansbach.

[00:00:20] Speaker 05:
You may proceed when you're ready.

[00:00:23] Speaker 07:
Good morning, and may it please the court, Alexandra Mansbach, court appointed amicus on behalf of appellants who are here in the courtroom today.

[00:00:30] Speaker 07:
I'd like to reserve two minutes for rebuttal.

[00:00:33] Speaker 07:
This case concerns a two-tiered COVID vaccine policy that gave most of BAC's black employees only four days to receive their first shot of the vaccine, while most white employees were given 76 days and better information for the same procedure.

[00:00:48] Speaker 07:
Combined with the increased level of vaccine hesitancy among black Americans, BAC's policy resulted in black employees being suspended or terminated at a rate seven times higher than white employees.

[00:01:00] Speaker 07:
This is more than sufficient to state a plausible claim of disparate impact to survive a motion to dismiss for two main reasons.

[00:01:08] Speaker 07:
First, BAC cannot avoid disparate impact liability by claiming that all of its employees had the same opportunity to meet the vaccine requirement, both because employee choice is not part of the causation analysis and because the complaints allege that BAC did not give most of its black employees the same time and resources to comply.

[00:01:28] Speaker 07:
Second, even though BAC was not a large employer and therefore the absolute numbers are relatively small here, the facts alleged are nevertheless adequate for a complaint.

[00:01:38] Speaker 07:
Whether the outsize impact on Black employees was correlated with race or just due to chance is a question for summary judgment after further factual development.

[00:01:48] Speaker 01:
So you've emphasized that there were this two track policy, but your disparate impact claim would be exactly the same if it were just they announced a vaccination requirement and it happened to disproportionately impact black employees, right?

[00:02:04] Speaker 07:
Yes, Your Honor.

[00:02:05] Speaker 07:
But the fact that there was this two track policy bolsters the claim that there was a disparate impact here.

[00:02:13] Speaker 07:
We think that the statistics are sufficient to show that there was a disproportionate impact.

[00:02:18] Speaker 07:
But in some cases where the statistics may be insufficient to show statistical significance, courts have looked to other indicia to bolster their confidence that the effect was due to race rather than chance.

[00:02:32] Speaker 07:
So if the court thinks that this is insufficient statistics on a motion to dismiss, the other indicia, like the two-tiered system, can bolster the confidence.

[00:02:44] Speaker 05:
I'm not sure I follow the calculation of four days versus 76 days.

[00:02:52] Speaker 05:
First, the four days.

[00:02:53] Speaker 05:
What does that refer to?

[00:02:55] Speaker 05:
I mean, they announced a policy, and I believe it was August, having sort of presaged it for some months before that.

[00:03:03] Speaker 05:
And then the requirement didn't come into play until October.

[00:03:09] Speaker 07:
Yeah, so what they required was that employees be fully vaccinated by October 4th and full vaccination requires not just.

[00:03:18] Speaker 07:
multiple doses of the shot, which have to be spaced a certain number of weeks apart, but also time for your body to produce the sufficient antibodies to be considered vaccinated, which takes place after the last shot.

[00:03:32] Speaker 07:
So to be fully vaccinated for Moderna with a Moderna vaccine by October 4th, you would have had to have the first shot on August 23rd, which was four days after they announced this policy on August 19th.

[00:03:46] Speaker 05:
In terms of the two tracks, I'm not sure that I follow that.

[00:03:52] Speaker 05:
As I understood it, the policy announced in, I believe it was June, was anybody who's traveling is going to have to be vaccinated before they travel.

[00:04:05] Speaker 05:
Correct.

[00:04:07] Speaker 05:
And that

[00:04:10] Speaker 05:
would apply, it seems to me, it doesn't necessarily give you 76 days of lead time.

[00:04:17] Speaker 05:
Let's say it was June and I were an employee who had travel obligations.

[00:04:24] Speaker 05:
Those obligations could be one week later, two weeks later, one month later,

[00:04:30] Speaker 05:
I could think of an employee who has some travel obligations, but maybe no travel is scheduled for me.

[00:04:39] Speaker 05:
So I wouldn't think that I was under a particular deadline.

[00:04:43] Speaker 05:
And then some travel obligation arises.

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And whatever the lead time is in advance, once I know that I have a travel obligation,

[00:04:55] Speaker 05:
two weeks in advance, a month in advance, four days in advance, I have to scramble.

[00:04:59] Speaker 05:
So I don't see this sort of where you get this idea of a unitary, those eligible for travel versus the rest of the employees.

[00:05:09] Speaker 07:
So appellants have alleged that the first work travel was October 2nd.

[00:05:14] Speaker 07:
So there was no one who

[00:05:16] Speaker 07:
was obligated to travel for work before October 2nd.

[00:05:20] Speaker 07:
So there is no case of someone needing to be vaccinated in July and August 2nd.

[00:05:26] Speaker 05:
And where is that alleged?

[00:05:28] Speaker 05:
And was that known in June when that announcement was made?

[00:05:32] Speaker 07:
It's alleged at J71, which is the chart that they break down, they say that the first work travel was October 2nd.

[00:05:41] Speaker 07:
It's, I think, the first footnote on that chart.

[00:05:46] Speaker 07:
It is possible that

[00:05:52] Speaker 07:
Some employees may have traveled later, but all of the traveling employees knew in June that they would be subject to this vaccination mandate.

[00:06:02] Speaker 07:
And they could begin talking to their healthcare providers, talking to their religious leaders if they wanted an exception, talking to their families, thinking it through.

[00:06:11] Speaker 07:
They could begin the process to make this decision.

[00:06:14] Speaker 07:
And all the traveling employees were invited to the vaccine hesitancy webinar with the head of the NIH.

[00:06:21] Speaker 07:
So they had these additional resources.

[00:06:23] Speaker 05:
Who was that alleged?

[00:06:24] Speaker 05:
Because when I looked at that webinar announcement, it seemed like it was directed at a different group of employees.

[00:06:31] Speaker 05:
It was directed at the employer council, which is not the same as the travel eligible employees.

[00:06:39] Speaker 07:
So on JA45171 and JA65, appellants allege that all the traveling employees were invited to the webinar and the non-traveling employees were not invited nor told of its existence.

[00:06:57] Speaker 05:
But the allegation refers to the document

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describing that webinar, which I think is on JA62, which is directed at the International Council of Employers.

[00:07:20] Speaker 05:
And the framing of this Community Core event is about, you know, is saying to,

[00:07:33] Speaker 05:
employers of potential employers of BAC members, here's something that you can learn about to make when you're employing our people to help them make informed decisions.

[00:07:49] Speaker 05:
So I'm not sure that I see any support for the idea that this was aimed in some disparate way or that

[00:08:01] Speaker 05:
So subset of employees were invited, another subset weren't.

[00:08:05] Speaker 07:
So on JA45 and JA171 and JA65, there are allegations that the traveling employees were invited to this webinar.

[00:08:19] Speaker 05:
I saw that, but I also thought, and I was pointing to JA45 sites, I think it's very document.

[00:08:27] Speaker 05:
It just seems like it's in conflict with it.

[00:08:33] Speaker 07:
Well, I believe I'm not sure exactly the content of the webinar, but the appellants have alleged that this was the webinar and that BAC did invite traveling employees to this webinar and did not invite non-traveling employees.

[00:08:52] Speaker 07:
And even later, after this webinar had been recorded, BAC

[00:08:57] Speaker 07:
sent this webinar to its members, its bricklayer union members, could have sent it around to all of its employees who are also subject now to the vaccine mandate in August, but they did not do so.

[00:09:10] Speaker 05:
And the reason that matters for your theory is what?

[00:09:16] Speaker 07:
It matters for two reasons, Your Honor.

[00:09:19] Speaker 07:
One is that it

[00:09:21] Speaker 07:
helps to bolster the argument for why we would expect that the statistical disparity we see here is caused by race and not caused by chance because there were.

[00:09:38] Speaker 07:
More black employees in the non traveling group, we can say okay we see this disparity here 13.5% of black employees were suspended or terminated, but only 2% of white employees.

[00:09:51] Speaker 07:
If before we get to summary judgment and we have actual analysis of statistical significance.

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we can feel confident that, or at least it's plausible, that that effect was correlated with race because we know that black employees were given less time and less resources as a whole.

[00:10:12] Speaker 05:
So the less resources that I wanted you to be more concrete about.

[00:10:15] Speaker 05:
So is the notion that if this webinar had been shared among all staff,

[00:10:22] Speaker 05:
when it was emailed around to the BAC members.

[00:10:29] Speaker 05:
The notion is that that could have addressed vaccine hesitancy.

[00:10:36] Speaker 05:
And so it's part of the disparate impact.

[00:10:42] Speaker 05:
It's part of the policy that is causing disparate impact.

[00:10:49] Speaker 07:
Your honor, I think the

[00:10:53] Speaker 07:
George Garcia is correct that we don't necessarily need that to have a plausible case of...

[00:10:58] Speaker 07:
disparate impact here, but it does bolster the case.

[00:11:02] Speaker 07:
It's not just the webinar.

[00:11:03] Speaker 07:
It's also the fact that for the June policy, there was slides circulated.

[00:11:09] Speaker 07:
There was an all company meeting.

[00:11:11] Speaker 07:
None of those things happened for the August policy.

[00:11:15] Speaker 07:
So the non-traveling employees were left with questions about the policy, questions about vaccination, and there was no resources provided to answer those questions, even though BAC had access to those resources.

[00:11:27] Speaker 07:
through the COVID community court.

[00:11:29] Speaker 05:
And the idea is that those resources could have reduced vaccine hesitancy.

[00:11:35] Speaker 05:
Yes, Your Honor.

[00:11:36] Speaker 05:
But if someone has an underlying medical condition that they think would interact with the vaccine, that's not really, that's distinct from vaccine hesitancy.

[00:11:47] Speaker 07:
Correct, Your Honor.

[00:11:48] Speaker 07:
But the non-traveling group also had less time to submit exemption requests.

[00:11:54] Speaker 07:
They had about three weeks to submit medical exemption requests.

[00:11:59] Speaker 07:
And appellants have alleged that it was very difficult to get medical appointments at this time because of the height of the pandemic, so that they were unable to get medical appointments to get an exemption if they wanted.

[00:12:14] Speaker 07:
And it's not just for the exemption.

[00:12:17] Speaker 07:
They had less time to, they only had four days to get a medical appointment to speak with their doctor about their concerns of the vaccine, whether or not they were strictly medically related or they were vaccine hesitancy more generally.

[00:12:31] Speaker 01:
One of BAC's main arguments on the disparate impact claim is that because there was an element of individual choice, this should be

[00:12:42] Speaker 01:
There's a lack of causation.

[00:12:43] Speaker 01:
It's not, in a genuine sense, caused by the policy, but by an individual choice.

[00:12:49] Speaker 01:
What is your response to that argument?

[00:12:52] Speaker 07:
Courts have recognized disparate impact liability in many cases where there is an element of choice.

[00:12:58] Speaker 07:
For instance, the Supreme Court found that disparate impact liability could lie in a case that turned on methadone use, which is also

[00:13:09] Speaker 07:
medical choice within the plaintiff's control.

[00:13:13] Speaker 07:
There's dress code cases that also turn on choice.

[00:13:16] Speaker 01:
I really appreciate all of that.

[00:13:17] Speaker 01:
I guess I wonder just as an analytical matter, at some point, is there a point where the voluntariness comes in in terms of causation?

[00:13:26] Speaker 01:
So if this really were truly either get vaccinated or send us an email opting in, I appreciate that's not this case, but I want to know how to think about the legal frame.

[00:13:36] Speaker 01:
And it seems like

[00:13:38] Speaker 01:
in some way that ought to be a defense.

[00:13:41] Speaker 01:
And I don't know where that exactly comes into the analysis.

[00:13:44] Speaker 07:
Yeah, I think you can't dismiss vaccine hesitancy as just willingness when it's kind of grounded in historical racial trauma and fears about bodily autonomy.

[00:13:57] Speaker 07:
I think in some cases, if there is a straightforward, evenly applied, patently justified, no feasible alternatives that

[00:14:08] Speaker 07:
maybe is enough that can be dismissed.

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at the motion to dismiss stage.

[00:14:13] Speaker 07:
But here.

[00:14:13] Speaker 01:
But maybe that would be because there's such an obvious business justification or something like that.

[00:14:18] Speaker 07:
Right.

[00:14:18] Speaker 01:
Not for causation.

[00:14:19] Speaker 07:
Yes.

[00:14:21] Speaker 07:
And the causation inquiry is really looking at whether some specific policy of the employer caused the disparate impact to avoid bottom line liability.

[00:14:33] Speaker 07:
You can't just say, OK, 80% of your workforce is white and 20% is black.

[00:14:38] Speaker 07:
That's a disparate impact claim.

[00:14:40] Speaker 07:
you have to point to the actual policy like refusing to recruit at historically black colleges and university that resulted in that actual outcome.

[00:14:50] Speaker 07:
So the root of causation is really to make sure that you're pointing to something specific that the employer has done rather than just the bottom line result.

[00:14:59] Speaker 05:
And so what is the policy that is being challenged?

[00:15:04] Speaker 07:
The policy that's being challenged here is the vaccine requirement that everyone be vaccinated by October 4th or submit an exemption by September 13th about which some employees were told only a few days in advance and some employees were told months in advance.

[00:15:24] Speaker 05:
And is it part of the allegations that in

[00:15:30] Speaker 05:
June, the travel eligible employees knew that they weren't traveling until October?

[00:15:39] Speaker 05:
That was not how I understood the record.

[00:15:42] Speaker 07:
I believe that traveling employees would have known had they had imminent travel coming up.

[00:15:49] Speaker 07:
But the fact remains that in practice, they did have at least 76 days

[00:15:57] Speaker 07:
to make this decision.

[00:15:58] Speaker 07:
And they were still on notice two and a half months before the non-traveling employees that they were going to have to do this.

[00:16:05] Speaker 07:
In fact, when someone asked BAC general counsel, hey, are non-traveling employees going to need to be vaccinated?

[00:16:12] Speaker 07:
She said no.

[00:16:14] Speaker 05:
She didn't say no.

[00:16:14] Speaker 05:
She said, we don't have a plan for that at this time.

[00:16:17] Speaker 05:
Isn't that right?

[00:16:18] Speaker 05:
I mean, I just read what's alleged.

[00:16:20] Speaker 07:
She said, I believe she said, no, they will not need that.

[00:16:25] Speaker 07:
There's three allegations about what exactly that she said.

[00:16:30] Speaker 07:
And one of them says that she said, no, you do not have to be vaccinated right now.

[00:16:45] Speaker 07:
Of course, that doesn't mean that you have to.

[00:16:49] Speaker 07:
that they could have never adopted a vaccination policy for the rest of their employees, it just means that when they did adopt one, it could have been more flexible on timing.

[00:17:00] Speaker 07:
The bargaining unit asked BAC repeatedly if they could extend the exemption deadline.

[00:17:07] Speaker 07:
And BAC kept moving that meeting until the exemption deadline had passed and then said, no, it's too late.

[00:17:13] Speaker 07:
The exemption deadline had passed.

[00:17:14] Speaker 05:
And you said you had three sites on the non-traveling employees being assured that they were not.

[00:17:21] Speaker 05:
Yes, they're.

[00:17:22] Speaker 05:
Subjected to a vaccine requirement.

[00:17:24] Speaker 07:
JA45, JA65, and JA157.

[00:17:27] Speaker 07:
Right, thank you.

[00:17:33] Speaker 05:
So the work layers pose the following hypothetical in its brief.

[00:17:40] Speaker 05:
An employer requires employees to report to work at a particular time.

[00:17:44] Speaker 05:
a group of employees are disciplined after they choose not to adhere to the rule, maybe citing, I don't know, would that state a claim if the group of employees who choose not to report are disproportionately in a protected class?

[00:18:06] Speaker 07:
Would that state a claim?

[00:18:07] Speaker 07:
Yes, Your Honor.

[00:18:08] Speaker 07:
That doesn't mean that there's actually Title VII liability here.

[00:18:13] Speaker 07:
All that they're saying is that there is a disproportionate impact on some protected class and if you.

[00:18:20] Speaker 07:
The concern with analyzing whether employees are just picking and choosing what to comply with is it's a very difficult line drawing exercise.

[00:18:32] Speaker 07:
to make a judgment, especially on no record, about what's kind of a freely made choice and which kind of choices interact with societal barriers.

[00:18:41] Speaker 07:
So if you had an employer who said all employees must wear dresses to work, regardless of gender, you can imagine that that would make male employees more uncomfortable and they might be less likely to comply.

[00:18:53] Speaker 07:
But that's still a choice.

[00:18:55] Speaker 07:
So it's a difficult question of where exactly is the

[00:19:01] Speaker 07:
or the easiness of the choice coming in.

[00:19:04] Speaker 07:
In Griggs, the employees could have gotten high school diplomas.

[00:19:08] Speaker 07:
They did not, probably because of societal and economic factors that were outside of their control, but it was still a choice.

[00:19:15] Speaker 05:
So in the Bricklayer's hypothetical, if the late employees challenge the report to work hour saying,

[00:19:30] Speaker 05:
We are primary caregivers of kids, and it's harder for us to get going in the morning.

[00:19:39] Speaker 05:
Your report to work time has a, and caregivers are still disproportionately women, so it has a disproportionate adverse impact based on sex.

[00:19:51] Speaker 05:
That would be a clear, clearly state a disparate impact claim in your view.

[00:19:57] Speaker 05:
Yes, it would.

[00:19:58] Speaker 05:
And it would have to go to discovery and then the employer would be able to proffer a business necessity justification.

[00:20:07] Speaker 07:
That's right, Your Honor.

[00:20:08] Speaker 07:
I think that the goal of disparate impact is to avoid policies that unnecessarily create a headwind for certain minority groups.

[00:20:18] Speaker 07:
And at the motion to dismiss stage, you're just looking at the headwind.

[00:20:21] Speaker 07:
Did this make it harder in some ways for minority groups?

[00:20:24] Speaker 07:
And at later stages of the case, you're looking at, well, was this necessary or not?

[00:20:29] Speaker 07:
There might be very good reasons why everyone needs to be at work at 8 AM.

[00:20:32] Speaker 07:
And that could very likely mean that the employer wins.

[00:20:35] Speaker 07:
But it doesn't mean that they have not shown that there's some disproportionate impact on women of this rule.

[00:20:44] Speaker 01:
We've talked so far, at least explicitly, about the disparate impact claim and on the disparate treatment claim.

[00:20:50] Speaker 01:
It's obviously one thing to raise concerns about the process and the timing.

[00:20:55] Speaker 01:
Something entirely different to say they were actually motivated by an intent, even in part, to, I guess, punish single out black employees when there's fairly obvious alternative explanation, which is they wanted all their employees to get vaccinated.

[00:21:12] Speaker 01:
And I just wonder,

[00:21:14] Speaker 01:
beyond sort of process anomalies, maybe that's all you have, but where's the ingredient, the hint that racial animus was underlying this?

[00:21:24] Speaker 07:
Yeah, two answers, Your Honor.

[00:21:26] Speaker 07:
First, it's not that they implemented a vaccine mandate.

[00:21:30] Speaker 07:
We all understand what was going on in the world at the time.

[00:21:33] Speaker 07:
It's that they implemented this specific requirement that only gave four days to certain groups that they were completely rigid on the timing, especially knowing the racial composition of the two groups and the background vaccine hesitancy.

[00:21:47] Speaker 07:
There is also the entire context here.

[00:21:49] Speaker 07:
There is the alleged history of discrimination

[00:21:54] Speaker 07:
at BAC and there's the fact that the goal of the vaccine requirement was for full-time return to work in October of 2021.

[00:22:05] Speaker 07:
At least two years later, they still had not fully returned to work, even though

[00:22:11] Speaker 07:
three black employees have been fired for failing to get vaccinated in time for full-time return to work.

[00:22:16] Speaker 05:
I followed like in terms of exposure in the workplace full-time return to work versus part-time if you're going to be in an office where other people are also required to be present

[00:22:32] Speaker 05:
Just help me out with the distinction between whether you're there three days or five days.

[00:22:39] Speaker 07:
So before the October 4th deadline, BAC had a hybrid model of work where some work was remote, some people maybe were in some days, and the

[00:22:54] Speaker 07:
reason that they were pushing, allegedly, the October 4th deadline was because of full-time return to work.

[00:23:01] Speaker 07:
But they had not full-time return to work.

[00:23:04] Speaker 07:
Also, the fact that they were hybrid meant that remote working was still an option, which could have been an accommodation, or at least could have let the non-traveling group have longer to be vaccinated while they did remote work in the meantime.

[00:23:18] Speaker 07:
Or if they only had to come in the office some days a week, they could have done testing on those days.

[00:23:22] Speaker 07:
testing was an option that the DC government used as an exemption in its vaccine mandate.

[00:23:28] Speaker 07:
So there were many other things that BIC could have done.

[00:23:36] Speaker 05:
And there's no

[00:23:40] Speaker 05:
I take it your response to the failure of the plaintiffs to make any effort to submit an accommodation request, even incomplete, saying, you know, I need an accommodation.

[00:23:51] Speaker 05:
I have, for example, in Mr. Frank's case, I have an underlying medical condition that I'm concerned might be adversely affected by this vaccine.

[00:24:00] Speaker 05:
I'm unable to get a medical appointment right now, but I'm diligently trying to do that.

[00:24:06] Speaker 05:
There's no evidence that any of the affected employees sought to do that.

[00:24:13] Speaker 05:
But your position is that that's not at all required.

[00:24:17] Speaker 07:
Correct, Your Honor.

[00:24:18] Speaker 07:
And Miss Lambert had drafted a religious exemption request.

[00:24:23] Speaker 07:
But in the past, she had had concerns with a particular employee at BAC.

[00:24:29] Speaker 07:
And in the past, when Miss Lambert had submitted what she thought was

[00:24:34] Speaker 07:
essentially evidence and supporting documents to her point of view.

[00:24:37] Speaker 07:
This employee at BAC refused to look at them, called her a liar, other issues.

[00:24:43] Speaker 07:
So Ms.

[00:24:43] Speaker 07:
Lambert was convinced that because the same employee was the one reviewing the exemption requests, that without a letter from her pastor, which she was unable to get in time, that there was no point, essentially.

[00:24:54] Speaker 07:
I don't think she was thinking about preserving her legal rights.

[00:24:59] Speaker 07:
She thought that there was no point in submitting this to this person without supporting documentation.

[00:25:04] Speaker 07:
Further, what they were supposed to do in grievances with management is go through their own union, the bargaining unit.

[00:25:11] Speaker 07:
And the bargaining unit was working really hard to extend the deadline for exemption requests or for vaccination, which BAC refused to do both.

[00:25:19] Speaker 05:
And there's no allegation that the union or that the non-traveling employees were asking for more education or vaccine hesitancy resources.

[00:25:30] Speaker 05:
I saw that they were asking for more time and actually were successful in part in getting more time and then an extra grace period.

[00:25:37] Speaker 05:
But they weren't really focusing on information in the lead up to this deadline.

[00:25:43] Speaker 07:
They didn't know about it.

[00:25:44] Speaker 07:
Even the assistant HR manager didn't know that this vaccine webinar was a resource.

[00:25:50] Speaker 07:
Also, although there was a grace period, it wasn't announced until October 1st, and it only extended two extra weeks.

[00:25:56] Speaker 07:
So unless you had already begun the vaccination process before October 1st, the grace period wouldn't have helped you.

[00:26:10] Speaker 07:
Sam, over time.

[00:26:11] Speaker 07:
No further questions.

[00:26:12] Speaker 07:
Thank you.

[00:26:16] Speaker 00:
Good morning, Your Honors.

[00:26:40] Speaker 02:
May it please the court, Gail Coleman for the Equal Employment Opportunity Commission.

[00:26:46] Speaker 02:
The focus in a disparate impact case is on the effect of an employment policy.

[00:26:52] Speaker 02:
The statute describes employment policies or practices that cause a disparate impact on the basis of race.

[00:27:00] Speaker 02:
Briggs in the Supreme Court described that as meaning a practice that is fair in form, but discriminatory in operation.

[00:27:09] Speaker 02:
Here, Judge Garcia, you asked for the disparate impact claim.

[00:27:13] Speaker 02:
Would it make a difference if the

[00:27:16] Speaker 02:
employees were challenging it just as a straight vaccine mandate, or if they were challenging it with a mandate together with the two-tiered rollout in terms of the causation analysis.

[00:27:28] Speaker 02:
And the answer is yes, it does make a difference for causation.

[00:27:34] Speaker 02:
Here at page 189 of the joint appendix, Lambert alleged if BAC would have given equal time and resources

[00:27:43] Speaker 02:
the three black employees would not have been terminated.

[00:27:46] Speaker 02:
And that is the core of the claim here.

[00:27:48] Speaker 02:
So that down the road, when it gets into discovery, down the road after the motion is dismissed and they succeed, if it turns out that these individual employees would never have gotten vaccinated, no matter how much time they had, no matter what information about vaccine hesitancy, nothing could have changed their minds.

[00:28:12] Speaker 02:
then it wasn't on back on VAC that there was a disparate impact.

[00:28:18] Speaker 02:
And VAC would not be held liable for something it hadn't caused.

[00:28:23] Speaker 02:
If that were a different.

[00:28:25] Speaker 01:
Why is that?

[00:28:26] Speaker 01:
How does that fit with the other?

[00:28:29] Speaker 01:
I'm not sure it fits with how plaintiff is presenting.

[00:28:31] Speaker 01:
The amicus is because

[00:28:36] Speaker 01:
The point would be, even in the abstract, if you had a vaccine mandate, nothing else to it, and it turned out 100 black employees didn't comply and fired, zero white employees did, then wouldn't that state a disparate impact claim?

[00:28:51] Speaker 02:
At the motion to dismiss stage, yes, it would.

[00:28:55] Speaker 02:
Down the road in discovery, it would make a difference only if you're only going to hold an employer liable for something an employer is responsible for causing.

[00:29:06] Speaker 02:
So if it would have made no difference to any given employee, whether they had more time or whether they had more information than the fact.

[00:29:17] Speaker 01:
There was no vaccine mandate in my hypothetical.

[00:29:20] Speaker 01:
That's not this case.

[00:29:21] Speaker 01:
If there was no vaccine mandate, the employees.

[00:29:24] Speaker 02:
Exactly right.

[00:29:24] Speaker 02:
Exactly right.

[00:29:25] Speaker 02:
That employee still could state a claim.

[00:29:28] Speaker 02:
Here, where the allegation is it was the lack of time and the lack of information,

[00:29:35] Speaker 02:
causation is a little bit of a different analysis.

[00:29:39] Speaker 05:
I'm sorry, I didn't mean to interrupt you.

[00:29:45] Speaker 05:
So the accommodation is if you had a medical condition, an underlying medical condition, and you wanted an accommodation because of the potential interaction with the vaccine, and there's no reason to think that

[00:30:04] Speaker 05:
the African-American employees were more likely to have those medical conditions.

[00:30:09] Speaker 05:
It seems like that's distinct from vaccine hesitancy.

[00:30:13] Speaker 05:
I think Ms.

[00:30:13] Speaker 05:
Lambert very succinctly expresses a version of vaccine hesitancy when she says, I'm not going to have something put in my body that's been invented within the last year.

[00:30:26] Speaker 05:
Do you see that distinction between those two

[00:30:29] Speaker 05:
Barriers, one is an individual's desire to consult with a doctor because of underlying medical conditions versus a sort of historical and racially correlated mistrust of a medical system that has, as Ms.

[00:30:52] Speaker 05:
Lambert points out, in the Tuskegee experiments and other situations really

[00:31:00] Speaker 05:
failed to equally value and understand the health needs of African Americans.

[00:31:06] Speaker 02:
The focus here should always be on whether the employer is responsible, is plausibly responsible for a disparity.

[00:31:16] Speaker 02:
And again, we are at a motion to dismiss stage.

[00:31:18] Speaker 02:
So under Iqbal and Twombly, we're looking only for plausibility and looking at the facts in the light most favorable to the plaintiffs and making all reasonable inferences in their favor.

[00:31:28] Speaker 02:
But doing that, looking at the facts in the light most favorable to them, here the allegation is that if black employees had had more time in which to obtain an appointment with a medical professional to discuss their concerns, they could have timely submitted an exemption request, a medical exemption request.

[00:31:52] Speaker 02:
So the element of choice, it's not about did they have a choice and what was the basis of the choice.

[00:31:58] Speaker 02:
The question is, did the employer interfere with their decision-making process in making that choice?

[00:32:05] Speaker 02:
And here, the employer allegedly interfered by giving most black employees less time than most white employees, making it harder for them to discuss their health care concerns with a medical professional, making it harder for them to decide whether or not to get vaccinated.

[00:32:27] Speaker 02:
The causation analysis is not about is there something connected to race in the employee's head.

[00:32:33] Speaker 02:
The causation analysis is about is there something about the employer's policy that affected the choice?

[00:32:41] Speaker 05:
It seems like it's a different aspect of the policy potentially.

[00:32:46] Speaker 05:
One might be more time for accommodation.

[00:32:50] Speaker 05:
The other might be just more time to learn about

[00:32:55] Speaker 05:
the safety of vaccines in general.

[00:32:58] Speaker 05:
That's correct.

[00:32:59] Speaker 05:
Those seem factually.

[00:33:02] Speaker 05:
That's correct.

[00:33:05] Speaker 05:
But so so I'm sure the commission has thought a lot long and hard about the difficult question at the core of this case, which is, you know, the summer of 2021, you know, even though the

[00:33:21] Speaker 05:
management person said she didn't foresee a need for a general vaccine policy.

[00:33:28] Speaker 05:
Within a month, there was the Delta variant spiking and there were really a lot of morbidity and mortality coming from that.

[00:33:36] Speaker 05:
So you're an employer and you wanna keep your employees safe.

[00:33:42] Speaker 05:
So being pretty loosey goosey about timing,

[00:33:47] Speaker 05:
is in conflict with that.

[00:33:49] Speaker 05:
I take it your view is, well, that has to go to discovery and summary judgment.

[00:33:56] Speaker 02:
The EEOC is here because what you rule in this case will affect not just COVID vaccination cases, but will affect disparate impact cases across the board.

[00:34:05] Speaker 02:
And here, looking at the Iqbal Twombly standard, there is enough to get past a motion to dismiss.

[00:34:14] Speaker 02:
That does not mean that

[00:34:16] Speaker 02:
PAC is ultimately going to lose this Title VII case.

[00:34:20] Speaker 02:
After discovery, they may be able to disprove the inference of causation.

[00:34:26] Speaker 02:
They may be able to prove a business necessity.

[00:34:29] Speaker 02:
They could win.

[00:34:30] Speaker 02:
What the EEOC's position is, is that right now, right here on a motion to dismiss, these plaintiffs have alleged enough to make it plausible that the employer's policy caused a disparate impact because of race.

[00:34:45] Speaker 02:
Looking at the light.

[00:34:47] Speaker 02:
Oops, sorry.

[00:34:48] Speaker 03:
Finish your answer, please.

[00:34:50] Speaker 02:
No, I'm sorry.

[00:34:51] Speaker 02:
I couldn't see you sitting here, so.

[00:34:55] Speaker 02:
No, please finish your answer.

[00:34:56] Speaker 02:
I was going to say plausible because 30% of the workforce, BAC had 124 employees.

[00:35:05] Speaker 02:
30% of them were black.

[00:35:07] Speaker 02:
In the absence of discrimination, one would then expect that 30% of the people who are adversely affected or who are terminated would be black.

[00:35:16] Speaker 02:
But as it turns out, 83% of those who are adversely affected were black.

[00:35:20] Speaker 02:
And 100% of those who are terminated were black.

[00:35:24] Speaker 02:
There are, as you've seen from the briefing, a lot of ways to think about these numbers.

[00:35:28] Speaker 02:
And statisticians could come at them in different ways, with different tests, looking at different

[00:35:33] Speaker 02:
sample sizes and sub-sample sizes.

[00:35:37] Speaker 02:
Statisticians will differ.

[00:35:38] Speaker 02:
There are certainly tests that can be run on small sample sizes.

[00:35:42] Speaker 02:
And then there is a question about how strong is the inference, how weak is the inference.

[00:35:46] Speaker 02:
That is a question for a fact finder, looking at probably competing statistical reports and determining which is more credible and reliable.

[00:35:56] Speaker 02:
That's something that the Ninth Circuit just said in Frayed.

[00:35:59] Speaker 02:
It's not a question for pro se plaintiffs as they're crafting, hey,

[00:36:03] Speaker 02:
complaint.

[00:36:05] Speaker 02:
So from the numbers alone, it is plausible that a statistician could find a statistically significant disparate impact.

[00:36:14] Speaker 03:
And even if not... Oh, could I ask you, counsel, a question?

[00:36:18] Speaker 03:
Mm-hmm.

[00:36:18] Speaker 03:
In Iqbal, and that's the standard on which the plaintiffs are relying and you're arguing, do not, a lot of our questions this morning,

[00:36:32] Speaker 03:
go to another aspect of Iqbal.

[00:36:37] Speaker 03:
And I don't know how you want to define it, but it does talk about common sense.

[00:36:44] Speaker 03:
And as you know, presumably, from cases that have come before the commission, there was a medical crisis at the time in question.

[00:36:59] Speaker 03:
And people were dying.

[00:37:03] Speaker 03:
hospitals were overwhelmed and the vaccine finally comes out and it's only available to certain groups, normally by age and an employer, any employer, presumably,

[00:37:34] Speaker 03:
wants to protect his employees.

[00:37:39] Speaker 03:
It doesn't mean he can force feed them, but as an employer, he has a duty not to cause death or hospitalization of his employees, just turning it around.

[00:37:57] Speaker 03:
So how does the commission deal with that as distinct from a lot of these cases

[00:38:03] Speaker 03:
that are cited to us, which arose when the South had signs up that said, whites only, no blacks.

[00:38:16] Speaker 03:
So the environment was a different environment in which a lot of those cases were decided.

[00:38:23] Speaker 03:
Now we have a medical emergency.

[00:38:28] Speaker 03:
Do you make any distinction

[00:38:31] Speaker 03:
or in terms of what Iqbal's talking about, in terms of plausibility and common sense, what does the court do with that?

[00:38:42] Speaker 02:
Well, the medical emergency certainly is going to be part of the employer's business necessity justification.

[00:38:54] Speaker 02:
In disparate impact,

[00:38:56] Speaker 02:
The fact that there aren't signs up like there used to be intent is not an element of a disparate impact claim.

[00:39:03] Speaker 03:
I'm not arguing that those legal arguments that you and the appellants are making.

[00:39:11] Speaker 03:
What I'm just asking is what does the court do with the language in Iqbal, which certainly talks about plausibility, but the court discusses

[00:39:25] Speaker 03:
how you reach that determination.

[00:39:31] Speaker 03:
That's what a lot of our questions are going to.

[00:39:34] Speaker 02:
I understand.

[00:39:35] Speaker 02:
I think, Your Honor.

[00:39:36] Speaker 02:
And I think that goes back to the causation analysis and where we started, which is, what is the claim in this case?

[00:39:44] Speaker 02:
And if the claims were challenging just the existence of a vaccine mandate period, I think that gets to exactly what you are speaking to.

[00:39:54] Speaker 02:
How could a vaccine mandate

[00:39:55] Speaker 02:
not be a business necessity in a climate where people are dying.

[00:40:00] Speaker 02:
And that is one thing to think about.

[00:40:04] Speaker 02:
This allegation here is more than that.

[00:40:08] Speaker 02:
And here the employer is going to have to show as a business necessity, not only people were dying, but it was important for us to do the rollout in this two-tiered way and to be inflexible on the timing and to not give the information to everybody.

[00:40:24] Speaker 02:
That is part of what would have to be defended in order for the employer to prevail on business necessity in this case.

[00:40:33] Speaker 05:
So I have two related questions.

[00:40:41] Speaker 05:
Twombly and Iqbal do also invite courts to credit on the pleadings an obvious alternative explanation.

[00:40:53] Speaker 05:
How would you guide us to deal with that language here?

[00:41:00] Speaker 02:
Well, I don't know on the pleadings, Your Honor, that there is an obvious alternative explanation for why when the BAC finally did meet with the union on September 20th or whatever it was, they said, sorry, we can't waive or we will not extend the deadline for seeking an exemption because the deadline has already passed.

[00:41:24] Speaker 02:
There's no obvious explanation for why they couldn't have said, fine, take another two weeks.

[00:41:29] Speaker 02:
So I do think there are questions here for a fact finder.

[00:41:34] Speaker 02:
These are pro se complaints.

[00:41:36] Speaker 02:
This is a motion to dismiss.

[00:41:39] Speaker 02:
All we're looking for is plausibility.

[00:41:42] Speaker 02:
And the fact that a claim is plausible, again, does not mean the plaintiff is necessarily going to prevail.

[00:41:47] Speaker 02:
It very well may be in this case with the COVID mandate, the plaintiff won't.

[00:41:52] Speaker 02:
That is not the question before the court now.

[00:41:55] Speaker 05:
So what is the rule that you propose that we adopt?

[00:41:59] Speaker 05:
You talk about this having implications for many cases.

[00:42:06] Speaker 05:
And if you could sort of spell out with some applicability to this case how you would.

[00:42:13] Speaker 05:
I think it's... How you would decide it.

[00:42:15] Speaker 02:
As the Supreme Court laid out pretty clearly in inclusive communities, in order to state a claim for disparate impact, a plaintiff has to show that there is a disparate impact, that there is a specific employment policy that they are challenging, and that the disparate impact is plausibly due to that explicit employment policy.

[00:42:40] Speaker 02:
That's all.

[00:42:40] Speaker 05:
And to you, the here there was some back and forth about this at the outset of the questioning.

[00:42:46] Speaker 02:
The specific employment policy is what the specific employment policy here is the vaccine mandate coupled with its rollout in which the majority of white employees were given more time than the majority of black employees to comply with the policy.

[00:43:03] Speaker 02:
And also the majority of white employees were given

[00:43:07] Speaker 02:
more information directly combating vaccine hesitancy, even though, as a group, the black employees were more likely to need that specific information.

[00:43:19] Speaker 02:
All of it is tangled up as a package together as the policy that's being challenged.

[00:43:25] Speaker 01:
And how would you articulate exactly what the causation question is?

[00:43:30] Speaker 01:
Because a very simple version of it would be, there was a mandate, and the causation question is just,

[00:43:37] Speaker 01:
were the employees fired because of that mandate?

[00:43:39] Speaker 01:
No.

[00:43:40] Speaker 01:
Or because of something else?

[00:43:41] Speaker 02:
Because the policy here is more than just the mandate.

[00:43:45] Speaker 02:
It incorporates the rollout.

[00:43:47] Speaker 02:
The causation question here would be, did this two-tiered rollout plausibly cause the disparate impact that we are seeing between black employees and white employees in the compliance rate?

[00:44:00] Speaker 02:
Is it plausible?

[00:44:02] Speaker 05:
And why is it not just fired because of the mandate?

[00:44:06] Speaker 02:
Because the policy being challenged is broader than that.

[00:44:12] Speaker 02:
And in the statute itself, section 2000, I think it's E2K, talks about employment policies or practices that are all tangled up together.

[00:44:28] Speaker 02:
They're so intertwined that you have to look at the thing as a whole.

[00:44:32] Speaker 02:
And that's what this court did in Davis.

[00:44:36] Speaker 02:
you do have to look at all of it, which is why I said if this were a different case, if we were only looking at there is a policy and now these people are fired and why there's the causation analysis, they were fired because there's a policy.

[00:44:51] Speaker 02:
But in this case, we're saying there's a policy and it in practice applied to the black employees differently than the white employees.

[00:45:01] Speaker 02:
And did that make a difference in what we saw with compliance rates?

[00:45:04] Speaker 01:
It just seems a little odd that the fact that they have more factual allegations about a more specific, you know, oddities in the process makes their causation showing.

[00:45:15] Speaker 01:
On your telling, it makes the causation burden harder.

[00:45:19] Speaker 02:
It makes the causation burden harder, but then on the other end, it's going to make business necessity harder for BAC.

[00:45:26] Speaker 02:
because if in fact it was the two-tiered rollout that caused the disparate impact, then that is the piece that the AC is going to have to defend.

[00:45:36] Speaker 05:
Another question is, in terms of these are, per se, plaintiffs.

[00:45:43] Speaker 05:
And although they've had Abel, Amicus, and Amicus from the commission, I assume they'll be on their own again.

[00:45:49] Speaker 05:
And were the case to be remanded, is there a streamlined way that a trial court and also the employer, as you've intimated, could very well prevail ultimately?

[00:46:05] Speaker 05:
Could this be the business necessity be served up through a motion on the pleadings, some kind of answer, and then considering that?

[00:46:14] Speaker 02:
I don't know the answer to that.

[00:46:16] Speaker 02:
Certainly there could be summary judgment on it.

[00:46:18] Speaker 02:
I'm sorry, I just don't know.

[00:46:20] Speaker 05:
Following some discovery presumably.

[00:46:28] Speaker 05:
Judge Rogers, any further questions?

[00:46:31] Speaker 03:
No, but I think part of your response might have been,

[00:46:35] Speaker 03:
It's not only the mandate and the rollout, but in addition to Iqbal, at the motion to dismiss, this court, or any court, must look at the allegations in the light most favorable to the plaintiff.

[00:46:56] Speaker 02:
Exactly.

[00:46:56] Speaker 02:
That's exactly right.

[00:47:01] Speaker 02:
All right.

[00:47:01] Speaker 02:
Thank you very much.

[00:47:02] Speaker 05:
Thank you for Anika's participation.

[00:47:06] Speaker 05:
We'll hear now from the bricklayers represented by Miss Keller.

[00:47:18] Speaker 06:
Good morning.

[00:47:19] Speaker 06:
May it please the court?

[00:47:20] Speaker 06:
My name is Kathleen Keller and I'm here representing the Appellant Defendant, the International Union of Bricklayers and Allied Craft Workers.

[00:47:28] Speaker 06:
The judges in the questioning this morning have identified some interesting and difficult questions around the margins of the disparate impact doctrine.

[00:47:38] Speaker 06:
But I'd submit that this case is not the appropriate case to try to delineate where the lines are on some of these difficult disparate impact questions.

[00:47:49] Speaker 06:
And that's because the plaintiff's claim here does not meet the Iqbal Twombly standard.

[00:47:55] Speaker 06:
under any light and even reading the plaintiffs' pleadings in the light most generous to them.

[00:48:01] Speaker 06:
The number of employees they claim to be affected here is not large enough to show the significant statistical disparity that's necessary for disparate impact claim, nor is the differential impact between the races significant enough to state a claim.

[00:48:18] Speaker 06:
Disparate impact, as the EEOC council stressed, it's different from disparate treatment claims because there's no need for the plaintiff to show any sort of discriminatory intent or animus.

[00:48:29] Speaker 06:
As a result, the courts have always held these claims to a higher standard and held that the effect on the affected group must be so stark as to equate to discriminatory intent.

[00:48:39] Speaker 06:
The statistics pled must be of a kind and degree sufficient to show that the practice in question has caused the exclusion of the employees

[00:48:46] Speaker 06:
because of their membership in the protected group.

[00:48:50] Speaker 06:
And the Supreme Court has stressed that it's not appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence that is required to prove intentional discrimination.

[00:49:00] Speaker 06:
So let's turn and look at the numbers here.

[00:49:02] Speaker 06:
The bricklayers on the pleadings here had about 124 employees at the time.

[00:49:08] Speaker 05:
When you refer to the Supreme Court's statement about unfair to hold on the basis of less evidence, which case are you citing?

[00:49:15] Speaker 06:
That's the Watson case, Your Honor.

[00:49:19] Speaker 06:
Of the approximately 124 employees that the bricklayers had at the time, 37 were black and approximately 52 were white.

[00:49:26] Speaker 06:
That's on the plaintiff's pleadings.

[00:49:28] Speaker 06:
And over 90% of the black employees, 34 out of those 37, complied with the policy and were not terminated due to the policy.

[00:49:40] Speaker 06:
So we have an over 90% compliance rate and over 90% pass rate.

[00:49:46] Speaker 06:
compared to on their pleadings, 100% of the white employees.

[00:49:52] Speaker 06:
So again, looking back to the Watson test here, we're looking to see whether those are statistics of a kind and degree sufficient to show that the practice in question has caused the exclusion of the applicants because of their membership in a protect group.

[00:50:09] Speaker 06:
And here we have a very small differential, over 90% to 100%.

[00:50:14] Speaker 06:
And a small differential like that is particularly problematic where you have a small sample size.

[00:50:21] Speaker 06:
Because where the sample size is small, differences are much more likely to result from things like personal choice, random effect, or other variables, rather than be caused by the protected characteristic, which is here, race.

[00:50:34] Speaker 06:
I want to turn to the question which has occupied most of the questioning and the argument this morning, which is about whether the process by which the policy was adopted has a disparate impact.

[00:50:49] Speaker 06:
And the amici have characterized this as a sort of two-tiered rollout, which I think is a mischaracterization of the record, and also the wrong way to think about this case.

[00:51:04] Speaker 06:
The focus, I think, has been on the rollout on the notion that in June, there was this announcement that if you're going to be traveling, we'll need you to be vaccinated before you travel.

[00:51:17] Speaker 06:
And then in August, they made the announcement that all employees would need to be vaccinated.

[00:51:23] Speaker 06:
And I think the focus has been there largely because Amica have realized that the policy itself

[00:51:31] Speaker 06:
that 90% of black employees were able to comply with does not itself suffice to state a disparate impact claim.

[00:51:40] Speaker 06:
But even looking at what they characterize as a two-tiered rollout, that doesn't change the ultimate statistics that they've pled here.

[00:51:47] Speaker 06:
you still have a situation in which over 90% of black employees were able to comply.

[00:51:53] Speaker 06:
And the timing is really, I think, a red herring.

[00:51:58] Speaker 01:
They've put up- Let me just ask you, obviously, one way to look at it is 90% were able to comply.

[00:52:02] Speaker 01:
And they would say the way to look at it is 100% of the employees fired were black.

[00:52:08] Speaker 01:
And that's a question, I assume, that would be resolved by statistical experts.

[00:52:15] Speaker 01:
And it seems like a small sample size to me, but I'm not an expert.

[00:52:20] Speaker 01:
And it just seems like the kind of question that would be resolved at summary judgment.

[00:52:24] Speaker 01:
How do we know that your way is the right way of looking at it?

[00:52:27] Speaker 01:
And how do we know that three versus zero is too small?

[00:52:32] Speaker 06:
And I think that gets back to what Judge Rogers alluded to with the promul igbee standard, asking the court supply, common sense, and judicial experience.

[00:52:42] Speaker 06:
And here, where you have such a small number, 3 out of 37, 3 out of 124 employees, then it's appropriate to look at what we call the pass rate versus the rejection rate.

[00:52:57] Speaker 06:
You could have a policy where two men were terminated and one woman.

[00:53:04] Speaker 06:
And somebody could say, oh, well, twice as many women were terminated under this policy compared to women.

[00:53:10] Speaker 06:
But the numbers are so small that applying typical judicial common sense, you can see that that argument is not of the type and degree that would cause a plausible inference of discriminatory effect.

[00:53:27] Speaker 06:
And I posit that the numbers here are similar, where you have only three out of 37 black employees that were unable to comply with policy.

[00:53:44] Speaker 06:
I want to also focus on this timing issue.

[00:53:48] Speaker 06:
And Judge Puller had the question about how did they get to the four days.

[00:53:53] Speaker 06:
There's a couple different ways you can crunch the calendar on that.

[00:53:58] Speaker 06:
But essentially, if they were going to get the Pfizer shot, which was the only one with general approval in August of 2021, that would have been 11 days after the policy was rolled out in order to get the first shot.

[00:54:13] Speaker 06:
And then with the two-week negotiated extension, that would have been pushed to 25 days.

[00:54:19] Speaker 06:
But significantly, in the plaintiff's pleadings, neither plaintiff has pled that they requested more time, that they raised an issue that they needed more time.

[00:54:29] Speaker 06:
What they have pled is that the bargaining unit met with the bricklayers and said, look, there are a couple of employees that do need a little bit more time.

[00:54:37] Speaker 06:
And so the bricklayers with the staff union negotiated a two-week extension.

[00:54:43] Speaker 06:
So there were a couple people for whom the timing was maybe an issue.

[00:54:48] Speaker 06:
And so that was resolved in the negotiations between the bricklayer and the staff union.

[00:54:52] Speaker 06:
And so therefore, there was no one who was affected by the policy, meaning terminated by the policy, such as the plaintiffs here, for whom the timing was the real issue.

[00:55:02] Speaker 06:
And they have not pled anything that would plausibly suggest that

[00:55:07] Speaker 06:
It was the timing of the rollout that caused the issue here.

[00:55:11] Speaker 06:
What about Ms.

[00:55:11] Speaker 06:
Lambert's?

[00:55:12] Speaker 01:
As I understand it, had an allegation about consulting with her pastor and didn't think she had enough time.

[00:55:17] Speaker 06:
And the policy itself, if you look at the words of the policy, it says September 13th for accommodation requests absent extenuating circumstances.

[00:55:26] Speaker 06:
And certainly within the words or the face of the policy, it says extenuating circumstances.

[00:55:31] Speaker 06:
So if someone had come and said, I really would like to speak with my pastor, but he's been on vacation and I haven't been able to reach him or her, could I have more time in order to do so?

[00:55:39] Speaker 06:
That would certainly have been extenuating circumstances.

[00:55:42] Speaker 06:
But there's absolutely no pleading that suggests that either of the plaintiffs did anything like that.

[00:55:48] Speaker 05:
Where's the quotation to extenuating circumstances?

[00:55:51] Speaker 05:
I know it's in your brief.

[00:55:53] Speaker 06:
It's in the policy itself, which is JA9.

[00:56:07] Speaker 06:
Any such request should be submitted as soon as possible in absent extenuating circumstances no later than September 13.

[00:56:16] Speaker 03:
So at the pleading stage, your analysis is that the allegations regarding the attempts by their representatives to get meetings

[00:56:36] Speaker 03:
or to get a meeting with a representative of the employer about an extension, that we must view that as not encompassing the plaintiffs themselves as needing an extension, even though we have at least one plaintiff who had something in writing and was thinking about it.

[00:57:06] Speaker 03:
thought that she would be turned down if a request was submitted to a particular employee of the employer.

[00:57:23] Speaker 06:
What was planned is that the staff union attempted to get a meeting before the September 13th deadline and there were scheduling issues.

[00:57:32] Speaker 06:
But it's also pled that the staff union did in fact in that second half of September meet with the bricklayers and at that point raise certain particular unnamed individuals who were having some issues with the timing.

[00:57:44] Speaker 06:
And that is the point at which the two week grace period was negotiated specifically to account for those people who had been brought to the attention of the bricklayers by the staff union.

[00:57:55] Speaker 03:
I appreciate that.

[00:57:56] Speaker 03:
My question is viewing the allegations most favorably

[00:58:03] Speaker 03:
to the plaintiffs.

[00:58:06] Speaker 03:
Why is your analysis consistent with that?

[00:58:12] Speaker 06:
Well, I'm operating on their pleadings and their allegations.

[00:58:17] Speaker 03:
And what they haven't planned.

[00:58:19] Speaker 03:
And you're probably more familiar than I. But I just want to be clear about this.

[00:58:23] Speaker 03:
As I understood it, they were trying to get a meeting.

[00:58:27] Speaker 03:
And had the meeting not been

[00:58:32] Speaker 03:
postponed several times.

[00:58:35] Speaker 03:
The meeting would have occurred before September 13th.

[00:58:41] Speaker 03:
Is that not correct?

[00:58:43] Speaker 06:
That is what they've pled, Your Honor.

[00:58:45] Speaker 06:
What they have not pled is that at any point when they did have the meeting that the staff union raised issues about

[00:58:53] Speaker 06:
Mr shanks or miss Lambert having timing issues.

[00:58:57] Speaker 06:
They've played that the staff union raised issues about other individuals who specifically were trying to comply wanted to comply, but needed some additional time and a solution was negotiated for those individuals.

[00:59:08] Speaker 06:
But they have never pled that the staff union raised issues about their issues with the timing or attempts to comply, nor have they pled that they specifically went individually to the HR department or to anyone else at the proclaimers to say, hey, look, we're trying to do this.

[00:59:26] Speaker 06:
We're trying to figure out what our religious situation is or our medical situation, and we just need a little bit more time.

[00:59:33] Speaker 06:
There's no allegation that they specifically did that.

[00:59:37] Speaker 06:
So the timing, I think it's really even taking their pleadings in the light most favorable to them.

[00:59:43] Speaker 06:
and incorporating everything they've said in their briefs into their pleadings, it's plain that it did not make a difference for these two plaintiffs at least.

[00:59:54] Speaker 01:
Well, one view would be that it would suffice if they had adequately pled that they would have or may have gotten vaccinated if they had more time.

[01:00:04] Speaker 01:
Sounds like you're saying they also need to show that they came to the company and told them they

[01:00:10] Speaker 01:
Do you, what's the basis for requiring that the second showing?

[01:00:16] Speaker 01:
Or do you agree that if it was crystal clear, if I had had another month like the traveling employees, I would have at least had more time and likely would have gotten vaccinated, but I wasn't given that chance.

[01:00:33] Speaker 06:
They're claiming that a specific policy and process had a disparate impact.

[01:00:39] Speaker 06:
And where they failed to plead that these issues were raised in such a way that the bricklayers could, that it could affect the process, I think that's fatal for their process argument, at least.

[01:01:09] Speaker 05:
I wondered about two things that seemed pretty critical to the plaintiffs as they frame the case.

[01:01:16] Speaker 05:
And the one is the webinar, the vaccine hesitancy webinar, and the other is the greater lead time.

[01:01:29] Speaker 05:
And on the webinar, I guess I sort of have two related questions.

[01:01:39] Speaker 05:
whether it was maybe this is a question of how we read the pleadings and hear the district court read the pleadings with a lot of.

[01:01:50] Speaker 05:
you know, very much in favor of the plaintiffs, but the Council of Employers was the target.

[01:01:57] Speaker 05:
Is it also the case that the travel eligible employees are sort of part of that group or were actually part of the audience for that?

[01:02:05] Speaker 05:
And how do we sort of, how do we weed through that question is one.

[01:02:11] Speaker 05:
And then the other is the question about

[01:02:14] Speaker 05:
travel and when it was announced in June, did everybody know that that was talking about travel only in October?

[01:02:22] Speaker 06:
Yeah.

[01:02:23] Speaker 06:
Let me take those each in turn.

[01:02:24] Speaker 06:
So if you look at, and Your Honor, your questions earlier this morning, I think circled in on this.

[01:02:31] Speaker 06:
If you look at the face of the document announcing that webinar with Dr. Collins, it's clear that this is an industry sponsored event through ICE, the

[01:02:42] Speaker 06:
International Council of Employers of Bricklayers.

[01:02:45] Speaker 06:
And the intended audience of that is the individuals who negotiate the contracts that protect bricklayers working on masonry projects throughout North America.

[01:02:56] Speaker 06:
It specifically is inviting local unions, contractors, people who are involved in negotiating those terms and conditions for bricklayers.

[01:03:08] Speaker 06:
And if you think about, you know, what the Barclays is and what it does, it has people throughout the country that are servicing those contracts and providing support for those local unions and those members.

[01:03:21] Speaker 06:
that are working on masonry projects across the country and across North America, in fact.

[01:03:27] Speaker 06:
And on the facts pled, there's 14 field employees, for instance, that are included in that 124 employees who are spread out throughout the country working on those issues.

[01:03:39] Speaker 06:
So it's plain from the face of the document that that's who the audience is, and that's who would have been invited to the webinar.

[01:03:50] Speaker 01:
I guess I'm just confused why do we care so much about the face of the document.

[01:03:54] Speaker 01:
It's totally consistent to say there was a document that went out and invited one bucket, and BAC separately also invited all the traveling employees, but not the other employees.

[01:04:09] Speaker 06:
Well, it makes sense for the face of the document that one would invite the employees that are working on those issues with the industry construction employers.

[01:04:19] Speaker 06:
And I think the fact that the plaintiffs have relied so heavily on this one webinar that was essentially designed for the Brooklayer sort of customer base, the members, the local unions, the people that are out there negotiating along with its

[01:04:36] Speaker 06:
counterpart within the industry.

[01:04:38] Speaker 06:
The fact that they've relied so heavily on this is sort of an indication of the weakness of their case.

[01:04:46] Speaker 06:
The idea that an employer who does something to sort of educate its customer base about something

[01:04:54] Speaker 06:
The fact that they did not invite 100% of their staff to sit in on a meeting like that, that itself cannot be evidence.

[01:05:04] Speaker 01:
The ultimate allegation is that they invited or shared it with every single person they could imagine, other than the group of mostly black employees, right?

[01:05:13] Speaker 05:
Membership, it went out and recorded, went out to membership.

[01:05:16] Speaker 01:
And so, and this is also just one of many, many allegations.

[01:05:20] Speaker 01:
I guess the other, one other important one I wanted to ask about is the assertion that this was, you've got a very short timeline and the messages, we've got to get this done by October 4th.

[01:05:34] Speaker 01:
And then at least the allegation seems to be, but nothing changed.

[01:05:40] Speaker 01:
You were on hybrid work.

[01:05:41] Speaker 01:
You continue to be on hybrid work.

[01:05:43] Speaker 01:
Maybe at summary judgment, you can come in and say, well, actually, there was some other change after October 4th.

[01:05:49] Speaker 01:
But if the allegation is stated need is returning to full work on October 4th, and then that doesn't happen, isn't that the type of evidence you typically look for as at least a hint of pretext?

[01:06:04] Speaker 06:
I think that argument might go to the business necessity.

[01:06:07] Speaker 06:
And I don't think we get there yet.

[01:06:10] Speaker 06:
But I also think that, again, applying common sense and judicial experience, much of the country for office workers has been on hybrid work for a period of some years now.

[01:06:23] Speaker 06:
And that doesn't mean that safety precautions for people that are working in the office aren't necessary.

[01:06:32] Speaker 06:
this policy was applied specifically to people that would be working in the office.

[01:06:37] Speaker 06:
And the fact that they may be working hybrid one day a week at home or two days a week at home, I don't think undercuts that.

[01:06:44] Speaker 06:
But I think that really gets to the business necessity, which is I don't believe we're there yet.

[01:06:53] Speaker 06:
But it does perhaps put a finer point on why it's

[01:07:00] Speaker 06:
important and why the case law over 50 years of this jurisprudence has stressed that you don't get to that business necessity inquiry and the inquiry about whether there were alternative steps an employer could take unless the plaintiff has shown has pled a statistical disparity that is stark enough

[01:07:18] Speaker 06:
to suggest a plausible inference of discrimination.

[01:07:21] Speaker 06:
And I don't think that's been done here.

[01:07:23] Speaker 06:
There was one thing on the travel that I did want to- Before you said that, you did lead with a small number of employees.

[01:07:30] Speaker 05:
And I don't think we have a case in our circuit about a small number of employees being problematic in terms of showing disparate impact.

[01:07:36] Speaker 05:
Am I right about that?

[01:07:38] Speaker 06:
That's right.

[01:07:39] Speaker 06:
I was somewhat surprised over the more than five decades of disparate doctrine.

[01:07:46] Speaker 06:
There's very, very few cases that involve small numbers of employees.

[01:07:51] Speaker 06:
And the cases where you have small numbers like that that have gone forward, there's usually some external factor like, for instance, there's the Domino's Pizza Case.

[01:08:02] Speaker 06:
pizza co out of the eighth circuit, where you had a small number of black applicants for the position, but that's because the the position required a clean shaven face and

[01:08:16] Speaker 06:
There were statistics pled that between 25 to 50% of black males would be filtered out by a requirement of that sort, whereas less than 1% of white males would be filtered out by a requirement of that sort.

[01:08:30] Speaker 06:
So you can have a situation where there are small numbers.

[01:08:35] Speaker 06:
and still state a claim where there is some sort of allegations of a larger statistical impact.

[01:08:45] Speaker 06:
Certainly, if you had an employer that had a small number of positions that it was hiring for but said that you had to be 510 to apply for it, that would on its face weed out the majority of women.

[01:08:57] Speaker 06:
And it claimed it could be stated there.

[01:08:59] Speaker 06:
I think that leads into the questions that the court had about vaccine hesitancy.

[01:09:07] Speaker 06:
And one thing that I want to stress here is that while the plaintiffs have fled a generalized vaccine hesitancy related to historical discrimination against African-Americans in the medical field, what we're talking about here is not writ large a vaccine mandate

[01:09:24] Speaker 06:
But we're talking about a requirement for a specific vaccination at a specific moment in time.

[01:09:32] Speaker 06:
And what they have not pled is specifically within that time period.

[01:09:36] Speaker 06:
So August, September of 2021.

[01:09:40] Speaker 06:
And specifically with respect to this vaccination, the COVID-19 vaccination in this applicable labor market, that there is a statistical, a significant statistical disparity in access to that vaccination.

[01:09:56] Speaker 06:
I mean, I think if we were talking about February of 2021, it might be a different case, given that there were early on disparities in how vaccine access was playing out.

[01:10:10] Speaker 06:
But we're talking about August and September of 2021.

[01:10:13] Speaker 05:
I didn't want to lose track.

[01:10:14] Speaker 05:
I had asked you a couple of questions earlier, and I know I stacked them.

[01:10:18] Speaker 05:
But the question about the

[01:10:21] Speaker 05:
Announcement for traveling employees to get vaccinated.

[01:10:25] Speaker 05:
When I first read that, I had thought that was not really effectively setting a single deadline because people's need for travel might vary.

[01:10:35] Speaker 05:
In fact, some of those people might face a much shorter deadline than the staff when the general vaccine mandate came in.

[01:10:44] Speaker 05:
Some might effectively have longer.

[01:10:50] Speaker 05:
Did the bricklayers management know on June 7th that the first meeting requiring work travel would be in October?

[01:10:58] Speaker 06:
I'm glad your honor asked that because I think the briefs are somewhat misrepresent the facts as pled here.

[01:11:05] Speaker 06:
I'm looking at JA71 and what's pled is the first BAC meeting that required travel was held in Chicago during the weekend of October 1st, 2021.

[01:11:17] Speaker 06:
And if you look also at JA 17, it makes clear that the meeting that's being referenced is the executive council meeting of the Berkleyers in October of that weekend.

[01:11:31] Speaker 06:
But there's no allegation that no one was traveling beforehand.

[01:11:35] Speaker 06:
And there's also no allegation as to whether these quote unquote traveling employees were required to go to the executive council meeting that weekend of October.

[01:11:43] Speaker 06:
So I think it could flip both ways, that there could be, and particularly given this is an international organization, they have 14 field employees that are out there working outside of DC, and they have contracts that they're servicing across North America.

[01:11:59] Speaker 06:
So it's certainly plausible to think that there are individuals in that supposed traveling employees category,

[01:12:07] Speaker 06:
who are going to be traveling who would like to be traveling well before October and there may be people in that quote-unquote traveling employees category who had no intention of traveling even to that October executive council meeting because that wouldn't have been either something they wanted to do or something that they were required to do and the pleadings on that are really are really sparse all it is the only allegation is that

[01:12:32] Speaker 06:
The first bricklayer-sponsored meeting that would have required travel outside of DC was that Chicago Executive Council meeting on October 1.

[01:12:41] Speaker 06:
So as Your Honor notes, I mean, certainly there could have been people in that traveling category that had much less time, because they would have wanted to travel perhaps in July, and they would have had to run out immediately to get the vaccine if they weren't already in process to get it.

[01:13:04] Speaker 05:
Is there any, I don't think this is in the record, but one thing that the plaintiffs point out, I mean, everyone who was in the office throughout this period had to wear a mask.

[01:13:15] Speaker 05:
And one of the things that the plaintiffs were asking for is, look, when we're struggling to get documentation of a religious or a medical, confer with a doctor who's going to tell us we do or don't have basis for an accommodation,

[01:13:34] Speaker 05:
Why can't we do test and mask?

[01:13:38] Speaker 05:
And is there anything in the record in response to that?

[01:13:43] Speaker 05:
Why couldn't they do test and mask?

[01:13:45] Speaker 06:
There's nothing in the record that responds to that.

[01:13:48] Speaker 06:
And I think, again, this gets to the business necessity and whether there were alternatives and the question of whether during the height of a Delta surge, a weekly testing option would have been sufficient to provide protection to employees.

[01:14:04] Speaker 06:
I do think that these vaccine cases are a little different from many other cases because it is not just about the personal choice that these plaintiffs made, but also about the safety for the other employees in the office.

[01:14:19] Speaker 06:
The 34 black employees who did choose to comply with the policy and get vaccinated in order to come into work safely.

[01:14:26] Speaker 06:
The 121 employees in the bricklayers generally that complied with the policy so that they could come into work in as safe a way as possible.

[01:14:38] Speaker 05:
What's your, as a litigator, understanding of if you did, if we were to remand this claim, what would you advise a judge to do to focus it efficiently?

[01:14:52] Speaker 05:
You know, again, we have, per se, plaintiffs and an employer that obviously doesn't want to spend a lot of time.

[01:15:02] Speaker 05:
What would you ask the judge to do in terms of structuring?

[01:15:06] Speaker 05:
The disposition towards summary judgment.

[01:15:15] Speaker 05:
Well, I think it emotion on the pleadings or or not, but they have to be some kind of.

[01:15:21] Speaker 06:
It would of course depend on what this court would say on a remand and what would survive of the claims.

[01:15:28] Speaker 06:
I think at a minimum we would need a repled complaint so that we even know what we're responding to because at the moment the complaint doesn't even contain the outlines of what their argument eventually turned into.

[01:15:44] Speaker 06:
But I do think it gets back to some of the difficult questions that

[01:15:51] Speaker 06:
were posited earlier about where the lines are with the rational endpoint for disparate impact.

[01:16:04] Speaker 06:
It cannot be, I would submit, that any time you have three employees who share a single demographic characteristic who decide that they aren't going to do something that their employer has asked them to do, that that itself makes a disparate impact claim.

[01:16:20] Speaker 06:
You can imagine an employer that requires everyone to attend sexual harassment training.

[01:16:27] Speaker 06:
And if you had three men that said, we don't want to attend sexual harassment training, that makes us uncomfortable and we will not do it.

[01:16:35] Speaker 06:
Does the mere fact that it is three men who have been disciplined for refusing to do that.

[01:16:41] Speaker 06:
state of disparate impact claim?

[01:16:42] Speaker 06:
I think the answer clearly has to be no.

[01:16:46] Speaker 06:
But somewhere between the test that the amici has posited and that test is the line.

[01:16:52] Speaker 06:
As I said at the outset, I don't think this case is a good vehicle for this court to figure out where that line is.

[01:16:59] Speaker 06:
It's a challenging question, I think, for the future of disparate impact.

[01:17:03] Speaker 06:
There clearly is a line someplace.

[01:17:06] Speaker 06:
But given the very sparse allegations here,

[01:17:11] Speaker 06:
and the fact that there clearly was not a significant disparate impact on the black employees.

[01:17:17] Speaker 06:
More than 90% were able to do so, and in fact may have been happy to do so.

[01:17:24] Speaker 06:
But I don't think this is the case for the court to test those limits.

[01:17:30] Speaker 03:
You just mentioned a case, and I couldn't catch the name.

[01:17:35] Speaker 03:
Is this the reference to the Pizzaco case that you mentioned earlier?

[01:17:41] Speaker 06:
Yes, that was just an example of a case.

[01:17:44] Speaker 06:
I think it's from the Eighth Circuit.

[01:17:46] Speaker 03:
Yeah, okay.

[01:17:49] Speaker 03:
Just wanted to be sure I knew which case you were referring to.

[01:17:53] Speaker 05:
All right.

[01:17:53] Speaker 05:
Anything else, Judge Rogers?

[01:17:56] Speaker 05:
All right.

[01:17:57] Speaker 05:
Thank you.

[01:17:58] Speaker 05:
Thank you, Your Honors.

[01:18:01] Speaker 05:
And Ms.

[01:18:03] Speaker 05:
Monsbach, we used up her time, but did she reserve?

[01:18:10] Speaker 05:
All right, we'll give you two minutes if you want it.

[01:18:13] Speaker 04:
Thank you.

[01:18:20] Speaker 07:
So the first thing that I'd like to address briefly is just the statistics.

[01:18:25] Speaker 07:
Eyeballing it and using intuition is just not enough to determine whether there is a statistically significant impact.

[01:18:33] Speaker 07:
In Jones, which was the First Circuit case involving hair used for a drug test, there was a false positive rate for black

[01:18:41] Speaker 07:
test takers of 1% and a 0.2 false positive rate for white test takers.

[01:18:49] Speaker 07:
So that means looking at it the way that BAC has, it was 99% versus 99.8%.

[01:18:55] Speaker 07:
But the court still found that there was statistical significance there because it was on summary judgment and there was expert evidence to analyze those numbers

[01:19:04] Speaker 07:
based on all the other statistics in the case and said there is statistical significance here.

[01:19:11] Speaker 07:
That's why all of the cases that BAC cites regarding small sample size, they're all on summary judgment or bench trial because it requires looking really carefully at the statistics because there are so many different ways to look at the same numbers in a case.

[01:19:27] Speaker 07:
Also, courts can bolster

[01:19:29] Speaker 07:
The statistical significance, especially in really small sample sizes with other indicia that there may be a disparate impact on a particular group.

[01:19:40] Speaker 07:
So, for instance, in trade, which was about university professors.

[01:19:46] Speaker 07:
raises, the court looked at the statistics and also said, look, there are reasons here why we expect that female professors are going to be less likely to seek outside offers and therefore less likely to enter into retention raise negotiations.

[01:20:03] Speaker 07:
We have that indicia here why we can expect that these statistics created a disparate impact.

[01:20:09] Speaker 07:
Second, even if there was just one policy and everyone had the same amount of time,

[01:20:14] Speaker 07:
If there was a disproportionate impact, that would be enough to state it clean.

[01:20:19] Speaker 07:
Disproportionate impact looks at whether there was an unnecessary headwind against a minority group.

[01:20:26] Speaker 07:
And the necessity part is the business justification and available alternatives that's looked at later.

[01:20:32] Speaker 07:
The headwind part for the motion to dismiss is- You have one question, though.

[01:20:35] Speaker 01:
Yeah.

[01:20:35] Speaker 01:
Do you dispute, right?

[01:20:38] Speaker 01:
What you just described is not this case.

[01:20:40] Speaker 01:
It seems as though the theory is that the policy is

[01:20:43] Speaker 01:
the vaccine mandate on an accelerated timeline.

[01:20:47] Speaker 01:
You dispute that that then changes the causation.

[01:20:50] Speaker 01:
They have to plead that all three of those fired employees at least plausibly would have been vaccinated if they had more time.

[01:21:03] Speaker 07:
I think not, Your Honor, because even if this case just had the one requirement, everyone had the same amount of time, but they had

[01:21:12] Speaker 07:
led this effect, you know, the seven-fold difference in rates of effect, that would be enough.

[01:21:19] Speaker 01:
The fact, like, if more people are... It just seems hard in this case, but it's very important what the theory of the policy is, because unless you disagree with the EEOC, it just completely changes what the causation showing is, and importantly, what the business necessity showing is.

[01:21:38] Speaker 07:
Our position is that either way, appellants have stated a claim here.

[01:21:43] Speaker 07:
If you think that the policy is simply a vaccine mandate, they've still shown that this policy caused a disproportionate impact, the same way that a ban on renting to people with criminal convictions would cause a disproportionate impact on some races, as the Supreme Court has explained, or the Griggs policy.

[01:22:02] Speaker 07:
The policy caused a disproportionate impact.

[01:22:04] Speaker 07:
If you want to look more specifically at this specific timing aspect of the policy, I think that bolsters the case that

[01:22:12] Speaker 07:
hey, we know that even if you think there's some element of choice that came into play here that makes this policy weird, well, black employees did not face the same choice that white employees faced.

[01:22:26] Speaker 07:
Most black employees had a harder choice in terms of compliance.

[01:22:32] Speaker 07:
And that's kind of where the timing comes in.

[01:22:34] Speaker 07:
But I think we don't need that.

[01:22:35] Speaker 07:
Either way, it's a plausible claim.

[01:22:37] Speaker 05:
Say if it's just the vaccination requirement, that's the only policy at issue.

[01:22:44] Speaker 05:
Why is it that black employees faced a harder choice?

[01:22:50] Speaker 07:
You mean if everybody had the exact same time?

[01:22:54] Speaker 07:
Yes.

[01:22:56] Speaker 07:
Even if that was the case, they still faced a harder choice because of the background vaccine hesitancy that's been pled.

[01:23:05] Speaker 05:
What if, I mean, is it wrong to read the causation?

[01:23:09] Speaker 05:
So there are three employees that were fired.

[01:23:11] Speaker 05:
One of them is not a party here.

[01:23:13] Speaker 05:
But both that other employee and Mr. Shanks wasn't really vaccine hesitancy.

[01:23:19] Speaker 05:
It was, I have an underlying medical condition.

[01:23:21] Speaker 05:
So then that leaves only Ms.

[01:23:23] Speaker 05:
Lambert, who said, this thing was just developed.

[01:23:26] Speaker 05:
You've got to be kidding.

[01:23:26] Speaker 05:
And so you really have one person who's the reason that she's not

[01:23:34] Speaker 05:
able to get the vaccine in time is because of vaccine hesitancy.

[01:23:38] Speaker 05:
But the other two, it's much more personal specific.

[01:23:41] Speaker 07:
So Mr. Shanks alleged that he had medical concerns and that he had vaccine hesitancy.

[01:23:48] Speaker 07:
He alleged both of those things.

[01:23:50] Speaker 07:
And there are also, there were three people that were fired, but there were five people, there were six people actually, who were suspended or terminated

[01:23:58] Speaker 07:
overall, and we don't know what happened to those other people.

[01:24:02] Speaker 07:
Also, what we look at here is whether this policy had a disparate impact on a group.

[01:24:08] Speaker 07:
It could be that the white employee who was suspended maybe also had vaccine hesitancy.

[01:24:15] Speaker 07:
That's not what we're looking at.

[01:24:16] Speaker 07:
We're looking at, did this policy create a headwind for a certain minority group?

[01:24:22] Speaker 07:
If you think of the example of men wearing dresses

[01:24:27] Speaker 07:
required to wear dresses to work and maybe that some men are totally fine with it doesn't make them uncomfortable, but it still means that as a whole, it would have been harder for men to comply with that role.

[01:24:40] Speaker 05:
Thank you.

[01:24:40] Speaker 05:
The case is very much.