Oral Args Flashcards
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I would like to reserve two minutes for rebuttal time
May it please the court. My name is Emily Hall and I represent the appellant, Appa Transport Systems.
First, the district court erred by denying my client’s motion to compel arbitration because Appa’s employee, Katara Hakoda, is not a transportation worker per the Federal Arbitration Act. It baldly asserted that she moves goods in the same way as seamen and railroad workers, while ignoring aspects of the way that those workers move goods that are different from how Hakota moves goods – specifically – that they move goods in person, not remotely, and that they use vehicles, not infrastructure.
Second, the district court also erred by granting Hakoda summary judgement on her EPA claims without allowing Appa an opportunity to persuade a jury that their “other reason other than sex” is genuine. Relying on a 9th circuit case which applies the ejusdem generis canon incorrectly, they add further limitations to the fourth affirmative defense which have no basis in the statute’s text, failing to weigh or even evaluate Appa’s evidence of the factors they considered besides sex before granting summary judgement.
What test would you use to determine whether the employer has met their burden of proof for the affirmative defense?
Whether or not they were able to persuade a jury that they legitimately did not use sex as a factor in setting their employee’s salary. Fifth Circuit cases like Siler Khodr implicitly rely on weighing the plaintiff’s prima facie case against the affirmative defense provided by the other side.
Here, that means balancing Hakoda’s relatively weak prima facie case with Appa’s normal, empirically verifiable practice of using the information it had to come up with a figure for a competitive salary in a pinch.
Why is it inappropriate to apply ejusdem generis in the EPA claims?
The Court explains, “the rule of ejusdem generis is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty,” affirming that the residual phrase “any other final action of the Administrator” should be read “literally to mean any other final action of the Administrator.” Harrison v. PPG Indus., Inc., 446 U.S. 578, 579, 584-585 (1980). As with the EPA’s fourth affirmative defense, Harrison emphasized that Congress chose to “include not simply ‘other final action,’ but rather, ‘any other final action,’” “expansive language” which “offers no indication whatever that Congress intended the limiting construction [urged by respondents.” Harrison, 446 U.S. at 589. By qualifying the clause with the language, “bona fide,” Gunther simply emphasized that the residual clause, like the systems enumerated, must truly “not discriminate on the basis of sex,” Wash. City. v. Gunther, 452 U.S. 161, 170-171 (1981).
How is Appa’s defense different from relying on market forces?
Footnote 6: We recognize that we must be cautious when analyzing an employer’s claim that “market forces” justify a higher salary, as companies may use such a theory “to justify lower wages for female employees simply because the market might bear such wages.” Taylor v. White, 321 F.3d 710, 718 (8th Cir.2003); see also Corning Glass Works v. Brennan, 417 U.S. 188, 205, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (finding a violation of the EPA when a company “took advantage” of a “job market in which [the employer] could pay women less than men for the same work”); Siler–Khodr v. Univ. of Texas Health Sci., 261 F.3d 542, 549 (5th Cir.2001) (finding an employer’s market forces argument “not tenable” when it “simply perpetuates the discrimination that Congress wanted to alleviate when it enacted the EPA”). The record does not support the inference that Metal Spinners took advantage of any kind of market forces that would permit different pay for a male and a female for the same position. Merillat v. Metal Spinners, Inc., 470 F.3d 685, 697 (7th Cir. 2006)
How do you square your argument with the purpose of the EPA, which is to prevent women like Hakoda from being paid less for working the same jobs for less money than their male coworkers?
If the EPA intended for literally every female employee to be paid as much as literally every male employee, they would not have included the affirmative defenses.
Rizo, 887 F.3d at 470 (McKeown, J., concurring), Rizo, 887 F.3d at 460 (The remedial purpose of the Act is clear: to put an end to historical wage discrimination against women… “one of the most persistent and obnoxious forms of discrimination.”), Elizabeth A. Stevenson, Note, Is Prior Salary A Factor Other Than Sex?: An Approach to Resolve the Ongoing Debate, 98 Neb. L. Rev. 996, 998 (2020) (“[A] complex combination of implicit and explicit biases against women … have contributed to the gender wage gap in less obvious ways. The Act simply fails to address these factors that are not overtly discriminatory.”)
How do you justify affirmative defenses which don’t rely on merit or experience like the other ones?
Seniority is not just a proxy for experience – someone can be more senior at their particular company but still have less experience than another employee. Using seniority to set salaries is very similar to considering prior salaries. Consideration of seniority, like consideration of prior pay, allows employers to impose “wage incentive programs” to retain and attract talent. Rizo, 887 F.3d at 462 (quoting Equal Pay Act: Hearings Before the H. Special Subcomm. on Labor of the H. Comm. on Educ. & Labor on H.R. 3861, 4269, and Related Bills, 88th Cong. 101 (1963).
re corning outlaws market forces
. In other words, Corning violated the EPA not because it took advantage of market forces in general, but rather because it exploited gendered market forces of its own creation, rendering its affirmative defense a pretext to “perpetuate the effects of [its] prior illegal practice of paying women less.” Corning, 417 U.S. at 210.
Why it is important to focus on actual discrimination
– justice
the very purpose of the Act, which was not only to eliminate retrogressive discrimination for the sake of justice, but to eliminate discrimination as an “unfair method of competition.” Corning, 417 U.S. at 207 (citing Pub.L. 88—38, supra, s 2(a)(5)). (“The whole purpose of the Act was to require that these depressed wages be raised, in part as a matter of simple justice to the employees themselves, but also as a matter of market economics.”) Prohibiting any consideration of prior salary, as Rizo does, could “be an impediment for employees seeking a brighter future and a higher salary at a new job” and disproportionately burden women who have been shown to earn higher salaries when they disclose higher wages than when they do not. Rizo, 887 F.3d at 471–72 (McKeown, Concurring); Stevenson, Is Prior Salary a Factor Other than Sex?, 1020-21.
terrible aff defenses?
If the affirmative defense is terrible, it should be deemed “easily pretextual”
consistently basing decisions on the weighing of such evidence. Id; Reznick v. Assoc’d Orthopedics & Sports Med., PA, 104 F.App’x 387, 392 (5th Cir. 2004) (deciding that a plaintiff cannot prevail absent “evidence to raise a genuine issue of fact regarding the legitimacy of [the defendant’s] defenses”).
