Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.

Trademark Lawsuit for Juicy Fruit e-Cigarette

Juicy Fruit may not be the gum with the longest lasting flavor but, say what you will, their yellow packaging is immediately recognizable. The same is true of the green packaging on Doublemint, it’s just as easy to pick out in the checkout line in the grocery store. This is the product of around 100 years of marketing on the part of Wrigley Gum. Thus, when Chi-Town Vapors (a company dedicated to creating flavored e-cigarette fluid) decided to make e-cigarette flavors titled “Juicy Fruit” and “Doublemint” Wrigley decided to slap them with a lawsuit that Chi-Town is going to have a heck of a time wriggling out of.

Just last week, Wrigley brought a lawsuit alleging federal claims of trademark infringement, trademark dilution, and unfair competition, as well as an Illinois state law claim of deceptive trade practices, and a common law claim of unfair competition. Wrigley’s claims are strong in this case, mostly because of how Chi-Town Vapors has conducted their marketing and the nature of Chi-Town Vapor’s business. Especially strong are the claims of trademark infringement and trademark dilution. Chi-Town’s missteps are a good lesson for burgeoning businesses, especially when your product can-like Chi-Town’s-be especially vulnerable to dilution claims. In order to help keep your business’ safe, let’s take a look at this case, how it’s likely to shake out, and how trademark infringement and trademark dilution work.

trademark lawsuitChewing Over the Facts of the Case

Wrigley is an old company. A very old company. They’ve been selling Doublemint and Juicy Fruit gum for over a century. They’ve had a number of trademarks on “Juicy Fruit” and its associated logos for ages. Some registered as long ago as 1915, others issued a mere 60 years ago in 1953. It has similar trademark and trade dress (protection on the appearance of the packaging or building design consistently used by a company) on their Doublemint gum.

With all these age old registrations, you have to know it was a bad idea for Chi-Town Vapors to outright name the flavored e-cigarette liquid they sell “Juicy Fruit” and “Doublemint.” Chi-Town didn’t stop there, and their legal problems may not stop with Wrigley. They named flavors “Skittles,” “Hawaiian Punch”, “Kahlua,” “Mountain Dew,” “Red Bull,” and “Nutella.” All of these are registered marks and, no, Chi-Town didn’t get permission to use any of them. In a prime example of digging your own legal grave, Chi-Town Vapors’ marketing materials even included pictures of the products the flavors are based on or have their own name on incredibly close approximations of  the packaging of products such as Doublemint gum.

They must have caught wise to the fact that this wasn’t the best idea because, in January 2017, they took down these pictures and changed the names to things like “Joosy Froot;” still using the recognizable packaging of the candy as part of their marketing materials. Unfortunately for them, this is still extremely unlikely to be enough to get them off the hook.

Bursting Chi-Town’s Bubble: Trademark Infringement and Dilution

Trademark infringement mostly deals with the likelihood that the use of your registered trademark by another may confuse consumers as to the source or sponsorship of goods or services. For instance, if you have a trademark on Widget brand milk, and the guy across the street starts selling Widget brand almond milk, that would be a pretty clear-cut case of trademark infringement. This is especially true due to how close the other store is and how similar their product is.

Chi-Town used the exact name and packaging of both Juicy Fruit and Doublemint on a product designed to taste as identical to each respective gum as possible. There is serious potential that a customer would look at those flavors and think they were sponsored by Wrigley-thus why Chi-Town is in so much trouble.

However, as rough as the case may be for trademark infringement. Chi-Town Vapors has it worse when it comes to dilution. Dilution doesn’t need to show any confusion from consumers or even competition between the owner of the famous mark and the accused party’s product. Instead the owner simply needs to show blurring (that there is a likelihood of dilution in the consumer’s mind between the mark and their product) or tarnishment (a likelihood that association with the accused person’s use of the mark would damage the reputation of the owner’s mark). In order to receive this incredibly powerful protection, you need to be especially famous. However, with factors including how well known and how long the mark has been used as part of that analysis the 100-year-old and near universally recognizable Wrigley brands should qualify fairly easily.

It is the second half of dilution-tarnishment-which is the real trouble for an e-cigarette fluid distributor. Even in Wrigley’s complaint, it’s clear that they are leaning heavily on this argument to establish their dilution case. Not surprisingly, Wrigley has something to say about the practice of selling candy-flavored cigarettes. They point to studies out of the FDA, the Senate, and more which argue that flavoring e-cigarette materials like candy “harmfully targets children under 18 years of age.” To say that selling cigarettes to children has the potential to tarnish Wrigley’s brand is an understatement.

What Can You do to Avoid Chi-Town Vapor’s Sticky Situation?

As bad as the situation is for Chi-Town Vapors, and it does look bad, no case is a guaranteed slam-dunk. However, the best litigation strategy a company can take is to never face litigation at all. This isn’t always possible, but you can take steps in your branding to avoid Chi-Town Vapor’s situation.

First and foremost, don’t use famous brand names on your products without permission. This is obvious, but it bears repeating. If your business deals with something that might harm the reputation of a brand, liquor or tobacco for example, you have to be especially careful. This goes double when a famous brand targets children as customers. Another important step to take is to hire an attorney to do a trademark search for any logos or marketing slogans you want to use. This is generally fairly cheap and goes a long way towards avoiding a trademark infringement lawsuit. Your business is too important to risk a lawsuit or the expense of having to entirely change your branding after working to build it up-take the steps to make sure you don’t end up in Chi-Town Vapor’s situation.

Tennessee Inmates Given Reduced Jail Time If They Get Birth Control

If you were convicted of a drug crime, would you choose between jail time and the ability to have children? This might seem a faux choice, but this is the choice that repetitive criminal defendants in White County, Tennessee face. On May 15, 2017, Judge Sam Benningfield signed an order allowing inmates to receive 30 days credit towards jail time if they would agree to undergo a birth control procedure. Women could “volunteer” for a free Nexplanon implant while men can “volunteer” for a free Vasectomy, a procedure which surgically prevents men from releasing sperm.

Judge Benningfield justifies the option by saying: “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves.” District Attorneys and the ACLU have voiced their objections to what they see as an immoral and potentially illegal choice.

The Dark Past of Compulsive Birth Control

Judge Benninfield is not the first judge to suggest that inmates might be subjected to birth control. In 1927, the Supreme Court legalized compulsory sterilization of the unfit; particularly people deemed “intellectually unfit,” i.e. the mentally ill and those considered retarded. The Buck case opened the door for eugenics and forced sterilization in the United States. Before Buck, only California permitted forced sterilization. Afterwards, many states began legalizing sterilization on prisoners. The practice lost support after Nazi Germany revealed where this line of thinking ended. Subsequently, in 1942, the Supreme Court ruled that a law requiring forced sterilization violated the 14th amendment because it excluded white-collar crimes. However, the original 1927 case which permits legal sterilization was not officially overturned and thus remains “good law” today.

Tennessee’s law is more merciful than the original sterilization laws of the 1920’s and 1930’s. Defendants have a choice of staying in jail for another month or getting out early if they agree to a birth control procedure, a far cry from the forced sterilization which occurred last century. The rationale is also different; where the eugenics of the 20th century believed that crime was in the genes, Judge Benninfield believes birth control would allow defendants to build a stable life without the burden of children that impulsive sex might create.

tennesseeThe Option of Sterilization is Still Outside the Bounds of the Constitution

Despite these differences though, Judge Benninfield’s practices should not be legal. First, why are drug crimes singled out? The 1942 Skinner case struck down a law for an Equal Protections violation because it excluded white-collar crimes. The same logic could be applied here; why are drug crime defendants given this preferential option when sex criminals are not? Although Judge Benninfield’s logic is not based on eugenics and genes like the sterilization proponents of last century, the Judge’s logic seems rooted in assumptions about drug crime defendants. Benninfield’s experience in the courtroom might lend itself to the conclusion that drug users will have babies they cannot take care of, but it is hardly an established fact that an entire county can base public policy on.

Second, the state should not promoting a “choice” where a citizen can lose a fundamental right. A choice implies free will, but if the defendants face jail time, free will is probably already removed from the equation. After Griswold and Roe vs. Wade, privacy and reproduction were established as fundamental rights. Citizens cannot be forced to choose between additional jail time and losing a fundamental right. Even if Judge Benninfield doesn’t believe there is any coercion here, the mere perception of state coercion ought to be enough to shut this program down. This is not to say that a defendant who is older and does understand the consequences of

Third, it is not a judge’s responsibility to instill personal responsibility in a defendant. Judges are not life coaches. Judges are supposed to apply the law to a case and then determine whether the law is being complied with. Everything else is potentially legislating and should be left to the actual legislatures. Even if it were part of a judge’s role to promote personal responsibility, offering state sanctioned birth control is not a form of personal responsibility. Personal responsibility, in part, means accepting the consequences of your actions. Shrinking jail time or not having a child after unprotected sex is skirting personal responsibility, not promotion of personal responsibility.

Why Are the Guys Given More Severe Birth Control?

There is also an equal protection issue based on sex. While women are given Nexplanon, men undergo a Vasectomy. For those not well-versed in birth control procedures, Nexplanon is a type of hormone inserted in a woman’s arm that creates a wall around the woman’s eggs, preventing sperm from entering the egg. Nexplanon is good for about four years, when the effects expire.

Vasectomy, on the other hand, is a surgical procedure where a vessel near a man’s testicle is surgically cut, thereby preventing the man from releasing sperm when he has an erection. Vasectomy is considered permanent birth control, although there are some procedures which can reverse it. An appeal court should ask, why are women given a temporary form of birth control while the men are subject to a more permanent one? There is no reasonable justification why one sex is given a more permanent form of birth control when the crimes are all similar.  Although the differences between male and female bodies might demand different types of birth control, one sex should not be subjected to a more permanent form then the other sex.

OJ Simpson is Granted Parole After Serving 9 Years for Armed Robbery

Famous ex-football player OJ Simpson succeeded just last week in a parole hearing before the Nevada Board of Parole Commissioners. As famous as his football days are, Mr. Simpson is obviously more famous these days for the criminal murder trial in which he was involved and ultimately found innocent. However, after an kidnapping and armed robbery conviction in 2007, OJ still found himself imprisoned-albeit for an entirely different reason. Now, with 9 years having passed on his sentence, he was finally up for parole.

The crime that Mr. Simpson was convicted of dealt with a conflict over sports memorabilia. In September of 2007, Mr. Simpson apparently led a group of men–armed with guns–into a Las Vegas hotel room to take hundreds of items of sports memorabilia he stated belonged to him. After these events, a jury convicted Mr. Simpson of two counts of kidnapping with a deadly weapon, robbery with a deadly weapon, assault with a deadly weapon, and coercion with a deadly weapon as well as tree counts of conspiracy and one count of burglary with use of a deadly weapon.

After the trial, Mr. Simpson became inmate No. 1027820 at Lovelock Correctional Facility in Nevada and has been serving his sentence since these convictions. In July 2013, Mr. Simpson was paroled on his burglary count as well as all the counts of robbery and kidnapping. However, the 9 year minimum before he was eligible for parole had not come up on his other counts. Now, with the required time passed, the time had come for Mr. Simpson to get a parole hearing and a chance to rejoin society.

OJ SimpsonFour Parole Board commissioners out of the seven members of the board convened to hear his parole. With a minimum of four votes required for parole, a unanimous vote was required for OJ to get out. Fortunately for Mr. Simpson, this is exactly what happened. Now it’s just a waiting game for Mr. Simpson, he has been moved to protective custody and should be a free man as soon as early October of this year.

Mr. Simpson is obviously ecstatic about the decision, as he should be. Regardless of what somebody has done, the ultimate goal of prison is to rehabilitate as many people as possible. Where somebody has done their time and proved they are not a threat to society they should be released. While some may point to Mr. Simpson’s criminal history, a history is not a guarantee of how the future will unfold. Criminal history is also not the only element parole boards commonly consider in determining whether parole should be granted. If you face criminal charges or have a loved one who has been convicted, it is crucial to fully understand how these parole hearings work. For that reason, let’s take a look at how parole hearings work.

How Parole Hearings Work

Parole is basically the opportunity to serve the remainder of your sentence under the supervision but outside prison. When or if somebody will become eligible for parole varies based on the conviction but often occurs after about a third of a sentence is served.

The factors considered for parole vary from state to state but generally include some mix of the following: good behavior while imprisoned, whether the person would threaten the public, whether release would depreciate the seriousness of the offense, the likelihood that the inmate would commit the same crime again, the efforts of the inmate to rehabilitate, the age of the inmate, their mental status, their marital status, whether they show remorse, their prior criminal history, the type and severity of the offense they committed, and their education and training. As you can see, there’s quite a bit that goes into these determinations-something only made more complicated by every state having its own approach.

Nevada itself has a point based approach for determining whether somebody should receive parole; focusing on static and dynamic factors. They go by golf scores out in Nevada, so the lower the parole score the better. They look at eleven factors. The static factors include the age the person was first arrested, whether they’ve broke parole in the past, their employment history prior to arrest (the longer they held a job the more likely they are to get parole), the type of offense, any history of drug or alcohol abuse, and gender (men are less likely to receive parole). The dynamic factors include current age (over 41counts for you while being under 21 counts heavily against you), active gang membership, treatment programs while in custody, good or bad behavior while imprisoned, and current custody level (minimum custody, medium custody, or maximum custody/solitary confinement).

Simpson likely scored a low-risk assessment. The Nevada framework likely left him scoring two points for previous alcohol abuse, minus one point for his age, minus one point for good behavior, and plus one point for being a man. This leaves him with around three points, with some potential wiggle room up or down depending on the level of custody he was held at. Low-risk is anything under 5 points, making OJ’s parole less of a surprise than some might think.

Nevada Currently Working On Improving It’s Parole Program

Another element which may have factored into Mr. Simpson’s parole is the fact that Nevada has, in recent years, been attempting to address the fact that they have a particularly low rate of successful parole hearings. A study from a few years back suggested the state take a more aggressive approach to releasing low-risk inmates and pointed out a number of issues with how parole is determined.

Those who maintain innocence are often denied parole on this basis-citing a lack of remorse. This can be problematic, especially when they actually turn out to be innocent on several occasions. Those who sue for a parole hearing often have this treated as bad behavior negatively effecting their chances of parole, even when they win a suit saying they have a right to a parole hearing. The fact that somebody is young when they are arrested is a poor reason to deny them parole. Finally, in perhaps the most ridiculous issue, a change in software back in 2007 apparently resulted in a number of false felonies ending up on inmate reports and leading to denied parole.

Know Your Rights When it Comes to Parole

As you can see, parole is often a flawed system. However, it is a crucial right for anybody convicted of a crime. Each state treats it differently to some degree and it is crucial that you know how it is handled, whether for yourself or for those you love. OJ certainly is glad for knowing his rights. He’s been described as “over the moon” with the decision, as he should be. Sending somebody to prison has the goal of ultimately rehabilitating them and allowing them to return to their families, this is why we have parole in the first place.

BART Robbery: If CA Wants Change, then They Can Start By Trusting the Public

Since the middle of the year, the California Bay Area Rapid Transit system (BART) has been hit by a series of “flash mob” robberies. Between May and June, groups of 40-60 young people jumped fare gates and streamed onto trains, robbing and terrorizing passengers. The robberies usually took place in the Oakland stations and typically around 9:30pm. Cameras installed on the trains lead to the arrest of several of these individuals, but similar style robberies involving smaller groups have continued. Fortunately, one such robbery was foiled by Leonard Brown, a 62 year old off duty security officer.

BARTWhat was BART’s Response?

BART has responded to these robberies by installing additional cameras and placing more police officers around the targeted stations. Assistant General Manager Kerry Hamill has since come under fire for refusing to release the videos of these incidents to the media and the public at large, for fear that the media would display a “disproportionate elevation” of crimes that “unfairly affect and characterize riders of color.” Hamill has insisted that these words were only written in an internal memo that was not meant for public consumption. Nevertheless, public backlash has pushed BART to publicly comment that “Transparency trumps everything else. To not be willing to release information to the public because we think we know better what the public can handle is a mistake in my mind.”

Although Hamill’s concerns are grounded in good intentions, they will ultimately undermine not only BART, but the very racial communities she sought to protect. In a multiethnic country like the United States, the various racial groups will, at times, be jealous and resentful of each other. During times of racial tension, the government cannot be seen to favor one group or disfavor another, or it will only increase racial tension. That is the entire point of the Equal Protection Clause of the Constitution.

How Can We Move Past This?

In the past, certain minority groups, mostly African Americans, were completely disfavored by the state. However, we cannot write those wrongs by favoring, or even appearing to favor, African Americans now. If young people of color did indeed commit this violent crime, then not only should they be punished, but the public has a right to know who they are so that they can protect themselves or help the police in their search. Indeed, even “riders of color” would benefit from having the identities publically available; there is nothing in the reports to suggest that these robbers would not target people of their own racial group. And if the robbers are not African American, it would greatly benefit the African American community to have a video proving that.

If the videos are not released, many people will conclude that race relations – or even racial identity – is more important than protecting passengers, any passengers, regardless of skin color. This will fuel even more racial tension and will bring about the unfair characterization that Hamill feared. Indeed, the return of white supremacy and the rise of the “Alt-Right” have shown just how dangerous seemly innocent protection of otherwise criminal activity can become. Racism and disparate impact are real issues that minority groups face, but those minority groups can lobby on their own behalf without the assistance of government officials who are supposed to remain neutral.

If Hamill and others want to avoid wrongful “characterization of riders of color,” she should post examples of positive contributions that people of color have made rather than try and shield the bad apples from the consequences. Leonard Brown, the sixty-two year old security guard who stopped one of the robberies, is African-American himself. If Hamill wants to heal the racial divide and do her job, she can promote men like Brown who do the right thing. Every racial group has good people and bad people – the challenge should be to foster that understanding of duality instead of sweeping the bad people under the carpet.