>> Amy Coney Barrett is being grilled to the extent that a bunch of Republicans who just
wanna put her on the Supreme Court and Dianne Feinstein they're doing their best I guess.
There's some topics that might not come up but that people definitely need to know about. And
one was raised that I saw on Twitter actually by our guests Adrienne.
So Adrienne, you had tweeted about the fact that she wrote for a unanimous three-judge
panel back in 2019, that upheld the dismissal of a workplace discrimination lawsuit by Terry Smith,
a Black Illinois transportation employee, who sued after he was fired. He claimed that he was called
a racial slur by his supervisor, and Barrett wrote in that the n-word is an egregious racial epithet.
That said, Smith can't win simply by proving that the word was uttered, he must also demonstrate
that Colbert's use of this word, it's not Stephen Colbert, altered the conditions of
his employment and created a hostile or abusive working environment. She seems to be implying
there Adrienne, that saying the n-word your employee does not by itself constitute anything
>> Yeah and as shocking as it may be, that is the law. The bar has been set so high by the judiciary
to win on workplace discrimination claims whether they be age discrimination, sexual harassment,
or race discrimination, or all the forms of discrimination, the bar is so incredibly high.
And it's set that way because unfortunately this is a white male patriarchal world and the Civil
Rights Act, was kind of a way to appease the civil rights movement and to hopefully quell the unrest.
But in practice, as in when people actually bring cases before the courts and the judiciary.
The judges have essentially created this whole case law that says, you really have to endure
significant abuse and intolerable behavior in order to win in a workplace discrimination case.
So Amy Coney Barrett was applying the law. I was very almost defensive about this point
on Twitter and social media, because this opinion isn't a reflection of Amy Coney Barrett.
That'd be naive to think that, and it'd also be a very limited mindset of assuming
she's the evil one. No, the entire state of the law is evil and the way it is set
up to work against the employee. And so we need people to understand that this is so much bigger
than Amy Coney Barrett, she is merely applying the law cuz the law is what is against people.
>> Well, look I think that you're right, but I'm gonna add a little wrinkle. So you're saying
it's not her that's evil, it's the system that's evil cuz this is baked into the system.
But she says, I can't say whether the evil is baked into the system,
so she's going along with it, but she won't even acknowledge that it's there.
>> Exactly, cuz we just saw in her confirmation hearing where she was,
not gonna be able to say is it structural, and I thought that was an unnecessary punt. And so
I do see these two things as separate but they definitely intertwine and connect. Cuz on one
hand in this opinion, she is applying the case law, and for her to diverge from it,
would potentially be problematic, or she just be in the dissent in this case.
But, when she's before the hearing, and her refusal to acknowledge racism, being structural,
being in the system, I think that that's problematic because she's just ignoring
the facts and what we know this world to be. >> Yeah so look, I'm glad that you're here
to add all of that context because I did not know quite a bit of this.
Yeah when she goes on to say that Smith quote introduced no evidence
that Colbert's use of the n-word changed his subjective experience of the workplace.
Okay I guess that's the law, it seems to me like it's not up to me to say whether
that changes someone's subjective experience if they say that it does.
I don't know how much evidence people should have to provide that it does,
I don't think I get to decide that I don't think that Amy Coney Barrett gets to decide that but
apparently they do get to decide that. >> Yeah-
>> But one interesting- >> You have to show subjects that
it changed your outlook that it made you fearful of working there, that it upset you in some way.
And that's the thing is the law, it can be so nuanced at times, and also so particular,
but of course the judges are the ones that say whether you have it or don't have it. And they'll
call you out on little things or maybe they'll give you a pass on it and that's unfortunate.
>> So one extra thing and now I'm actually very interested to see what you hear about this,
although you're probably well aware of this.
Justice Brett Kavanaugh, then serving as a federal appeals court judge in Washington DC
said one utterance was enough. Quote, nut in my view being called the n-word by a
supervisor suffices by itself to establish a racially hostile work environment.
The epithet has been labeled variously a term that
sums up all the bitter years of insult and struggle in America,
pure anathema to African-Americans, and quote probably the most offensive word in English. No
other word in the English language so powerfully or instantly calls to mind our country's long
and brutal struggle to overcome racism and discrimination against African-Americans.
In short, the case law demonstrates that a single sufficiently severe incident
may create a hostile work environment actionable under federal anti-discrimination law. So that's
all Brett Kavanaugh, so based on what you've said, he's wrong there?
>> No, that's the thing they're in two different circuits. And that is why the law,
you don't know what you're gonna get, and you don't know where you are.
She was coming from the Seventh Circuit where I believe there are 12 judges on that circuit
10, were appointed by Republicans and our conservative judges. He's coming from the
DC Circuit Court, which is definitely a lot more diverse in terms of thinking.
And so you could go to the Second Circuit, the first, the ninth, they're all different.
And that's the problem because then you end up having a case hopefully making its way to the
Supreme Court, and the Supreme Court is the one that gets to decide, what's going to be the law
on the land. Because really the law differs from place to place. But the general frame of mind
and the general thought in the vast majority of circuits is that one racial epithet isn't enough.
And especially because, that person it seemed did not explain
how its subjectively changed their outlook at the workplace. Cuz for instance,
somebody who may be black may say the n-word to me as a greeting, and it doesn't bother me
and that's very different from hearing it maybe from a white colleague who I'm not close with.
I have to show that it subjectively changed my outlook, and that it
changed how I felt about my work environment. >> Sure, okay your fair, and there's comment
what I know and this is why we need you on here because I don't have the training to add all this.
I can only give what I consider to become incense, which is mostly to all of this. But Stanzi Sent
in a Super Chat saying I'm so grateful for Adrienne dropping all this legal knowledge
on us. I learned so much every time she's on the show, Stanzi me too, add me on to that.