“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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Kitchen v. BASF

Docket: 18-41119

Opinion Date: February 28, 2020

Judge: Leslie H. Southwick

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

The Fifth Circuit affirmed the district court's grant of plaintiff's motion for summary judgment in an action alleging that his former employer, BASF, discriminated against him in violation of the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). The court held that plaintiff's ADA claim was properly dismissed, because plaintiff failed to offer any evidence of a causal connection between his discharge and his alcoholism. Furthermore, plaintiff failed to show that BASF's legitimate, nondiscriminatory reason for discharging him, the apparent positive results of his alcohol test and violation of company policy, was pretextual. Even if the court were to consider plaintiff's failure-to-accommodate argument, it would fail because the ADA does not provide a right to an employee's preferred accommodation but only to a reasonable accommodation. The court also held that plaintiff produced no evidence to support his ADEA claim and there was no abuse of discretion in the district court's decision not to mandate the requested production of his discovery request. The court rejected plaintiff's remaining procedural and evidentiary challenges.

United States v. Berry

Docket: 19-20050

Opinion Date: February 28, 2020

Judge: Edith H. Jones

Areas of Law: Criminal Law, Family Law, Real Estate & Property Law

The Fifth Circuit affirmed the district court's final order of garnishment under the Mandatory Victims Restitution Act. Defendant pleaded guilty and was convicted of wire fraud, mail fraud, and falsifying a tax return, all in connection with the ongoing theft of funds from her employers. Defendant was then ordered to pay restitution of more than $2 million. In order to enforce the judgment, five investment retirement accounts (IRAs), held under defendant and her husband's names, were garnished. After defendant agreed to release the funds, the government reapplied to garnish two accounts in the husband's name and the district court granted the writ. The court first rejected defendant's claim under federal law that any non-defendant spouse's IRA an be part of a defendant spouse's property or rights to property under 18 U.S.C. 3613. The court has previously held that notwithstanding its anti-alienation provision, 29 U.S.C. 1056(d)(1), Employee Retirement Income Security Act retirement accounts are subject to MVRA restitution awards. Furthermore, under United States v. Loftis, 607 F.3d 173 (5th Cir. 2010), the court held that defendant's one-half interest in her husband's solely managed IRA is part of all property and rights to property of the spouse fined under section 3613. Under Texas law, the court held that the husband's IRAs are solely managed community property, and that a wife has only a one-half interest in her husband's solely managed community property. Finally, the court held that the Consumer Credit Protection Act was inapplicable in this case. Therefore, the court held that half the funds—around $1 million—may be garnished now.

Mejia v. Barr

Docket: 17-60580

Opinion Date: February 28, 2020

Judge: Oldham

Areas of Law: Immigration Law

The Fifth Circuit denied petitions for review challenging the BIA's decision denying petitioner relief from an order of removal in absentia. The court agreed with the BIA that petitioner's ten year delay in filing his motion to reopen was inexcusable. In this case, when petitioner discovered that he had been ordered removed in absentia, he could have immediately applied to reopen his proceedings. However, petitioner did not and lost his chance to have his case administratively closed. Furthermore, when petitioner moved to reopen, he could have raised all his arguments in the first motion. Petitioner failed to do so and thus he lost his chance to have half of his arguments decided on the merits.

Yanez-Pena v. Barr

Docket: 19-60464

Opinion Date: February 28, 2020

Judge: Jacques Loeb Wiener, Jr.

Areas of Law: Immigration Law

The Fifth Circuit denied a petition for review of the BIA's decision denying petitioner's motion to reopen her removal proceedings. The court held that the information statutorily required to be contained in a notice to appear (NTA) may be supplied in more than one document. The court also held that an NTA is perfected, and the stop-time rule is triggered, when the alien receives all required information, whether in one document or more. The court held that the BIA did not abuse its discretion by failing to reopen petitioner's removal proceedings to allow her to seek cancellation of removal or to rescind the in absentia order of removal. In this case, the document petitioner received perfected her initial NTA by providing proper notice of her removal hearing and terminated her "continued presence" in the United States pursuant to the stop-time rule, precluding her eligibility for cancellation of removal.