PETITIONS OF THE WEEK

The Civil Rights Act, the Clean Air Act and the Sixth Amendment

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether a Black man’s exposure to a racist epithet at work is “sufficiently severe” to constitute a hostile work environment in violation of the Civil Rights Act, whether a court can order a defendant to pay criminal restitution from facts not found by the jury, and whether the Clean Air Act preempts two counties’ attempt to challenge Volkswagen’s emissions software under local anti-tampering laws.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race with respect to “terms, conditions, or privileges of employment.” Under Supreme Court precedent, an employee challenging a hostile work environment must show that an employer’s conduct was “sufficiently severe or pervasive.” One “extremely serious” incident could qualify, but not a “mere offensive utterance.”

Collier v. Dallas County Hospital District involves the N-word etched into the side of an elevator that Robert Collier, a Black man who worked as an operating room aide, used to access the hospital cafeteria. Collier reported the graffiti, but the word remained for six months. Collier also complained about two swastikas painted on the wall in a storage room and being called “boy” by a white nurse. The U.S. Court of Appeals for the 5th Circuit ruled that the conduct did not establish a hostile work environment because the conduct was “not physically threatening,” was “not directed” at Collier other than the nurse’s comment, and did “not unreasonably interfere” with his work performance. However, the 5th Circuit recognized that other courts of appeals have allowed a jury to find a hostile work environment on the basis of one use of the N-word. Collier’s petition asks the justices to review and to reverse the 5th Circuit’s decision.

In Gilbertson v. United States, a jury found Ryan Gilbertson guilty of manipulating the stock price of a company he co-founded. The government argued that Gilbertson’s motive involved a compensation package that gave him a bonus based on the stock’s prices. The district court ordered Gilbertson to pay the $15 million he received in bonuses as restitution. In its findings of facts, however, the jury had not specifically considered the bonus beyond a reasonable doubt because the government never challenged the bonus itself as unlawful. In his petition, Gilbertson asks the justices whether a court’s imposition of criminal restitution for an amount not found by the jury violates the Sixth Amendment jury right.

In 2015, the Environmental Protection Agency released a “Notice of Violation” against Volkswagen for its software “defeat devices,” which allowed its new diesel cars to emit higher levels of nitrogen oxides than allowed under EPA regulations. In the aftermath, two counties challenged the defeat devices under local anti-tampering laws. The Clean Air Act, which gives the EPA authority to set and enforce emissions standards for vehicles, also prohibits states and local governments from seeking to control emissions “from new motor vehicles.” Because of this language, the U.S. Court of Appeals for the 9th Circuit ruled that the Clean Air Act preempted the counties’ challenge as to pre-sale software updates to the defeat devices, but not to as any post-sale updates. Among other arguments in its petition, Volkswagen maintains that the EPA standards govern the post-sale updates, which relate back to the vehicles’ original designs, and that local anti-tampering laws are about mechanics or consumers interfering with emissions designs. The case is Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida.

These and other petitions of the week are below:

Gilbertson v. United States
20-860
Issue: Whether the Sixth Amendment prohibits a court from imposing criminal restitution on a defendant based on facts not found by the jury beyond a reasonable doubt.

Kong v. City of Burnsville, Minnesota
20-875
Issue: Whether, on interlocutory review of a denial of qualified immunity, an appellate court may reject a district court’s determination of a genuine issue of material fact even if the record does not blatantly contradict that determination.

Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida
20-994
Issue: Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.

Collier v. Dallas County Hospital District
20-1004
Issues: (1) Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact; and (2) whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”

City of Austin, Texas v. Reagan National Advertising of Texas Inc.
20-1029
Issue: Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

Golan v. Saada
20-1034
Issue: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.