ceding five minutes of my time to emma kiss e e o c and reserve three minutes for a bottle may it please the court miss phillips raises three issues in this appeal but i'm going to spend my time this morning on the first whether this court should follow the circuit decision in doubt and hold that unions can be liable for hostile environment claims under title seven section seven zero three c and that question is actually easily resolved by the statutory taxed and the us supreme court's decision in burlington northern vs white and the hostility out there in another circuit that thinks differently than than doubt there are no courts that think differently there are two other circuits that seem to agree with doubt although the holdings are not as clear when is the first circuit decision in dickson that we discuss at pages thirteen to fourteen of our reply brief on the other is a case not cited in the briefs seymour versus shaw offer and sons a tenth circuit case from one nine hundred ninety seven that's one of leaven f thirty seven ninety four it ph seven ninety eight i would say both of those cases support out there are no cases that go in the other direction if you do that will create a circuit split almost here they rely on the seventh circuit case in fitters that case is not on point because there judge posner draws a distinction between the employer acting as employer and the union acting as union and all he says is when it's the employer that's engaged in the hostile conduct the union can't be held responsible for that unless the international what was the question haha was with the u a w international yes he was not the only u a w international person involved that the primary player here is johnson who is the one who had all these contacts with all is not  a relatively easy analysis to agree with dowd and i've got just this color coded one pager that all of you should have opposing counsel does as well if you start counting just small piece where you said it's on the bench and i don't see it seven o three c this is the one in the middle this is the anti discrimination provision that applies to unions it makes it unlawful for the union to discriminate against someone based on their race or sex very simple if you compare that to the one at the bottom seven zero for a this is the entire retaliation provision and the language is exactly the same you cannot discriminate against someone based on their protected report of title seven violations now both of those contrast with the top one seven zero three  and this is the employer discrimination provision that has that same language to discriminate against but then it has now long tagged with respect to compensation terms conditions or privileges of employment those extra words limit the scope of employer discrimination to conditions of employment now the supreme court in burlington northern analyzed the difference between seven o three day employer discrimination and seven zero four eight and one on the bottom retaliation and said that those words make a difference the titles to you view of the titles for these sections as limiting or broadening i do not i think they are purely descriptive i don't think the titles modify d should be you say that no our our view is that seven o three seed discrimination is not limited to terms of employment so if the union has a segregated bathroom or a segregated union picnic or a science employees to different locations based on race or sex it is prohibited from doing that even though it does not affect the terms and conditions of their employment and that's essentially what the supreme court said in burlington northern racial harassment that they both prohibit racial harassment however an employer's racial harassment is limited to harassment that a fax terms and conditions of employment because those words of limitation are in seven zero three eg they are n discrimination under seven no three see even though the language is absolutely identical don't we have to look at the language and seventy three c one this language or otherwise to discriminate against in the context of the words immediately preceding it absolutely and what that tells you is that those words apply only to people who are either in the union or could be in the union this isn't a clause that applies just to anybody in the world but what this does perhaps prevents them from having a segregated bathroom in a union hall you know that their entire brief is devoted to the notion that unions can discriminate based on race although they can't retaliate for a hostile environment under seven a for that's what burlington northern says but in all other respects they can discriminate based on race is why chris jack you even include the particulars about union discrimination if the words or otherwise to discriminate against are as broadly intended as as you would argue the everything in these statutes would otherwise be completely subsumed within beasts are pluses to the words or otherwise to discriminate against but that would be true of seven zero three a and seven zero four as well and the courts have never interpreted these provisions that way that i look at that beginning clause there to exclude or to expel from its membership to define the scope of people that seven o three see has an impact on that is those who are in or want to be in there any authority that says what you just said i know i know that's how you do it but is there anything is there any case that says that the purpose of those prefatory words are to limit the class of people we're talking about not aware of a case that says that but by analogy if we look at seven o three a your argument would also make the words to fail or refuse to hire or to discharge superfluous because or otherwise to discriminate against would have subsumed that as well so in both cases what congress says is here's something very specific you can't do in addition we don't want you discriminating in any other way either and that's why the courts have said hostile environment claims are are valid claims what the wants to do is it wants to take the terms of employment language from seven o three a and graft it into seven zero three c and that they can't do i see that my my time is morning you may have please the court i mean this is an oxford i represent the equal employment opportunity commission is amicus curiae in this matter as we explain in our brief ordinary rules of statutory construction lead to the conclusion that the terms discriminate in compass is harassment both within the entire retaliation previous as this court held in morris and in hawkins and in the labor organization provision that each of those entities has so for the employer they only are responsible for harassment that happens within the workplace that they can control or by their employees so for instance plan to phillips had no cause of action against m g m for the harassment perpetrated by union agents and employees that happen down the street and off the premises of m g m at the local union offices and they and they have no control over brian johnson the alleged perpetrator on the other hand the the union would not be liable for harassment that takes place on m g m premises by other and co workers because they have no ability c one is informed by the entire phrase there so to exclude or expel from membership or otherwise to discriminate taken as a whole describes the spirit of what a labor organization can be held liable for and that is discrimination that happens within the context of union activities and union privileges here the harassment is alleged to have occurred as they were processing grievances go into a group it sounds like you may take a different stance than mr burch because you say there is a limitation by by the by the related phrasing there i was trying to say the same thing  don't think i mean we're but ok you say it's i said what limitation would there be and you said it's limited by the language surrounding it not not to membership only because that would make the otherwise discriminate superfluous which we agree congress would not do but by the sphere of the kind of harassment so for instance if a union employee or official were to walk into a deli at lunch time and harass the waitress the union would not be liable for that that's taking totally outside the sphere of the union activities that control imposing the control exactly here where it happened in the context of processing grievances at the the workplace in the workplace and so they are not at odds with the eighth circuit in the first circuit decision but this court if it affirms the district court would in fact create that kind of a conflict is pipefitters really that easily distinguished or disposed of the court did say if it discriminates and it's talking here about the union if it discriminates in the performance of its agency function of violets title seven but not otherwise what does that mean i see my time is up man answer the question you may so in other words if the union members had had filed grievances about the harassment that happened at that work site in pipefitters and the union had refused to process those grievances that would fall within union liability for discrimination under title seven but where here the allegation was simply that there the port a johns had graffiti and  racial epithets and and the union officials knew about it but it was the employer's responsibility to fix that it was coworkers that were doing it it was the the seventh circuit said that we will not hold the union liability for merely doing nothing about something that is the employer's responsibility to fix and in their case was the offensive decision graffiti placed there by company employees or by union employees well that's it they it was a unionized workplace so they were union members but not union employees are so let's assume for a second that the graffiti in pipefitters was placed there by union management johnson type people as opposed to the unionized employees of the employer what would happen then under by for i think the seven circle would say that if the union had notice that its agents are employees were doing that and the union failed to take steps to pull its own people in line the union would be liable for  there actually was a hostile environment here we didn't address that because we typically focus on district errors and we think th to us that the employer yours should be responsible for liable for a discriminatory workplace that is but that because of the wording of the statute the union should not be responsible for the that same kind of harassment of of those it control i think that what the international union of the district court the woman here claims that she is under the control for purposes of this case of the union and not the employer right her and who is arresting her on the basis of race there's no question about that so it's not really raised is that what we have here well i think i think the issue is not necessarily t for workplace harassment but that if the union has control of the workplace that it should not be i don't understand why that should be a policy difference or a moral difference well i think the key issue here judge which the district court went to great lengths of as of the finding is that the the international union here did not have control over plaintiffs terms  conditions of employment either as it is a casino employee or as an agent of the local union the international union here in the local union are separate and autonomous and titties under the u a w constitution would you still win if we ruled for mr birch's position but also found that she was an employee of the local union and that the international union yes you are is because the issue still is right and i think we can dr get into this problem to what extent the international union had control and to what extent the international union had control over the local union or didn't have your honor and it went through great lengths to cite a number of factors on the record here that distinguish the international unit here from the local and it analyze that under the common law agency  with the creation of an arresting workplace but it was only the local union who was responsible is that before us here now no judge i think to two to two discrimination in terms of membership status upon referral of members but two jobs all of which you know in the clip the birth being a group relationship have a direct impact on terms and conditions of the start he sued the local union and that matters been settled right no she hasn't she didn't sue she never sued the locals never been a party in this case let's let me follow up on my earlier question let's assume that she is an employee of the local union not an employee of the international union but there's no doubt here that the allegedly discriminatory conduct that created the house a work environment was occasioned by an employee of the international union right so it does seem liability for whatever its employees do simply because the person they're doing it to is not their employ so what i mean i do judge i mean i think the distinction has to be between focusing on how the international union was acting here were they acting as an employer right or were they acting as a representative of members and plaintiff here brings this case not as a rank and file number challenging for representation so under printer your analogy i have had that in the case point if would have clearly had you know cause of action not under title seven but under the national labor relations act to challenge the representation that she received so you're agreeing that pipefitters finding that under section several three does not impose liability on union on a union for a claim of harassment one of accidents agency function because the workplace is controlled by the employer not the union but your today but you're saying this was not an agency function case correct you need isn't isn't being sued for failure to represent fairly the employees or something like that so if that's what pipefitters is about that necessarily control employment opportunities when dealing with a workplace harassment claim ok so the fact that even if assuming that point of fear was and was employed by the local union right or you're saying that the saying is that the international union here does not control the employment opportunities of the plaintiff as a either as a casino employee or as a a local union elected union agent you're saying that they can with regard to their employees or who they are controlling create a hostile work environment that an employer could not do but they're exempt from liability for that is that right that's right under seven under section seven zero three c i just don't see how congress could have a policy that says well the employer is responsible but the union is not the union is responsible for arrest and conduct your honor but only in the context of of it's representational function right if that if if that represent if if the harassing conduct somehow impacted a union members representation in terms of processing grievances saying that the union doesn't have any responsibility or it's impossible that the court and everyone is the term harassment does sort of fit i'll call it insulting conduct by mr johnson he he insults ms phillips and her sensibilities about race in a very creative us way but what congress may not have intended to hold unions liable for  a creep like johnson saying the things he did because it can't affect her rights as a union member in that normally i mean under seven o three see all the right to membership or what we're talking about i don't know the ins insulting doesn't seem to fit that we even we don't usually legislate about unions and their members other than with membership rights we'll call it generally speaking because we expect the unions and their members to be sympatico agree judger it in essence and i think what you're getting at is that we're opponents are attempting to do is to expand the scope of title seven to resolve internal union disputes and that's really what this is the employee and i mean union members and their inside boss is that that doesn't seem to affect anything that the the congress would care about they say behavior that let the union discipline but i think under title seven i agree with you judge but but but you're saying congress said let the union are rational in the workplace no judge because it doesn't have to do with member they just can't fix it which writing is honest and it i just want to know what you're they're saying there should be a distinction between a has to respond in the workplace and a union union can't discriminate based on who is a member but they can discriminate all day long on a ras all day exempt unions from the same responsibility that employers and i don't understand what the policy or the philosophy would be to exempt union members unions from the way absolutely but can harm them in their work that's what i'm worried about that whether we have a distinction here because it's all she wants out of that union is she doesn't want to work with people who are ugly and rude about race but he can't affect her membership he can't classify her work in any way or or not consider their her grievances even he did put them in piles  view on this to what your friends textualist argument is about this on and i'd drive two things from what he said first off when you look at seventy three and you compare it to seven zero three c and we see that the words to discriminate against appear in both in the employer's section it goes on let me say one thing and they both conclude by saying because of such individuals race color religion sex or national origin so that's always a now in a it they inserted the words that mr bridges outlined in green with respect to compensation terms conditions or privileges of employment for employers that same language does not appear between the words to discriminate against in the race and sex language in c so essentially first off he's arguing that the prohibition against a hostile work environment for a labor union is actually broader than it is for an employee or very briefly what's your response to that i would point the courts to the supreme court's decision in america savings bank vincent which which address the very issue looked at the language of seven zero three eight one eight and found that that was an expansive concept not a limiting concept which sweeps gambit first argument in your view is answered by vincent correct ok now the second thing i want to conclude by is asking you the same question i asked mr burch when he was up first and that is do the words do do we read the words or two or otherwise discriminate against n c in connection with the words to exclude or to expel from its membership and mr byrd said no you don't do that that just describes the sphere of people we're talking about a low he concedes there isn't any authority for that but his best argument i think in saying that you it's not limited by that is that otherwise they would be similarly limited and it hasn't been held to be so similar to them and did so what's your response to that i think that response is that the beyond the actual language judges is the compelling argument is looking at the purpose  courts courts of consistently hope that the origin of the hostile work environment claim is derived from the way of the interesting part about that this case has some interesting facts that may make it hard easy or hard i don't know if this allegedly discriminatory conduct that created a hostile environment by johnson was not occurring for example on the casino floor where you would typically think the employer is responsible for that environment as i understand it it was occurring in the union offices now in this case that happen to be the local union offices but there's clearly a connection between the local in the international in some respects so why do we so cavalierly say well it's the employers job to control the workplace environment when this particular discrimination occurred it seems to me not in the workplace environment we would traditionally say it but rather within the union offices but i think the key judge is not to look at the you still have to find some workplace environment right to create a liability under a hostile work environment be the workplace environment of what of what the plaintiffs did on the casino floor representing employees where it could be the workplace environment where she's doing her union work which is in the union office right and so why would we want to say that unions can discriminate the unions can have hostile environments within the union office ignoring whether they're responsible for a that happens on the casino floor i think we're not ignoring it judge and i think which which are getting at is that the unions can be held liable for creating a hostile work environment only in their capacity as an employer that control the terms and conditions of of of of a victim of harassment here right plaintiff was none of those plaintiff was here kind of conceding that within the union offices the local union that was here employer might in fact be subject to a hostile environment all right but not the but not the i'd like to begin with and i think we finally got to kind of the heart of it here i think we have what say you about that let me start with your last point which kind of dovetails with judge cook's question about whether union harassment of an employee we in the union hall should be actionable under seven  three c and the answer is yes because that absolutely affects her rights as a union member she has a right to be in that union hall and not be harassed she has a right to have her grievances processed not based on her race she has the right to be on a panel because it didn't affect it affected her rights as a union member because she didn't want to be in the hall her grievances with the process and she couldn't even participate on the grievance board where she would process other people's grievances because these are all no i didn't because it was so hostile that he was driving her out of there and so these go right to the proposition proposition that talks about what's happening in the union hall we've got wrecked then your friend goes to the point that that the statute only extends to a union employer and that's not what it's the internet and that's the second point i wanted to cover it goes back to your earlier question kind of this division are second question presented goes after the union international as an employee you're because of its control that would be a cause of action under seven zero three eight but seven zero three c is not limited to a union as employer it's limited to sorry it applies to unlawful practices of the labor organization unlawful employment practice right i mean it's defining an unlawful employment practice as discriminating against someone as an employment practice presume an employer employee relationship no because the labor organization international can send its employees to the local just like it did here and they can be the harassers and when international is doing it that deprives mrs phillips of her rights as a union member just as much as it does if the local people do it in fact here the local people were trying to stop it and on the point of whether this affected her qua union member she testified about that id three forty two of the electronic record she testifies about how this discrimination affects her as a member of the union not as an employee of m g m and keeping in mind these two sites are about a five minute drive apart from each other so the question of how much control the national union has applies only to the second question presented whether we can stick them with seven or three a i ability under seventy three yes no question that an employee earlier the subsidiary can be liable under seventy three yes if the parent somebody in and says things that are a hostile environment is the parent also liable under seventy three a day the same as the international would be liable under seventy three  no because they would only be liable if they had sufficient control over the employee that would they would be considered their employer that's a second question presented with respect to the national but seven zero three c you're saying the parent could be liable if they actually control gas the employee who worked for the subsidiary but if there was no control then the fact question here is whether the international actually controls the employee on the second question presented on the first question presented there is no question that international is a labor organization first question is irrelevant if under the second question the international doesn't control the employee that's incorrect because seven o three a is an employer test seven o three c is a labor organization test and international can be a labor organization or not be suing under seventy three a we would like to if you agree with us under the second question presented a but they had sufficient could like to be you did and we did we have a claim under seven zero three and under seven ok we have both so if you agree with us on the second question and there's testimony in a brief about the control of the international exercises over the local then we get a seven zero three a claim to but if we're wrong about that and they don't have that control simply because their people did the harassment as a labor organization they are liable under seventy three c i don't think there's any dispute about that whether they control or not whether they control or not the fact that they send people in and deprive her of her rights as a union member is all that the statute requires what rights her rights to be in the union hall without being there without hearing all of right or or the right to be able to have a bathroom that's not segregated based on me under their position they could do that but they don't but they could and that's what they're advocating i understand the lates on who's going to give you the test that i think you should adopt this would be consistent with the eighth circuit the standard you should apply to a hostile environment claim under seven zero three c is whether the union engaged in conduct that might dissuade a reasonable employee from joining the union that's the first part or exercising his or her rights to participate fully in union activities and benefits they have absolutely denied the second part of that that's why you should reverse thank you all right thank you council it's an interesting case and we will take it under