of mean something like causation absolutely now what you will note is that in section five hundred and three b there are three clauses this case arises under the st clause with there is no reference to on account of the on account of is only clauses two or three so let's break five hundred and three dollars b three parts the part of the issue in this case as no causation requirement and the rd clause says it should be unlawful to interfere on account of having aided or incurred another in the exercise or enjoyment but the reason i think this court in issuance of the new policy and it doesn't require anything but the issuance of the new arbitration policy under issue one that that was on  interfering with anyone who may have a cold regardless of their knowledge and then the nd issue you seem to be telling us is that you're looking at the con of neiman marcus arbitration agreement which i'm a son would have been in the litigation history because they didn't deal with him directly after the th of july is that correct it is correct there are two separate and independent grounds on and the only really we're entitled to at this point if there was a violation of either rights is nominal damage however the way the city would look to me like reading the district court's position they about the fact that what they did in the litigation process would be interference well not it not exactly it's true that the conclusions of law focused on that but let me start with the findings of fact you are correct that findings of fact thirteen through seventeen address the st issue those are the findings that confirm that neiman marcus oh is this right stripping agreement and provided that the only way taylor bear could keep his job is health benefits in his right to reasonable accommodation and the eighty a was to be bound by this agreement that he refused to be bound by but report also found in binding the fact th right but if the litigation strategy is certainly could be on account of and found to be caused by the interest can be caused by the deliberate decisions of school would not have been before they knew of the injury so it seems like what you're saying is that if you if you maintain a litigation strategy based upon a theory that's all the only rejected that that's that extends over seventy years as here where the company insists that he party is bound by a right stripping agreement in forcible by monetary sanctions that actually could have been prosecuted by us oslo connection through that nd theory we presented were we did not present the case on a causal impact basis but this is under objective standard with a reasonable person tailor bear circumstances perceive it of impact it will have a tendency to chill is exercised protected a rights that's the standard that should apply in this case we know in fact through another finding of fact that the magistrate judge made that would be finding thirty three dollars that mr bear in fact quote felt intense pressure and coercion not period in full expected to be fired but under an objective standard it wasn't even necessary to show that he subjectively felt that pressure in fact when you imposed all the see whether through an arbitration agreement or not neiman marcus could list the cannot extend more than one year before terminations you have to agree your right to prevailing fees and costs you have to agree they would be subject to sanctions if you challenge this that the that texas law would apply even if you health fornia employee even if you're making california claims that the that we can add two more judgments if we disagree with the they could have done that outside the context racially agreement the interference would have been the same the impact under section five hundred and three dollars b would be the same it's a violation respect to this being have the right under the e p a whether done by policy or by the mandatory arbitration agreement does that mean that any time they ask an employee saw here in joining the application of that involuntary if that if the employer has you cannot work and enjoy the health benefits and the right to a da accommodation unless you succumb to this right stripping agreement that would be a violation of five a three day what it matter whether this was at the outset of employment or during you know no content future employment continued employment it would still have and we go back to the language of the statute it would have the effect of the pro of threatening intimidating words were interfering with the enjoyment or actually size of protected rights if i may reserve the remainder of my time court required appellate to show that he exercised the right under eighty a that me marcus interfered with that life and that there was a nexus between the two i'd like to address a couple of terms of that agreement are not an issue it's this court and the district court correctly determine what is relevant here is whether it even more because this club the surrounding arbitration agreement interfered with his rights under section five of the big i also want to go to the nd point maybe that somehow there should be a repeat different standard magic words when statutory time that but those are not in the st clause so you would have us in served what the court went so far as to talk about five o three b being modeled after the f h a f a's and taught interference vision and required a nexus as you pointed out in the brown or yes yes no input in braille but the court did not apply mcdonnell douglas burden shifting framework which has that causal element instead the test laid out seems to be a little bit different so i'm not sure that brown helps you it seems the cut the other way actually if you take a look at the decision in brown and it went through the similarities between the prevent any employer from actually rolling out an arbitration agreement so as this court actually said there's no way you can say that the simple road out of  has interference with with a b a rights that's illogical and i believe that the reasoning that you all made in walker fairly suggest that is it just a simple roll out of an arbitration agreement or is it taking the position that if you continue employment that if you don't resign you're suddenly bound by the terms of the agreement you a compel arbitration and in that particular case i want to bring to the court's attention its decision in taken door versus brown where it showing our stablish in discriminatory effect to sustain a fight with me be quick as you know that was not submitted there was no evidence to record and that as this court is aware discriminatory future but there would be no circuit and this is simply a case where the company even if it's not single out there except in that nd respect the judge really pointed to it absolutely targeted protected rights and or seem to forfeit those rights and as the court pointed out in this finding of fact sixteen it made clear that the consequences of bear refusing to be bound by the agreement people loss of his job but quote the loss of his health insurance benefits and salary this was clear intimidation threat coersion and interference that have been able to get an injunction against those ongoing threats at the outset of this litigation unfortunately have taken many many years to get to this point now at a minimum we're entitled to nominal damages for the reasons set forth in this court's two thousand and fourteen opinion  might potentially have an a d f other words you don't have somebody right now that's actually filed a claim it just have somebody is worried about it they might have a claim and it seems to me you're saying that if i had a jury instruction which the court has to do the same thing a jury does you have to figure what the elements of the offense are he would say that i would i would tell myself that this this would this policy would intimidate someone who had a potential  because his asking them to do things that they otherwise wouldn't be required to do so i couldn't join that before you ever filed a claim because it would have that effect and then if it was a damaged place the only issue that i would have to determine is whether there was a probable injury right there are no damages available on of the section either but yes if you were to conclude as a factual matter that that individual was so situated that the  rollout of this policy and that individual's case would have the effect of interfering with that individual's exercise from german so you would have to consider the extent to which the eighty eight dollars applied and the extent to which there was a likelihood of a chill or other interference with exercise of those rights then you would say that as to that individual there must be an opt out option provided you can't force that individual to give up the job and if it's an accommodation but in this case obviously there are cut as she wants that is i want to so what you're saying is that if you have a large company a lawful program like this you'd have to have an opt out and in the language of it well there are two options certainly you can make it voluntary by having an opt out or you could make along you could make it  form and not a right stripping it and that largely protects them where and even marcus went wrong here it is that it imposed agreement on pain of all that forfeiture that one by one where that individual is the likely as result of the roll out to interfere with his or still with the reasonable exercise for enjoyment based on how that individual is situated then yes the appropriate thing for a trial judge to do would be your enjoying the application out agreement as to that individual but you ploy or can avoid the problem by either providing an opt out making a post dispute otherwise making a voluntary