Good morning everybody, it's Sunday. Britt and I have the day off together, so we're gonna spend it right here. Drinking coffee and doing, well I was gonna say we're doing nothing, but. Britt started on this masterpiece. I'll let her explain it to you in a bit. It's her own recipe. You hear that? Honey garlic pulled beef sandwiches. I'll let quite the congregation in the audience here. I'm a star. Kind of magic are you performing? Shredding the beef. So good, so what is it exactly? What you doing here? One second, they're all foggy. So what you doing here? Just pulling the beef. Pulling the beef? Pulled beef. Pulled beef with what? Honey garlic. Honey garlic, it's your own recipe. Mm-hmm, honey garlic sauce. Is that it? Is honey garlic sauce? Yeah, we'll slap it on some buns and have honey garlic pulled beef sandwiches. I don't know if it's gonna be any good. I think it's gonna be good, jetted by the smell. If it's not good, I'll just freeze it and throw it in a stir fry in a couple of weeks. Is it ready to eat now? Technically yes, but I thought maybe we could let the sauce soak into the meat a little bit more. Is this what we're having for supper? Yep. Well, it's what I'm having for supper. You can watch it. Oh, Chevy, she's being mean to me again. Mom, be nice. Chevy's my defender whenever Pinch pinches me. Actually, we don't know if he's coming to defend me or her. Every time. He just doesn't like violence. Every time, yeah, one of us goes out or something. He goes running into the room to separate us. He's the peacekeeper. No fighting in the house. You guys think you're gonna get something over there, right? We've got lots ready. Did you? So I've heard in my comment section this being referred to as porridge. Out here, we call this oatmeal. Is that the same thing? You know what? I'm gonna treat myself. Timmy! I rarely get Timmy's in the morning now, okay? So it's Monday. It's a very special day because it's Monday. And it's a beautiful minus 27 degrees outside, Celsius. So it's cold. I'm gonna get myself a nice Timmy and warm myself up on the way to work, all right? Some of you have been asking, what's Timmy's? You must be new here. Welcome, welcome. Everyone is welcome here. Timmy's is short for Tim Hortons. In Canada, it is a patriotic duty for us to enjoy a good cup of Tim Hortons coffee. As often as we are able to. That's not really true. A lot of people in Canada actually don't like Tim's. Their coffee is kinda, but they do something to it that makes us keep coming back again and again and again. I don't know if it's something that they're putting in there or if it's like our sense of duty as Canadians. The coffee is not the great, I mean it's good. It's good, it's not bad. But every Canadian knows what Timmy's is, okay? This is called a Timmy Run. Could I get a large coffee with one cream and a shot of espresso in it, please? Could I also get a hash brown, please? No, thank you. That's all right. Could I just get a honey cooler donut then, please? That's it. Thank you. Dang it, I got myself a donut for breakfast. What's wrong with me? I was not planning on that. That was last minute in the moment. I was not planning on getting that. I already had breakfast at home. But don't worry, this donut is gonna make me strong. I feel like I have like Mickey Mouse hands right now. These gloves are like huge. These are my fancy gloves. My second fancy gloves. I got new gloves for Christmas from Brett. Those are my fancy gloves. These are my kind of fancy gloves. They're kind of fancy. These are the ones I don't wear at work. I got my work gloves in the back. This I just wear in the truck when the truck is still kind of cold. I don't have a heated steering wheel because I'm not Bill Gates. But anyways, enough chit-chatting with you this morning. Let's get to the truck, let's start her up and we'll let's see if she starts up first and then let's get something done today. Let's be productive. We have arrived. There's quite a bit of snow on the ground but it's a very light, fluffy snow. Oh, you're doing today, old Pete. You feel like starting up? What is the temperature outside say right now? According to the Chevy, still minus 27. It was minus 30 on my way here but that might have been cause the air was moving. I don't know where the sensor is for the thermostat. It usually stays pretty constant whether or not you're sitting still or moving. All right, all right. I'm gonna go and pick up the pickup. I'm gonna go and open up the hood. I'm not gonna pick it up but I'm gonna open up the hood, check everything underneath there, check the oil and all the other fun stuff. And then we're gonna see if this bad girl wants to turn over. I haven't plugged in, right? Yeah, she's plugged in so I guess we'll see how happy she is to get back to work Monday morning. Okay, closed up the hood again. Oil's all good, everything else is all good under there. Let's just button that up. There you go. Let's climb on in. Now I'm gonna climb all the way in because every time I don't climb all the way in, people get upset. All right. You ready? I've already cycled her through. Let's go. Back here. She's awake. First one too. Early bird gets the worm, maybe? We'll see. She's a chilly one. Brack myself up to the front and see what we got on the agenda for today. Hopefully I don't get stuck. Okay, that's not good. Okay. We may or may not be stuck. Oh boy. I think I'm stuck. I might be a little wiggle myself out of here yet. The diffs, real power. What do you think I'm gonna get stuck in the morning in this thing? Sorry to disappoint you. That's why in Canada, you always wanna have diff locks. I have my inner axle lock on now, which is a little different than the diff lock. The inner axle lock, what that does is it puts power, it puts power to both drive axles behind me there. But not all tires are locked together. Okay, it only puts power through to sort of one side of each. But if I lock up the diffs, I can only do that pretty much when I'm driving in a straight line and driving slowly because that actually locks the rear diff and both tires spin at the same time. So when you turn, it would be really hard on the diff if you do that. So that's how you get out of those situations. And in Canada, you always wanna have that option on your truck if you're buying a new truck. The inner axle's a little different. Like I said, it just puts power through to both axles instead of just one. But when I turn that off like this, now there's power going through to just one axle in the back. Anyways, I've checked in today already. They know I'm here, they know I'm ready to go. Let's see what they got for us. I see all of our winter trucks getting ready to go up on the winter roads today. I guess the roads up north were opened up. All the ice roads. And we have, I saw probably at least five or six trucks it looks like that are headed up on the ice roads today. So this is my load. So I'm not going up on the ice roads. I am delivering this and I'm gonna have to chain it down. It's just going around the corner really. But whoever delivered it here left no chains on it for me and that's pretty normal. That's not a bad thing. We all use our own equipment. It's kind of nice when it's left tied down sometimes but then you always gotta return that equipment to the driver. And judging by the amount of snow on this deck here it's all just powder. Super, super light, fluffy snow. Okay, well I'm gonna pull it out into the open. Anyways, get her all hooked up and tie her down. Bring her where she needs to be. Nice little Kubota. I wouldn't mind using this thing. I could use that. But we're all tied down or chained down behind me. And we're just a mile down the road. We're gonna head a little bit east a couple of miles and we'll deliver it there. It's only about a five mile trip. 10 mile round trip. Maybe not even quite shorter trips that I do. Bought this Kubota and I'm gonna make his day and bring him his new toy. 27 out today but it really doesn't feel like it. It feels quite warm. I don't know if our bodies have just gotten used to it or what but that doesn't feel like minus 27 today but I'm not complaining. The truck's running well, that's all we need. The body's working well. Everything seems to be in order. It was much heavier than the last one to the north end of Winnipeg. Got a lot of weight on us. I mean, we'll have the best traction possible. Still gotta be careful, especially on the ice like this. Usually they come around here and salt it around midday. It's kind of a rural area so it sort of gets done whenever it gets done. But this is a lot of truck traffic on this road so it usually doesn't take too long. As long as they both stay in that lane I don't really always trust them to stay in that lane. Sometimes everyone's in the right lane so you turn onto the left lane and then they decide they want the left lane and almost hit you. The exhaust is coming down just over that lane and there we go, there's a break in it. This truck is definitely noticing, hey, what'd you do? That last load was a lot nicer, a lot lighter. Pay more attention to my shifting. Use a few more gears, 45,000 pounds or whatever that stuff is in the trailer. And they were probably sitting at about 80,000 pounds because this load came from the US. It won't be over 80,000 pounds, that would be illegal on their roads. We're sure that we leave ourselves that same amount of space to stop. Back into the dock and boom, boom, boom. Didn't even have to roll forward the trailer. Though this is one of our better trailers, it should have rolled easily. It's always better when it goes easier than you thought it would.  All the freight in there has to be tied down to four inch straps or whatever is required to tie it down and secured as if it was an open deck. So all of those straps are in there right now and I gotta go clean them all up. I'll give you a look. Come with me, my friends. Come with me down the steps. Don't slip and fall, I already did that today.  Careful, careful, watch your step. She's icy out here. I'm gonna show you in the back. See I sat down the rear axle so that it lifts up the tail end just a little bit more. Roll up the back just like this and unload it in the dock. The only thing is now I've got these straps in here, right? So we just got them out of the way so we could unload. Now I've gotta roll them all up, clean them up and put them in these compartments on the side because these roll tight trailers, the equipment stays with the trailer. I'm gonna put them all in this box right here. So I'm gonna take care of that. You sit there, keep warm in your chair. I'll talk to you in a bit. Trailer back empty. It's quarter after two right now. I'll probably get back in about an hour so quarter after three we'll see what they got for us. Might have another quick one to do this afternoon. Maybe they'll send me on an overnight, I don't know. The options are limitless, almost, within the confines of the law and regulations. Of course, of course, of course, yes. Which way do I wanna go? But I'm already on this side of the road. I'm gonna go that way. Yeah, I'm gonna go that way. I'm gonna make it, I can make it. There's traffic lights this way. I don't wanna deal with traffic. I can still drag myself around. See, no problem. See, if here there's traffic lights at Inkster, then I can get back onto road 90 and go back to the North Perimeter and not have to worry about crossing over without traffic lights. It's always a little bit sketchy. See, I made the left turn onto Inkster here and now I can make another left turn northbound onto road 90 if you're familiar with Winnipeg. If you're not familiar, well, watch my vlogs long enough, you'll be familiar with Winnipeg. It's probably about the only time you're ever gonna hear of Winnipeg in your life watching my vlogs. Nice traffic light will make it easy to get onto the road, otherwise I'd have to cross over there. And I didn't wanna do that. Why do that when you can just come down here, right? Make life easier, work smarter, not harder. Whoopsie, what happened here? Let's go by nice and slow and are you in the ditch? Oh, it's a snow plow. The snow plow got stuck. Doesn't look like he got, oh, he probably got just stuck right in there. Just barely, I don't know what happened. There's the excitement for today, folks. Could really use some salt on these roads. Sand, salt, anything. This is just a skating rink. We could seriously hockey on this. They're probably gonna salt it soon, they don't leave it like this very long. But they scrape it as far down as they can and then it just leaves it like a sheet of ice until they salt it, right? And they don't always salt it at the same time that they scrape it. I'm gonna have to take this wide because I'm turning in right here. Watch out behind me, buddy. Don't you dare. Don't you dare. I know you wanna sneak in there, don't do it. I've gotta move extra slow because we're on the ice. Okay, patience. Thank you very much. That was a very patient driver behind me. I appreciate that. I really appreciate the patient drivers. I know I'm big and I know I'm in your way and I know I'm moving really slow. I always appreciate when people just have a little bit of patience with me. So I'm supposed to drop, I have a van trailer behind me, by the way. It's my third assignment to the day. I believe it'll be the final one. It's already four o'clock, so I'm guessing that'd be my final one. I'm gonna drop it in our door here and bobtail back and head home. Oh, quick now. We have our assignment for tomorrow. I gotta deliver whatever's on trailer 122D. First thing in the morning. So I found it right here. That's 122D. Let's go take a look at what we gotta deal with in the morning. See if I need to psych myself up a little bit extra in the morning or not. We'll see. Doesn't look like much. 122D, that's the one. You and me are gonna be friends tomorrow, not tonight. We're not friends yet. Tomorrow. Well, that's it, eh? That's the whole thing? That's it? What is this? Is that metal? That rubber. Metal. Okay. I think it's metal. Well, we can shovel this snow off in the morning. Looks like there used to be a truck on here. Look at this. There's tire tracks. So we're not delivering the truck, I guess. We're just delivering that. Okay, well, I guess we just gotta psych ourselves up the usual amount. Nothing too crazy, but it is gonna be a busy day tomorrow. We gotta deliver this, and then I gotta bring this trailer off to another spot in the city, drop it there. They're gonna load it up with freight going up on the winter roads, on the ice roads, and then once I drop that trailer there for them, I have two other trailers I have to pick up with some kind of equipment on it, bring them both back here, and then after that, we take another trailer into the city and load up more freight for the winter roads. The winter roads are only open for a limited amount of time in the winter time, obviously, because once things melt, you can't go on the ice anymore. So during this season, it gets very, very, very busy on the winter roads, so it's gonna be a busy day tomorrow. So we'll give ourselves a little bit of extra, extra oomph in the morning. Have an extra cup of coffee or something, turn the music up on the way to work. We're gonna have a lot to do tomorrow. It's gonna be busy, but we're gonna get it done. Oh, let's start to pick up up. How about that? From here I can tell and make sure that it's running. There you go. Look at me, all fancy command start. Come on. There we go. Oh, look at that. Oh, it's got a little bit of smoke coming out the pipe. Uh-oh. I'm just gonna act like that's supposed to do that. Okay. It's cold. I know that. And I don't think my block heater's working. I don't think it's right. I'm gonna have to get it looked at. Anyways, though, command start. I'm a fancy canuck. I think I'm gonna go outside in the morning and start my pickup truck. What are you crazy? I don't got kids yet. I gotta start my own truck. So, huh, remote start for me. I'm just gonna do my end of day here. And if I don't talk to you again today, then we'll see you tomorrow. I'm gonna go home now. I got my whole evening planned out. We're gonna do nothing. No, we did too much of nothing this weekend already. Can't do nothing today.  And if we have some time, I'm gonna do some farming. I am a farmer on Farm Simulator 22. If you're wondering, I'm quite the big deal. Trucker Josh is now a farmer Josh too, in the virtual world. I have another channel called TJV Gaming. I wanna start posting on there. I need a more powerful computer. I'm looking at one, but it's like, the one I want is like $5,000 in Canadian. Okay, that was probably like $4,000 or something American. It's top of the top line. Like there's top of the line and then there's the top of that yet. And then just above that, that's the computer I want. Top of the best, the best of the bestest. I wanted to be a desktop.  That's a $16,500 procedure, but we're good, we're good. We got that all handled. That's taken care of. Didn't even have to go into debt for it. We saved up the money for it. And then after that, we got some other debt to pay off yet. So it's not like I can buy this computer anytime soon. But I'm allowed to dream, okay? You can't stop me from dreaming. So far they haven't made dreaming illegal yet. So I have this thing though. I like to chase after my dreams. Some people just leave them in dreamland and that's boring. Why would you leave them there? I like to bring them to reality. Reach into dreamland and bring them over here. It's pretty hard sometimes, but if you work hard enough, we live in a country where if you work hard enough, you can bring it into reality and into this dimension. If you just work hard enough, right? And we're just gonna keep telling ourselves that I'm gonna keep working hard and one day we'll have everything we want. Or we'll have everything we need and that'll be good, right? That'll be good. I wanna go home. I'm gonna stop talking. I wanna go home.


to give back in that way. Hello everyone, we are wrapping up two days wall-to-wall coverage from theCUBE live at HPE Discover, Barcelona 2023. I'm Rebecca Knight, Rob Streche here. We've been together again, two days of coverage. What a conference. Yeah, it's been fantastic. I think, again, the energy level has been spectacular and I think the message has been on point. I think there's been a couple of really good key themes throughout from the edge to cloud with all of the HCI improvements and I think we'll talk about that a little bit but I think that when you start to look at sustainability, security, networking, I think a lot of that is key to the underpinnings of AI and where customers really want to go with that and being able to protect that data and store that data so that it can actually build AI. So I think it's been crazy a couple of days. It has and we're going to unpack this all with our special guest, Deanna O'Bear. Welcome back to theCUBE. Thank you so much. Global Hybrid Cloud Sales Director at Microsoft.  Start there. It is an interesting few days, right? There's just so much going on in the industry itself and then when you see this all coming together at the same event with HPE and like GreenLake, it's just mind blowing, right? The great announcements on like AI acceleration with HPE and NVIDIA, you talk about the growth of GreenLake with like $1.3 billion in one single quarter, 30% year over year. It truly shows momentum in hybrid cloud and I think if you take that all together with the customers that we talked to and the partners that we have here, I think it's a great event to be all together. So yeah, it's some good momentum I would say. Yeah, I would say so and I think Antonio had done his earnings call just before we got here and I think like you said, the $1.3 billion in ARR. So again, it's a cloud operating model and I think that's what really I think, Antonio leaned in early and I think we talked about this yesterday on the segment you were on that he really leaned into hybrid very early on and kind of took a course for HPE to go down that route. And I think it's been paying off for them. I think- Absolutely and I think one of the things that Antonio said as well is like HPE is becoming the fourth cloud, right? Like you have the big cloud providers there and now you have HPE there as well. And I think the beauty of this is it all works together, right? We all are depending on each other and when you're arriving in a hybrid world where data sits everywhere, anywhere, how do you then partner together? And I think that partnership between Microsoft and HPE to really unlock that potential for our joint customers is just really beautiful to see. Yeah, that's really been a striking, I mean talking about the themes that we keep hearing the strength of the partnership between Microsoft and HPE because of the common values and the common priorities and the common mindset around how we do business and that sustainability is really a core underpinning of everything we do. What are some of the things that you're hearing from customers on the floor? I mean, that's always sort of the most fun, the sessions, yeah, but you know. It's fun that you're saying this because sustainability is such an important topic for many, many customers, right? Like we have all those massive companies and as well smaller companies making those announcements around like how they want to save costs and like make sustainability a really important strategy as part of their organization. And so when you really think about sustainability is like it's not just saying it and like putting it on your website, but how do you carrying it out? How do you get net zero in your emissions? How do you reduce the water raised of cooling down your machines? How do you spend less electricity? And so all those things together is a really important topic. And so this week we have spent a lot of time with all kinds of customers. Like we have talked with customers from retailers, like manufacturers, banking customers, like public sector customers, government people, and they all have kind of a similar thing. It's like, hey, I have been using the native cloud Azure for a long, long time and I'm a long, long time customer as well of HPE but I want to bring it together. And how do I bring that together is really with hybrid cloud. And so hybrid is here to stay, the future is hybrid. And so we need to talk back on like the conversation we had yesterday around like it's not only selling it, it's like co-engineering, co-developing, like building products to really address that need. It's really great to hear that from our customers that we are really addressing their needs and their wishes with like the joint solutions we have. So feedback is all over the place with like, hey, how can I pull through my security that I have in the native cloud all the way to the edge? How can I use Defender on GreenLake? Or hey, I have a VDI environment in the native cloud and now I want to run it on-prem for my government people because I want them to have remote desktops at like skill. Can we do that on GreenLake? Yes, we can. And so pulling through the cloud all the way to the edge and the other way around is creating a solution that helps everyone in this economy. Yeah, I think that is the key is that all of these organizations don't want to have multiple different organizations in their IT to deal with, hey, one for cloud, one for on-prem, one for edge, and they're trying to bring that together in what they're calling platform engineering. And I think having a common set of tools, a common set of services, standardizing, because I think at one point in time, I talked to a customer and they had, they were in Azure, they were in AWS, they were in GCP, they had three different teams that knew all the APIs for those three different, they were building tooling for those specific things. I think now companies have, I think, wised up to a certain extent and said, hey, we want to standardize a little bit more. If not, maybe not on one, but put the majority on one, also get better spending and better discounts and all of that. Are you seeing that the customers this week have been really leaning in on that because it sounds like it from what you were saying. Yeah, no, absolutely. You see a lot of a single approach and single strategy. If you talk about security or your workloads, how do you have an edge to cloud or cloud to edge strategy in place as an organization? So we definitely see that. And that's what we address together with our joint development. Azure Arc is that too that gives you that single plane of glass where you can manage your multi-cloud, multi-hardware, multi-workloads in one single user experience. And that works natively with the GreenLake portal as well. And there's where you have GreenLake with the portal allowing customers to really manage that and putting through all the workloads both ways. So yeah, we definitely see that that skill now happening in the market. So when you go back home and you're telling your colleagues about what happened at HPE Discover, what are some of the things that you're going to take with you in terms of what you've learned here and apply it to say, hey, maybe there's a business opportunity for us over here or let's go over it this way? That's a really good question. There's just so much learnings and I think it's great to come in here with an open mindset. There's so much opportunity out there and all kinds of solutions. But I would say the takeaway for me is AI. It's such an important topic and you've probably heard many people talk about it including Antonio, but AI is a big umbrella name. And under that there's different kinds of services and different kinds of way to apply AI as well like how do you apply AI in the best possible way and in a sustainable way and responsible way. And so one of the things that I really heard this week from our customers is like, how can they apply AI at skill and in a responsible way in their own environments? Like we have all seen chat GTP with consumers and companies laugh but how we as Microsoft, we as a big state or stakeholder in that organization is converting that into a solution. How do you convert that solution inside your organization and making sure that your data is protected, your information is protected and that it doesn't leak outside of your organization. So one of my big takeaways is like the future's hybrid but the future's hybrid with AI and then how do you unlock that next wave of like data and apps at the edge to really connect everything from cloud to edge? Yeah, I think that's exactly it is that AI is going to be everywhere and with Sensei who was on stage with Antonio and they were doing computer vision to understand who's putting stuff in a cart or not taking it and taking it out and all of that to your point, not an LLM, but it's AI and ML underneath the hood that's really powering the computer vision. And I think that what I came away from here and talking to other customers around the coffee and the little cafe down there is that, really they're still on that learning curve. They're starting to dabble in this. Are you starting to see that where it's, they're starting to move from, hey, we're thinking about it to, hey, we're trying it out and we're bringing it in. Yeah, I just think you nailed it down with the learning curve. Customers are looking for trusted advisors and there's no better trusted advisors than Microsoft and HPE. And so helping them in that journey to apply it inside the organizations is in great way. And so you really see scenarios around, hey, how can we apply that in my organization? How do I apply this in my factory? Hey, how do I apply this inside my backend for my retail stores with smart cameras? And I think a beautiful case that Microsoft and HPE have been working on is with a big retailer in Asia, what we talked about yesterday as well, right? They had cameras in the store, in each of the retail stores and there were basically dumb cameras. It was just recording huge amounts of storage needed, but then they didn't do anything with that video feed. And now they have video analytics with AI on top of that, like live streaming and doing tech protection. So they got reports on what could potentially happen. What is real behavior? Are there people coming in that this may be not the right people that you want to have in your store because of a security risk? And so getting that all applied in a strategy inside your organization is where customers are really looking for those trusted advisors. So yes, we see definitely customers making that jump right now to apply it, but it's so important to have the right partners around you to help you in that journey. Well, that's what Antonio Nehria was describing this morning, that so many organizations are data rich and insight poor. So they have a lot of information, but they're not parsing it to understand what is actually meaningful, what could move the needle, and how can we put some of these insights into action. So as you said, they're looking to you, Microsoft and HPE, as trusted advisors to help them master this learning curve.  Oh, there's so many pain points, right? That's the mess of opportunity, wherever you talk about yesterday as well, the future's bright. I think one of the big pain points for customers is they don't know how to apply it. Like they hear about it, they read about it, they see it on like YouTube and all those other great platforms that we are on right now as well. But like, how do you take that and really apply that in your organization is one really big challenge. And of course you get now much more specialization across the road with partners, with ISVs who applied in their software, with Microsoft of course being really smart on this, like as well like HPE building that up. But one of the big pain points is really around like, I have this vision, I have this strategy, but how do I make it actually actual and how do I apply that in my organization? And that's where I think you get a whole new wave of ecosystem partners who are really specialized in that kind of like deployments. And that's where I see the big pain point right now is like getting over the hurdle to find the right partners around you that has that knowledge, that trust that really can help you in that journey. Yeah I think that was another theme that we heard loud and clear this week again and not surprising being in Europe in that partners mean a lot here. And not just Microsoft and Vidya and others who are technology partners, but also a lot of like Tiger and a number of the other partners who are buying from HPE and Microsoft and building other clouds and building other pieces so that they can actually play in that ecosystem. I think that was to me one of the key factors was seeing how well people were bringing it together. A lot of the value added resellers and SIs in particular that we're on. I think they seem like they are stepping up on the services side and really embracing the AI and trying to help people get ready for that while becoming more sustainable because obviously if you have old kit bringing a new kit is going to be more efficient and maybe you can get a consolidation ratio as well. I agree with you and like an important part of that is like that partner exists to your point, right? Like yes, HPE and Microsoft build great joint solutions on the hybrid cloud and that could include AI but you have a whole partner network of like the big companies when you think about global system integrators like an Atlas, Capgemini, Orange and all those big ones who need to get on this journey as well. And so training their architects, training their product teams so they can add their value on top of that is a really critical piece of that as well. So the world is in a big change right now from an ecosystem perspective. I think the future's bright and we have a lot of opportunity ahead of us. Well, that is the perfect note to end on that Dion. So thank you so much. You just tied that up with a bow and voila, thank you very much. Thank you for this week. Yeah. I'm really excited to be here. It was a lot of fun. Thanks for having us. It's been a lot of fun. I'm Rebecca Knight for Rob Stretch A and Dion Uber. We are wrapping up our two days of wall to wall coverage of HPE Discover Barcelona 2023. Stay to come back to us next time for our next show. You are watching theCUBE, the leader in high tech enterprise coverage.


You're watching FJTN, the Federal Judicial Television Network. A Federal Judicial Center production. Basics of Employment Law for Law Clerks. Now from our studios in Washington, D.C. Here is our moderator, Peter Zinnoper. Hello and welcome to this joint production by the Federal Judicial Center and the American Bar Association's section of Labor and Employment Law. Labor and Employment Law is one of the largest and fastest growing developments of the federal district court docket, accounting for almost 10% of all civil filings in the year 2000. And federal question EEO cases made up more than 13% of all federal question cases. Only prisoner petitions represent a larger proportion of civil or federal question filings. The numbers in the appellate courts are even perhaps more impressive. Here, EEO cases comprised more than one-fifth of all civil federal question cases decided after oral argument in the year 2000. And one last statistic. In 1990, more than 8,000 employment discrimination cases were filed in federal courts. But 10 years later in 2000, more than 21,000 cases were filed, an almost 250% increase. Because of the growing importance of these cases to federal judges and support to their law clerks, we have gathered four of the nation's outstanding practitioners in this area to explore and explain some of the basic issues you are likely to encounter. They are Janna Howard-Carrie, a venerable Beacher and Howard in Baltimore, Maryland, who represents employers. Wendy L. Kahn of Zwerdling, Paul, Leibig, Kahn, and Wally in Washington, D.C., who represents labor organizations. Mark Dichter of Morgan Lewis and Bakius in Philadelphia, Pennsylvania, who represents employers. And Richard Seymour of Leif, Cabracer, Hyman, and Bernstein in Washington, D.C., who represents employees and civil rights organizations. The labor and employment section of the American Bar Association strives to achieve this kind of philosophical balance among the constituencies represented here in its programs, publications, and governance. Other members of the section include lawyers who represent government agencies that enforce labor and employment laws, as well as neutrals such as mediators and arbitrators. We are glad we can join with the Federal Judicial Center to provide a balanced analysis of this area of law to this year's class of law clerks. Thank you all for being part of the program. Wendy, I know that you and Janna are going to discuss some of the subjects initially that cover the broad range of equal employment opportunity laws. Wendy, you're going to be covering a range of the EEO statutes, Title VII, the ADEA, and giving us a broad overview of coverage, of jurisdiction. And Janna, you're going to be dealing with two of the hottest topics in this area, sexual harassment and the Americans with Disabilities Act, as well as certain selected issues that are highly relevant in the last 12 months of decisional reporting. So Wendy, if you'll lead off for us and cover a broad range of the EEO laws. Thank you. I think I'll first talk about Title VII of the Civil Rights Act of 1964, which was amended in 1972, 78, and 91. And I mention that because the 1991 amendments were a series of amendments that were a reaction to a series of Supreme Court cases and either reversing some of those cases, affirming them or clarifying them. And you will hear reference, I think, a lot in this presentation to the 1991 Civil Rights Act and changes that were made. And as you research in this area, you should be careful because cases prior to 1991 may or may not be good law in this field. It's important in Title VII to take a look at the 1991 amendments. Title VII of the Civil Rights Act prohibits private employers with 15 or more employees, state and local government employers, the federal government, although with different procedural rules. And by the way, in 1995, Congress passed the Congressional Accountability Act, which made Title VII and a number of other worker protection applicable to a number of congressional entities. There are, of course, exclusions, certain types of employees are not included, and certain types of employers are not included, but in general it's a very broad coverage with Title VII. Religious organizations may discriminate solely on the basis of religion, as we'll talk a little bit about later. Employment agencies are also covered by Title VII, labor organizations are covered by Title VII, and training programs are covered by Title VII. Title VII prohibits discrimination on the basis of race or color, and that covers all races, including whites. It prohibits discrimination on the basis of national origin. National origin means the basis of the country from which one's ancestors come, not the basis of citizenship. And the national origin discrimination is subject to the BFOQ or the Bonafide Occupational Qualification Defense, which we'll talk about later. Jana, you, I think, have some additional information about the national origin. Right, Wendy. It's actually a fairly broad protection, because people are protected not only because of their country of origin or the country of their ancestors, but also because they may have the physical or linguistic or cultural characteristics of a national origin group. So, for example, the EEOC has promulgated, as it has in many areas that we're going to be talking about, guidelines that give us a little bit more information about how it interprets this protection as it administers Title VII. And those guidelines say, for example, that the protection of against national origin discrimination extends to people who are discriminated against because of their marriage or association with people of a national origin group, even though the individual may not themselves belong to that group, and to people who have a membership or association with an organization that is identified with or seeks to promote the interest of a special or national origin group. Like, for example, I believe there was a case some time ago involving a Chicano advocacy group where protection was extended to folks who were members of that group, even though they did not have any national origin affiliation other than that. Also to people who are discriminated against because of their attendance or participation in schools or churches that are generally used by persons of a national origin group and because an individual's name or their spouse's name is associated with a national origin group even though that person may not belong to a particular national origin group. Now, when you talk about a national origin group, you know, what exactly do you mean? Well, obviously, a country and identified political subdivision if someone is discriminated against because they're from that subdivision, and that's an obvious basis for discrimination because of national origin. But protection has been found even where no country was recognized, and there's nevertheless a distinct cultural or ethnic identity, such as, for example, Gypsies or Cajuns, the claims of a Palestinian were titled to protection despite the fact that they were the non-existence of a state of Palestine. In addition, the existence of historical national entities is also supported claims for national origin. For example, Serbians and Ukrainians have been protected under Title VII. Now, as you mentioned, the Supreme Court has really only addressed the limits of the term national origin on one occasion, and that was in Espinoza versus Ferro Manufacturing Company where the court held, as you indicated, that Title VII doesn't protect against citizenship discrimination unless the citizenship protection somehow has the result or the effect or the purpose of national origin discrimination. It should be clear that this isn't a question of, say, WASP versus persons from other national origins. Discrimination among people of different national origins, such as, for example, a Cuban over an El Salvadoran, is prohibited under Title VII. And one unique aspect of national origin discrimination has to do with rules that some employers have adopted that relate to fluency in English requirements. The EEOC has addressed that. These kinds of rules tend to be, as diversity in the workplace increases, employers have been more likely to promulgate such rules. And the EEOC has taken the position that if you have an English-only rule that's enforced at all times, that is a burden on term of employment and could constitute discrimination on the basis of national origin. So such rules are closely scrutinized, and employers generally are allowed to have them only during certain periods of time if they have a business justification for doing so and if they put the employees on notice of the existence or the consequences of violating such a rule. So I think those are the major issues that we see, I should say, most frequently in the area of national origin discrimination. And I think it's actually interesting that while Title VII doesn't protect against discrimination on the basis of the country of one's citizenship, there may be other laws that do, and for instance, while we're not going into it, the Immigration Reform and Control Act of 1986 not only expands the Title VII prohibition against national origin discrimination to employers smaller than the 15-person limit that exists in Title VII, but it prohibits discrimination in hiring and discharge based on citizenship status, although there are some limitations. So almost none of these laws are these days the only source of protection against discrimination. One of the other important grounds protected against discrimination in Title VII is sex. Failure to promote someone because they're a woman would be a clear violation of that prohibition. Some of the things that the sex does not refer to under Title VII anyway is sexual activity or practice. It does not prohibit discrimination on the basis of marital status.  It is also subject to this BFOQ defense that we'll discuss later. And it also does prohibit discrimination based on pregnancy, childbirth, or related medical conditions. And Janna would like to expand on that. Yeah, interestingly, it took a while for it to become clear that the prohibition on the basis of sex does, in fact, extend to discrimination based on pregnancy because the Supreme Court, in fact, held for a while under the original act that it didn't. But in 1978, Congress took a hold of the situation and enacted the Pregnancy Discrimination Act, which provides simply that the terms because of sex or on the basis of sex include because of or on the basis of pregnancy, childbirth, or related medical conditions. And further provided that women who are affected by those conditions must be treated the same for all employment-related purposes. Now, as Wendy mentioned, we should all be cognizant of the fact that states have enacted statutes that go beyond the protections of Title VII in a number of areas. And one of those kinds of statutes have been those that provide special benefits for pregnant women. And in a subsequent Supreme Court case, California Federal Savings and Loan, the Supreme Court held that the Pregnancy Discrimination Act doesn't preempt the statute in that case, which required employers to provide paid leave to female employees who were disabled by pregnancy, childbirth, or related questions. The PDA said the court is really a floor beneath which pregnancy benefits may not drop, not a ceiling above which they may not rise. But at the same time, I think it's important to know that the courts have generally not approved actions by employers that discriminate in favor ordinarily of pregnant women against, to the disadvantage of males. Most issues under the PDA really revolve around whether a particular condition, like abortion or infertility, is related to pregnancy or childbirth and thus protected. And whether a particular action taken by an employer was on the basis of pregnancy or childbirth. And whether employee misconduct caused by or related to pregnancy or alleged misconduct was protected by the PDA. For example, whether an employee who refused to treat an HIV positive patient, because she was concerned of the impact at that time, this was some years ago on her pregnancy, was protected by the PDA. And the court in that case held no that she wasn't. I think those are the major points relating to the PDA. Thanks. Another ground under Title VII is religious discrimination on the basis of religion. This prohibits discrimination because of all aspects of religious observance and practice, as well as belief. And in a minute, Janna will talk a little bit about that. Under this provision, the employer has the duty to reasonably accommodate to an employee's or prospective employee's religious observance or practice if the employer can do so without undue hardship on the conduct of the employer's business. And this is what ground is also subject to the BFOQ defense, which we'll talk about later. Janna, do you want to expand a bit on the religious discrimination prohibition? Yeah, I think really the first issue there is what do we mean by religion? And as a general proposition, the courts have handled the definition of religion in Title VII in much the same way that they handle the military service exemption based on religious beliefs. And when they are dealing with the balance between religious rights and the First Amendment. Basically, in a nutshell, I think the employee has to show that they have been discriminated against based on a belief that is sincerely and deeply held. And in that sense, the term religion is interpreted to include, for example, self-proclaimed Satanist, a refusal to sign forms related to drug testing when that was against a person's firmly held religious beliefs regarding intrusions on their physical self. It also obviously includes church affiliation, agnosticism, atheism, religious beliefs that aren't held by any church or even by one's own denomination if they are sincerely and deeply held are protected religious beliefs. And the term also extends to religious practices and observances and even personal dress and grooming observances. And the interesting thing about religion is that in Title VII, there are other statutes to do this, but in Title VII it is the only basis for discrimination where employers are not only required to refrain from discrimination, but also required to accommodate the religious beliefs or observances of their employees. The Supreme Court in Trans-World Airlines versus Hardison held, however, that this requirement to accommodate does not require an employer to bear more than a de minimis cost to accommodate the employee's religious beliefs and that requiring more would constitute an undue hardship which employers are not required to incur under Title VII. In addition, Trans-World Airlines held that employers are not required to sort of carve out a special exception to their seniority systems to allow employees to get the work schedule they want in order to take care of their religion if that would violate, in that case, a collectively bargained seniority system. There are a couple of places, as Wendy suggested earlier, where religious discrimination is permitted. For example, religious institutions are permitted to discriminate in employment decisions when an employee's conduct is inconsistent with the employer's religious beliefs. For example, in one case, an academy was allowed to terminate a pregnant unmarried teacher because in that religion, having sex outside of marriage violated that school's code of conduct. But in another case, involving almost entirely the same set of facts, the result was the opposite because there was a question of fact as to whether the termination was because of the premarital condition, premarital fornication, which would have been a justifiable termination as being against the religion of the academy as opposed to pregnancy, which would have been sex discrimination under Title VII and not a justifiable termination. This exemption, as that case indicates, does not apply to discrimination based on protected characteristics other than religion, such as sex, race, or disability. I'd like to just add one point on that, and that is that an employer that discharges only pregnant women and takes no action against the men who got them pregnant is engaging in sex discrimination. Indeed. Thank you, Ray. As you can tell, the scope of Title VII is very broad and the grounds for discrimination we've spoken about already, the kinds of actions that are prohibited are very broad. The statute prohibits discrimination in hiring, discharge with respect to compensation, terms, conditions, privileges of employment, promotion, tests, other selection criteria, employee benefits, training, work assignments, really the whole gamut. And it also prohibits employers and others who are covered from limiting, segregating, or classifying employees or applicants in any way that would deprive them or tend to deprive them of employment opportunities or otherwise adversely affect their status as an employee. That sort of language is used really to cover eventually almost any employment practice. Employment agencies, in addition, are prohibited from failing or refusing to refer someone to employment based on one of these protected characteristics or, in fact, from referring someone for employment based solely on one of these protected characteristics. Labor organizations are covered both as labor organizations and as if a labor organization is an employer, large enough employer, it's covered as an employer, but labor organizations are separately prohibited from excluding or expelling anyone from membership or otherwise discriminating against someone, failing or refusing to hire, or refer someone to a position or attempting to cause an employer to discriminate. And then training programs. Anyone who runs training programs, basically including apprenticeship programs, retraining on-the-job training programs, are prohibited from discriminating in admission to or employment or in any way in respect to these training programs. It's also unlawful under Title VII and many of the other laws are an entity to discriminate against an employee or an applicant because that person has opposed any practice made unlawful by the title. This is called the opposition clause and it's also unlawful to retaliate against someone because the person has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this title. That's called the participation clause. Title VII also specifically addresses discrimination in the printing or publication of notices or advertisements. There's limitations on the content. And now I mentioned before, excuse me, that there are some statutory defenses for gender, religion or national origin, but not for race or color, the employer may or the other entities may be able to establish a BFOQ, bona fide occupational qualification. That's when one of these factors say religion can be established as a factor in an employment decision, legitimate factor, if it is reasonably necessary to the normal operation of that particular business or enterprise. However, it is very narrowly construed and in effect the employer needs to be able to establish that all or practically all of the people in the protected category must be excluded in order for their normal business operation. We'll talk a little bit about that later. Customer preference, for example, is not a BFOQ. However, gender specific requirements for employment and professional sports generally is a BFOQ. There's another defense which is in section 703H of this Title VII, which has to do with bona fide seniority systems and that were not adopted with the intention to discriminate. Those and the consequences of them are valid even if they perpetuate the effects of prior discrimination. In Title VII cases there's a wide range of remedies. In all cases, injunctive relief may be appropriate. Attorney's fees and costs can be awarded. Affirmative action as may be appropriate. Such things as reinstatement or hiring of employees with or without back pay. These are typical remedies in Title VII cases as well as other equitable relief giving someone the promotion that they should have had. Now I want to make a comment about these back pay and make-hole remedies that are typical in Title VII. There is a presumption in Title VII in favor of back pay if discrimination is found and in favor of injunctive relief. One of the purposes of Title VII is to make victims whole. The courts have sort of crafted something called rightful place relief is the principle to sort of implement the make-hole concept. Back pay typically includes what you would imagine wage or salary, regular or anticipated wage increases that would have occurred during the period over time pay that you would have, a victim would have earned commission earning, shift differentials, bonuses, fringe payments, sick and annual leave that the person would have earned, pension benefits they would have earned, medical expenses that they incurred that they wouldn't have incurred if, in a discharge case if they hadn't lost their job. Expenses for job search, in effect it's to make the individual whole for the losses, the monetary losses that they incurred. They also may, back pay awards may have prejudge, prejudgement interest may be awarded on back pay awards. Now the victim does have the duty to mitigate back pay losses and the amount will be reduced by any interim earnings or an amount which could have been earned by using reasonable diligence to find substantially equivalent employment. There is a conflict in the courts about whether monies as unemployment compensation and certain other kinds of benefits, pension benefits should be subtracted from back pay or whether they are basically from a collateral source which is not something that should be deducted from back pay. By the way there is a two year limit under Title VII, back pay may not be awarded to a date more than two years prior to the date of the filing of the EEOC charge. In certain Title VII cases, those that involved intentional discrimination, which is not all Title VII cases as we'll discuss, the statute in 1991 was amended to provide for an award of compensatory damages and in some cases punitive damages. Compensatory damages include damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and punitive damages can be awarded in cases of malice or reckless indifference. Now there is our caps on the dollar amount of compensatory and punitive damages that can be awarded based on the size of the employer. I think before we go on to talk about the theories of discrimination, Jana probably can talk a little bit about sexual harassment and many interesting developments in that area. One thing I'd like any of the panelists to comment on and that is especially in light of these caps that apply, the damage caps that grow larger depending upon the increased size of the employer's workforce. The litigation that you've seen in the area of single employer or joint employer designed on the part of plaintiffs to expand the size of the employer in order to raise the caps. Any comments from any of the panelists on that? There's a wide variety of viewpoints among the circuits on what kind of evidence is enough and what a court should look at to see whether the employment relationship is a joint employment relationship. Many circuits follow the traditional National Labor Relations Board test with the eight factors, I believe it is, that the NLRB looks to. The Seventh Circuit has its own set of standards and there is a substantial amount of variation that's running out time to get into the ins and outs. There also are situations where you have ratification of a subsidiary's or franchisee's actions. The employer may be the franchisee that may have some toll-free number for sexual harassment. It may have sexual harassment policies, for example, that they insist the franchisees follow and they are trying to make sure the franchisees do not get into trouble, but they themselves then take over that part of the personnel operation and may become accountable. That really points up some of the danger of importing principles that were developed for one purpose and using them for another. The caps on damages really were related to essentially looking at the size of the employer and what would be an appropriate penalty for that size employer. If you have a defendant, the fact that you may find someone as a joint employer for certain purposes of evidentiary purposes or liability purposes, the question is who are you assessing the damages against? Is that an entity which was envisioned by Congress to be subject to the higher limits?  Quite on. This also is sort of a relatively late comer in terms of judicial approval under Title VII. Sexual harassment was recognized as a form of sex discrimination for the first time by the Supreme Court in 1986 in the case of Meritor Savings Bank versus Vinson. And since then, well, actually the EEOC, perhaps even prior to then, I'm not entirely sure about that, had promulgated guidelines to define harassment as taking basically one of two forms. The first one was called quid pro quo harassment and that basically included unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature when submission to that conduct was made a term or condition of the individual's employment or was used as the basis for employment decisions. The other form of sexual harassment was called basically hostile working environment harassment and that involved sex-based unwelcome conduct that had the purpose or effect of unreasonably interfering with an individual's work performance or creating and intimidating hostile or offensive working environment. Now, those two sort of forms of harassment, the distinction between them has been obliterated as far as assessing liability against employers is concerned by two fairly recent Supreme Court decisions in Farragur and Ellarth, and that was in 1998. These two cases really changed dramatically the ground rules for assessing a liability in sex harassment cases and just to spend a moment on them because they are so important and they do really lay out the foundation for much of what's happening in sexual harassment right now and it's a litigation. In that case, the Supreme Court reason really applying the aided in the agency provisions of the restatement of an agency that an employer is going to be strictly liable for harassment of any kind created by a supervisor who has immediate or successively higher authority over the harassed employee. Even if the employer in their management has no knowledge that the harassment is going on, it's basically a strict liability kind of situation if that supervisor's harassment culminates in a tangible employment action, an adverse action generally, such as a discharge or a demotion or an undesirable assignment. In that kind of situation, the employer is liable, there's no defense available. If, however, no tangible action is taken, which is maybe the case if a supervisor is involved in, is almost always the case if a supervisor is not involved, then the employer has an affirmative defense to liability for sexual harassment and in order to take advantage of that defense, it has to prove two things. The first thing really has two parts to it. The employer has to show that it exercised reasonable care to prevent and reasonable care to promptly correct sexually harassing behavior. The second prong is if the employer establishes the first one, the employer must also establish that the employee, in question, unreasonably failed to take advantage of the corrective and preventive measures that the employer had in place or failed to take reasonable efforts to avoid harm otherwise. Now, that raises several different questions. The first one is did the harassment result in a tangible job detriment? If it didn't, then the employer at least may have the opportunity to assert the affirmative defense. So we get to the question of what is a tangible job detriment and in the Supreme Court decisions, the court said that it's generally looking at a significant change in employment status, such as firing, failing to promote, or decisions causing a significant change in benefits. The court was careful to note with approval some earlier decisions by circuit courts holding that things like a bruised ego or a reassignment to a less convenient job or a demotion without any change in pay duties, benefits, and prestige was not a tangible job detriment. It would take more than that. Since Farragher and Ellarth, this has been a topic of considerable litigation and controversy in the circuit courts, I would say that for the most part, the courts are adhering to the language of the Supreme Court in finding that a tangible job detriment occurred only when there was a change in position or status that had present or in some cases, potential adverse economic consequences. But as I'm sure Rick would be quick to point out, that is not always the case. Then, you know, if you have a tangible job detriment, again, it has to have culminated in harassment. And the plaintiff basically has to show that it did so. And usually you do that in accordance with the typical burden-shifting pattern of proof in discrimination cases. That is, the plaintiff would show that a prima facie case of discrimination, the employer, if they could show a legitimate non-discriminatory reason for the tangible job detriment that had nothing to do with harassment, would do so and then the plaintiff is able to show evidence that those reasons are pretextual and that in fact the real reason was the culmination of harassment. If I could just interject one thing as you had predicted, there are some courts that have held that a significant negative effect in status or prestige of the individual will constitute a tangible job detriment because that is an employer action. Yes. Obviously the person who engages in this tangible job detriment usually is a supervisor and that's who we're talking about here and there are questions that arise as to whether an individual falls within the definition of a supervisor. I would say that as a general proposition the courts apply about the same standard in this context in Title VII cases as they apply in National Liberation Act cases and looking at whether somebody is a supervisor. Usually if they've got the authority to hire, fire, promote, demote, transfer or discipline, that's going to amount to a supervisory status and in some cases even if they have, they don't have that authority directly but have the authority to effectively recommend those actions then that will be enough. Now, if there is no tangible job detriment then the employer may have the opportunity to establish this reasonable care defense where he must show that he took reasonable care to prevent and correct the alleged harassment. There are, this has been the, I guess one of the fastest growing areas of litigation that we've seen in recent years. Generally in establishing that you've taken, I guess the first point I should make is that the courts insist that the employer show both that they have tried to take reasonable steps to prevent and to correct the harassment. Just correcting it after the fact is not enough. In terms of prevention, the first thing the courts usually look for is whether or not the employer had a policy prohibiting harassment. Although as the Supreme Court said in Farragorn L. Earth, a policy may be addressed but it's not necessarily required in some smaller, smaller companies that might not be an absolute required element of the defense but in most cases it has been. The policy statement also, the courts are going to require that the employer have acted to get the word about its policy out. Even if the plaintiff knows about the policy, liability is going to attach if the policy was not really an effective preventative program. And there are a number of cases that have been addressed, whether a particular policy, whether the employer's attempts to perpetuate that policy were enough to allow it to take advantage of the affirmative defense. With respect to showing reasonable care in the correction of harassment, the issues focus on whether the employer did a proper investigation and whether if it concluded it effectively remedied the harassment and did what it should in that area. In general, with respect to the employee's unreasonable failure to take advantage of those preventive or corrective opportunities provided by the employer, the second major prong of the defense, the courts have begun to look at these issues and the question really focuses generally whether if the employer had a grievance procedure or a complaint procedure, whether the employee had a good reason for not taking advantage of it. And in general, if the policy was a good one, it was an effective one, and if it had been promulgated and enforced effectively in the past, then the courts are going to find that the employee's failure to use it cannot be justified just based on your rumors that it's not effective or beliefs that they would be retaliated against for complaining under the procedure or that their complaints wouldn't be taken seriously unless they had some good evidence to support that kind of belief. I think it should be noted that these principles apply not just to sexual harassment, but they apply to other forms of harassment as well. The Supreme Court suggested that would be the case and it has in fact been so held in a number of cases since Elearth and Faragher. We should note that in sexual harassment you have various other elements of the claim. First of all, the plaintiff has to prove that the harassment was based on sex and a number of issues have arisen on that question. First of all, was harassment by a male against a male could be prohibited or was covered by Title VII and the court held that on the on-call case on Kale v. Sundowner Offshore Services in 1998 that same sex harassment is actionable under Title VII but not harassment based on sexual preference. Another issue that arises in terms of was the harassment based on sex relates to what we call the Equal Opportunity Offender, the person who basically harasses both males and females in the same way. I think it's fairly clear that that kind of harassment where someone is just generally nasty to all of the people they supervise, for example, is not actionable under Title VII but there are a lot of issues out there about whether the language used or the circumstances would suggest that the conduct was in fact sex-based or had the effect, a more harsh effect on women than on men. The harassment has to be unwelcome and that is assessed based in a very individualized way based on the facts and circumstances of each case. Questions come up about whether, for example, the affair was consensual such that it was not, in fact, harassment and about whether or not the plaintiff in the case, in fact, engaged in the same kind of offensive sex-based behavior as her alleged harasser did. And there are a lot of cases that examine those principles. The other big issue in harassment has to do with when the harassment is sufficiently severe and pervasive to hear about hostile work environment harassment to enable a plaintiff to establish a case without showing the tangible job action that we talked about earlier. And again, the courts are clear that the harassment must be severe or pervasive enough to create an environment that a reasonable person would find hostile and abusive and that also is subjectively perceived by the plaintiff to be abusive. The factors that the courts look at in assessing this were discussed at length in Harris v. Forklift Systems, a case decided by the Supreme Court back in the early 90s, and basically the court held there that you have to look at circumstances such as the frequency of the conduct, how severe it was, whether it was physically threatening or humiliating as opposed to being a mere offensive utterance and whether it unreasonably interfered with an employee's work performance and in some cases did it result in psychological harm. But none of these elements are essential to a determination that the conduct amounted to sexual harassment, they're all however relevant. That is a pretty quick and dirty overview of harassment with just two further points. Harassment by co-workers is prohibited just as is harassment by supervisors and where the harassment involves co-worker harassment, the courts apply generally a negligence standard to the employee complain or give notice and if not was it reasonable and once if the employer had notice of it did they give a prompt and effective remedial measure. In addition, harassment by third parties, customers, patients for example in a hospital may be illegal as well. Wendy? Jana mentioned that in the sexual harassment cases she discussed one of the typical methods of approving a case. I want to talk a little bit about the theories of discrimination that have developed under Title VII but are applicable also to most of the other discrimination statutes that are out there, some of which we're talking about today. The first theory is the disparate treatment or intentional discrimination and this is unlawful under Title VII when it's based on race, color, religion, sex or national origin under the age discrimination act when based on age under the Americans with Disabilities Act when based on disability and it's the most easily understood of probably the kinds of discrimination which is that the employer simply treats some people in a protected class or an individual less favorably than others because of this criteria. Now proof of discriminatory motive is critical. Sometimes it can be inferred from the mere fact of differences in treatment and some of our other colleagues here will be talking about this. Usually the finding of intention to discriminate is there's sort of two major ways of establishing it. One and probably the less frequent way is with direct evidence of intentional discrimination. This would be something like a policy that says women are not allowed in this job or black should get fewer benefits than whites or there's an age limit on how old you have to be or must be to transfer to certain positions, those kinds of things. They don't happen too often anymore but they do. The rebuttal to such kinds of evidence would either be disputing the existence of the policy or if there is a statutory defense such as the BFOQ that we talked about before or in the age discrimination there are some statutory defenses, that can be raised. The more typical method of also another kind of direct evidence might be statements by high level decision makers demonstrating bias against the plaintiff with regard to whatever the decision at issue was such as the supervisor's comments that someone's problems had to do with her age and entry into menopause and then takes an action relating to that. The rebuttal of these kinds of evidence is usually they're disputing the factual showing or trying to establish that the comments were not made close in time to the challenged action or demonstrating that the employer would have reached the decision in the same, in the absence of that and we'll talk about that a little bit later or if there is a statutory defense raising the statutory defense the more typical theory of discrimination is one in which the plaintiff must rely the parties on circumstantial evidence not direct evidence and as a result of a series of Supreme Court cases there is a burden shifting analysis which is known fondly or not so fondly as the McDonnell Douglas Verdine and then there are some other cases that are sometimes mentioned, Hicks, Reeves burden shifting analysis which is the three step process that Jana mentioned earlier which first of all the plaintiff must establish a prima facie case of discrimination in the case of a refusal to hire for example this would be that the plaintiff was within the protected class that she sought was qualified for the position that the employer was hiring she was rejected for the position that the employer continued to seek applicants and gave the position to someone of similar or lesser qualifications the burden of establishing a prima facie case is not onerous and then the burden shifts to the defendant to articulate a legitimate non-discriminatory reason for its action all the defendant has to do is introduce admissible evidence which if believed by the tryer of fact would support a finding that something other than discrimination motivated the challenged employment decision and this burden is only burden of production on the defendant not burden of persuasion then the third step is that the burden again shifts to the plaintiff and at this final stage the plaintiff has the opportunity to prove by a preponderance of the evidence that the non-discriminatory reasons that are offered by the employer were not the true reasons but merely a pretext for discrimination so in much of the litigation that revolves around what kind of evidence the plaintiff must show to satisfy the burden at this pretext stage of the analysis and Rick and I think Rick one of our colleagues will be discussing Mark, okay, we'll be discussing this in greater detail I think that before we conclude this part of the program we would like to have Jana address the Americans with Disabilities Act and the issues that are likely to come before federal judges and law clerks especially by virtue of the filing of summary judgment motions because of the number of hurdles that a plaintiff has to jump over to prove a case of disability discrimination under the ADA Title I Sure, I'd be happy to, Peter the ADA basically prohibits employers from discriminating against qualified individuals with a disability it differs in that it doesn't prohibit discrimination on the basis of a characteristic that everyone has it singles out a particular group of people those who are qualified notwithstanding the fact that they have a disability in addition this law requires that employers make reasonable accommodations for the disability of a qualified applicant or employee if doing so would allow that person to perform the essential functions of the job that he or she is seeking and of course this leads to a lot of subsets of questions and to order to make out a complaint the individual first of all has to show that they have a disability and if they are unable to do so and this is a question that comes up frequently on summary judgment decisions then they are not able to proceed with their claim now what's a disability? it is a multi-part definition I think most of the things I've talked about today have had multiple parts but the statute defines a disability as a physical or mental impairment that has a substantial limiting effect on a person's ability to carry out a major life activity it also includes a record of such a disability or being regarded as having such a disability even if the person does not have it the impairment part basically refers to physiological disorder or condition or cosmetic disfigurement or anatomical loss that affects one or more of the body's systems mental impairments also are covered and that is obviously an area of much debate about what qualifies as a mental impairment there's a lot of case law on that the EEOC refers complainants and employers to the American Psychiatric Association a diagnostic and statistical manual of mental disorders as being relevant for identifying those disorders now there are some conditions that are not covered illegal drug use is not covered although people who participated in or are participating in a supervised rehab program and are no longer engaging in the illegal use of drugs are covered and then there are some statutory exclusions of certain types of conditions such as bisexuality, transvestitism and so forth and so on those are listed in the statute the EEOC has said physical characteristics personality traits just having cultural disadvantages those are not disabilities and pregnancy is not a disability predisposition to illness or sickness the courts have also focused on whether impairments that were really temporary in nature were covered and generally they are not but assuming the person has an impairment they also have to show that that impairment substantially limits them in a major life activity major life activities have been interpreted pretty broadly by the EEOC and it has included that term to include reproduction so that an individual who was infected with HIV was substantially limited in the major life activity of reproduction and was therefore covered by the ADA that impairment though as I said has to be substantially limiting determining whether it is factors such as its nature and severity whether it is delast, whether it is permanent or has a long-term impact there is also an issue of what if the impairment has been mitigated or the effects of it have been medicated or otherwise corrected through glasses or some other mitigating measure and the Supreme Court has held that in assessing whether an individual is substantially limited the court can and should take into account any measures that the individual is taken to correct for or mitigate a physical or mental impairment and if it has been mitigated and is no longer substantially limiting because of that mitigation or medication then the person is not covered there are also questions that I'm not going to get into whether someone is substantially limited in the major life activity of working because that is a question unto itself then as I mentioned whether if one has a record of an impairment or is just regarded as having one they would also be covered but in both of those analyses it's important to look at both of the prongs the person has to have a record of an impairment that is substantially limiting in a major life activity that is regarded as having not just an impairment but one that is substantially limiting from there you go to whether the person is a qualified individual with a disability because it's not enough just to be disabled one has to show that they would be able to do the job notwithstanding the disability the essential functions of the job if reasonable accommodations are made this leads you into the question of what are the essential functions of the job in question whether the employee can perform them whether they're impairment if not whether a reasonable accommodation would enable the employee to do so and if so whether the accommodation would result in undue hardship to the employer I think that probably each of us have seen countless cases on each one of those separate issues that you've raised and there's no end in sight I think you would agree with me absolutely there's plenty of fodder for litigation in all of that well in fact the statute envisions that it would be a case by case analysis which requires that well we have had a brief fact packed concept packed overview of the substance of equal employment opportunity law litigation and now we're going to move into the procedural portion of our program and Rick Seymour and Mark Dichter are going to be responsible for presenting that Rick is going to conclude that we're going to move backwards in this order with a discussion about the remedies available under the employment laws and attorney's fees if the courts ever get that far and a certain number of courts have in the middle section Mark is going to cover the discovery issues, summary judgment and evidentiary issues and Rick you're going to start off with talking about administrative procedures exhaustion of remedies and timeliness so without further ado Rick Seymour for many of the fair employment statutes that one sees in litigation there's a requirement that a charge of discrimination be filed with the Equal Employment Opportunity Commission and I'll try to go point by point but there's a lot of complexity in the field the main purpose of the charge filing requirement is to give the employer notice or the union or the employment agency whoever is charged notice that there is a charge and to give the agency that receives the charge the opportunity to do an investigation see if there's potential merit to the charge and if there looks like potential merit to conciliate it this is not just an idle activity the EEOC receives about 86,000 charges of discrimination a year there are only about 21,000 lawsuits filed in federal courts per year so there is a major winnowing that takes place inside the administrative process the Supreme Court is going to be deciding this term whether a charging party must swear to the charge within the original period of time whether they're filing the charge or whether an unsworn charge is going to be sufficient under the EEOC regulations the person can sometime thereafter but outside of the charge filing period cure the defective as not having been verified once the EEOC receives a charge statutorily it's required to provide notice to the employer within 10 days the important thing about the EEOC process with respect to the private sector and state and local government sector as opposed to the federal sector which I'll talk about at the end is that it's an investigative process not an adjudicative process the EEOC does not issue findings of fact and conclusions of law it's not reviewed on the record trials with respect to what the EEOC decides or does not decide are completely de novo in an individual can sue whether or not the EEOC has actually reached an issue the EEOC process once the charge is in and often before much investigation has taken place is to make alternative dispute resolution available to many of the charging parties and respondents this mediation process occurs only if both sides agree to it but there are a substantial number of cases that do get resolved through that mediation as the EEOC goes on with this investigation it's got the authority to request the employer to provide information it's got the authority for more information it can interview witnesses if someone fails to provide the information that has been requested it can issue an administrative subpoena and if the person receiving the subpoena declines to respond to that then it can go into federal court to seek enforcement the EEOC process ends with a reasonable cause determination which is not a finding of discrimination it is simply that based upon the investigation it did cause to believe that the allegations of the charge are true or else it does not if it finds that there is cause the EEOC then invites the parties to conciliate and resolve the matter or the EEOC if that conciliation fails the EEOC can then file suit and try to obtain relief based upon the information in the charge now the EEOC and all other federal enforcement agencies only between 4 and 500 lawsuits per year in federal district courts that means that about 20,500 are filed by private parties the if there is no suit by the EEOC in a reasonable cause case the EEOC issues a notice of right to sue if the EEOC concludes its process and cannot determine that there is cause it issues a notice of right to sue there is a substantial amount of litigation about what happens when the EEOC has not had the charge for the full 180 days contemplated by the statute and it has not completed its process and the charging party requests an early notice of right to sue now after the 180 days are up


In Australia alone, it's estimated that more than 10,000 tonnes of cosmetic waste is sent to landfill each year. Makeup products aren't generally accepted in curbside recycling because they are too small to be sorted at a recycling facility and often contain mixed materials as well as remnants of the product, making them tough to recycle alongside glass and plastics. By making your own eyeliner you can help reduce the unnecessary waste that comes with cosmetic products. Reusing old eyeliner containers to store your homemade eyeliner in is a great way to minimise waste too. Just ensure you thoroughly clean the jars or containers beforehand and clean any brushes you'll be using to avoid bacteria growth. The eyes are very sensitive so it's important to ensure makeup and brushes are clean and free of any harmful bacteria and pathogens. Of the 82,000 ingredients used in cosmetic and personal care products, 1 in 8 were found to be industrial chemicals. These ingredients can be pesticides, hormone disruptors, toxins which affect the reproductive system and carcinogens. The eyeliner I'll be sharing with you today only contains 4 ingredients, all of which are natural and free from toxins. If you want to change up the colour of your eyeliner, say to brown for instance, use cocoa or cacao powder. This can also be done with other natural coloured powders like spirulina for green or blue, turmeric, yellow and other natural pigments to vary up the colour of your eyeliner. Please note that unfortunately this eyeliner is not waterproof. I've shared a recipe for a natural waterproof eyeliner in the description below. Beeswax is incorporated into that recipe to help the eyeliner sit on skin for longer and allow the water to run right off without causing it to run. To make this natural eyeliner, add one teaspoon of activated charcoal, one teaspoon of shear butter, one teaspoon of bentonite clay, a quarter of a teaspoon of jojoba oil and one drop of rosemary oil to a small bowl and mix well to combine. Use a mortar and pestle or the back of a spoon to really work the oils into the fine powder for a smoother paste. There should be no clumps. If the eyeliner is too thick or too dry, add more oil and or shear butter to create a smoother texture. Scoop the paste into your clean eyeliner container or tin or jar and smooth it down using the back of a spoon. Using metal with the bentonite clay will deactivate it. As mine is stored in a metal tin, it is deactivated and so won't pull toxins out of my skin. The purpose of the clay is as a binder in this recipe so it doesn't matter that it has been deactivated. To use, lightly dip a line brush into the eyeliner mixture and then scrape the brush against the size of the container to smoothen the paste on the end of the brush. From here gently draw on your eyeliner. It may take some practice applying and you may get some specs on your face as it is a powder which can be gently wiped away once dry. The eyeliner will take a few minutes to dry so after applying be sure not to touch it for a few minutes. This eyeliner will typically last a full day. Clean the brush after each use. A powder may also be needed to set the eyeliner as over long periods of time the liner can smudge. So using a black eyeshadow to set it a little or to smudge it out to create a soft smoky liner look will help the liner to set in place. And that's how you make a natural eyeliner at home using only four ingredients. I hope you enjoyed this video tutorial. Let me know if you try this recipe yourself and what you think of the liner. I'd love to know. I hope you have a wonderful day and I'll see you soon again.


Hi and welcome to the session. Let us discuss the following question. It says, what are the points on yx's whose distance from the line x upon 3 plus y upon 4 is equal to 1 is 4 units. To solve this question we need to know the distance of a point say x1 y1 to the line say ax plus vy plus c is equal to 0 which is given by mod of ax1 plus vy1 plus c upon under root of a square plus b square. So this knowledge will work as key idea. Let us now proceed on with the solution. We have to find the points on yx's. So if we have any point on yx's x coordinate must be 0 because yx's is the line x is equal to 0. So let 0 a be any point on yx's. Now the distance of the point 0 a to the line x upon 3 plus y upon 4 is equal to 1 is given by mod of 0 upon 3 plus a upon 4 minus 1 upon under root of upon 3 square plus 1 upon 4 square. This is by using the formula for distance of a point to the line and here a is 1 upon 3 and b is 1 upon 4 and c is minus 1. Again this is equal to mod of a upon 4 minus 1 upon under root of 1 upon 9 plus 1 upon 16 and this is again equal to mod of a upon 4 minus 1 upon under root of 16 plus 9 upon 144 taking the LCM. Again this is equal to mod of a upon 4 minus 1 upon under root of 25 upon 144 which is again equal to mod of a upon 4 minus 1 upon 5 upon 12 and this is again equal to 12 upon 5 into mod of a upon 4 minus 1 and we are given that this distance is 4 units so the distance is 4 units so this implies 12 upon 5 into mod of a upon 4 minus 1 is equal to 4. And this implies mod of a minus 4 upon 4 is equal to 4 into 5 upon 12 and this implies mod of a minus 4 is equal to 4 into 4 into 5 upon 12 now 4 into 3 is 12 so this is equal to mod of a minus 4 is equal to 20 upon 3 and this implies a minus 4 is equal to 20 upon 3 or a minus 4 is equal to minus 20 upon 3 this implies a is equal to 20 upon 3 plus 4 or a is equal to minus 20 upon 3 plus 4 this again implies a is equal to 32 upon 3 or a is equal to minus 8 upon 3 hence the points on y axis are 0 minus 8 upon 3 and 0 32 upon 3. So this completes the question hope you enjoy this session goodbye and take care.


For more videos on People's Juggles, please subscribe to our YouTube channel. The movements or the protests started because of a proposal by the Minister of Communications to put a tax of six dollars on the WhatsApp call. This is something people would laugh about if you think that such a suggestion launched the largest movement in the history, the contemporary history, modern history of Lebanon after the Civil War. So it is a cheaper mode of transport. This is a national lifeline. So that is being destroyed. So it's a part of the neoliberal policy that is being aggressively pursued by Modi government. We're talking employment, we're talking housing problems, we're talking services of all levels. We're talking of a country where there's only one sector working which is the banking and real estate sector. So this is what lets people to go out to the streets. That's a national asset will be dismantled and sold to the multinational company. It was a budget where the government was extracting resources from the poor to feed a small group of refugees. And the people said it was a criminal budget. And the songs of Sirena and neoliberalism managed to convince a sector of the population that Macri could be a good president. And Macri did what he came to do. He precarized the lives of the Argentines to the poverty that already existed, that was a lot and it was serious. He added four million poor people. Today we have 40% of poverty in our country. The average wage is below the poverty line. The minimum wage is below the poverty line. That is, there are more poor people. The poor are more poor than they were before. And a private sector worker with a low wage doesn't get to the end of the month. This, without talking about the external debt, is almost 95% of the gross product. All the parties, meaning all the sectarian lords, meaning all war mongers, meaning all the bourgeoisie are supporting one another. And the members and the groups who are in the streets, representatives of the proletariat, the working class, the disenfranchised women and refugees. So for us, you know, the separation and division is logical and normal. And by asking for the resignation of the president, now he almost has no support of any sector, only a small fraction of the oligarchy and of the North American imperialism. So, with this situation of mobilization, there is a repression of the government. The government is using the police to kill the mobilization. And the people are responding for what they are doing. But they are acts of defense of the people. Because it is very easy to mobilize the popular mobilization. We all know that when capital is threatened, it hits hard. And this is what we were afraid of, that they took their... And this is what happened. They took their thugs into the streets, all over Beirut, all over the regions, people were attacked, people were shot, people are threatened everywhere. So this is one thing that happened, but people stayed in the streets. And this is what showed how steadfast people are. So let's see how steadfast we can stay, because we think that they are very much afraid. We're not the ones who are afraid. We are the ones who are afraid.


Welcome to All Hands Update. I'm Petty Officer Ian Cotter. These are your headlines from around the fleet. The Navy is scheduled to present the U.S. Navy Meritorious Unit Commendation to HMCS Toronto of the Royal Canadian Navy February 20th. Toronto was selected due to their support of Combined Task Force 150, significantly disrupting the flow of drugs and criminal and terrorist activities in the U.S. Central Command Area of Responsibility. This is the fifth time a non-U.S. naval force has received a U.S. Navy unit decoration in the last 45 years. February is National African American History Month and this year's theme is a Century of Black Life, History and Culture. African Americans have served with honor and valor in the defense of our nation since the 18th century. This month we will remember the many brave actions of African Americans, actions that shaped our country and our military. Visit Naval History and Heritage Command's website for more information.