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tv   Politics Public Policy Today  CSPAN  January 5, 2015 5:00pm-7:01pm EST

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essential to the powers of the majority leader. >> where on the senate floor do we find the majority and minority leaders and how do they work together? >> the majority and minority leaders are front and center. they both occupy the two front row center seats since 1937. the democrats were there a little earlier. the republicans had to wait for a senior senator to retire to move that seat up there. again, around them are all the senators by seniority. the freshmen who just got elected will be way in the back in the corner. and the senior senators are usually down in the center aisle, or towards the middle. and that's so that again if the presiding officer is looking out over the body and a number of senators are seeking recognition, the people front and center, of course are the ones who catch the presiding officer's eye. the people in the back have to shout a little bit and wave their arms to get that kind of attention. so that's one reason people tend to move to the front. but they have been there.
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they sign their names inside the desk drawers to show that they sat there. all the leaders of the republican parties and all the leaders of the democratic parties are in the center front row seats. beside them would usually be the party whips, and behind them the senior members of the party. that's the seat of
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in leadership? >> the senate is -- the 100 personalities are a huge influence on the senate. even a small change in membership has an impact. large changes have very large impacts. and especially the leadership. because there's a certain rhythm that is established by the leader. leaders talk about quality of life. they decide whether or not you'll work on mondays and fridays, how late at night. they decide the tempo of the senate. and so a lot of it has to do with their own personalities. mike mansfield is very different from a robert bird, even though they were from the same party. mansfield was much more laid back, bird a much more hands-on leadership. you see that in the republican party as well. bob dole> bw or trent lott or bill frist will each have a different style, different advisers, different tactics. and so senator mcconnell and senator reid were both the whips of their party.
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they both spent a lot of time on the floor. they both knew the rules and precedence very well. and each have images for what they want the body to@a3x do. and so it will be very interesting to see now with the switch in leadership if there is much of a change in style of the senate operations. senator mcconnell gave a speech at the beginning of the last session in which he talked about why he would like to see in the senate, more regular order, more monday and friday sessions. a variety of proposals. and i think he will act to carry out that in this coming congress. >> we're going to hear from former senate majority leaders howard baker, bob dole, george mitchell, and robert bird. can you say a word or two about each man and the kind of leader he was? >> that's right. after 1980, there was a big shock when the republicans took the majority of the senate for the first time in 26 years. there was only one senator who had been around the last time the republicans had been in the majority, and everybody was a
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little bit stunned. no one had anticipated a change of that magnitude. even thegphlç republicans hadn't anticipated they would take charge of the senate. senator dole wos in line to become senator of the finance committee. he said, who's going to tell russell law, who was the longtime chairman of that committee. one of the things that made that transition so much easier in the senate than the similar transition that happened in the house in 1994 was that howard baker was the majority leader. the incoming majority leader. he was what i called institutionalist. he was the son-in-law of a former republican leader everett dirksen. he was the husband of the dirksens' daughter, joy. he eventually married -- his second wife was senator nancy kesbaum. and:nx loved the senate. he loved the traditions of theka& senate. he understood it. he had worked closely with the democratic leaders when he was the minority leader. and so there was almost a
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seamless transition to it. and i think everyone who worked up here at the time breathed a great sigh of relief knowing that howard baker was coming in as the majority leader. he had a great sense of humor. he was the type of person who sort of grasped what was going on at any particular time and could figure out what to do about it. hfs a problem-solver. not surprisingly, when the white house got into trouble about the time of the iran contra scandal, they brought howard baker in as chief of staff for president ronald reagan. for exactly those reasons. he also had a great sense of real estate. traditionally the democrats had a nice big office next to the senate chamber and the republicans had a much smaller office down the hall. senator baker said i will not change with the democratic leader, but i would like to add to my suite. and so he took over quite a bit of territory rooms immediately around it. so the republican leader now has
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a very large coherent section of rooms on the west front of the capitol, thanks to howard baker. the main room is now known as the howard baker room. >> bob dole? >> senator bob dole came up from the house of representatives as a fighting partisan. he had been chairman of his party. he was the kind of person who could really debate ferociously. and in the senate this really fighting partisan turned into a wise pragmatist. a man who realized that things didn't have often because -- in the senate because they were ramrodded through, they happened because they were negotiated through. and that you had to find co-sponsors and colleagues on both sides of the aisle. senator dole was the kind of person who could sit in a chair with a yellow legal pad and a bunch of senators standing around him working out the text of the amendments that would get them through the hurdle that was going on. and i think he was leader on two
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occasions. first, in 1985 and '86, and then minority leader for a number of years, and then came back as majority leader in 1995 and '96. all of those occasions, the majority and then the minority, he was the kind of person who worked out difficult arrangements. he also had a terrific sense of humor. he was wonderful to listen to. he enjoyed the history of the senate. he used to give historical minutes at the beginning of each day. and for the senate q"dbibicentennial in 1989 we published dole's historical almanac. he got a great chuckle out of doing that. and he always wanted more. so the circle office was always working closely with him on that? >> george mitchell? >> george mitchell you know if you just watched him, he looked very professorial. he looked very benign. he looked very calm and "zhgs
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mild-mannered. but if you talked to the senators, they all said this is a very tough politician. this is a person who knows what's going on, who is really scheduling and planning things, and he was a very effective leader. but he was just sort of the opposite of what he appeared to be, this sort of detached person. he was not detached at all. he was very much focused on what was going on. there was a time when the parties were changing when the structure of the senate was changing. it was senator mitchell majority leader who began to complain the most about how many blocked motions there were. he thought more filibusters were coming along. he really tried to get around that. but politics was becoming more polarized even then. but he was a very shrewd leader and figured out a lot of ways to get around that. and he -- i think he had great respect from all of the senators. it's not surprising he went on to a career in diplomacy after that.
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brokering deals between catholics and protestants in northern ireland. he had that kind of a judicial temperament that people trusted on both sides. he also had a way of deciding there were solutions to these problems that you could find. >> finally robert bird. >> of all the senators i've worked with, i probably worked more with senator bird than any of the others. the same thing is true of my predecessor dick baker. senator bird tapped to be in the historical office on a regular basis. he was unique in the senate. he never went to college. he took a class here and there but he never got a college degree. he actually went to law school as a senator at night. and the american university law school recognized his service in the house and the senate as the equivalent of a college degree. and he went on to get his law degree, and he had president kennedy come to present his diploma at his graduation. but i've always thought that here he was in a body full of rhodes scholars and yale and
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harvard graduates stanford graduates, anda, leaguers and people with terrific educations he never felt interior about that. instead, what he felt was that he never ended his education. he was always reading. he was always studying. once i rode with him to an event, and in the back seat of his car was a copy of the captain of monte cristo. i looked at it with surprise and he said, i never had a chance to read that when i was younger. he was constantly reading. his wife, i remember she complained she could never dust her dining room table because he was always bringing books home from the library of congress that was stacked up on it. in 9v 1980 by chance he gave a speech, very impromptu speech because his granddaughter's school class was in" the gallery, and he gave a speech about the historical chamber of the senate. several senators came up afterwards and said, i didn't know that. that was very interesting.
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so he began to give more impromptu speeches about the parliamentarian, the chaplain, and the rules. eventually he came to the historical congress, i want to give a series of speeches that can be published as a book on the history of the senate. so we worked very closely with him, about ten years as he did that. usually a friday afternoon, quiet friday afternoons nobody else had any business, he would go on the floor and deliver these speeches. often he would memorize them. it was printed by the government office. he also studied the british parliament. he was constantly studying things. that gave him a huge advantage on the floor of the senate. well, he also studied the rules of the precedence in the senate. he used to read through the precedence book, which is about 1,000 pages. every congress, with a yellow marker, going over it looking for things. when you were on the floor and you were arguing with senator bird on an issue, he knew the
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rules, and he also knew the history. it was a very hard combination to get around. very few people took on senator bird in any kind of confrontation on the floor. he came into office as majority leader after being whip. and he was whip for mike mansfield. mansfield was a very laid-back leader, who believed all senators were equal and he was not the ring master in the senatorial circus. senator bird admired lyndon johnson, mansfield's predecessor, who was a much more hands-on leader. he also admired richard russell, for whom this building was named, who knew the rules inside out. and so bird spent a long time studying the rules of the senate studying the procedures. and he was determined when he became leader, he was going to make those rules -- make the senate work more efficiently. so he cracked the whip a lot more than his predecessor had as leader. and he was you know a very
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tough maneuverer, and negotiator. but he also worked closely with his republican counterpart. senator baker was -- was the republican leader when senator bird became the democratic leader. they worked together, they got the panama canal treaty passed together and it was only because of their partnership that that happened. and then when senator baker became the majority leader, now he had to face senator bird this man who knew so much about the rules and senator baker tells a story that he went up to senator bird one day and said, i'll make you a deal. i won't surprise you if you don't surprise me. and bird said let me think about that. at the end of the day bird came back and said i agree. and that was their working relationship. they did not blindside each other. and that kind of cooperation helped to make the senate work even when they disagreed with each other even when they were fighting with each other, they did it by the rules and they respected each other as ív5r
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colleagues. and as adversaryiesadversaries. >> donald ritchie, thank you very much. >> my pleasure. the 114th congress gavels in tomorrow at noofr eastern. we'll see the election for house speaker. you can see the house live on c-span and the senate live on c-span2. and with the new congress you'll have the best access the most extensive coverage anywhere. track the gop as it leads on capitol hill. and have your say as events unfold on tv, radio and on the web. the u.s. supreme court heard oral argument last month in a case on what accommodations employers must provide to their pregnant employees. a pregnant u.p.s. driver was denied a light-duty assignment after her doctor advised her to avoid lifting anything heavier than 20 pounds. she took extended unpaid lead and lost her employer medical coverage. after giving birth she sued sunday!b0 the 1978 pregnancy agent. this oral argument lasts about an hour.x?t
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>> case 121226, young versus united parcel service. mr. bagenstos. >> may it please the court if peggy young had sought accommodation for a 20-pound lifting restriction that resulted from any number of conditions, whether acquired on or off the job, the summary judgment record reflects u.p.s. would have granted that accommodation. but because peggy young's 20-pound lifting restriction resulted from her pregnancy and not from one of those conditions, u.p.s. rejected her request. that we submit is a violation of the second clause of the pda, which if it means anything must mean that when an employee seeks an accommodation or benefit due to her pregnancy, that she is entitled to the same accommodation that her employer would have given her. >> you make it sound as if the only condition that was not accommodated was lifting restriction because of pregnancy, and i did not understand that to be the case.
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that's the way you start, you want to say it's only pregnancy. unless i've missed something. >> so i think on the summary judgment record here, your honor, the three very broad classes of limitations that u.p.s. accommodates do at least there's a genuine issue of material fact that they cover the waterfront of everything but pregnancy.89 our position is that those three broad classes by themselves even if there are some conditions out there that they don't cover. >> soóf well i think that's a necessary starting point for your case. it seems to me you started out by really giving them this impression. >> your honor, i would submit that's not right. i would submit on this summary judgment record, u.p.s. acknowledges that they provide accommodations to people with on-the-job injuries. also the summary judgment record shows that u.p.s. provides accommodations to drivers with off-the-job results that result in d.o.t. disqualification. u.p.s. has not been able to point to a single driver who had
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a lifting restriction who was not pregnant. >> what would your case be, if we accept for argument's sake, that there's a category, people who are injured off-duty who do not get light work assignments. you point to the three large categories. let's suppose one category doesn't. >> yes. in that case our position would be, the statute demands that the employer would be required to treat the pregnant plaintiff the same as those classes of employees who get accommodations accommodations -- >> it doesn't have to be read that way. it could be read that way. it could also mean that if you give it to employees generally, you have to give it to pregnant employees. although there may be special classes. i think we had an example about if you have your senior
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employees driven to work, when they are unable to drive themselves, you have to do the same for pregnant women. >> would you say that? >> no, we would not say that. because our position is that the statutory text requires that employers provide workers who are disabled by pregnancy, the same treatment they would receive if they, themselves, had a similar -- had a condition with a similar effect on the ability to work but had a different source. so what the statute prohibits is discrimination based on the source of the work force limitation, not based on seniority, not placed on position with the company. >> suppose, i mean, we have a brief that you've seen from the truck drivers, and they say that -- give many of these benefits to anybody. and suppose they do give a benefit to a truck driver who has driven over a particularly
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difficult mountain pass, you know, or gotten himself in some danger. now, the harm or b the disability is lifting precisely the same. it's just that the source was different. you see, this came from taking a -- some truck, doing something special with it. and again it's a most favored nation problem. i don't know that source gets you out of it. what do you0@v say about that? >> i think as to that, the important point is that is an example of what may be an idiosyncratic thing by an employer to a particular employee. >> i don't know that it's idiosyncratic. because i don't know all the workplaces, and i cast imagine employers have all kinds of different rules for different kinds of jobs. and are you saying as long as there's one job in respect to which, let's say they give them
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benefits of $1,000 a week when you're hurt on this job but not on others? then do you have to give them to all pregnant women who hold different jobs? now, i think the answer to that must be no. but the problem for that and for you is, how do you distinguish your situation from that? >> right. and i think actually what justice scalia's question to me a minute ago contains the entrance to that. so it seems to me i might agree that an employer that provides a particularly good deal to a single nonpregnant employee doesn't set -- >> single? there's a class of people? >> but when you have an employer that provides to a large class, to its employees generally, to many of its employees, this accommodated work treatment -- >> i see that that now -- the other question i have, and it's the only other one, is that it did seem to me there is a way, given your theory, a quite easy way for you to win.
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and that would be to bring a disparate impact claim. and that's what i thought disparate impact claims were about.jum but you didn't bring the disparate impact claim. and therefore, what am i to do? because i don't know that you want to twist the disparate intent claim out of shape when you have such a beautiful vehicle to bring a claim of the kind you just articulated. >> i think the vehicle to bring the claim of the kind that i articulated is the second clause of the pda. the second clause of the pda said women affected by pregnancy, childbirth are treated the same -- >> you read that as an accommodation provision basically. and maybe it $[, but let me ask you this question, which goes to the issue of whether the types of accommodations that you would say are required have to meet
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some reasonableness standard. let's say there are two categories of employees who have lifting restrictions in their job descriptions. one consists of people who work alone, and they lift all the time. a driver who is driving a truck by herself and has to lift heavy packages all the time would fall into that category. the second category would consist of people who lift more occasionally, and they do it in a place where there will always be lots of other employees in the same class available to do the lifting. now, if an accommodation is provided to the workers in the second category would you say that one must also be provided to workers in the first? >> no, i don't think so. so our point is precisely that a driver who is pregnant has a limitation related to her pregnancy, is entitled to the same accommodation her employer would have given her if she had sought for a different medical
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condition than -- >> why doesn't that second class fit within your reading of the statutory text? >> because in our view, the statutory text by drawing this distinction between employees affected by pregnancy, childbirth and related medical conditions and that the employers can't draw that distinction, they instead look at only the ability to work, what it does is prohibits discrimination based on the source of the disabling condition, not onw.3it different job classifications. if an employer says no driver who drives alone is going to get an accommodation whether for anr'> on-the-job injury, d.o.t. disqualifying injury or pregnancy, that's fine. we do not read this statute as an independent reasonable accommodation -- >> why then -- i guess i'm not quite understandingtiy why you can get the sourcejrhh into a different category from all other classifications. so explain that to me.
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>> i think it goes to the statutory text. the statutory text says, women affected byh4 childbirth, and related medical conditions shall be treated the same as others with the inability to work. what it is saying to an employer, don't consider whether this person is affected by pregnancy or not so affected. that's not the basis on which you can compare this employee to other employees. instead base it on the employee's ability to work. the text wastsñ adopted from general electric which upheld the policy on the disabling condition. treating some kind of disabling conditions separate from pregnancy related -- >> you admitted that other persons can't be read literally. you have to read things into it. and you would read into it people in the same job classification. but if you can do that then why can't you also read into it people whose injuries -- whose
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disabilities have the same source? >> because once you do that, then the second clause of the pda doesn't occupy any space. and then congress should have stopped with the first clause. congress was doing something with the second clause. it was trying to overturn the gilbert situation, where you had an employer that adopted a policy that as a formal matter treated pregnant people the same way as it treated nonpregnant people. if you were pregnant but the reason you couldn't work was an off-the-job injury or illness, they would have given you disability benefits. the gilbert case was that's not discrimination, it simply doesn't include coverage for pregnancy, but pregnant women aren't fenced off. with this dnñ statutory text, it says, no employers have to treat pregnancy related conditions as favorably as they treat nonpregnancy related conditions. that's in fact how this court has read the statute since the first pda case. what this court said is the act makes clear it's discriminatory to treat pregnancy related
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conditions less favorably than other medical conditions. u.p.s. with the three very large classes of employees that it provides accommodations to that are not pregnant is treating pregnancy related conditions less favorably than other -- >> you do assert, it's a!ifbmost favored n5u/ provision. you have to give the benefits that you give to any other class of employees, right? >> to any other class of employees. >> it doesn't matter whether that class is enormous or small right? >> so i think this is text that obviously requires some degree of interpretation. i think, your honor articulated one way of thinking about it, providing this accommodation or benefit to employees generally. and certainly when an employer provides accommodations or benefits to such large classes of employees, who are not pregnant -- >> does the record show what you have asserted here? that the classes that are given special treatment is almost everybody? >> i think that we have --
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>> does the record show that? >> i think the record is sufficient to show that. summary judgment was granted against us. >> i understand. >> so i think the record is sufficient to show that in the following sense. so number one, obviously there's on-the-job injuries which u.p.s. acknowledges they provide accommodations for. number two, d.o.t. disqualifying conditions that u.p.s. provides accommodated work for, we have presented examples in the record of individuals who have off-the-job injuries who are similar in their ability to work as peggy young who have been given accommodated work, and u.p.s. hasn't pointed to in its briefing here any driver with a similar lifting restriction of peggy young who was not pregnant who -- >> you can win your case with that argument, perhaps. >> i hope so, yes. >> assume that. but that isn't going to help me.6$ because my job here is to write what this statute means for a lot of cases.
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and writing the words, what it means is, if you give a lot of benefits to a lot of employees but not to the pregnant women and you don't give it to some employees, and not to the pregnant women and the employer says, look, pregnant women are like the few we don't give it to, not to the lot that we do give it to employer, you lose. by the time i've written that into the u.s. code, nobody knows what i'm talking about. do you understand? i need to know how to interpret the words such that they would do, in your view, what you want them to do. which is just what i said. >> yes. i think the important point is if an employer provides accommodations, as a matter of policy, to a class of employees who are not pregnant who are similar in their ability or inability to work to the pregnant plaintiff and does not provide the same accommodation or benefit to the pregnant plaintiff, it is violating the
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plain text of the statute that says women protected by -- >> so you're coming down to most favorable -- that makes sense. you can write that down. >> but unfortunately it takes out what you just said the fact that you give it to a lot of employees. you could have a most favored nation that was two employees. >> that's right. >> including those who have only worked there for 40 years. use seniority. those are the words that i'm -- >> i understand. that's why i think this may be -- >> basically what you're saying, if i understand it is it's okay to differentiate on the basis of anything but source, which means whether it's work or nonwork related. you're reading out of the -- just say the history, the fact that congress repeatedly said, we're not forcing employers to give benefits for nonwork related injuries, but we're going to write it so that they
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have to anyway. >> i don't think there's any statement in the legislative history that says we're not forcing employers to give benefits for nonwork related injuries. there are three statements in the legislative history that respondent draws a negative inference from. >> i'm so relieved. >> drawing a negative inference to say, obviously congress didn't mean to do that but to return to justice scalia's response there the text contains no such limitation. on-the-job or off-the-job restrictions were certainly known to congress at the time it adopted this statute. in fact, general electric electric-gilbert had an on-the-job and off-the-job distinction. if they meant to say employers have the exception from the requirement for on-the-job/off-the-job restriction, they should have done so. i reserve the balance of my time. >> certainly. >> thank you.
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>> ñn chief justice, and may it please the court, the point of the pregnancy discrimination act are to bñ protect the women who are forced to leave the job because of pregnancy. the second clause is narrow, because it is not a free-standing accommodation requirement like the religious provision of title 7, or like the ada. i say it is narrow because there's only one thing that an employer can't do when it affords benefits or accommodations. it can't draw distinctions that treat pregnancy related medical conditions worse than other conditions with comparable effects on ability to work. >> what was the other one? in the u.s. postal service
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policy, we were told the government can defend a policy with all intents and purposes the same as the united parcel service. more than that some briefs called the positions frivolous contrived. that was the government's position. so will you explain how the government -- i suppose to this day, because the postal service still retains, as far as we know, the exclusion of pregnant women. >> of course justice ginsburg. it is correct that the department of justice defended the postal service practices against charges like those of miss young making in this case. that's correct. we acknowledge that in footnote 2 in our brief to this court. since then however the eeoc has issued guidance, and that's a very significant fact, congress has charged the eeoc with authority to interpret the
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statute, and with an authority to enforce it. >> i thought we felt that we don't give deaference to the eeoc. gee, you give that to me. even when i'm in dissent. that just means, you know, treat it for what it's worth. >> eeoc sets the enforcement policy for the federal sector with respect to this issue. that's a significant fact. we took it into consideration. the united states should be. >> would your position here be the same if the 2014 guideline had not been adopted? >> we didn't take that position before the 2014 guideline had been adopted justice kennedy. i just don't know how to answer that question, because we took the position in light of the guidance that it adopted in 2014. which we do consider to be significant. and we do have to weigh our interests as enforcer of the law
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as well as an employer. we did so on a considered basis and came to the judgment we thought was the correct judgment and the meaning of the statute. >> we don't give you any more deference than the eeoc,4@÷qright? the best reading. regardless of what you -- >> that's correct. if i could turn to that. hopefully in doing so, i hope i can answer your questions. here's why we any the statutory text -- maybe it would help if i restated what i think the rule is and explain where the tex[o actual basis comes from. we think one thing the employer can't do in respect to the second clause is draw distinctions that treat pregnancy related medical conditions worse than other conditions with comparable effects on ability to work. it's that single thing. so seniority full-time work, different job classifications, all of those things would be permissible distinctions for an employer to make, to differentiate them on who gets benefits. on the textual basis it's in
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our brief and in the last page of the petition, it says what it says is that among the class of people who are comparable in their ability to work. in other words similar in their ability or inability to work as the statute says. women with a pregnancy related medical condition in other words, women affected by pregnancy, childbirth or related medical condition as the statute says, can't be treated worse on the basis of their condition. that's what we think treated the same means in the statute. than other workers with nonpregnancy related medical conditions that impose comparable limitations. those are other persons not so affected. >> would you give me your interpo lags again? you altered the phrase. the words you added were -- >> on the basis of their condition. the reason we think that's the sensible and best reading of the statutory text is because this
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is focused on the condition and not the person -- >> but you start -- at the very beginning, you listed three things that you said were reasonable/ the word i'd like you to focus on is other workers and problem is which other workers. because it is.d, easy to construct hypothetical cases where the employer treats some other workers the same as the statute, and doesn't others. and which distinctions are reasonable and which ones are not, and how do we tell? >> i'd like to make two points in response justice breyer. the first about the title 7 claim, and the second about this type of an anti-discrimination provision. with respect to the first i think it's helpful to differentiate between a direct claim of#1x discrimination versus a claim proven through the
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mcdonald douglas framework. we think in order to prove a direct claim without going through the mcdonald douglas burden shifting analysis, what you've got to show is that an employer offers an accommodation to a significant class of employees, and that that accommodationuva3ñ fails the test i described earlier. it's got to be a significant class. now, we think that's this case. we think it's going to be most cases. but in the kinds of examples that your honor identified the one guy driving across the mountain, for example, i think you would have two issues there. first, when it's one person, you're not going to be able@ój make a direct case. you go through mcdonald douglas and the employer may well have an explanation for that accommodation that would take it outside the source ofl( disability limitation and mean there's no liability. and then with respect to that eí :fe, there's a second point to be made, i think which is that person who has to drive the particularly dangerous route may be in a different job category,
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and therefore, not similar in ability and -- >> i would think those wouldah÷ the cases that start the discrimination cases. the km idiosyncratic one, yes, he's doing this and he's doing that. and the pregnant woman comes in and says that's not the same thing. i thought it was sort of the isolated examples that would be particularly glaring in their discriminatory -- >> chief justice what i would say about that is you could certainly bring a mcdonald douglas claim against the idiosyncratic difference. but if the employer can show it was granted not on the basis of a kri ter yan in the sentence in the pda would forbid, then the accommodation is fine, there's no violation. to get back to the point -- >> i use the] example not because i'm interested in it, because i think it illustrates something that isn't idiosyncratic. and what i use it to illustrate is[)q fact that as here, employers will have classes of
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people, and the classes may be based on all kinds of different things. but this is a case where there are classes. and some get the benefits equivalent to the pregnancy, and some don't. and how are we supposed to tell which are the criteria that are consistent with the statute, and which are not? that's what i found as the difficult question in the case. and that's why i ask it using the idiosyncratic simply to illustrate what i think is the problem. >> of course. let me get to the second point i wanted to make in response to your question and then i'll try after i do that to give you a specific response to what you just asked me. the second point is it's true that some classes are going to be in and some classes are going to be out. but that's how discrimination law operates. if an employer is discriminating against women in promotions, the fact the employer is also discriminating against overweight men in promotions
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doesn't make the discrimination against women any less actionable because it just reflects the choice congress made about whom to protect and whom not to protect. here the choice congress made by whom to protect and whom not to protect is the choice to protect women who have condition pregnancy related medical conditions. that's the congressional judgment here. they didn't choose to protect everybody who gets injured off the job. they chose to protect those with pregnancy related -- >> if you have a disability outside of employment it gives you benefits for one month. and it applies that same policy to the pregnant woman, is that a violation -- >> i think the pregnant woman would be entitled to the one month, but nothing more than. >> but nothing less. >> that's correct. >> why isn't the discrimination -- >> the statute requires people be treated the same. employee would be treated the same under those circumstances. >> but not if there is a
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separate category of people who are entitled to benefits for more than one month. >> the question would be whether those benefits -- whether the distinction -- whether the disentitlement of the pregnant employee was based on the source of her condition. pregnancy. if it's based on seniority or full-time status, then of course -- >> would you please answer my question which do you mean source means on the job or off the job? is that what this case revolves around? because i don't know -- >> tkñpbriefly, yes. i think that on the job versus off the job, that distinction goes to inevitably goes to the source of the impairment and of course pregnancy will never qualify under that standard. but in this case it's not just about on the job versus off the job, but it's plus the d.o.t. certification category which could include people who lose
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their d.o.t. certification and can't drive because of physical conditions other than pregnancy that prevent them from doing the job they have to do, which would include lifting. the d.o.t. manual which the petitioner cites at pages 6 and 7 says exactly that. thank you. >> thank you. >> miss halligan? >> may it please the court justice breyer, you are exactly correct. had petitioner believed that the policy that u.p.s. applied which was to provide accommodations to employees who are injured on the job but not provide accommodations to any employees who sustain a condition incurred off the job, she could have brought a disparate impact claim. she could have, and she did not. she attempted to bring one late in the day. it was dismissed by the district court because it had not been exhausted. >> can we talk about the claim she did bring? >> yes. >> you are reading the statute. it basically makes everything
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after the semicolon completely superfluous. i would think you would agree with that. >> absolutely not, your honor. the reading we propose is very straightforward. the key words are, the same as other persons. what other means is simply distinct from whatever is mentioned first. so employers have to treat pregnant employees the same as some distinct group of nonpregnant employees that are similar in their ability or inability to work. and that's exactly what u.p.s.'s policy does. >> that is what the first provision does, when it says pregnancy is the same as sex because when we say because of sex, we also say because of pregnancy, all of that would be taken care of by that clause. >> this court explained in newport news, that the function of the second clause is to explain how title 7 principles apply to pregnancy. the reason they had to do that is in order to repudiate -- >> so you're saying it's not
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doing anything new it's just explaining the old stuff. okay, tell me why -- >> i'm not saying that your q, rjjj p r(t&háhp &hc% what i'm saying is, in a pregnancy discrimination case, instead of comparing women with men, as you would in a typical sex discrimination case, because what the first clause does is bold pregnancy on sex discrimination discrimination. if you compare women and men in a pregnancy discrimination case that has a policy that discriminates against pregnancy you will nonetheless conclude there's not sex discrimination because there will be women who are pregnant in a disfavored group but there will also be women not pregnant in the favored group among men. >> i think again, that's not necessary. all the inquiry would be, were you discriminated against because you were pregnant. yes, i was, no i wasn't. you don't need any of this other stuff about what the comparative class is. and in fact, you're creating a kind of double redundancy. it's everything past the
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semicolon is redundant, but then moreover, the key words here which is "other persons not so affected but similar in their ability or inability to work," that becomes redundant even in the redundancy. >> i'll respond to the last point first, and then the first. what the petitioner's interpretation and government's interpretation would do is to rewrite those words in one of two ways. initially petitioners seem to be suggesting that if a plaintiff could identify any other single employee who was accommodated, but the pregnant employee would be entitled to the same accommodation. what that would mean is the statute would have to read, the same as any other person. it does not. now the petitioner and the government are both suggesting that the only restriction that this bars a restriction is based on source. any other restriction seniority, status, outside legal obligations, are acceptable. but it doesn't contain any of those words.
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>> that is the question that this language raises, right? why not seniority limitation or something like that. can i give you an alternative way to understand what the statute is doing? which is what we ought to be thinking about is mcdonald douglas. in other words, theqx9 slg-- it says, an employee can find a class of people who are being given an accommodation, notwithstanding those people are similarly situated with respect to work. an employee points to that class. and then in a typical mcdonald-douglas fashion the employer comes back and says, no, there's a good reason why i'm treating that class differently that has nothing to do with pregnancy. it has something to do with, i always treat more senior employees differently. or something like that. at that point if the employer
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makes his case the employee gets to come back and say no, that's pretext. and just the way we do with every other discrimination case. and that's what this is all about. it's identifying the compare jarkstor that the employee has to identify in the first instance, in order to shift the burden to the government, to come back with a reason. >> i think the second clause is highly relevant to the question of comparatives. as this court has laid out in newport news and in cal fed, it's to explain when you are making those compare sons, that you don't look at women and men. which is what you might do as this court did in gilbert because it's sex discrimination that you are actually -- >> that's the first clause. but instead of talking in the abstract, do you give me any example of a case that a plaintiff would lose under the first clause?
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putting pregnancy together with sex? >> i'm not sure that you could. that's not the function of the second clause. >> then you are saying, second clause adds nothing, even though congress said "and." it includes pregnancy, and something in addition. but you're saying it's not in addition? >> i think that grammatical connector is very important for the following reason. petitioners construction with read the first clause out of the statute entirely. the words in the first clause are "because of." this court has consistently understood those words across protective trades to require that discrimination in an intentional discrimination case, that you have discrimination that is actually motivated by the protected trade. if the second clause does the work petitioners suggest, even if you could find the word source in that which it's not in the text, it would mean that
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you don't need to show that the protected trait pregnancy actually motivated the adverse treatment. so his construction would read that out of the statute entirely. >> what's wrong with my middle ground? it's not that mr. bagenstos and the general's ground. they can come back and say i have a legitimate policy based on seniority or i have a legitimate policy based on the source of the injury. but it does put that as a enever aniif point to a similar -- to a class of people who are granted the disability accommodation who aren't pregnant. >> i just don't think it has any anchor in the worth of the statute itself. the words are -- >> it's quite the opposite. it basically gives a function for what the key words of the statute are other persons not -- or not so affected but similar in their ability and inability to work. what is that doing? what it does is, it points to the compareator that forces the
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employee to come back and say why it is this ought not to be taken as discrimination against pregnancy. >> i think the court is clear clear that the function of the second clause is to repudiate that logic that equates when you look at women and men and you have a pregnancy clause -- a policy that discriminates on the basis of pregnancy, you say that's not discrimination. what that does is collapse it. this court has been clear that that is an absolute line. congress tracked that distinction in the 1991 civil rights act. >> the language after the semicolon were not there, would the language before the semicolon haveh:rçz effectively over gilbert? >> it would have overruled
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gilbert will e by bolsing pregnancy on. >> would it have produced a different result? suppose the employer has a policy for certain employees with a injury or a disease. if you didn't have the language after the semicolon, would the language have required the employer to treat preg nan women in same as those who have an ill manslaughter or an injury. >> i'm not shoour that it would have. and i'm also not sure it would have precluded the court from using the same logic that was at play in gilbert, ert e itself. and that's why those words are there. so the reason for the language after the semicolon is you have to go further in order to produce a different result in gilbert. if that's correct, could you explain what you think the language after the semicolon means? >> i think the language after the semicolon instructs that when you look at a policy that spatially discriminates on the
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basis of pregnancy, what you will typically do is to look at how women and men are treated. and if they are treated dempbtly you would conclude that there is sex discrimination. what this clause instructs is that when you look at a policy that discriminates on the basis of pregnancy, rather than looking at women and men, which will lead you to the conclusion that there's no sex december crimination. >> that's what the first clause does. it says pregnancy is sex. period. you know you will have already said that you don't think that the second clause does any > )actical work. that is you can't conceive of a case where a plaintiff would lose under clause one and win under clause two. >> well, to be clear, your honor, the reason the second clause is there is to avoid a case in which the court using the same reasoning and reaches a different result. this court also attached special
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significance in terms of controls. it says et provide a boq for pregnancy specifically.sçíapxñ that's a distinction that is long standing. >> but you don't know -- i'd like just to go back on this very point what justice kagan said. the mcdonald douglas test, i think, should come in somewhere. that is the woman shows that i'm pregnant. i couldn't lift. i wasn't paid anything. and of the people who had comparable inabilities, were paid. so we get to was i qualified like they are? and now a distinction is being made. the employer says no, you're not. you didn't drive over the
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mountain pass or no you're not because you nodded off the job. and then we have to decide is that a pretext? is it legitimate? and were they giving it to everybody else and there are very few, it doesn't sound too legitimate. but that test must e must come in. >> it does. >> and so how does it? and does it matter if we put it under the first so called whatever, you know,intentional as opposed to desperate impact where we muck up the law? were we to say it goes in that part rather than the other part or both parts? >> i think if i can, this court has been clear that mcdonald douglas provides a mechanism for providing indetect evidence of desperate treatment of intentional discrimination. it's distinct from a desperate impact case where as here, you have a facially neutral policy. a policy that says on-the-job
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gets accommodation when they can't perform the essential functions of their job. anyone with a injury or condition that sustained off the job doesn'tment. when you have a spatially policy like that -- >> why not if it goes under desperate treatment? of course, the employer will always have a facially neutral policy. it just turns out that this facially neutral policy happens to hit the pregnant women and four other people. that's the kind of thing that we're trying to stop in this statute.# $j so why not bring it in there in the desperate treatment part. >> two answers. first of all i i e i think that treatment where you're looking at the adverse effects on a certain class of employees, but you have a faeshlly neutral
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policy has been -- is distinct from a policy that discriminates on its face.kyyk >> suppose i -- that's exactly what the justice is talking about. suppose you had a policy that said we're going to provide accommodations for anybody with a non-occupational sickness and accident. very similar to gilbert, but without all the other facts of gilbertment we're just -- it's a facial policy. we're going to provide accommodations. but, of course pregnancy is not a non-occupational sickness and accident. so, as a result of this facially knew tralta policy, pregnant women will not get accommodations. now, as i understand what you're saying, that's perfectly fine. >> if a policy distinguishes between occupational injuries and non-occupational -- >> yes this is non-occupational sick manslaughter and accident. >> that would be 5:00 acceptable.
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and a plaintiff, who believed intentional discrimination, what they would do is under mcdonald douglas, they would, first of all, attempt to make a prima fascia case by showing that other employees who are treated differently. the comparators that the petitioner point to here -- >> you're departing radically from the fourth circuit review. the fourth circuit said that this clause standing alone, is unambiguous if a group of employees get the benefit, if other employees get the benefit, so must pregnant women. the fourth circuit says yeah, it would lead toward results, preferential treatment. we're not going to give it that meaning. >> the fourth circuit realized that the two clauses have to be read together. and, in fact to read the second
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clause as petitioners said to read justice kagan, to go back to your question what an employee can do in that circumstance is to say the policy doesn't treat similarly situated employees as we e me. it treats me worse. the comparators here were not at all con grewous. the first set were individuals who were acome dated under the ada. the government realizes that they're not similar. >> that's where we disagree. what this tells you is i tells you what the comparators are. the comparators are any class you can come up with who is -- has the same disability and isn't pregnant. and then, the employer can come back and say"g reason to treat that class of employees differently. and if you will buy that with respect to the gilbert's distinction, i don't urns why you wouldn't buy it with respecteds to any other classification.
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>> because all the second clause is telling you, and congress was clear and this court was clear, that the pda of both clauses in its entirety were not sbrended to, in anyway, depart from tradition%pxm%q1% jt)t&es. it's shrimp e simply to correct the fact that it could be sex discrimination. >> we absolutely know what gilbert was said was that kind of policy was legitimate. and that congress came back and said no that kind of policy is illegitimate. right? >> it said two things, it's illegitimate in the first clause and it said you cannot when you xe trying to ascertain if there's sex discrimination with a pregnancy policy break it down into women and men. you won't get the result that congress wants. congress says when it's facially discriminatory, that's sex discrimination. the comparators do have to be different. it's pregnant employees and non-pregnant employees.gblby >> as i understand the answer to my question, and tell me if i'm
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wrong, as you're saying with respect to a facially renewed policy, that you think that that is illegal under the pda? >> no, it's legal under the pda. a policy that -- >> i'm sorry.1añ >> a policy that distinguishes between occupation nan eal and non-occupational injuries and is even le applied is absolutely permissible under the pda. >> it's exactly the policy that's in gilbertment and you're saying that's fine. >> no, they singled out pregnancy during favor -- >> there were lots of other things that got excluded in gilbert. if a man had a vasectomy, it got excluded, if somebody got into a bar fight it got excluded. if a person had koz mettic surgery, it got excluded under the policy in gilbert.fpxñ gilbert was about much more than singling out. >> this court cheerily described the policy in gilbert as singling out pregnancy.
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>> it enacted it to overturn gilbert. not from an abtract period, but the result in gilbert. and as justice kagan pointed out, gill pert was a case where you could point to a lot of other people were not getting this benefit. >> the result that the government suggests is to say that you can have any distinction you want and it's permissible in the pda versus on the job and off the job, is far more contorted. >> is it true essentially, that you said thatplc:the position is most favored nation. yours is least favored nation. >> it's not least-favored. the question is is there another distinct group of employees who are treated the same as the petitioner. and here, there are. >> is it-this case went off on the fact that this is being told
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to us that there is not in this record a single instance of anyone who needed a lifting dispensation who didn't get it kpept for pregnant people. >> and if that's the case, in fact, then you lose don't you? >> well i would like to address that because i think this aes af real mischaracterization of the record in a couple of ways. first of all the district court held squarely that the oefrt by plaintiff to characterize this policy has no light duty for pregnancy was wrong. what the district court said is that the actual policy was on the job, ada accommodations and d.o.t. >> but do we know, in fact, this is an allegation that, in fact, no one who wanted a dispensation didn't get it kpept pregnant women. >> dha is also contra diblgt ri, your honor. >> we're on a summary judgment stage, so we don't know what the facts are. >> but we have to look at the uncotro verted evidence.
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and i would point you to ms. martin and mr. brian's testimony that there were many employees who sustained off-the-job injuries and the district court held specifically that no light duty was given to any employees male or female with any medical conditions not related to work, pregnancy included. >> is there an employee who asked for a dispensation because of a medical condition that restricted her antibiotic to lift? to any similar employee that were but who said sorry you don't get it because your injury was off-duty? >> there's not a name provided in the record because one was not elicited by the petitioner whose burden it was in building a prima fascia case. but the record evidence was indisputed. >> they suffered off-the-job
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injuries, but we don't know if they asked for a dispensation because off-the-job injury required that they limit the weight that they could bear. >> the district court held that ups's policy is that employees who are unable to perform the essential functions of their job would be required to take leave if their inabilities stem from something off the bob. and in a business that involves moving 70 pournd packages around all day long, it is certainly the case that as the uncontroverted testimony established,ã÷ there were many employees who sustained an off-the-job injury that prevented them from doing that job. >> i assume that you disagree with the petitioner's proposition that when you take these three classes, namely off the job -- i'm sorry, on-the-job injuries at aerks injuries and:hxy
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getting disapproved by drive eres by k.o.t., there's nothing left. >> we absolutely disagree with that. and there is nothing in the record that suggests that. it is completely without citation or support. it's completely controverted by the testimony. so there were three narrow exceptions, absolutely, the three that you've i'ved. identified. gh but everyone e every employee that pulled their back turned their knee whatever it is, couldn't come into work, were not accommodated with the kind of light duty. >> i would say why shouldn't there be a trial on that or further proceedings? if it turns out that they're right, that there were four people who weren't pregnant and that's all who didn't get the benefits, well that's pretty strong evidence that the employer is discriminating. if it were 400,000 people who
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got the thing off the job and there were only 19 people on the job, well, then you'd have a better case. why don't we have to look at the facts. >> first of all, your honor. that will be relevant to a desperate impact claim.xq" secondly, there was extensive discovery in this case. there was summary judgment granted that establishes exactly the opposite of what you're suggesting. there's no need to do that. this was a very straight forward case. but for the effort e effort by the petitioner to bring this effort back into play at this late date, none of this would be something that you would ever consider. >> is there really a disz put about this maybe petitioner's council could address it in rebuttal. but is there really a dispute that if a ups driver fell off of his all-terrain-vehicle on the weekend and was unable to lift, that that person would not be given liekt duty?
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>> the district court made a square finding. i would also direct you in our red brief to page 5 where we set forth ms. martin's testimony that she never authorized an accommodation for anyone who was injured off the job. so that's there, as well. i'd like to turn briefly if i can to the question of the eeoc guidance. >> but there are individuals who their d.o.t. licenses? >> there are individuals who lose their d.o.t. certification they are acome dayed for some period of time. but those squbs the individuals who lose their d.o.t. certification, are not light duty jobs. those are heavy lifting jobs, as the district court squarely held. the district court in page 36 a held that inside jobs are not light duty jobs and the
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individuals who lose their license can perform any number of demanding physical tasks, which ms. young could not perfo3í+0e with respected to the eeoc guidance the guidance issued two weeks after this court is 180 degrees change from the position that the government has consistently taken and that the postal service which ups fairly looked into in trying to ascertain what appropriate conduct was. the policy that it still has in place today. in addition the process in issuing that guidance was inkredingly rushed. it was not until 2012 as one of the briefs point out, that the eeoc even identified the question of pregnancy accommodations as an emerging or developing issue. there was no notice in comment. the three -- >> the original guideline as i understand eeoc what they did
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in 2014, is that we were terse the first time around. all we're doing in 2014 is explaining -- what was the year? '79? >> the '79 guideline simply mimicked the language of the statute. in 2012, the eeoc and its strategic plan said that it was looking in addressing the various issue that it opined on as emerging. if the 1979 guideline%afxñ stood for what petitioners suggested, there would have been no need to treat as emerging. it would have been settled 30 years ago. finally, i want to point out where this is an area where the democratic process is working as it should. in cow-fed this court looked at the question of whether or not state statutes, which provided preferential treatment to pregnant employees.
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the court said the pda sets a floor. states can go beyond that. >> for the democratic process to wrk as it should, the pda has to be given a fair reading. what we know about the pdaqé.ju that it was supposed to be about removing stereotypes of pregnant women as marginal workers. it was supposed to be about ensuring that they wouldn't be unfairly excluded from the workplace. what you're saying is that there's a policy that accommodates some workers that puts all pregnant women on one side of the line. and what you're further saying is that the employer doesn't even have to justify that policy on mcdonald douglas. that seems to me a reading of the statute, the pda, that it ignores two-thirds of the test. >> i'm not saying that the
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employ isn't subject to a suit. i'm saying that there are no valid comparators here.:1֖ that's all we're saying in that regard. >> so if there's any group that doesn't get it that is non-pregnant, only pregnant people are in the group. >> the policy that's at issue here distinguishes on the job versus off-the-job injuries. that's a far cry from a policy that singles out pregnant women.
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that distinction tracks what workers' comp requires. many have found it advantageous to provide light duty accommodations so their employees can be at work while they're rehabilitating and provide some productive work for the company. that distinction is as legitimate as you could -- as you could get. i see my time is up, your honor. >> thank you, coin sell. you have four minutes remaining. >> thank you, mr. chief justice. so i'd like to begin if i could, with the facts. and, yes, we certainly do disagree with ups's assertion here. this case was on summary judgment and they never authorized these accommodations. moufr, hoump we spoint e point to specific examples who were given
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accommodations. and not accommodations that just removed them from driving, that's a factual disput that has to go to trial. >> you really think you could prove at trial that if somebody is injured in a recreational activity over the weekend that they get light duty but a pregnant woman does not maybe? >> so if someone e someone is injured over the weekend in the way that leads them to be d.o.t. discertified. yes, and the manager testified about a sports injury. we cite that in our opening brief. yes, we think so. the second point i'd like to make is about what the two clauses do. and this is very important. the first clause oftsd pda, as this court has said in newport news and cow-fed, overturns the reasoning. so what the first clause says is where gilbert said look, disc crimination based on pregnant women isn't sex discrimination, that's wrong. because a pregnancy is because of sex,95 definitionly. that's not what the second clause does, that's what the first clause does.
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the first clause as this court said, goes overrules the holding.
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>> you worry about the same people being injured. are being treat different when they have the same ability to work. >> i think, justice sotomayor, you don't worry about whether they're the same sex or not. >> no, you doeb e do have to worry about it. >> no, but the first clause definitionly defines it. it says if're discriminating because of pregnancy, that is because of sex. the second court goes further in overturning. and so i think under ups's rule, it wouldn't do that. on justice briar's question
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basically, howng1u do we deal with an e a world that has an employer who treats two groups of people that are pregnant differently. it's treated the same as those who get the better deal or the worst deal. and you will think they articulated this well. that their position really would give lease favored nation status t!ó.t and we know that that can't be spg that congress sbebd intend. we know that in part because of what general virielli said. the fact that someone educat nated against doesn't mean that i lose justice's opinion in the third case arctic lating to the same rule. we know that as well because the purpose of this statute is to say to employers, as justice kagan said you have to treat pregnant workers just as valued employees as anybody else. if you think it's valuable to keep these employees who are on the job because they keep valuable knowledge within the company, do that for pregnant women. >> thank you, counsel.
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case is submitted.
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>> good afternoon, everyone. i want to give a special thanks to our co-host, laura truman who is the executive director of heritage. and i want to thank you each for joining us here today. those of you watching on c-span all over america and all over the world. i want to welcome you to the
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special edition of conservative woman's network. this year we're spo pleased to have david brett, the new united states congressman from virginia. as many of you know congressman brett defeated former majority leader eric canter in the primary last summer for virginia's 7th congressional district. he was sworn in last month and he'll be bringing some much needed economic expertise to the national policy discussions. congressman brett is a:sbr
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in 1996, he began teaching economics and ethics at virginia's randolph macon college where he chaired the -- he served the commonwealth of virginia in a number of capacities also. he served two governors on the joint advisories panel. his peers elected him as president of the virginia association and the governor also appointed him to the virginia board of accountancy, a man of deep faith, dave attends catholic church with his wife laura and his two children. please join me in welcoming
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congressman david brat. >> thank you all for having me, that was a nice introduction, saving my throat a little bit. we have had an exciting week. you all have been following the news. i'll get to that after i frame some of my biography and the background as to how i got to where i am. i'll frame it up in a few pieces, where we are at today with the republicans and the votes that are coming up that just occurred yesterday and in the week prior, but thank you all very much for having me, it's an honor to be here at heritage, i have been a long time follower at heritage and it's great to be with you here today.
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first of all, my biography is well captured there, and over the last ten months of campaigning. ten months stump speeches i basically opened it up and said how would you like to spend someone to congress to bring both economics and ethics up to d.c. amount and that combinationha4tñ of economics and ethics hits a nerve in the country right now because people do get a sense of that we're on the wrong track. that's all you had to stay is are we on the right track and/or the wrong track, every house in x ç the senate district were off track. i combined those two themes over a lifetime. i went to hope college in michigan. i went to seminary, i was going to teach systematic theology and a large part of that is ethics fits in there philosophically. and while i was in seminary, i came down here to wesley seminary for a political semester and there was a guy
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writing on economics and ethics in one book. i got very interested in that and sometimes that happens on the left and that term justice is a tricky one, it's got a long pedigree, but it's been shaped to end up kind of in the leftist tradition, or the leftist moral descriptions lately and i think it has a longer pedigree that features the judeo christian f pedigree. so i pursued those themes in seminary and then went on from wesley, right up to american university, i said hey i want to pursue these even further through american economics, you get the city all around you, you get to interesting talks about world class people all across the board. and so pursued that through my phd and then i was lucky enough to apply and find a great job 2g down in richmond, virginia, i have been there for the past 19 years. this would have been my 19th year teaching economics and ethics. i was the chair of the econ and business department, but i also
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chaired the ethics minor for a s nn9ty=t(ááy john allen over at kato helped me build a program and the moral foundations of capitalism so that kind of puts the two together in the same way, then i got a chance to work in a general assembly for about the last eight or nine years in virginia politics, got to know a lot of how the political system works and then just wasn't happy with some of the things that were going down in my area, in the seventh district, so i approximate put my hat in and the people thought it was good to send an economist up to d.c. so that in short is kind of the biography and who i am and why i ran.
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but i'll get a little bit more specific now, when i ran in virginia, i ran on the republican creed, how many virginians are here? oh, very good? how many of you know the virginia republican creed. it's not perfect but it's good. i'll go over with it you. [ inaudible ] very good, okay, good, that's what i'm going to get at today, very good. let me go over that creed with baz you a little bit. starts off, the first is most important to me, adherence to the free market system, because that one really draws a red line, right? and people in business or whatever even students of economics sometimes don't understand what that means, adherence to the free market system. all of human history, up until 1800 made how many dollars a year per person? $500 about, right? basically subsistence level, for the entire world, for all of human history.
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something changed at about 1800. and what was that? good, very good, adam smith if you want to put a name to it. adam smith, 1776, that was in the works right, the history of ideas for 100, 200 years prior. but tote's finally had to choose the free market system. there's always been markets, go back to the ancient greeks and roman where is they have been trading chickens and cows. so it's a very different thing, doing business, right, or economics or whatever is very different from choosing socially, and running your society by a free market system. that's the big deal. that kind of came hand in hand with other fundamental shifts
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that had to be in place ahead of time. you had to choose to the rule of law, private property rights, the liberty tradition. coming out of john lock and all the way through. in my district, i forgot to mention, i am fortunate enough to come from a terrific that ---going back to james mad)sq"in my district. those are some names that go along with that liberty tradition. all of this fits more broadly into that judeo christian tradition. i say well k$ájtjváp&l to come around about 1900 with this liberty idea. you guys come along lately. right, so i appreciate everything they're doing. i have a lot of good libertarian friends, but there was some heavy lifting for many years to set that up and i think the heritage association is familiar with that long tradition. and all that go into a scenario that's hard to describe in a
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sound bite. i'm just on point one, you can see how long this point's going to go. this is point one in the virginia -- -- to show you how complex it is, so when the president asks you a question about a simple bill that's ?]=!nr(t&háhp &hc% familiar with the free market, it's hard to put that into an answer. so that's the hard part, but i gave 15 to 20 minute economic homilies, was my stump speech that i gave night after night for ten months. i'll end this part by saying this is the good news. the republicans, the conservatives have the strongest, best argument for the country right now. what's happened in the last 20 years since i started teaching at randolph macon. the chinese and the indians were
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making roughly $1,000 per capita. what's happened? what radical choice has been made in the last 20 years that's made all the difference for global poverty reduction and improvement in people's lives and what isn't? to the chinese and the indians system, right? and the irony of ironies is while they're choosing the free market system, the united states of america is choosing to backtrack, right? we're clogging the arteries at every turn, obama care, regulatory overreaches of $1.5 trillion, et cetera. we can go over and over and over and over. that's the policy choice of choosing the flee market system. the human welfare games, the efficiency try angles and whatever. that choice to choose the free 8$>÷ market system dwarfs all the public policy decisions globallyâ
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12 times over. the welfare game. our side has a hard time explaining this to the average voter, to the average american, to the average global citizen that this system is good for humanity, period. and i went to seminary, so i believe that 7 billion to 8 billion people on this planet are all children of god. but the basic frame work and the basic logic is there from the beginning. i want this for the whole world. all of god's children, christmas is coming up. there's number one, i'm going to go through the rest of the creed real quick, second is equal treatment under the law, everyone's equal under the law. third rule is fiscal responsibility, at all levels of the government, federal, state, local. four is adherence to the constitution. i just had a tough few days trying to stay true and vote on that, adherence to the constitution.
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the presidential overreach on amnesty, executive amnesty, that wasn't just a simple public policy choice at the margin about dollars and sense and policy differences. the reason that was such a big deal to me is because of this four point in the republican creed, adherence to the constitution and to constitutional principles. i think that end run violated constitutional principles and that's why i stuck very firm to the votes on that issue over the last couple of days. fifth, peace is best preserved through a strong national defense. ronald reagan's on the walls out here. so i know you all get that one. and sixth, finally a lot of times not mentioned in public
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policy principles, faith in god is represented by our founders, absolutely is essential to a strong moral fiber. all the presidents i have been reading since everyone's sending me carts of books on prayers of the presidents. you go back and you read the basic books, the basic speeches of the founding generation, the great people we all revere in this room. and they were not ashamed or bashful about it. they didn't wear it on their sleeve, they weren't pushing it. there's a separation of church and state, no establishing the church. but part b of that is absolute and free exprex of your faith, as part of the freedoms baked ÷1bc]
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into our constitution and the first amendment. so a lot of people were very much attracted to that, the economics and the ethics. just in a nutshell, some of the biggest problems we have in the country, under bullet point 3 is the debt and the deficit. medicare and social security are all insol vent until 2024 or so. the next generation, and i see a bunch of you silting out here, we better get on it. and i don't know if it's really that technically a difficult economic problem we need to solve or it's more ethical it's the political will to engage in those very tough problems in those entitlement programs. people from every county to term limit myself to 12 years, and i pledged to put in a fair or a flat tax. and so a few specific pledges as well. that's the basic frame work that i ran on. and so over the past month i have tried to vote, along with those principles, the press
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always has, they don't quite believe me, they say how are you going to vote on this? i said, well, i laid it out very clear. i voted on these six principles in the republican creed, and i'm going to vote on those principles and really that's what i'm going to try to do. and the people back home will keep me honest and help me to do that. how am i doing on time? are you with me for a few more minutes? so that's who i am and there's the race, those are the principles i ran on. and this week voting and being up here, last week i was sworn in. so i was up here with 50 of the rookies, the congressmen men and women in my entering class.qfi and the press says what's the most unexpected part of being up here, and i think it's been the warmth and graciousness of the
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other members, right, the freshman group, democrats, republicans were together. so the first two weeks we all had events every night and on some of the issues, public policy, how does congress work and everything, that was great. and the senior members of congress also, where you have to go up i'm a regular season. a picture going up to the podium that you see in the entire congress, and you have to give a speech, right after they swear you in. put yourself in those shoes. so the entire virginia delegation came behind me and was very gracious to me and the rest of the sr. members made me feel very welcome. so that truly was unexpected as to how i was received so i'm very thankful and i'll just kind9síe of leave it at that.? -p and then while i was orienting, my predecessor stepped down early and that was a gracious
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move on his part. so i got to start off not only going through freshman orientation but also serving as a member of congress. so that was a lot to learn quick. and so we had to do all of that and then i had to talk votes, so the tax extender vote came up, that was a tough one. you're faced with a tough choice. if you don't vote for it, taxes go up on all my constituents, if you do vote for it. 20% of it was wind. conservatives tonight like picking winners and losers and aoe" lot of people back in my district don't like it. so that was a tough vote. so i voted for that package because i thought the overall
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net was positive. and the greatest greater issue there was, i don't want our defense authorization bill cluttered with other pieces, because eventually if you follow that authorization with this, ñ that and the other thing, that's eventually going to hold our defense funding hostage, in some way, shape or form, you know it's coming, so on principle, i tried to separate that one. and on the omnibus, we all were pushing for a short-term cr, so the republicans could be in a better bargaining position coming up january or february, and that didn't happen, the omnibus went through, and a group of 75 senators tried to put an amendment on that omnibus bill to restrict the president's overreach on the executive amnesty. and so we went to rules and rules had made already kind of a stated position that they weren't going to accept any amendments and so i was disappointed in that process, when your new member, not having the chance at all, right, a 1,600 page bill comes up, you is
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to read it in a day or two, you find out it didn't deal with fundamental things you ran on, then you have to deal with writing an amendment, and the amendment piece is closed off, because the time is so shortened, we have one day left and we're going to vote on it. that amendment went down, and in that case is rules didn't allow that. and the next day i voted for the rule on the bill as well as voting no on the bill itself. primarily on that constitution issue, there were plenty of other policy issues i differed there, but the overriding logic was linked to the unconstitutional part of the executive overreach. and so from there, and i'll close it out and be happy to take questions from all of you. but if you're interested in following me, obviously and the ã"xjsv istrict go to dave
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brat.com and share ideas with us, and i'm going to try and put out economic papers, white papers, weekly that summarize my voting position, maybe daily if we can do that. my chief is over here, so i offer them work by the wheel bare row full by to the day. i said go do this, and go do that and we'll see what we can but i would obviously love to do that and share our economic logic, that's kind of to the important part where your voters understand how are you voting? what's the logic behind your vote?
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and then i am to the only economist in the house, and so i would love to be able to start doing some economic education, my stump speech for 10 months, i would ask audience after audience, 50 to 100 people, every night, have you ever heard to the number $127 trillion and the answer was no, no idea. so if that's the country's biggest issue, which i think it is, newspaper ---numerically it is. so $127 trillion, right, and no one knows that number. that's a problem, and what's the problem? it's an education problem, right? that number is coming due and that's just the unfunded pieces of liability, that's not the cost of the program. that's just the unfunded liabilities that we promised in law, and that's 2/3 of the juñ
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budget, the nondiscretionary 8 part that you can't touch unless you change the law.1@ and that 2/3 is growing, so you're left with one-third, and the military is being pinched and everything is being pinched and i think you all know the state governments are being pinched and that trickles down to the local levels that are being pinched. and that's the context, in that context, everybody knows the bottom line is there's no money that's going to be falling from the clouds any time soon. it's game over. what's the gdp growth rate? and the last five years offist productive is also sub par. how are we doing in education compared with the chinese and the indians? not so hot. so our economic forecast for the next 10, 20 years is not bright
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either. we need to turn that all around. i'm an opt myself, you've got reagan on the wall out there, and he had tough economic times when he came in so it can be done. i think i better end there while i'm on a positive note. it can be done, i didn't say how, but that's the next talk. thank you very much for having me today, it's an honor to be here. >> we have time for a few questions, we have laurel conrad here, who just graduated from cornell, she's the new lecture director at the institute.8#c
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i'm barbara bouie whitman, as -- i have a couple of questions, >fij really. i'm going to cheat and sneak them in. the first one is procedure going forward, but the other part is left over from last night. the procedure going forward has to do with can we get a good, solid economist who believes in the right things to head the cbo and do dynamic scoring? second question is from last night.
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i got an e-mail from ken kuchinelli that stated that you were the only republican who got it right. in politics, we always when we're trying to get people excited, say that the worst has already happened. how do we gets out of what happened last night? >> eyes is the shortan with yes -- that will help a little bit, but that doesn't get you to the $127 trillion so i won't get too optimistic on that. we'll do better on that i'm trying to get on the joint economic committee as well so we can work on some of those issues.it0y and i will put the whole omnibus
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piece in a broader context so you can understand. i just came up here, i wasn't involved in the process going through. so for the members, they have certain pieces in that omnibus that they're shepereding through and they believe in. i came through in some ways easier than that. the omnibus was not the republican method on the other side. with r we -- the failure came on the senate side in the democrat chamber. they would not take up any appropriations bills, right? they just wouldn't take them up. so that failure of working through the normal process, regular order failed not due to us. paul ryan over the past year says always put in a budget, the democratic senate has not. i'm not making excuses for anybody, but we're in a very tough spot, and we were forced into that omnibus package and there is a lot of moving pieces and i don't intend as the rookie up here to know all of that. and so, i know the members from virginia, they're all of fine
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character and i think we're b!, going to do the right thing in the rules committee and the speaker did promise that they will take up the amendment early in january. so it was a matter of a lot of moving pieces, i said no just on the constitutional piece, that if you know something is illegal, i don't want to move forward at all. we stripped all of his the ! $fyñ executive overreach had 12 pieces to it so we refunded all 12 of those pieces. >> i just wanted to know what your thoughts are on including something against obama's executive action on immigration in the current lawsuit that the house filed against president obama? i'm not an expert, i'm not an economist, so i'm not a lawyer so that's my preremark. that's where other members of
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the virginia delegation will come in on that piece, but i'm 0 ñ in favor of moving across on all fronts, the legislative piece, the funding piece, the judiciary piece, so i don't have too much in the way of specifics to offer you on that, other than to say i want to do all of the above other than the timing on it, which piece is going to be most effective. but already, you know in virginia, there's 1,000 federal positions already funded and in place, and they're already getting the green cards going, the social security cards are already in process and that's
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the down side to the omnibus funding the government even through the end of february, right, i think the obama executive action had a 50-day limit on it and we go beyond that. at the end of that 50 days everything can be execute and that's why i'm concerned and why i voted no, i wanted some resolution prior to that 50-day cut off. and the piece that you're talking about, the lawsuit will take more time than that. >> in the new congress coming up do you see congress working with president obama or president obama working with the republicans? >> i don't know if i want to pick a direction, but i will say i hope we do work together on
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other members, right, the freshman group, democrats2a other than the timing on it, which piece is going to be most effective. but already, you know in virginia, there's 1,000 federal positions already funded and in place, and they're already getting the green cards going, the social security cards are already in process and that's the down side to the omnibus funding the government even through the end of february, right, i think the obama executive action had a 50-day limit on it and we go beyond that. at the end of that 50 days everything can be execute and that's why i'm concerned and why i voted no, i wanted some resolution prior to that 50-day cut off.
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and the piece that you're talking about, the lawsuit will take more time than that. >> in the new congress coming up do you see congress working with do you see congress working with president obama or president obama working with the republicans? >> i don't know if i want to pick a direction, but i will say i hope we do work together on the big pieces. i think it's important, in economics. how many of you had an economics class. you're supposed to ranging your (#m preferences in order. so i'll just say, if you're thinking economically, you need to put the biggest pieces, the most important pieces in rank order and go down those in
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order. so president obama on the republican side, i don't think there's any way to deny the $127ppe trillion number. everybody knows that number one, and then the debt piece, the lsprl former chairman of the joint chiefs of staff said, what's the greatest threat to our military, he said the u.s. debt. so people of good will on either side, there are ways to solve this problem. and the third thing i think that the democrats can work on is education.
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i hope to be on the education committee, that's a bipartisan issue, it's clear we're not succeeding, the u.s. now on test scores, international test scores is underneath the median score, right? or toward the bottom, in the industrialized world, or near the bottom on math and science test scores. that doesn't even begin to talk about the fact that our kids don't know what a business is. we're kind of the medieval post world war ii manufacturing kind of world view, instead of being in this dynamic economy world view. the kids are not being trained, they don't know what a business is, they don't know what a entrepreneur is.hfbiu
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so they're learning what all órb@t this stuff is. so businesses are complaining about the work or skills development, we can do something about that, the business folks are coming into the schools at the seventh and eight grade legals so skill the kids in to work for those companies. that's a motto we have to look at it. and it doesn't cost any money, believe it or not, so that's a nice motto, you skill up the students to work in their own area, 40% of college kids can't find a job in their own area they majored in, 40%, so that's a big deal. and i didn't get into the amnesty issue, but that's one of the reasons i'm pretty tough on ni"?y that issue i don't want anymore short run band aid issues. so when you have a labor force problem, and our economy is not back to normal steady state growth by any means, and the worst part of the economy is the labor market. how do you solve that? we need to skill up our own kids. we don't need to import people from abroad. people always want to talk about 5 billion or $10 billion.nswp
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we learned how not to do it and now, they're our friends. so we turned arch enemies into ;z our friends, that's our goal, that's what we have to do. so immigration in my mind kind of stands for that short run band-aid approach, where businesses look for short-term earnings and that logic is putting our company in a terrible hole right now. we need to get back to long run planning. i used to put in my stump speech, the ceos in the country right after world war ii, because as general motors goes, so the nation goes, that was the logic, the ceos knew they were at least implicitly involved in charting gdp growth for the
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nation and they had a social and ethical responsibility to do that. we can make earnings, profits within any environment. right? we can go global, we can make money over there, we can make money over here. so individually, corporately they do okay, but it's not tied back to the u.s. gdb growth, and the welfare of the country as a whole. that's the long answer. >> in most colleges and universities, and we have some students here that could attest. most of the professors are liberal and left wing, with some wont exceptions, of course. >> yep. >> i was curious the reaction of your fellow professors at your college, when a freedom oriented liberty talk and a professor like you was elected to congress. what did they all say? >> i can't say that on live tv.p
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that, i'll just put it that way, their collegial, right? we used to debate all the time and we had fun. and the left gets more mad at you the more effective you get. so when i got this effective, they weren't very happy. and i challenge my liberals, if you all want to have fun with liberals someday, it's a fun thing to do o i enjoy them.g içñ go to the lunch table and ask where the word liberal comes from, any guesses? liberty, right? if you want do go deeper, get
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into to the what ethics will you name, right? what ethics are you teaching to the kids? right, there's no such thing as ethics, everybody with me on that? there's jewish ethics, buddhist ethics, there has to be an ethical system. i'm not particular in pushing one tradition one tradition, but that's what a liberal education is being open to all the ethical systems that's a liberal arts education, most kids coming out of school aren't familiar at all with a liberal arts tradition. i'll just leave it there on that one. we need to reinvigorate -- some ñ of the best universities have no curriculum whatsoever. kids at 18 years olds i guess are so wise, they can choose their life plans ahead of time, right?
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so i'm a conservative, i really don't buy that theory of education. >> we want to give you a couple of gifts to thank you for coming by. we're sure glad you're up there on capitol hill talking about liberty and representing all of us. what we do is we promote conservative women who believe as you do. this is our 2015 calendar, with some of the great women who have spoken with us in the past year. and we also have a mug, you're going to appreciate this. this is a famous saying from claire booth. >> no good deed goes unpunished. thank you. thank you. >> yes. >> and we also have this gift it should be right on your desk. it's the heritage guide to the constitution. >> oh very good. let me show everybody that one. more light reading this evening. thank you all very much for having me. it's heavy. thank you very much. >> thank you.
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>> thank you very much. thank you so much.x zj am i still on tv? i always forget to give my wife a round of applause. the 114th congress gavels in tomorrow at noon eastern. you'll see the swaering in of members. watch live on c sbs span and with the new congress, you'll have the best access, the most extensive coverage anywhere. track the gop as it leads on
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capitol hill and have your say as events unfold on tv, radio and the web. the new congress will start off the year with 247 house republicans. that's the largest gop majority since the 1928 elections. they'll leave 188 democrats. the senate will have 54 republicans, 44 democrats and two independents. bernie sanders and aung us king of maine are expected to caucus with the democrats. cspan sat down with ray smock so discuss the history of the house speaker position. >> the constitution requires the house of representatives to choose a speaker. what is the speaker's job in. >> it's a big job. it's evolved over a long period of time, over 200 years. it started outcid as a constitutional office because constitution says the house shall choose its

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