Was Justice Gorsuch thinking about Title IX in EMD Sales?
If you skipped EMD Sales v. Carrera, I won’t blame you. The Supreme Court unanimously reversed the Fourth Circuit about the correct evidentiary standards in a Fair Labor Standards Act case. Boring, right? Maybe. But I think this case may be about something more. At issue was how an employer had to show if an employee was exempt from overtime and minimum wage laws. Did the employer need to make his case that the employee was exempt with a preponderance of the evidence? Or did he need to meet a higher burden, clear and convincing evidence?
There has been a long-running debate about whether the appropriate burden in Title IX is “preponderance” or “clear and convincing.” In many cases, especially those involving allegations of sexual assault, the evidence boils down to a he-said, she-said. Universities can often impose sanctions based on a preponderance, but cannot punish students if they need to provide clear and convincing evidence.
Justice Kavanaugh’s majority found that for the FLSA, the appropriate standard is a “preponderance.” Kavanaugh expressly drew an analogy between FLSA and Title VII.
Most relevant here, the Court has applied a preponderance standard in
Article from Reason.com
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