Archive for the 'Discrimination' Category

Shifting the Burden for Pregnancy: That’s Clear, Right?

On Wednesday, March 25, 2015, the Supreme Court issued its decision in Young v. United Parcel Service. Those of us that are employment lawyers have been anxiously awaiting this decision because it is going to clear up just what we have to do with light duty and pregnant employees. You see, there has been some confusion under the federal law regarding what, if any, duty an employer had to provide light duty work to pregnant employees when that same employer provided light duty work to other employees. It has been pretty common for an employer to provide light duty work to employees who were, say, hurt on the job, but not provide light duty work to any employee who was hurt off the job. Is that OK? Well, Young was going to clear all that up and answer that question.

Not so fast, my friend.

OK, what did the Court do? Well let’s start with the issue before the Court. The Pregnancy Discrimination Act (the “Act”) amended Title VII to say that discrimination because of pregnancy was discrimination because of sex. Simple enough, right? But it doesn’t stop there. The Act also says that an employer must treat “women affected by pregnancy the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Now, that does not come out and say you have to provide accommodations for pregnant employees who are limited because of their pregnancy like the ADA does about disability, but it’s as close as you can get without actually saying it, now isn’t it? And this second clause of the Act is the one the Court was dealing with in Young.

And what the Court did in interpreting this second part of the Act was first reject the arguments made by both sides in the case.   Ms. Young (and the United States by the way) argued that this second part of the Act essentially meant that if you accommodated anyone, you had to accommodate a pregnant employee who is similarly impaired. No, said the Court, that is creating what the Court called a “most favored nation” approach for pregnant employees and Congress could not have meant that.   And that means that the recent EEOC Guidance on Unlawful Discrimination Against Pregnant Workers has to be reworked. And the EEOC knows it. UPS, on the other hand, argued that this second clause really only helped define that pregnancy discrimination equals sex discrimination. And the Court rejected this out of hand for reasons we don’t have to get into.

Well, what is the answer? The Court held that the way to determine if Ms. Young was discriminated against was to apply the McDonnell Douglas burden shifting analysis. Simple enough for an employment lawyer, we have been using this to litigate employment cases for years. So, says the Court, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Act’s second clause may make out a prima facie case by showing:

. . . that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others ‘similar in their ability or inability to work.’

Id. at 20-21. The burden or production then shifts to the employer to show a legitimate, nondiscriminatory reason for its decision, and if the employer does so, the employee can still prevail by showing that the “legitimate, nondiscriminatory reason” is actually a pretext for intentional discrimination.

Easy enough. Been there, done that. But wait a minute. Just a couple of things to point out here. First, when discussing the “legitimate, nondiscriminatory reason” the Court noted:

But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.

Id. at 21. Does that mean we can’t continue to have a policy that provides light duty to only those who are hurt on the job? Not sure, because that was not the case here. In this case, UPS provided light duty to a number of categories of workers including those hurt on the job, those “disabled” under the ADA, and those who lost their DOT certification to drive. Might it be different if ONLY those hurt on the job got light duty? It might, it might. After all, the Court did say:

Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong. . . .

Id.

But the Court didn’t stop there either. When discussing how a plaintiff might survive summary judgment the Court noted:

We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.

Id.

What the Court did here essentially was apply a really tried and true method for litigating discrimination complaints to the Pregnancy Discrimination Act but with a bit of a disturbing twist. Justice Scalia in his dissent points out:

Normally, liability for disparate treatment arises when an employment policy has a ‘discriminatory motive,’ while liability for disparate impact arises when the effects of an employment policy ‘fall more harshly on one group than another and cannot be justified by business necessity’. . . . In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others.

Young, (Scalia, dissenting at 8).

OK, that’s all clear, right? You know just what to do, right? No? Here is what you do. If you have a policy that provides benefits to one class of employees, say, a light duty policy that only applies to employees hurt on the job, and pregnant employees don’t get the same benefit, we need to talk. So give us a call.

Two Wrongs Don’t Make a Right.

Let me set the scene: Let’s say there is this guy who happens to believe some incredibly ignorant, misguided, morally repugnant things.  Some might call him a white supremacist, others who decided to be politically incorrect, might call him a Nazi and still others might just call him a racist. Regardless of what others might call him let’s say he is so stupidly proud of his beliefs that he has a swastika tattoo and he shows it off.

Before we go any farther, let me remind everybody that our guy here has a RIGHT under the First Amendment to the U.S. Constitution to hold these views no matter how ignorant they might be. And as long as he does not act on these views and commit a crime, he can’t be arrested for what he believes.

But now this guy, armed with his First Amendment protection, has to interact in society. So lets say he goes to a luxury hotel and tells the manager he doesn’t want to be waited on by a black waitress.  Does he have that right? The answer to that question is easy. Yes, he has the right to be stupid. And the hotel HAS AN OBLIGATION to refuse his request. He can get up and leave, but the hotel CAN’T (and shouldn’t) honor his  request. Sound familiar? That’s because I have written about this before. Go here if you want to read that post.

So now, two years later, the same issue has come up again. But this time there’s a twist. Let’s assume this time, our guy is a new father with a brand new baby who is in a hospital neonatal intensive care unit being cared for by an African-American nurse. And he doesn’t like it. So, let’s assume he goes to the charge nurse and asks that no African-Americans be allowed to care for his child. Sound far-fetched?  Check out the article in Detroit Free Press, no luxury hotel, but the hospital part, well, take a look at the article.

Now here is the shocking part, at least for me, according to the Free Press article, the hospital accommodated (I was going to say honored, but that word just didn’t fit) his request. In fact, the Freep article said the hospital went so far as to put a note on the baby’s chart indicating that no African-Americans could care for the child. And according to the Freep for the next month or so no African-American nurses were assigned to the baby’s care.

So what about that “twist” I mentioned?  Sounds like the hotel all over again, doesn’t it?  Well, the Freep article quotes a Wayne State professor saying, “This case puts ‘into tension two different facets of the law’ . . .  Patients choose their doctors, he said . . .  But there are also laws prohibiting discrimination.” There is a difference between the hospital and the hotel, isn’t there?  The father can leave the restaurant, but he can’t simply take his baby out of the hospital — not out of neonatal intensive care anyway.  So is there tension as the Wayne State professor suggests?  I don’t think so and I respectfully disagree.  There is no tension in the law. The hospital, just like the  hotel, CAN’T  honor this request.

Yes, people make decisions based on ignorant and misguided prejudices every day.  And when they keep their prejudices to themselves, there isn’t much society can do. That is part of living in a free country. So can you choose a doctor based on nothing more than the doctors race?  And by the way, the insinuation in the article that this is somehow similar to a woman who prefers to go to a female gynecologist?  Come on, not the same thing, not even close.  Any way, can you chose a doctor based on race?  I suppose you can, it’s stupid, but you can.   But when these types of individuals interact with society, they have to follow society’s  rules.  That means setting aside the ignorance and certainly not facilitating it.

The Freep article quoted another professor who got it right, in my estimation. “The patient’s father has a right to select the hospital to treat the child. The father does not have the right to exercise control over the hospital in discrimination of its employees,” he said.

You see, the hospital has some obligations here. In addition to providing excellent care to its patients, a hospital has obligations as an employer. One of those obligations is to not racially discriminate against its employees.  There are good nurses and bad nurses, black nurses and white nurses, and race has NOTHING TO DO with quality of care.  That’s right, I said it, one has nothing to do with the other.  And a hospital as an employer CAN’T, let me say that one more time, CAN’T, no matter what it’s patients want, make employment decisions based on race.

So if the allegations in the story are true is the hospital in a difficult position here?  Not in my opinion, No. The answer is easy, the hospital should have denied this man’s request. And if he doesn’t like it? Well, that’s just too bad.  Like my grandmother used to tell me: Two wrongs don’t make a right.

Remember that Guilty Plea in College?

The EEOC Issues Guidance on Using Arrest and Conviction Records in Employment Decisions under Title VII.

The EEOC issued it newest guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 today.

Some of the high points from the summary:

The Guidance focuses on employment discrimination based on race and national origin.

The Guidance discusses the differences between arrest and conviction records.

  • The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The Guidance discusses disparate treatment and disparate impact analysis under Title VII.

  • A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).
  • An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

You can find the Guidance here.

Want to read more, go to wnj.com.

What’s Next? The EEOC focuses on Pregnancy and Caregiver Discrimination.

I’m going to start out this post with a disclaimer. I’m not a big fan of Texas. And I don’t mean the Dallas Cowboys, I mean the State of Texas. In fairness, I haven’t spent that much time in Texas, but the time I did spend there cost me a bundle.

You see, I once got a speeding ticket in Texas. I contend that I got a speeding ticket in Texas because I didn’t have a Texas plate on the rental car that I was driving. My wife, of course, says I’m an idiot and I got a speeding ticket in Texas because I was speeding. Seems to me that the Texans who were passing me on the highway when I got pulled over were going just a bit faster than I was, but the sheriff’s deputy was honed in on the out-of-state plate and it cost me a cool $300 bucks to learn a valuable lesson: Don’t go to Texas. Of course, what I should have learned was don’t speed, but that’s beside the point.

So a couple of weeks ago, when I was reading the ABA Journal I was not all that surprised to see an opinion from the Southern District of Texas that was, well, a bit surprising.  In a case called EEOC v. Houston Funding II, Ltd. et al., the EEOC claimed that the plaintiff, a nursing mother, was terminated after her maternity leave because she wanted to pump breast milk at work. Of course, her employer had a different story, claiming that the plaintiff was terminated because she had abandoned her job.

Now all of that is pretty routine. What really caught me was one little paragraph (well, it’s really two paragraphs) in the opinion. The court said:

“Even if the company’s claim that she was fired for abandonment is meant to hide the real reason – she wanted to pump breast milk – lactation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2009. After that day, she was no longer pregnant and her pregnancy-related conditions ended. Firing someone because of lactation or breast pumping is not sex discrimination.”

Wow. Yes, I said it: Wow! Now I know it’s not fair to blame the entire state of Texas just because this decision came from a court in Texas, but I’m going to do it anyway. Remember, I got a $300 speeding ticket in Texas.

So here’s what we are going to do. We are not going to rely on this decision when an employee asks to have time and a place to pump breast milk. And there are a couple of good reasons for that, besides the fact that I believe the court made the wrong decision.  First, the plaintiff was fired in 2009. Since 2009, the Patient Protection and Affordable Care Act amended the FLSA to provide for break time for nursing mothers. You can read about that here and here. Second, not surprisingly, the EEOC is considering an appeal of this decision. And finally, the EEOC is putting a spotlight on the issues of pregnancy and caregiver discrimination. In fact, a couple of days ago the EEOC held hearings. The press release is here.  Commissioner Ishimaru stated:

“Discrimination against pregnant women and caregivers continues to be an issue of vital concern for the Commission. Employers should not make decisions based on stereotypes and presumptions about the competence and commitment of these workers. EEOC will vigorously enforce the anti-discrimination laws as they apply to pregnant women and caregivers.”

So if you have not yet considered how you are going to handle the issue of an employee asking for time and a place to pump breast milk at work, now is the time —  before the EEOC answers the question for you.

DON’T BELIEVE ANYTHING YOU READ . . . .

That’s an odd thing to write, wouldn’t you agree? After all, a big part of what I do is write and if people don’t believe what I write, then I’m in a bit of trouble. Anyway, I was surfing some “social networking” sites today (I’m not going to tell you which one, but it was a primarily business-related site that lets people make connections with others and form groups) and I ran across a link that took me to an article that made me think of this little saying. I don’t know whose quote this is, but my mom tells me, over and over again, (you’ve got a mom so you know what I’m talking about when I say over and over again, right?) that this saying is something my grandfather often said. (I was pretty young when my grandfather passed away so I didn’t get the benefit of his wisdom, so I’m just going to have to take my mom’s word for it.) Anyway, she claims my grandfather used to say: “Don’t believe anything you read and only half of what you see.”  Makes you think that my grandfather grew up reading today’s papers doesn’t it?  But no, my grandfather was born in 1896.

Back to the point. I was surfing through some groups on this social networking site and came across a “discussion” in an HR group and that discussion linked to a blog that is supposedly aimed at those over 40 looking for a job. This particular blog post dealt with “age discrimination” and it asked what do you do if you are in an interview and someone asks you how old you are? The author said your normal response would be to say that the question is illegal and then he wrote “AND YOU WOULD BE WRONG.” 

That’s when I stopped reading. Could this dude seriously be telling us that it is okay for you to ask someone how old they are in a job interview? That’s the way I read it.  And if I’m right, well you know what’s next, he is WRONG!!!!!

Now let’s guess who is really wrong, Me, or the guy who wrote the post in the HR group (ok, I know you know the answer to this question to, don’t you?). It was that dude, not me who is wrong, I’m never wrong (well, almost never). You don’t believe me? Let’s look at the Michigan Pre-Employment Inquiry Guide. Under the subject “Age” and the heading “Unlawful Pre-Employment Inquiries” the guide says “Applicant’s age or date of birth.”  So, just in case you didn’t already know this or you also happened to read the same blog I did, YOU CAN’T ASK SOMEONE HOW OLD THEY ARE IN A JOB INTERVIEW!!!!!

I know, I know, that information is written too, so why should I believe that? How about because the people at the MDCR, the ones fielding the complaints filed by applicants who are being asked how old they are, will believe it. 

looks like my grandfather was right after all.

THE GUEST IS NOT ALWAYS RIGHT

Let’s pretend for a minute.  Let’s pretend that you are the manager of a luxury hotel and a couple comes to the front desk to check in.  And let’s pretend that the couple asks if you can have an ounce of cocaine brought to their room.  What are you going to do?  Don’t forget, this is a luxury Hotel we are talking about, and the guest is always right, right?  Of course you are going to say “No” Right?  I mean, come on?  cocaine is illegal and you wouldn’t do anything illegal even for a guest at a luxury hotel?  Right?

You see sometimes the guest (or client) is not right.  Ok the cocaine thing might be a bit extreme.  Let’s try again.  Take for example the allegations made by a waiter at the Ritz Carleton Hotel in Naples Fl.  Seems, according to the allegations in the LAWSUIT filed by the waiter, a British couple, upon checking into the hotel, informed the manager of the hotel that they did not want to be served by “people of color” (nice of them to be so politically correct, wouldn’t you say?) or “people with foreign accents.”  Seems that the hotel’s computer system has a record of the instructions.  Yes, someone entered into the Hotel’s computer system: “As per Mr. (the managing director Edward) Staros, this couple is very, very prejudice(d) and do like like [sic] ppl of color or foreign accents.”  Then, When Wadner Tranchant, a 15 year employee of the Hotel of Haitian decent tried to serve the family, he was “sent away.”  Mr. Tranchant, you may have guessed, is now suing the hotel.  What a shock!  By the way, if the facts are as he alleged, he is probably going to win.

So what should the Hotel (or more properly the Hotel Manager) have done?  He should have informed the guests that the Hotel would not honor their request.  He should have told them that his entire staff was extremely qualified and would provide the family with top quality service.  He should have told them that the Hotel would not discriminate against its employees or facilitate his prejudices.  And then, if the guest insisted or gave any of the employee’s even a bit of trouble, he should have asked the guests to leave.  You see, the guest is not always right.  You can see the USA Today story at http://content.usatoday.com/communities/ondeadline/post/2010/04/waiter-alleges-hotel-honored-british-couples-request-not-to-be-served-by-people-of-color/1

OK, now it’s a trend . . . .

When you see something once you may just write it off as, well, as one of those things.  Twice, maybe a coincidence?  Three time, now we have a trend.   Remember when we talked about the 3rdCircuit finding that a man who “pushed his buttons with pizzazz” (I told you then, I will tell you again, those were the plaintiff’s words, not mine) could sue for sex discrimination based on his failure to “conform to gender stereotypes”?  And remember how we talked about Price Waterhouse v. Hopkins, which had previously found this type of claim to be valid for a woman who was not feminine enough?  You don’t remember, well look here http://negotiumlex.wnj.com/?p=50 (I love linking to my own blog). 

Well, here is number three and now we have a trend.  Last week, the Eight Circuit in a case titled Lewis v. Heartland Inns of America, L.L.C. et al. held that Ms. Lewis, who claimed she was fired from her job as a front desk clerk “because of unlawful sex stereotyping” could proceed with her trial.  It seems Ms. Lewis did a pretty good job for the hotel when she started as a part time employee and she was offered a full time job at one of the hotel’s properties.  It also seems that the Director of Operations approved this hiring without ever actually meeting Ms. Lewis.

According to the court: “Lewis’ positive experience at Heartland changed only after Barbara Cullinan saw her working at the Ankeny desk. As the Director of Operations, Cullinan had responsibility for personnel decisions and reported directly to the general partner of Heartland. She had approved the hiring of Lewis for the Ankeny A shift after receiving Stifel’s positive recommendation. After seeing Lewis, however, Cullinan told Stifel that she was not sure Lewis was a “good fit” for the front desk.”  The court went on to note: “Lewis describes her own appearance as “slightly more masculine,” and Stifel has characterized it as “an Ellen DeGeneres kind of look.””  Well this makes sense to me because we all know that Ellen DeGeneres has had no success at all (that’s sarcasm in case you missed it).

The court went on with a bunch of other legal mumbo jumbo about shifting burdens of proof and prima facie cases, cited Price Waterhouse, and some other cases and held that Ms. Lewis was entitled to a trial on her Title VII claim that she was fired for not conforming to sexual stereotypes.

So what does all of this mean?  I don’t hire people without at least looking at them first?  WAIT, I WAS ONLY KIDDING.  How about this, remember, at least for now, sexual orientation is not a protected category under federal (or Michigan) law.  But the line between what is a sexual orientation case and what is a sex discrimination case is getting fuzzier.  So what’s the lesson, the real lesson?  Here is the lesson.  If you want to be sure to stay out of trouble, hire and fire people based on what they do and how they do it and worry a little less about what they look like doing it.

I CAN’T . . .

Guess what? (For those of you who know me none of this will come as a big surprise but . . . ) I can’t jump very well. I can’t run an 11 second 100 yard dash and I can’t hit a golf ball 300 yards.  I certainly can’t wear the same jeans I wore in college and I can’t stay up all night like I used to. I can’t do calculus and I can’t speak Chinese. I can’t type as fast as my mother or write as well as my wife. I can’t hit a curve ball and I can’t dunk a basketball. As a matter of fact, the list of things that I can’t do, or at least can’t do well, is as long as my arm and none of those things has anything at all to do with what I can do.

Another thing it seems that I can’t do is keep track of what “National this and National that” month it is. Did you know that October was National Disability Employment Awareness Month? Neither did I. I wish I would have known. Maybe then I would have known that while the national unemployment rate is running at about 10%, about 16.2% of people with disabilities are unemployed. Unfortunately, for people with disabilities, employers are often more interested in what they can’t do instead of what they can.

When I was hired for my last couple of jobs, no one asked me what I couldn’t do. I don’t think they really cared.  They asked me what I could do. And what I can do is what makes me good at what I do for a living. Last time you interviewed someone, did you ask the same?

So, the next time you hire someone, look past what they can’t do and find out what they can.

Click the link and see what I’m talking about.http://www.whatcanyoudocampaign.org/blog/wp-content/uploads/PSAAD2.wmv

RACIST OR NOT, IT’S JUST RUDE . . . .

There are some interesting things going on over in Detroit.  According to the Detroit Free Press, former Detroit Corporation Counsel Kathleen Leavey is suing the City of Detroit claiming “she was demoted when she described the court as “ghetto court,” during a conversation in January. Leavey says she was forced to resign her post as interim corporation counsel after [Chief Judge Marylin] Atkins contended in a letter that the ghetto remarks were racist.”  The lawsuit claims reverse race discrimination among other things.  Ms. Leavey is white.  During discovery in the case, Deputy Mayor Saul Green was asked by Ms. Leavey’s lawyer if the use of the “N” word was more offensive when it was used by a white person than when it was used by a black person.  Mr. Green was instructed by a city lawyer not to answer the question and he did not.  Now Ms. Leavey’s lawyer wants to take Mr. Green’s deposition again and get an answer to his question.  You can see the Free Press article here:  http://www.freep.com/article/20090923/NEWS01/90923032/1322/Race-flares-up-during-deposition-on-judge-s–ghetto-court–lawsuit

So, while the City claims this question has nothing to do with Leavey’s suit, this is an interesting question right?  After all, that particular word is hate filled and inappropriate, and yet we hear it come out of the mouths of rap singers and comedians all the time.

Now I have what some of you may consider a radical thought, it’s a bit off point and probably has nothing to do with the Leavey case, but then again this is an employment law blog not a news blog and I’m trying to make a point here.  Here it is: the work place is not a rap song or a comedy stage and the “N” word, along with a bunch of other words that have nothing at all to do with race are just not appropriate for the workplace.  And I frankly don’t care who says them, whether it is someone who happens to be white, or black or a little green person from Mars.  If you are a polite adult you do not use words that you know may offend someone else, especially someone you have to work with all day.  What happened to manners?  Anybody with any common sense at all should know that some words just might offend some people.  Don’t say them at work.  Don’t say them to your coworkers when you are not at work.  Get some manners and don’t say them at all.  But if you just can’t stop yourself from saying things that probably will offend a coworker, then don’t be surprised when you get disciplined for it.

NON-DISCRIMINATION

Today’s posting is a news flash and nothing more.  On Wednesday, September 23, 2009, U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, chaired the first full committee hearing in the House of Representatives on legislation to prohibit employers from discriminating against employees on the basis of sexual orientation or gender identity.

The Employment Non-Discrimination Act (H.R. 3017), introduced by Rep. Barney Frank (D-MA), would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. Currently, it is legal to discriminate in the workplace based on sexual orientation in 29 states and in 38 states based on gender identity.”  See http://edlabor.house.gov/hearings/2009/09/hr-3017-employment-non-discrim.shtml

 

Witnesses before the House included, among others, Rep. Barney Frank, the Bill’s sponsor, Stuart Ishimaru, Acting Chairman of the EEOC, Vandy Beth Glenn, a former employee of the state of Georgia who alleges she was fired from her job after she told her supervisor she was transitioning from being a man to being a woman, various legal professionals and representatives of religious organizations. 

 

You can get links to a video of Representative Frank’s testimony and pdfs of the other witnesses testimony at the committee website listed above.

 

The full House is expected to vote on the Bill later this year with the Senate taking up its version sometime next year.

 

We will keep you posted.

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