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“And” Or “Or” – This Ninth Circuit Opinion Highlights The Difference

“And” and “or” are classified as conjunctions. They are classified as such because they yoke together words, phrases, clauses and sometimes even sentences.  They are not interchangeable, however, as illustrated by the recent opinion by the Ninth Circuit Court of Appeals in Zetwick v. County of Yolo, 2017 U.S. App. LEXIS 3260 (9th Cir. Cal. Feb. 23, 2017).  The case involved allegations that a county sheriff had created a sexually hostile work environment.  The Ninth Circuit found that the District Court has applied the wrong legal standard:

The district court also applied an incorrect legal standard when it “f[ound] that Defendant Prieto’s conduct in this case was not severe and pervasive.” Zetwick, 66 F. Supp. 3d at 1285 (emphasis added).  The proper standard, however, is whether the defendant’s conduct was “severe or pervasive.” Geo Grp., Inc., 816 F.3d at 1206 (emphasis added).  Summary judgment is appropriate only if the conduct was “neither severe nor pervasive enough to alter the conditions of [Zetwick’s] employment.”  Manatt v. Bank of Am., NA, 339 F.3d 792, 799 (9th Cir. 2003) (emphasis added).  We do not dismiss this mistake as simply a typographical error, notwithstanding that the district court properly stated the requirement as “severe or pervasive” elsewhere in its decision.  The incorrect statement of the legal standard occurred precisely where the district court made the pertinent finding that Zetwick had not met the standard. Zetwick, 66 F. Supp. 3d at 1285.

The irony is, of course, that some might consider the correct standard as enunciated by the Ninth Circuit to be itself ambiguous.  This ambiguity is possible because “severe” and “pervasive” are not mutually exclusive characteristics, as are “full” and “empty”.  Thus, “or” could be understood in its exclusive sense (severe or pervasive, but not both) or inclusive sense (severe or pervasive, or both).  In contrast, “full or empty” can only be understood in its exclusive sense – a glass at the same time can be full or empty but not both.  I leave to the employment lawyers the question of the proper legal standard.

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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
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Keith Paul Bishop is a partner in Allen Matkins' Corporate and Securities practice group, and works out of the Orange County office. He represents clients in a wide range of corporate transactions, including public and private securities offerings of debt and equity, mergers and acquisitions, proxy contests and tender offers, corporate governance matters and federal and state securities laws (including the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act), investment adviser, financial services regulation, and California administrative law. He regularly advises clients...

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