1 00:00:00,160 --> 00:00:03,720 Speaker 1: During oral arguments before the full Second Circuit Court of Appeals, 2 00:00:03,880 --> 00:00:07,400 Speaker 1: Judge Rosemary Pooler said, it's a little bit awkward to 3 00:00:07,520 --> 00:00:10,200 Speaker 1: us to have the government on both sides of this case. 4 00:00:10,560 --> 00:00:14,000 Speaker 1: But that's where the Trump administration was on opposite sides 5 00:00:14,040 --> 00:00:17,799 Speaker 1: in a case that's attracted nationwide attention and could result 6 00:00:17,800 --> 00:00:20,639 Speaker 1: in a landmark decision on whether Title seven of a 7 00:00:20,720 --> 00:00:24,159 Speaker 1: Civil Rights Act of nineteen sixty four protects gay and 8 00:00:24,239 --> 00:00:28,360 Speaker 1: lesbian workers from bias as its protected workers from gender 9 00:00:28,360 --> 00:00:31,319 Speaker 1: and racial bias for more than half a century. The 10 00:00:31,400 --> 00:00:35,040 Speaker 1: Equal Employment Opportunity Commission argued that the federal law would 11 00:00:35,080 --> 00:00:38,120 Speaker 1: protect the plaintiff, a skydiving instructor who said he was 12 00:00:38,159 --> 00:00:41,760 Speaker 1: fired because he was gay, But the Justice Department sided 13 00:00:41,800 --> 00:00:45,320 Speaker 1: with the employer, saying Congress did not intend to include 14 00:00:45,320 --> 00:00:49,360 Speaker 1: gay and lesbian discrimination in the civil rights law. Joining 15 00:00:49,400 --> 00:00:53,320 Speaker 1: me is Professor Anthony Christ of the Chicago Kent College 16 00:00:53,320 --> 00:00:57,200 Speaker 1: of Law. Anthony explained what the basic issue is here. 17 00:00:58,280 --> 00:01:02,360 Speaker 1: So the basic issue here is whether sexual orientation discrimination 18 00:01:02,680 --> 00:01:06,320 Speaker 1: is a form of sex discrimination um and and therefore 19 00:01:06,400 --> 00:01:10,959 Speaker 1: actionable under federal employment into discrimination law. Uh So, federal 20 00:01:11,040 --> 00:01:15,319 Speaker 1: law expressly says that sex discrimination is banned. Um. And 21 00:01:15,360 --> 00:01:19,440 Speaker 1: the argument here is that if an employer takes action 22 00:01:19,480 --> 00:01:22,440 Speaker 1: against an employee because of their sexual orientation, that they're 23 00:01:22,480 --> 00:01:26,480 Speaker 1: necessarily taking into account their sex and the sex of 24 00:01:26,560 --> 00:01:30,920 Speaker 1: their of their intimate partner. And as a consequence, Um, 25 00:01:30,959 --> 00:01:34,920 Speaker 1: that's just playing old sex discrimination and banned under federal law. 26 00:01:35,520 --> 00:01:39,959 Speaker 1: And what's the argument of the Justice Department. So the 27 00:01:40,040 --> 00:01:44,840 Speaker 1: Justice Department essentially says a few things. First that sixty 28 00:01:44,959 --> 00:01:49,400 Speaker 1: four UH, Congress never intended to cover sexual orientation discrimination 29 00:01:49,440 --> 00:01:52,960 Speaker 1: claims when they banned sex discrimination in the workplace. Um. 30 00:01:53,080 --> 00:01:55,760 Speaker 1: And And the second second argument is that a number 31 00:01:55,760 --> 00:02:01,120 Speaker 1: of cases were decided prior to that held the sexual 32 00:02:01,120 --> 00:02:07,080 Speaker 1: orientation discrimination wasn't actionable. Congress overhauled the Federal Civil Rights 33 00:02:07,080 --> 00:02:10,000 Speaker 1: Act in a number of important ways entitled seven, but 34 00:02:10,080 --> 00:02:13,760 Speaker 1: that they that in UH not protecting sexual orientation discrimination 35 00:02:13,800 --> 00:02:18,760 Speaker 1: expressly that they in fact in effect ratified those decisions. 36 00:02:18,840 --> 00:02:24,240 Speaker 1: And finally that Congress has rejected bills to specifically amend 37 00:02:24,440 --> 00:02:27,640 Speaker 1: Title seven to protect against sexual orientation discrimination. And for 38 00:02:27,680 --> 00:02:32,160 Speaker 1: all those reasons, UM, the sex discrimination is should not 39 00:02:32,160 --> 00:02:35,920 Speaker 1: be interpreted as including UH or as a sexual orientation 40 00:02:35,960 --> 00:02:38,959 Speaker 1: discrimination shouldn't be thought of as a subset of sex discrimination. 41 00:02:39,440 --> 00:02:43,880 Speaker 1: Anthony does precedent favor the Justice Department's position because the 42 00:02:43,960 --> 00:02:48,320 Speaker 1: full Seventh Circuit April overturned its own precedent and held 43 00:02:48,320 --> 00:02:53,160 Speaker 1: that sexual orientation bias necessarily a sex discrimination. But an 44 00:02:53,160 --> 00:02:57,000 Speaker 1: Eleventh Circuit panel ruled the opposite in March, and the 45 00:02:57,080 --> 00:03:01,200 Speaker 1: Second Circuit panel in this case ruled the opposite. So 46 00:03:01,520 --> 00:03:05,079 Speaker 1: where does precedent stand. Well, in the Second Circuit, it's 47 00:03:05,080 --> 00:03:08,080 Speaker 1: in precedent since two thousand in a case called Silington 48 00:03:08,480 --> 00:03:12,679 Speaker 1: that sexual orientation claims aren't cognizable under Title seven UM. 49 00:03:12,720 --> 00:03:14,880 Speaker 1: And I think that a number, you know, number of 50 00:03:14,880 --> 00:03:18,440 Speaker 1: district courts UM have have joined the Seventh Circuit in 51 00:03:18,520 --> 00:03:23,760 Speaker 1: ruling UH for LGB plaintiffs, So that the trend seems 52 00:03:23,760 --> 00:03:27,760 Speaker 1: to be favoring sexual orientation claims or sexual plaintiffs brings 53 00:03:27,760 --> 00:03:31,079 Speaker 1: sexual orientation claims. But you're correct that by and large 54 00:03:31,120 --> 00:03:34,440 Speaker 1: most circuit course of appeal have have held the opposite. 55 00:03:34,520 --> 00:03:38,520 Speaker 1: So we'll see where the trend goes. UM. But I 56 00:03:38,560 --> 00:03:40,720 Speaker 1: certainly think it's telling that the fact that the Second 57 00:03:40,720 --> 00:03:43,360 Speaker 1: Circuit wanted to rehear this case that they're that they're 58 00:03:43,360 --> 00:03:46,520 Speaker 1: seriously re examining that two thousand precedents. That was going 59 00:03:46,560 --> 00:03:49,840 Speaker 1: to be my next question, because the Second Circuit rarely 60 00:03:49,960 --> 00:03:53,760 Speaker 1: here's cases on bank or with all its judges. So 61 00:03:54,240 --> 00:03:58,360 Speaker 1: does that tell you how important this case is? Oh? Absolutely, 62 00:03:58,560 --> 00:04:01,320 Speaker 1: Generally speaking, the Second Circuit it is loth to go 63 00:04:01,480 --> 00:04:04,360 Speaker 1: unbunked um, And they will only do so typically if 64 00:04:04,360 --> 00:04:07,200 Speaker 1: they think it's actually worth uh uh you know, worthy 65 00:04:07,400 --> 00:04:10,920 Speaker 1: of Supreme Court review. And so they generally don't uh 66 00:04:11,120 --> 00:04:13,160 Speaker 1: don't go through this procedure. So I think that this 67 00:04:13,280 --> 00:04:16,719 Speaker 1: is a strong signal that they're really seriously taking a 68 00:04:16,760 --> 00:04:19,920 Speaker 1: hard look at this and and very well may overturned 69 00:04:20,000 --> 00:04:24,599 Speaker 1: that that two thousand error precedent. The Justice Department's lawyer 70 00:04:24,680 --> 00:04:27,960 Speaker 1: refused to answer the judges questions about how the riff 71 00:04:28,120 --> 00:04:31,800 Speaker 1: developed between the Justice Department and the e e o C. 72 00:04:32,839 --> 00:04:36,960 Speaker 1: So how do the judges weigh the different government positions, 73 00:04:37,440 --> 00:04:40,880 Speaker 1: which do they give more weight to? Well, Well, the 74 00:04:40,880 --> 00:04:44,080 Speaker 1: e o C is, of course the agency charged with 75 00:04:44,160 --> 00:04:47,640 Speaker 1: the enforcement and implementation of Huttle seven um. And so 76 00:04:47,920 --> 00:04:51,280 Speaker 1: their their guidance here will be, you know, may very 77 00:04:51,279 --> 00:04:54,360 Speaker 1: well be persuasive. Um. The Department of Justice, of course 78 00:04:54,440 --> 00:04:57,680 Speaker 1: is you know, their opinion will be accorded weight too, 79 00:04:57,720 --> 00:05:00,839 Speaker 1: because again there they are representing the as the United States, 80 00:05:00,839 --> 00:05:04,000 Speaker 1: and they are the nation's largest employer. So you know, 81 00:05:04,040 --> 00:05:06,680 Speaker 1: time will tell how these these arguments weigh out. But 82 00:05:06,760 --> 00:05:09,000 Speaker 1: at the end of the day, what will guide and 83 00:05:09,000 --> 00:05:13,039 Speaker 1: control the judge's decision is their interpretation of the statute. 84 00:05:13,800 --> 00:05:16,359 Speaker 1: Is there any question that this case or one like 85 00:05:16,520 --> 00:05:20,559 Speaker 1: it will end up at the Supreme Court? Uh? Time 86 00:05:20,760 --> 00:05:23,720 Speaker 1: time will tell there too. I think it's much more 87 00:05:23,760 --> 00:05:26,080 Speaker 1: likely now that you have a split among the circuit 88 00:05:26,120 --> 00:05:29,240 Speaker 1: courts of appeals, UM, that the Supreme Court will ultimately here. 89 00:05:29,400 --> 00:05:32,680 Speaker 1: Whether it's the eleventh Circuit case, this case or or 90 00:05:32,720 --> 00:05:36,960 Speaker 1: another one, we'll see ultimately. Um, the bigger issue may 91 00:05:37,000 --> 00:05:41,120 Speaker 1: be whether an employer or defendant really wants to appeal 92 00:05:41,200 --> 00:05:43,360 Speaker 1: this decision, because that might be at the end of 93 00:05:43,440 --> 00:05:47,039 Speaker 1: the day about employment decision if you in terms of 94 00:05:47,040 --> 00:05:50,080 Speaker 1: branding to be associated with the case where you're defending 95 00:05:50,120 --> 00:05:53,320 Speaker 1: anti gay bias. But um, you know, this case may 96 00:05:53,400 --> 00:05:58,920 Speaker 1: very well be that vehicle. Um. The Administration stands challenges 97 00:05:58,960 --> 00:06:03,080 Speaker 1: a group of fifty companies and organizations, including Microsoft, Google, 98 00:06:03,120 --> 00:06:07,920 Speaker 1: and Viacom, that file documents in June arguing that discrimination 99 00:06:08,000 --> 00:06:12,039 Speaker 1: based on sexual orientation should be illegal. How does the 100 00:06:12,080 --> 00:06:16,400 Speaker 1: court weigh an amicus brief like that, Um, of course 101 00:06:16,440 --> 00:06:19,960 Speaker 1: I think it's uh. Any amicus brief will will be 102 00:06:20,440 --> 00:06:23,480 Speaker 1: from from a group of UH companies like that will 103 00:06:23,520 --> 00:06:27,640 Speaker 1: certainly have some impact in terms of least bringing attention 104 00:06:28,200 --> 00:06:31,560 Speaker 1: UH to the issue in a in a different way. UM. 105 00:06:31,600 --> 00:06:35,720 Speaker 1: It's certainly telling. It's significant to the extent that in theory, 106 00:06:36,480 --> 00:06:39,800 Speaker 1: the position that these companies have taken would potentially open 107 00:06:39,839 --> 00:06:44,200 Speaker 1: them up to more liability. And that, of course, I think, UM, 108 00:06:44,200 --> 00:06:47,479 Speaker 1: you know, gives it a particular I think amount of 109 00:06:47,520 --> 00:06:51,440 Speaker 1: cachet that some of the other amicus briefs may not UM. 110 00:06:51,520 --> 00:06:54,960 Speaker 1: But importantly, I think what it signals to the judges 111 00:06:55,520 --> 00:06:58,600 Speaker 1: is that these companies don't have a reliance interest on 112 00:06:58,760 --> 00:07:01,880 Speaker 1: the status quo remaining UM and that if they do, 113 00:07:01,920 --> 00:07:05,839 Speaker 1: in fact overturn that old precedent that there's there won't 114 00:07:05,880 --> 00:07:10,200 Speaker 1: be some large upheaval in current practice and procedure because 115 00:07:10,240 --> 00:07:13,920 Speaker 1: these companies are in fact inviting the court to UM 116 00:07:13,960 --> 00:07:18,080 Speaker 1: embrace a more expansive understanding of Title seven. Because from 117 00:07:18,120 --> 00:07:20,480 Speaker 1: these companies perspectives, that's good for the workplace, and it's 118 00:07:20,520 --> 00:07:23,960 Speaker 1: good for workers only about thirty seconds. But at one 119 00:07:24,000 --> 00:07:26,960 Speaker 1: point the argument of the Justice Department was that this 120 00:07:27,000 --> 00:07:30,320 Speaker 1: shouldn't even be in the Second Circuit because the states 121 00:07:30,360 --> 00:07:33,040 Speaker 1: covered by the Second Circuit have state laws that cover this. 122 00:07:34,400 --> 00:07:37,360 Speaker 1: I yeah, I I personally don't find that persuasive because 123 00:07:38,080 --> 00:07:40,960 Speaker 1: ultimately it's up to the course to interpret what federal 124 00:07:41,040 --> 00:07:44,040 Speaker 1: law says, um. And so we you know, we will see, 125 00:07:44,200 --> 00:07:46,000 Speaker 1: time will tell. But there are of course many, many 126 00:07:46,000 --> 00:07:48,480 Speaker 1: states that don't have state protections, and so this will 127 00:07:48,560 --> 00:07:52,520 Speaker 1: ultimately be an important, uh important of decisions for people 128 00:07:52,520 --> 00:07:56,720 Speaker 1: in states without LGBT specific employment protections. Well, it's always 129 00:07:56,720 --> 00:07:59,880 Speaker 1: a pleasure to have you. Um. That's Professor Anthony christ 130 00:08:00,200 --> 00:08:03,000 Speaker 1: He is a professor at the Chicago Kent College of Law.