Speaker 1: During oral arguments before the full Second Circuit Court of Appeals,
Speaker 1: Judge Rosemary Pooler said, it's a little bit awkward to
Speaker 1: us to have the government on both sides of this case.
Speaker 1: But that's where the Trump administration was on opposite sides
Speaker 1: in a case that's attracted nationwide attention and could result
Speaker 1: in a landmark decision on whether Title seven of a
Speaker 1: Civil Rights Act of nineteen sixty four protects gay and
Speaker 1: lesbian workers from bias as its protected workers from gender
Speaker 1: and racial bias for more than half a century. The
Speaker 1: Equal Employment Opportunity Commission argued that the federal law would
Speaker 1: protect the plaintiff, a skydiving instructor who said he was
Speaker 1: fired because he was gay, But the Justice Department sided
Speaker 1: with the employer, saying Congress did not intend to include
Speaker 1: gay and lesbian discrimination in the civil rights law. Joining
Speaker 1: me is Professor Anthony Christ of the Chicago Kent College
Speaker 1: of Law. Anthony explained what the basic issue is here.
Speaker 1: So the basic issue here is whether sexual orientation discrimination
Speaker 1: is a form of sex discrimination um and and therefore
Speaker 1: actionable under federal employment into discrimination law. Uh So, federal
Speaker 1: law expressly says that sex discrimination is banned. Um. And
Speaker 1: the argument here is that if an employer takes action
Speaker 1: against an employee because of their sexual orientation, that they're
Speaker 1: necessarily taking into account their sex and the sex of
Speaker 1: their of their intimate partner. And as a consequence, Um,
Speaker 1: that's just playing old sex discrimination and banned under federal law.
Speaker 1: And what's the argument of the Justice Department. So the
Speaker 1: Justice Department essentially says a few things. First that sixty
Speaker 1: four UH, Congress never intended to cover sexual orientation discrimination
Speaker 1: claims when they banned sex discrimination in the workplace. Um.
Speaker 1: And And the second second argument is that a number
Speaker 1: of cases were decided prior to that held the sexual
Speaker 1: orientation discrimination wasn't actionable. Congress overhauled the Federal Civil Rights
Speaker 1: Act in a number of important ways entitled seven, but
Speaker 1: that they that in UH not protecting sexual orientation discrimination
Speaker 1: expressly that they in fact in effect ratified those decisions.
Speaker 1: And finally that Congress has rejected bills to specifically amend
Speaker 1: Title seven to protect against sexual orientation discrimination. And for
Speaker 1: all those reasons, UM, the sex discrimination is should not
Speaker 1: be interpreted as including UH or as a sexual orientation
Speaker 1: discrimination shouldn't be thought of as a subset of sex discrimination.
Speaker 1: Anthony does precedent favor the Justice Department's position because the
Speaker 1: full Seventh Circuit April overturned its own precedent and held
Speaker 1: that sexual orientation bias necessarily a sex discrimination. But an
Speaker 1: Eleventh Circuit panel ruled the opposite in March, and the
Speaker 1: Second Circuit panel in this case ruled the opposite. So
Speaker 1: where does precedent stand. Well, in the Second Circuit, it's
Speaker 1: in precedent since two thousand in a case called Silington
Speaker 1: that sexual orientation claims aren't cognizable under Title seven UM.
Speaker 1: And I think that a number, you know, number of
Speaker 1: district courts UM have have joined the Seventh Circuit in
Speaker 1: ruling UH for LGB plaintiffs, So that the trend seems
Speaker 1: to be favoring sexual orientation claims or sexual plaintiffs brings
Speaker 1: sexual orientation claims. But you're correct that by and large
Speaker 1: most circuit course of appeal have have held the opposite.
Speaker 1: So we'll see where the trend goes. UM. But I
Speaker 1: certainly think it's telling that the fact that the Second
Speaker 1: Circuit wanted to rehear this case that they're that they're
Speaker 1: seriously re examining that two thousand precedents. That was going
Speaker 1: to be my next question, because the Second Circuit rarely
Speaker 1: here's cases on bank or with all its judges. So
Speaker 1: does that tell you how important this case is? Oh? Absolutely,
Speaker 1: Generally speaking, the Second Circuit it is loth to go
Speaker 1: unbunked um, And they will only do so typically if
Speaker 1: they think it's actually worth uh uh you know, worthy
Speaker 1: of Supreme Court review. And so they generally don't uh
Speaker 1: don't go through this procedure. So I think that this
Speaker 1: is a strong signal that they're really seriously taking a
Speaker 1: hard look at this and and very well may overturned
Speaker 1: that that two thousand error precedent. The Justice Department's lawyer
Speaker 1: refused to answer the judges questions about how the riff
Speaker 1: developed between the Justice Department and the e e o C.
Speaker 1: So how do the judges weigh the different government positions,
Speaker 1: which do they give more weight to? Well, Well, the
Speaker 1: e o C is, of course the agency charged with
Speaker 1: the enforcement and implementation of Huttle seven um. And so
Speaker 1: their their guidance here will be, you know, may very
Speaker 1: well be persuasive. Um. The Department of Justice, of course
Speaker 1: is you know, their opinion will be accorded weight too,
Speaker 1: because again there they are representing the as the United States,
Speaker 1: and they are the nation's largest employer. So you know,
Speaker 1: time will tell how these these arguments weigh out. But
Speaker 1: at the end of the day, what will guide and
Speaker 1: control the judge's decision is their interpretation of the statute.
Speaker 1: Is there any question that this case or one like
Speaker 1: it will end up at the Supreme Court? Uh? Time
Speaker 1: time will tell there too. I think it's much more
Speaker 1: likely now that you have a split among the circuit
Speaker 1: courts of appeals, UM, that the Supreme Court will ultimately here.
Speaker 1: Whether it's the eleventh Circuit case, this case or or
Speaker 1: another one, we'll see ultimately. Um, the bigger issue may
Speaker 1: be whether an employer or defendant really wants to appeal
Speaker 1: this decision, because that might be at the end of
Speaker 1: the day about employment decision if you in terms of
Speaker 1: branding to be associated with the case where you're defending
Speaker 1: anti gay bias. But um, you know, this case may
Speaker 1: very well be that vehicle. Um. The Administration stands challenges
Speaker 1: a group of fifty companies and organizations, including Microsoft, Google,
Speaker 1: and Viacom, that file documents in June arguing that discrimination
Speaker 1: based on sexual orientation should be illegal. How does the
Speaker 1: court weigh an amicus brief like that, Um, of course
Speaker 1: I think it's uh. Any amicus brief will will be
Speaker 1: from from a group of UH companies like that will
Speaker 1: certainly have some impact in terms of least bringing attention
Speaker 1: UH to the issue in a in a different way. UM.
Speaker 1: It's certainly telling. It's significant to the extent that in theory,
Speaker 1: the position that these companies have taken would potentially open
Speaker 1: them up to more liability. And that, of course, I think, UM,
Speaker 1: you know, gives it a particular I think amount of
Speaker 1: cachet that some of the other amicus briefs may not UM.
Speaker 1: But importantly, I think what it signals to the judges
Speaker 1: is that these companies don't have a reliance interest on
Speaker 1: the status quo remaining UM and that if they do,
Speaker 1: in fact overturn that old precedent that there's there won't
Speaker 1: be some large upheaval in current practice and procedure because
Speaker 1: these companies are in fact inviting the court to UM
Speaker 1: embrace a more expansive understanding of Title seven. Because from
Speaker 1: these companies perspectives, that's good for the workplace, and it's
Speaker 1: good for workers only about thirty seconds. But at one
Speaker 1: point the argument of the Justice Department was that this
Speaker 1: shouldn't even be in the Second Circuit because the states
Speaker 1: covered by the Second Circuit have state laws that cover this.
Speaker 1: I yeah, I I personally don't find that persuasive because
Speaker 1: ultimately it's up to the course to interpret what federal
Speaker 1: law says, um. And so we you know, we will see,
Speaker 1: time will tell. But there are of course many, many
Speaker 1: states that don't have state protections, and so this will
Speaker 1: ultimately be an important, uh important of decisions for people
Speaker 1: in states without LGBT specific employment protections. Well, it's always
Speaker 1: a pleasure to have you. Um. That's Professor Anthony christ
Speaker 1: He is a professor at the Chicago Kent College of Law.