WEBVTT - Administration Says Bias Law Can't Protect LGBT Workers (Audio) 0:00:00.160 --> 0:00:03.720 During oral arguments before the full Second Circuit Court of Appeals, 0:00:03.880 --> 0:00:07.400 Judge Rosemary Pooler said, it's a little bit awkward to 0:00:07.520 --> 0:00:10.200 us to have the government on both sides of this case. 0:00:10.560 --> 0:00:14.000 But that's where the Trump administration was on opposite sides 0:00:14.040 --> 0:00:17.799 in a case that's attracted nationwide attention and could result 0:00:17.800 --> 0:00:20.639 in a landmark decision on whether Title seven of a 0:00:20.720 --> 0:00:24.159 Civil Rights Act of nineteen sixty four protects gay and 0:00:24.239 --> 0:00:28.360 lesbian workers from bias as its protected workers from gender 0:00:28.360 --> 0:00:31.319 and racial bias for more than half a century. The 0:00:31.400 --> 0:00:35.040 Equal Employment Opportunity Commission argued that the federal law would 0:00:35.080 --> 0:00:38.120 protect the plaintiff, a skydiving instructor who said he was 0:00:38.159 --> 0:00:41.760 fired because he was gay, But the Justice Department sided 0:00:41.800 --> 0:00:45.320 with the employer, saying Congress did not intend to include 0:00:45.320 --> 0:00:49.360 gay and lesbian discrimination in the civil rights law. Joining 0:00:49.400 --> 0:00:53.320 me is Professor Anthony Christ of the Chicago Kent College 0:00:53.320 --> 0:00:57.200 of Law. Anthony explained what the basic issue is here. 0:00:58.280 --> 0:01:02.360 So the basic issue here is whether sexual orientation discrimination 0:01:02.680 --> 0:01:06.320 is a form of sex discrimination um and and therefore 0:01:06.400 --> 0:01:10.959 actionable under federal employment into discrimination law. Uh So, federal 0:01:11.040 --> 0:01:15.319 law expressly says that sex discrimination is banned. Um. And 0:01:15.360 --> 0:01:19.440 the argument here is that if an employer takes action 0:01:19.480 --> 0:01:22.440 against an employee because of their sexual orientation, that they're 0:01:22.480 --> 0:01:26.480 necessarily taking into account their sex and the sex of 0:01:26.560 --> 0:01:30.920 their of their intimate partner. And as a consequence, Um, 0:01:30.959 --> 0:01:34.920 that's just playing old sex discrimination and banned under federal law. 0:01:35.520 --> 0:01:39.959 And what's the argument of the Justice Department. So the 0:01:40.040 --> 0:01:44.840 Justice Department essentially says a few things. First that sixty 0:01:44.959 --> 0:01:49.400 four UH, Congress never intended to cover sexual orientation discrimination 0:01:49.440 --> 0:01:52.960 claims when they banned sex discrimination in the workplace. Um. 0:01:53.080 --> 0:01:55.760 And And the second second argument is that a number 0:01:55.760 --> 0:02:01.120 of cases were decided prior to that held the sexual 0:02:01.120 --> 0:02:07.080 orientation discrimination wasn't actionable. Congress overhauled the Federal Civil Rights 0:02:07.080 --> 0:02:10.000 Act in a number of important ways entitled seven, but 0:02:10.080 --> 0:02:13.760 that they that in UH not protecting sexual orientation discrimination 0:02:13.800 --> 0:02:18.760 expressly that they in fact in effect ratified those decisions. 0:02:18.840 --> 0:02:24.240 And finally that Congress has rejected bills to specifically amend 0:02:24.440 --> 0:02:27.640 Title seven to protect against sexual orientation discrimination. And for 0:02:27.680 --> 0:02:32.160 all those reasons, UM, the sex discrimination is should not 0:02:32.160 --> 0:02:35.920 be interpreted as including UH or as a sexual orientation 0:02:35.960 --> 0:02:38.959 discrimination shouldn't be thought of as a subset of sex discrimination. 0:02:39.440 --> 0:02:43.880 Anthony does precedent favor the Justice Department's position because the 0:02:43.960 --> 0:02:48.320 full Seventh Circuit April overturned its own precedent and held 0:02:48.320 --> 0:02:53.160 that sexual orientation bias necessarily a sex discrimination. But an 0:02:53.160 --> 0:02:57.000 Eleventh Circuit panel ruled the opposite in March, and the 0:02:57.080 --> 0:03:01.200 Second Circuit panel in this case ruled the opposite. So 0:03:01.520 --> 0:03:05.079 where does precedent stand. Well, in the Second Circuit, it's 0:03:05.080 --> 0:03:08.080 in precedent since two thousand in a case called Silington 0:03:08.480 --> 0:03:12.679 that sexual orientation claims aren't cognizable under Title seven UM. 0:03:12.720 --> 0:03:14.880 And I think that a number, you know, number of 0:03:14.880 --> 0:03:18.440 district courts UM have have joined the Seventh Circuit in 0:03:18.520 --> 0:03:23.760 ruling UH for LGB plaintiffs, So that the trend seems 0:03:23.760 --> 0:03:27.760 to be favoring sexual orientation claims or sexual plaintiffs brings 0:03:27.760 --> 0:03:31.079 sexual orientation claims. But you're correct that by and large 0:03:31.120 --> 0:03:34.440 most circuit course of appeal have have held the opposite. 0:03:34.520 --> 0:03:38.520 So we'll see where the trend goes. UM. But I 0:03:38.560 --> 0:03:40.720 certainly think it's telling that the fact that the Second 0:03:40.720 --> 0:03:43.360 Circuit wanted to rehear this case that they're that they're 0:03:43.360 --> 0:03:46.520 seriously re examining that two thousand precedents. That was going 0:03:46.560 --> 0:03:49.840 to be my next question, because the Second Circuit rarely 0:03:49.960 --> 0:03:53.760 here's cases on bank or with all its judges. So 0:03:54.240 --> 0:03:58.360 does that tell you how important this case is? Oh? Absolutely, 0:03:58.560 --> 0:04:01.320 Generally speaking, the Second Circuit it is loth to go 0:04:01.480 --> 0:04:04.360 unbunked um, And they will only do so typically if 0:04:04.360 --> 0:04:07.200 they think it's actually worth uh uh you know, worthy 0:04:07.400 --> 0:04:10.920 of Supreme Court review. And so they generally don't uh 0:04:11.120 --> 0:04:13.160 don't go through this procedure. So I think that this 0:04:13.280 --> 0:04:16.719 is a strong signal that they're really seriously taking a 0:04:16.760 --> 0:04:19.920 hard look at this and and very well may overturned 0:04:20.000 --> 0:04:24.599 that that two thousand error precedent. The Justice Department's lawyer 0:04:24.680 --> 0:04:27.960 refused to answer the judges questions about how the riff 0:04:28.120 --> 0:04:31.800 developed between the Justice Department and the e e o C. 0:04:32.839 --> 0:04:36.960 So how do the judges weigh the different government positions, 0:04:37.440 --> 0:04:40.880 which do they give more weight to? Well, Well, the 0:04:40.880 --> 0:04:44.080 e o C is, of course the agency charged with 0:04:44.160 --> 0:04:47.640 the enforcement and implementation of Huttle seven um. And so 0:04:47.920 --> 0:04:51.280 their their guidance here will be, you know, may very 0:04:51.279 --> 0:04:54.360 well be persuasive. Um. The Department of Justice, of course 0:04:54.440 --> 0:04:57.680 is you know, their opinion will be accorded weight too, 0:04:57.720 --> 0:05:00.839 because again there they are representing the as the United States, 0:05:00.839 --> 0:05:04.000 and they are the nation's largest employer. So you know, 0:05:04.040 --> 0:05:06.680 time will tell how these these arguments weigh out. But 0:05:06.760 --> 0:05:09.000 at the end of the day, what will guide and 0:05:09.000 --> 0:05:13.039 control the judge's decision is their interpretation of the statute. 0:05:13.800 --> 0:05:16.359 Is there any question that this case or one like 0:05:16.520 --> 0:05:20.559 it will end up at the Supreme Court? Uh? Time 0:05:20.760 --> 0:05:23.720 time will tell there too. I think it's much more 0:05:23.760 --> 0:05:26.080 likely now that you have a split among the circuit 0:05:26.120 --> 0:05:29.240 courts of appeals, UM, that the Supreme Court will ultimately here. 0:05:29.400 --> 0:05:32.680 Whether it's the eleventh Circuit case, this case or or 0:05:32.720 --> 0:05:36.960 another one, we'll see ultimately. Um, the bigger issue may 0:05:37.000 --> 0:05:41.120 be whether an employer or defendant really wants to appeal 0:05:41.200 --> 0:05:43.360 this decision, because that might be at the end of 0:05:43.440 --> 0:05:47.039 the day about employment decision if you in terms of 0:05:47.040 --> 0:05:50.080 branding to be associated with the case where you're defending 0:05:50.120 --> 0:05:53.320 anti gay bias. But um, you know, this case may 0:05:53.400 --> 0:05:58.920 very well be that vehicle. Um. The Administration stands challenges 0:05:58.960 --> 0:06:03.080 a group of fifty companies and organizations, including Microsoft, Google, 0:06:03.120 --> 0:06:07.920 and Viacom, that file documents in June arguing that discrimination 0:06:08.000 --> 0:06:12.039 based on sexual orientation should be illegal. How does the 0:06:12.080 --> 0:06:16.400 court weigh an amicus brief like that, Um, of course 0:06:16.440 --> 0:06:19.960 I think it's uh. Any amicus brief will will be 0:06:20.440 --> 0:06:23.480 from from a group of UH companies like that will 0:06:23.520 --> 0:06:27.640 certainly have some impact in terms of least bringing attention 0:06:28.200 --> 0:06:31.560 UH to the issue in a in a different way. UM. 0:06:31.600 --> 0:06:35.720 It's certainly telling. It's significant to the extent that in theory, 0:06:36.480 --> 0:06:39.800 the position that these companies have taken would potentially open 0:06:39.839 --> 0:06:44.200 them up to more liability. And that, of course, I think, UM, 0:06:44.200 --> 0:06:47.479 you know, gives it a particular I think amount of 0:06:47.520 --> 0:06:51.440 cachet that some of the other amicus briefs may not UM. 0:06:51.520 --> 0:06:54.960 But importantly, I think what it signals to the judges 0:06:55.520 --> 0:06:58.600 is that these companies don't have a reliance interest on 0:06:58.760 --> 0:07:01.880 the status quo remaining UM and that if they do, 0:07:01.920 --> 0:07:05.839 in fact overturn that old precedent that there's there won't 0:07:05.880 --> 0:07:10.200 be some large upheaval in current practice and procedure because 0:07:10.240 --> 0:07:13.920 these companies are in fact inviting the court to UM 0:07:13.960 --> 0:07:18.080 embrace a more expansive understanding of Title seven. Because from 0:07:18.120 --> 0:07:20.480 these companies perspectives, that's good for the workplace, and it's 0:07:20.520 --> 0:07:23.960 good for workers only about thirty seconds. But at one 0:07:24.000 --> 0:07:26.960 point the argument of the Justice Department was that this 0:07:27.000 --> 0:07:30.320 shouldn't even be in the Second Circuit because the states 0:07:30.360 --> 0:07:33.040 covered by the Second Circuit have state laws that cover this. 0:07:34.400 --> 0:07:37.360 I yeah, I I personally don't find that persuasive because 0:07:38.080 --> 0:07:40.960 ultimately it's up to the course to interpret what federal 0:07:41.040 --> 0:07:44.040 law says, um. And so we you know, we will see, 0:07:44.200 --> 0:07:46.000 time will tell. But there are of course many, many 0:07:46.000 --> 0:07:48.480 states that don't have state protections, and so this will 0:07:48.560 --> 0:07:52.520 ultimately be an important, uh important of decisions for people 0:07:52.520 --> 0:07:56.720 in states without LGBT specific employment protections. Well, it's always 0:07:56.720 --> 0:07:59.880 a pleasure to have you. Um. That's Professor Anthony christ 0:08:00.200 --> 0:08:03.000 He is a professor at the Chicago Kent College of Law.