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Speaker 1: This was then candidate Donald Trump a little over a

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Speaker 1: year ago at the Republican National Convention. I will do

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Speaker 1: everything in my power to protect our l g B

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Speaker 1: t Q citizens. But President Trump has now done just

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Speaker 1: the opposite. On the same day that he tweeted that

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Speaker 1: transgender people would be banned from serving in the military,

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Speaker 1: the Trump administration put itself in the middle of a

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Speaker 1: major private employment case that would ban workplace discrimination against

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Speaker 1: gays and lesbians nationwide. The Justice Department filed a brief

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Speaker 1: urging the Federal Appeals Court in Manhattan to rule that

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Speaker 1: a federal civil rights law does not protect employees from

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Speaker 1: discrimination based on sexual orientation. The administration stands challenges not

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Speaker 1: only civil rights groups, but also dozens of major companies,

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Speaker 1: from Microsoft to Levi Strauss, who filed briefs on the

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Speaker 1: side of the employee, a former diving instructor who claims

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Speaker 1: he was fired for being gay. Our guests are Michael

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Speaker 1: sell Me, a professor at George Washington University Law School,

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Speaker 1: and Anthony christ, professor at the Chicago Kent College of Law. Michael,

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Speaker 1: let's start with the basics. What is the issue facing

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Speaker 1: the second circuit under Title seven? The issue which is

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Speaker 1: one that has been coming up in a series of

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Speaker 1: cases recently, is whether Title seven, the primary statute that

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Speaker 1: governs discrimination in the workplace and prohibit discrimination based on

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Speaker 1: race and gender, national original religion. The question is whether

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Speaker 1: that statute, the prohibition on discrimination based on sex discrimination

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Speaker 1: extends to prohibition on discrimination based on sexual orientation. And

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Speaker 1: there has been two recent Court of Appeals decisions and

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Speaker 1: they have been split, and then this second circuit case

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Speaker 1: is the most recent and becoming the most prominent of

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Speaker 1: those cases. Anthony the in the you know, in the past,

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Speaker 1: courts had generally ruled hadn't they that that, in fact,

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Speaker 1: sexual orientation was not protected by this law? And that

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Speaker 1: was because they said that Congress was a hadn't intended

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Speaker 1: to cover it. Why has Why have things changed? Well,

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Speaker 1: I think a number of things have changed so um.

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Speaker 1: Of course, there's a landmark decision um plurality decision from

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Speaker 1: the Supreme Court in UH called Price Waterhouse, which basically

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Speaker 1: said that people who don't conform to gender norms and

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Speaker 1: gender stereotypes have an action epic cause of action or

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Speaker 1: Tuttle seven um. And since then we've had a tremendous uh,

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Speaker 1: you know, ground swell of change and how we understand

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Speaker 1: sexual orientation and how sex orientation fits within the law,

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Speaker 1: both in constitutional cases and statutory cases. And I think

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Speaker 1: we've come to a better understanding that such orientation discrimination

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Speaker 1: is uh inexorably linked to such sex discrimination. Um. And

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Speaker 1: so I think that the reason why the courts have

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Speaker 1: been evolving on this issue is in large part just

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Speaker 1: in our society is better under standing of sexual orientation

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Speaker 1: and how sexual orientation operates people's everyday lives. Michael, what

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Speaker 1: is the argument that Justice Department is making? But the

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Speaker 1: justin Department is making a relatively straightforward argument that employers

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Speaker 1: have been making for some time. Uh, and that is

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Speaker 1: that the statue was not intended at the time it

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Speaker 1: was passed in nineteen sixty four to include sexual orientation

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Speaker 1: as one of its prohibitions. Uh. And they also look

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Speaker 1: at some of the statutory language, although that's not as

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Speaker 1: clear cut up an argument for them. But so their

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Speaker 1: their argument is mostly that this is something Congress should handle,

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Speaker 1: and Congress has considered over the years but has failed

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Speaker 1: to include as part of Title seven. So Anthony, then,

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Speaker 1: what is the plaintiff's argument that, in fact, and some

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Speaker 1: courts have adopted, I guess. But what is the plaintiff's

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Speaker 1: argument that Title seven should cover discrimination against gay people? Um? Well,

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Speaker 1: there's a couple of theories there. There's um but I

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Speaker 1: think the cleanest theory is that the text itself supports it.

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Speaker 1: So um, you know, the Scrime Court established a test

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Speaker 1: which said that you know, if the if a person

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Speaker 1: and an employee is mistreated for a reason that's only

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Speaker 1: because of their sex um, that that that's simple enough.

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Speaker 1: That's um that sex discrimination. So if employer mistreats a

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Speaker 1: female worker because she has an intimate relationship with another woman,

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Speaker 1: but they wouldn't mistreat her if she had an intimate

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Speaker 1: relationship with a man, um, that is clearly about her

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Speaker 1: sex um. And so that that the text of the

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Speaker 1: Title seven supports her her cause of action for sex discrimination. Michael.

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Speaker 1: Another government agency, the Equal Employment Opportunity Commission, filed a

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Speaker 1: brief contradicting the Justice Department, and the Justice Department said,

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Speaker 1: and it's brief that the e e o C was

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Speaker 1: not speaking for the United States. Who speaks for the

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Speaker 1: government in this case as far as the Second Circuits concerned. Well,

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Speaker 1: I have to say this was to me the most

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Speaker 1: unusual part of the Just Department's brief that the u

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Speaker 1: C file to briefs several weeks ago on behalf of

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Speaker 1: the employees and people play. An Opportune Commission is a

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Speaker 1: government agency UH, and it's the agency that traditionally UM

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Speaker 1: speaks in cases involving private employers. They have the jurisdiction

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Speaker 1: over private employers. So and it was the e o

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Speaker 1: C that the court asked two for their views on this.

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Speaker 1: But the Just Department UH did come in yesterday and

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Speaker 1: made that claim that the UC does not speak on

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Speaker 1: behalf the United States, and it's not at all clear

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Speaker 1: then who they do speak on behalf of, because traditionally

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Speaker 1: they do they speak on the HAFF the United States.

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Speaker 1: So you have to government briefs and they are diametrically opposed.

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Speaker 1: There is nothing in them. There is no commonality in them.

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Speaker 1: And the theory that the Department is now opposing is

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Speaker 1: a theory that was developed primarily in the last few

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Speaker 1: years by the e o C. It's a theory it's

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Speaker 1: been around a while, but the UC really got it

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Speaker 1: going in the last few years. So they are not

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Speaker 1: just kind of them in briefs, but also the position

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Speaker 1: that the UC has staked out Over the last few years.

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Speaker 1: We've been talking with Michael Selman, At, professor at George

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Speaker 1: Washington University Law School, and Anthony Christ, professor at the

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Speaker 1: Chicago Kent College of Law, about the Trump administration putting

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Speaker 1: itself in the middle of a major private employment case

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Speaker 1: by filing a brief urging the Federal Appeals Court Manhattan

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Speaker 1: to rule that the federal civil rights law does not

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Speaker 1: protect employees from discrimination based on sexual orientation. Michael, what's

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Speaker 1: unusual in the briefs in support of the plaintiff is

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Speaker 1: that it's not just from groups like the a C,

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Speaker 1: l U, LAMBED, and the e o C, but also

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Speaker 1: from dozens of major US companies across the spectrum, from

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Speaker 1: Microsoft and Google to LIFT and Levi Strauss. Even though

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Speaker 1: this could lead to more employee lawsuits, how striking is

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Speaker 1: that and how important to the second circuit? I think

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Speaker 1: it's quite striking. The brief is one that argues for

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Speaker 1: extending the law that would apply to these employers, so

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Speaker 1: at least theoretically, it would subject them to potentially greater liability.

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Speaker 1: But the employers clearly and they articulated very nicely in

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Speaker 1: the brief believe that it is in everyone's interests, including

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Speaker 1: the companies, to provide protection for their gay and lesbian,

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Speaker 1: transgender employees. That they believe it would make for a

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Speaker 1: more productive workforce. Um. And it's also something that they

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Speaker 1: all are committed to. UM. And my sense is that

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Speaker 1: this brief is likely to have a strong influence on

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Speaker 1: the second Stary Court of Appeals and ultimately if this

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Speaker 1: case were to go to the Supreme Court. The Supreme

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Speaker 1: Court which tends to take the views of the companies

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Speaker 1: in these areas very seriously when they are UM advanced,

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Speaker 1: and particularly in this situation where the companies would be

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Speaker 1: potential subjecting themselves to greater liability, something that is quite

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Speaker 1: unusual for the companies to advocate for Anthony. On the

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Speaker 1: other hand, that the Justice to nament uh it takes

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Speaker 1: the position that really this is a question for Congress,

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Speaker 1: that it isn't covered by current law. In Congress has

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Speaker 1: to decide whether or not this law should cover gay people.

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Speaker 1: Do they have a point? Um? So I think at

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Speaker 1: the end of the day, UM, you know, courts are

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Speaker 1: well equipped to handle issues of statutory interpretation. It is um,

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Speaker 1: you know, the duty and the prerogative of the judiciary

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Speaker 1: to interpret the law and to say what the law is. UM.

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Speaker 1: And it's it's true that Congress could make clear that uh,

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Speaker 1: sex orientation discrimination is expressly banned in Title seven. UM.

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Speaker 1: But just as UM, efforts to expressly put that into

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Speaker 1: law have haven't made much headway. UM. There hasn't been

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Speaker 1: any effort to overturn current the Highway decision from the

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Speaker 1: Seventh Circuit which found sexual orientation discrimination claims are actual

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Speaker 1: Undertitle seven. And I think that's that's exceptionally important to

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Speaker 1: recognize too. UM. And at the end, at the end

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Speaker 1: of the day, if the if Congress doesn't like these

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Speaker 1: rulings UM that find sex orientations discrimination claims are colorable

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Speaker 1: under Title seven, they can come back and overturn the

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Speaker 1: court's decisions UM with with a statute later on down

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Speaker 1: the road. Michael. Civil rights activists are concerned that these activities,

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Speaker 1: the last two that we've seen that the Trump administration

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Speaker 1: is trying to roll back protections that have been won

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Speaker 1: by the LGBT community under previous administrations. Are they right

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Speaker 1: to be concerned? It does seem like there's a reason

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Speaker 1: to be concerned here, um. And this is also inconsistent

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Speaker 1: with what the Trump administration UH has stated that they

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Speaker 1: would be doing when they came in. UM. It's not

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Speaker 1: surprising in the sense that their views are consistent with

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Speaker 1: you know, many companies views and also with conservative Republican

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Speaker 1: views in terms of whether the law should be extended

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Speaker 1: to protect the sex orientation. But I think there is

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Speaker 1: grounds for concern here and probably in other areas too,

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Speaker 1: in terms of workplace protectives that have been gained over

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Speaker 1: with the Obama administration. That this also indicates that the

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Speaker 1: administrations can have significant power UH and just changing positions

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Speaker 1: when they come into office. Anthony that speaking of the

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Speaker 1: Obama administration, one of the things that the JUST departments

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Speaker 1: arguing here is basically, if you kind of read between

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Speaker 1: the lines that the Obama administration and it's e o

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Speaker 1: C kind of changed the way that the government had

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Speaker 1: interpreted this law and they're going back to the way

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Speaker 1: it had been interpreted for years and years. Are they

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Speaker 1: right about that? I think? I think the Obama administration

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Speaker 1: UM had a kind of wait and see generally approach

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Speaker 1: towards this particular issue. But of course the eo C

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Speaker 1: groundbreaking ruling in certainly changed the landscape UM on how

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Speaker 1: LGBT rights discrimination claims are are viewed. UM. While it's

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Speaker 1: certainly true that these types of claims and these types

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Speaker 1: of arguments didn't have a lot of traction before the

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Speaker 1: Abom administration came in, the you know, UM, at the

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Speaker 1: end of the day, UM, the law shifts over time. UM.

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Speaker 1: And and we have better understandings of how the law

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Speaker 1: operates and how the law should operate. And I think

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Speaker 1: that legal change is inevitable with changes in administration. So

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Speaker 1: what the Abom administration did ultimately is an extraordinary It

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Speaker 1: isn't something radical, UM. And I think it was an

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Speaker 1: inevitable change that I think will continue to gain traction

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Speaker 1: and more success in courts that our courts across the country.

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Speaker 1: Despite the Trump administration's position, Michael, We've mentioned and Anthony

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Speaker 1: just did that federal appeals courts have been divided on

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Speaker 1: the issue. In April, the Chicago Court of Appeals became

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Speaker 1: the first federal appeals court to rule that anti gay

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Speaker 1: discrimination is illegal under Title seven of the Civil Rights Act.

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Speaker 1: And then in May, Manhattan's Federal Court of Appeals agreed

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Speaker 1: to re hear this case on bank with all the

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Speaker 1: judges that means that had been tossed out by a

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Speaker 1: three judge panel. Does that give any inkling of how

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Speaker 1: the court might rule uh? I think in the Second

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Speaker 1: Circuit case, UH, it'll be interesting to see whether the

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Speaker 1: Supreme Court um gets involved in it. One of the

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Speaker 1: other cases before the Second Circuit has an opportunity to

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Speaker 1: rule here. They dismissed the case based on prior precedent

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Speaker 1: uh in the Circuit and the only way that that

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Speaker 1: could be reconsidered was by the full Court doing so

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Speaker 1: on bank uh and UH. This the Court may wait

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Speaker 1: for this case because this case is getting a lot

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Speaker 1: of attention. But currently there is a conflict in the

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Speaker 1: courts because this While the Seventh Circuit did extend the

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Speaker 1: law to protect caves and landspanes and transgender individuals, the

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Speaker 1: Eleventh Circuit, which covers a number of Southern states, held

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Speaker 1: to the contrary and held like the Just Department is

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Speaker 1: now advocating. So there is currently a conflict that the

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Speaker 1: Supreme Court could take UM. But this, this case in

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Speaker 1: front of the Second Circuit I think is likely to

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Speaker 1: be the one that the Supreme Court will ultimately address

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Speaker 1: the issues on. Well, Anthony, Let's say the case does

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Speaker 1: get to the Supreme Court. There, no matter what happens,

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Speaker 1: there is going to be a circuit split here. What's

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Speaker 1: likely to happen up there? Are we going to have

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Speaker 1: another divided court with Anthony Kennedy making the decision. Um, Well,

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Speaker 1: any controversial case, it's it's probably one where Justice Kennedy

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Speaker 1: is deciding vote. Um. So there's two things, of course, One,

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Speaker 1: this presumes that Justice Kennedy is still on the court

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Speaker 1: when this case gets to the Supreme Court, nificates to

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Speaker 1: the Supreme Court. Um. I think Justice Kennedy's pigeon positions,

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Speaker 1: which are generally favorable towards gay rights, is certainly um

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Speaker 1: a hopeful sign for the employee here. But even Chief

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Speaker 1: Justice Robertson in the burgher felt or arguments talked about

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Speaker 1: sexual orientation discrimination and as a form of sex discrimination, um,

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Speaker 1: in the marriage case. So so there might even be

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Speaker 1: a chance to convince Chief Justice roberts there as well. Michael,

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Speaker 1: A little problem with my microphone there, Michael. Let's just

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Speaker 1: go over the implications beyond employment law, for example, implications

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Speaker 1: and education of this decision and of a final Supreme

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Speaker 1: Court decision. Just the the education law that governs UH

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Speaker 1: with respected gender the Title nine. The same issues are

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Speaker 1: being addressed in UH colleges and also high schools, and

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Speaker 1: are also implicated in the transgender bathroom issues that have

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Speaker 1: been a rising, So whatever is decided here by the

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Speaker 1: Supreme Court is likely to have an effect on those

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Speaker 1: education cases as well. UH, and that if this case

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Speaker 1: does get to the Supreme Court. I see these cases

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Speaker 1: as largely an outgrowth of the marriage equality cases, and

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Speaker 1: I think for that reason, it seems to me likely

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Speaker 1: that Supreme Court may aside with the employees on this

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Speaker 1: one and find that the statute should be construed to

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Speaker 1: include sexual orientation as a prohibition. But it's always hard

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Speaker 1: to say, and Justice Kennedy may not be on the

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Speaker 1: Court at the time this case gets there. Just depends

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Speaker 1: on the timing of both Um, you know how long

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Speaker 1: he stays in the court and how long these cases

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Speaker 1: take to get there. But I do think that they're

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Speaker 1: headed for the Supreme Court at some point. It's great

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Speaker 1: always to have you both on Bloomberg Law. That's Michael

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Speaker 1: sell Me, professor at George Washington University Law School, and

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Speaker 1: Anthony christ professor at the Chicago Kent College of Law.

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Speaker 1: We're going to be going to President Trump Live in

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Speaker 1: just a few moments. He is going to be giving

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Speaker 1: a speech to law enforcement on Brentwood, Long Island