Speaker 1: This was then candidate Donald Trump a little over a
Speaker 1: year ago at the Republican National Convention. I will do
Speaker 1: everything in my power to protect our l g B
Speaker 1: t Q citizens. But President Trump has now done just
Speaker 1: the opposite. On the same day that he tweeted that
Speaker 1: transgender people would be banned from serving in the military,
Speaker 1: the Trump administration put itself in the middle of a
Speaker 1: major private employment case that would ban workplace discrimination against
Speaker 1: gays and lesbians nationwide. The Justice Department filed a brief
Speaker 1: urging the Federal Appeals Court in Manhattan to rule that
Speaker 1: a federal civil rights law does not protect employees from
Speaker 1: discrimination based on sexual orientation. The administration stands challenges not
Speaker 1: only civil rights groups, but also dozens of major companies,
Speaker 1: from Microsoft to Levi Strauss, who filed briefs on the
Speaker 1: side of the employee, a former diving instructor who claims
Speaker 1: he was fired for being gay. Our guests are Michael
Speaker 1: sell Me, a professor at George Washington University Law School,
Speaker 1: and Anthony christ, professor at the Chicago Kent College of Law. Michael,
Speaker 1: let's start with the basics. What is the issue facing
Speaker 1: the second circuit under Title seven? The issue which is
Speaker 1: one that has been coming up in a series of
Speaker 1: cases recently, is whether Title seven, the primary statute that
Speaker 1: governs discrimination in the workplace and prohibit discrimination based on
Speaker 1: race and gender, national original religion. The question is whether
Speaker 1: that statute, the prohibition on discrimination based on sex discrimination
Speaker 1: extends to prohibition on discrimination based on sexual orientation. And
Speaker 1: there has been two recent Court of Appeals decisions and
Speaker 1: they have been split, and then this second circuit case
Speaker 1: is the most recent and becoming the most prominent of
Speaker 1: those cases. Anthony the in the you know, in the past,
Speaker 1: courts had generally ruled hadn't they that that, in fact,
Speaker 1: sexual orientation was not protected by this law? And that
Speaker 1: was because they said that Congress was a hadn't intended
Speaker 1: to cover it. Why has Why have things changed? Well,
Speaker 1: I think a number of things have changed so um.
Speaker 1: Of course, there's a landmark decision um plurality decision from
Speaker 1: the Supreme Court in UH called Price Waterhouse, which basically
Speaker 1: said that people who don't conform to gender norms and
Speaker 1: gender stereotypes have an action epic cause of action or
Speaker 1: Tuttle seven um. And since then we've had a tremendous uh,
Speaker 1: you know, ground swell of change and how we understand
Speaker 1: sexual orientation and how sex orientation fits within the law,
Speaker 1: both in constitutional cases and statutory cases. And I think
Speaker 1: we've come to a better understanding that such orientation discrimination
Speaker 1: is uh inexorably linked to such sex discrimination. Um. And
Speaker 1: so I think that the reason why the courts have
Speaker 1: been evolving on this issue is in large part just
Speaker 1: in our society is better under standing of sexual orientation
Speaker 1: and how sexual orientation operates people's everyday lives. Michael, what
Speaker 1: is the argument that Justice Department is making? But the
Speaker 1: justin Department is making a relatively straightforward argument that employers
Speaker 1: have been making for some time. Uh, and that is
Speaker 1: that the statue was not intended at the time it
Speaker 1: was passed in nineteen sixty four to include sexual orientation
Speaker 1: as one of its prohibitions. Uh. And they also look
Speaker 1: at some of the statutory language, although that's not as
Speaker 1: clear cut up an argument for them. But so their
Speaker 1: their argument is mostly that this is something Congress should handle,
Speaker 1: and Congress has considered over the years but has failed
Speaker 1: to include as part of Title seven. So Anthony, then,
Speaker 1: what is the plaintiff's argument that, in fact, and some
Speaker 1: courts have adopted, I guess. But what is the plaintiff's
Speaker 1: argument that Title seven should cover discrimination against gay people? Um? Well,
Speaker 1: there's a couple of theories there. There's um but I
Speaker 1: think the cleanest theory is that the text itself supports it.
Speaker 1: So um, you know, the Scrime Court established a test
Speaker 1: which said that you know, if the if a person
Speaker 1: and an employee is mistreated for a reason that's only
Speaker 1: because of their sex um, that that that's simple enough.
Speaker 1: That's um that sex discrimination. So if employer mistreats a
Speaker 1: female worker because she has an intimate relationship with another woman,
Speaker 1: but they wouldn't mistreat her if she had an intimate
Speaker 1: relationship with a man, um, that is clearly about her
Speaker 1: sex um. And so that that the text of the
Speaker 1: Title seven supports her her cause of action for sex discrimination. Michael.
Speaker 1: Another government agency, the Equal Employment Opportunity Commission, filed a
Speaker 1: brief contradicting the Justice Department, and the Justice Department said,
Speaker 1: and it's brief that the e e o C was
Speaker 1: not speaking for the United States. Who speaks for the
Speaker 1: government in this case as far as the Second Circuits concerned. Well,
Speaker 1: I have to say this was to me the most
Speaker 1: unusual part of the Just Department's brief that the u
Speaker 1: C file to briefs several weeks ago on behalf of
Speaker 1: the employees and people play. An Opportune Commission is a
Speaker 1: government agency UH, and it's the agency that traditionally UM
Speaker 1: speaks in cases involving private employers. They have the jurisdiction
Speaker 1: over private employers. So and it was the e o
Speaker 1: C that the court asked two for their views on this.
Speaker 1: But the Just Department UH did come in yesterday and
Speaker 1: made that claim that the UC does not speak on
Speaker 1: behalf the United States, and it's not at all clear
Speaker 1: then who they do speak on behalf of, because traditionally
Speaker 1: they do they speak on the HAFF the United States.
Speaker 1: So you have to government briefs and they are diametrically opposed.
Speaker 1: There is nothing in them. There is no commonality in them.
Speaker 1: And the theory that the Department is now opposing is
Speaker 1: a theory that was developed primarily in the last few
Speaker 1: years by the e o C. It's a theory it's
Speaker 1: been around a while, but the UC really got it
Speaker 1: going in the last few years. So they are not
Speaker 1: just kind of them in briefs, but also the position
Speaker 1: that the UC has staked out Over the last few years.
Speaker 1: We've been talking with Michael Selman, At, professor at George
Speaker 1: Washington University Law School, and Anthony Christ, professor at the
Speaker 1: Chicago Kent College of Law, about the Trump administration putting
Speaker 1: itself in the middle of a major private employment case
Speaker 1: by filing a brief urging the Federal Appeals Court Manhattan
Speaker 1: to rule that the federal civil rights law does not
Speaker 1: protect employees from discrimination based on sexual orientation. Michael, what's
Speaker 1: unusual in the briefs in support of the plaintiff is
Speaker 1: that it's not just from groups like the a C,
Speaker 1: l U, LAMBED, and the e o C, but also
Speaker 1: from dozens of major US companies across the spectrum, from
Speaker 1: Microsoft and Google to LIFT and Levi Strauss. Even though
Speaker 1: this could lead to more employee lawsuits, how striking is
Speaker 1: that and how important to the second circuit? I think
Speaker 1: it's quite striking. The brief is one that argues for
Speaker 1: extending the law that would apply to these employers, so
Speaker 1: at least theoretically, it would subject them to potentially greater liability.
Speaker 1: But the employers clearly and they articulated very nicely in
Speaker 1: the brief believe that it is in everyone's interests, including
Speaker 1: the companies, to provide protection for their gay and lesbian,
Speaker 1: transgender employees. That they believe it would make for a
Speaker 1: more productive workforce. Um. And it's also something that they
Speaker 1: all are committed to. UM. And my sense is that
Speaker 1: this brief is likely to have a strong influence on
Speaker 1: the second Stary Court of Appeals and ultimately if this
Speaker 1: case were to go to the Supreme Court. The Supreme
Speaker 1: Court which tends to take the views of the companies
Speaker 1: in these areas very seriously when they are UM advanced,
Speaker 1: and particularly in this situation where the companies would be
Speaker 1: potential subjecting themselves to greater liability, something that is quite
Speaker 1: unusual for the companies to advocate for Anthony. On the
Speaker 1: other hand, that the Justice to nament uh it takes
Speaker 1: the position that really this is a question for Congress,
Speaker 1: that it isn't covered by current law. In Congress has
Speaker 1: to decide whether or not this law should cover gay people.
Speaker 1: Do they have a point? Um? So I think at
Speaker 1: the end of the day, UM, you know, courts are
Speaker 1: well equipped to handle issues of statutory interpretation. It is um,
Speaker 1: you know, the duty and the prerogative of the judiciary
Speaker 1: to interpret the law and to say what the law is. UM.
Speaker 1: And it's it's true that Congress could make clear that uh,
Speaker 1: sex orientation discrimination is expressly banned in Title seven. UM.
Speaker 1: But just as UM, efforts to expressly put that into
Speaker 1: law have haven't made much headway. UM. There hasn't been
Speaker 1: any effort to overturn current the Highway decision from the
Speaker 1: Seventh Circuit which found sexual orientation discrimination claims are actual
Speaker 1: Undertitle seven. And I think that's that's exceptionally important to
Speaker 1: recognize too. UM. And at the end, at the end
Speaker 1: of the day, if the if Congress doesn't like these
Speaker 1: rulings UM that find sex orientations discrimination claims are colorable
Speaker 1: under Title seven, they can come back and overturn the
Speaker 1: court's decisions UM with with a statute later on down
Speaker 1: the road. Michael. Civil rights activists are concerned that these activities,
Speaker 1: the last two that we've seen that the Trump administration
Speaker 1: is trying to roll back protections that have been won
Speaker 1: by the LGBT community under previous administrations. Are they right
Speaker 1: to be concerned? It does seem like there's a reason
Speaker 1: to be concerned here, um. And this is also inconsistent
Speaker 1: with what the Trump administration UH has stated that they
Speaker 1: would be doing when they came in. UM. It's not
Speaker 1: surprising in the sense that their views are consistent with
Speaker 1: you know, many companies views and also with conservative Republican
Speaker 1: views in terms of whether the law should be extended
Speaker 1: to protect the sex orientation. But I think there is
Speaker 1: grounds for concern here and probably in other areas too,
Speaker 1: in terms of workplace protectives that have been gained over
Speaker 1: with the Obama administration. That this also indicates that the
Speaker 1: administrations can have significant power UH and just changing positions
Speaker 1: when they come into office. Anthony that speaking of the
Speaker 1: Obama administration, one of the things that the JUST departments
Speaker 1: arguing here is basically, if you kind of read between
Speaker 1: the lines that the Obama administration and it's e o
Speaker 1: C kind of changed the way that the government had
Speaker 1: interpreted this law and they're going back to the way
Speaker 1: it had been interpreted for years and years. Are they
Speaker 1: right about that? I think? I think the Obama administration
Speaker 1: UM had a kind of wait and see generally approach
Speaker 1: towards this particular issue. But of course the eo C
Speaker 1: groundbreaking ruling in certainly changed the landscape UM on how
Speaker 1: LGBT rights discrimination claims are are viewed. UM. While it's
Speaker 1: certainly true that these types of claims and these types
Speaker 1: of arguments didn't have a lot of traction before the
Speaker 1: Abom administration came in, the you know, UM, at the
Speaker 1: end of the day, UM, the law shifts over time. UM.
Speaker 1: And and we have better understandings of how the law
Speaker 1: operates and how the law should operate. And I think
Speaker 1: that legal change is inevitable with changes in administration. So
Speaker 1: what the Abom administration did ultimately is an extraordinary It
Speaker 1: isn't something radical, UM. And I think it was an
Speaker 1: inevitable change that I think will continue to gain traction
Speaker 1: and more success in courts that our courts across the country.
Speaker 1: Despite the Trump administration's position, Michael, We've mentioned and Anthony
Speaker 1: just did that federal appeals courts have been divided on
Speaker 1: the issue. In April, the Chicago Court of Appeals became
Speaker 1: the first federal appeals court to rule that anti gay
Speaker 1: discrimination is illegal under Title seven of the Civil Rights Act.
Speaker 1: And then in May, Manhattan's Federal Court of Appeals agreed
Speaker 1: to re hear this case on bank with all the
Speaker 1: judges that means that had been tossed out by a
Speaker 1: three judge panel. Does that give any inkling of how
Speaker 1: the court might rule uh? I think in the Second
Speaker 1: Circuit case, UH, it'll be interesting to see whether the
Speaker 1: Supreme Court um gets involved in it. One of the
Speaker 1: other cases before the Second Circuit has an opportunity to
Speaker 1: rule here. They dismissed the case based on prior precedent
Speaker 1: uh in the Circuit and the only way that that
Speaker 1: could be reconsidered was by the full Court doing so
Speaker 1: on bank uh and UH. This the Court may wait
Speaker 1: for this case because this case is getting a lot
Speaker 1: of attention. But currently there is a conflict in the
Speaker 1: courts because this While the Seventh Circuit did extend the
Speaker 1: law to protect caves and landspanes and transgender individuals, the
Speaker 1: Eleventh Circuit, which covers a number of Southern states, held
Speaker 1: to the contrary and held like the Just Department is
Speaker 1: now advocating. So there is currently a conflict that the
Speaker 1: Supreme Court could take UM. But this, this case in
Speaker 1: front of the Second Circuit I think is likely to
Speaker 1: be the one that the Supreme Court will ultimately address
Speaker 1: the issues on. Well, Anthony, Let's say the case does
Speaker 1: get to the Supreme Court. There, no matter what happens,
Speaker 1: there is going to be a circuit split here. What's
Speaker 1: likely to happen up there? Are we going to have
Speaker 1: another divided court with Anthony Kennedy making the decision. Um, Well,
Speaker 1: any controversial case, it's it's probably one where Justice Kennedy
Speaker 1: is deciding vote. Um. So there's two things, of course, One,
Speaker 1: this presumes that Justice Kennedy is still on the court
Speaker 1: when this case gets to the Supreme Court, nificates to
Speaker 1: the Supreme Court. Um. I think Justice Kennedy's pigeon positions,
Speaker 1: which are generally favorable towards gay rights, is certainly um
Speaker 1: a hopeful sign for the employee here. But even Chief
Speaker 1: Justice Robertson in the burgher felt or arguments talked about
Speaker 1: sexual orientation discrimination and as a form of sex discrimination, um,
Speaker 1: in the marriage case. So so there might even be
Speaker 1: a chance to convince Chief Justice roberts there as well. Michael,
Speaker 1: A little problem with my microphone there, Michael. Let's just
Speaker 1: go over the implications beyond employment law, for example, implications
Speaker 1: and education of this decision and of a final Supreme
Speaker 1: Court decision. Just the the education law that governs UH
Speaker 1: with respected gender the Title nine. The same issues are
Speaker 1: being addressed in UH colleges and also high schools, and
Speaker 1: are also implicated in the transgender bathroom issues that have
Speaker 1: been a rising, So whatever is decided here by the
Speaker 1: Supreme Court is likely to have an effect on those
Speaker 1: education cases as well. UH, and that if this case
Speaker 1: does get to the Supreme Court. I see these cases
Speaker 1: as largely an outgrowth of the marriage equality cases, and
Speaker 1: I think for that reason, it seems to me likely
Speaker 1: that Supreme Court may aside with the employees on this
Speaker 1: one and find that the statute should be construed to
Speaker 1: include sexual orientation as a prohibition. But it's always hard
Speaker 1: to say, and Justice Kennedy may not be on the
Speaker 1: Court at the time this case gets there. Just depends
Speaker 1: on the timing of both Um, you know how long
Speaker 1: he stays in the court and how long these cases
Speaker 1: take to get there. But I do think that they're
Speaker 1: headed for the Supreme Court at some point. It's great
Speaker 1: always to have you both on Bloomberg Law. That's Michael
Speaker 1: sell Me, professor at George Washington University Law School, and
Speaker 1: Anthony christ professor at the Chicago Kent College of Law.
Speaker 1: We're going to be going to President Trump Live in
Speaker 1: just a few moments. He is going to be giving
Speaker 1: a speech to law enforcement on Brentwood, Long Island