WEBVTT - Trump Targets Protections for LGBT Workers (Audio)

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<v Speaker 1>This was then candidate Donald Trump a little over a

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<v Speaker 1>year ago at the Republican National Convention. I will do

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<v Speaker 1>everything in my power to protect our l g B

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<v Speaker 1>t Q citizens. But President Trump has now done just

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<v Speaker 1>the opposite. On the same day that he tweeted that

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<v Speaker 1>transgender people would be banned from serving in the military,

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<v Speaker 1>the Trump administration put itself in the middle of a

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<v Speaker 1>major private employment case that would ban workplace discrimination against

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<v Speaker 1>gays and lesbians nationwide. The Justice Department filed a brief

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<v Speaker 1>urging the Federal Appeals Court in Manhattan to rule that

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<v Speaker 1>a federal civil rights law does not protect employees from

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<v Speaker 1>discrimination based on sexual orientation. The administration stands challenges not

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<v Speaker 1>only civil rights groups, but also dozens of major companies,

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<v Speaker 1>from Microsoft to Levi Strauss, who filed briefs on the

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<v Speaker 1>side of the employee, a former diving instructor who claims

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<v Speaker 1>he was fired for being gay. Our guests are Michael

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<v Speaker 1>sell Me, a professor at George Washington University Law School,

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

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<v Speaker 1>let's start with the basics. What is the issue facing

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<v Speaker 1>the second circuit under Title seven? The issue which is

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<v Speaker 1>one that has been coming up in a series of

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<v Speaker 1>cases recently, is whether Title seven, the primary statute that

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<v Speaker 1>governs discrimination in the workplace and prohibit discrimination based on

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<v Speaker 1>race and gender, national original religion. The question is whether

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<v Speaker 1>that statute, the prohibition on discrimination based on sex discrimination

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<v Speaker 1>extends to prohibition on discrimination based on sexual orientation. And

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<v Speaker 1>there has been two recent Court of Appeals decisions and

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<v Speaker 1>they have been split, and then this second circuit case

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<v Speaker 1>is the most recent and becoming the most prominent of

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<v Speaker 1>those cases. Anthony the in the you know, in the past,

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<v Speaker 1>courts had generally ruled hadn't they that that, in fact,

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<v Speaker 1>sexual orientation was not protected by this law? And that

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<v Speaker 1>was because they said that Congress was a hadn't intended

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<v Speaker 1>to cover it. Why has Why have things changed? Well,

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<v Speaker 1>I think a number of things have changed so um.

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<v Speaker 1>Of course, there's a landmark decision um plurality decision from

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<v Speaker 1>the Supreme Court in UH called Price Waterhouse, which basically

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<v Speaker 1>said that people who don't conform to gender norms and

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<v Speaker 1>gender stereotypes have an action epic cause of action or

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

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<v Speaker 1>you know, ground swell of change and how we understand

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<v Speaker 1>sexual orientation and how sex orientation fits within the law,

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<v Speaker 1>both in constitutional cases and statutory cases. And I think

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<v Speaker 1>we've come to a better understanding that such orientation discrimination

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<v Speaker 1>is uh inexorably linked to such sex discrimination. Um. And

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<v Speaker 1>so I think that the reason why the courts have

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<v Speaker 1>been evolving on this issue is in large part just

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<v Speaker 1>in our society is better under standing of sexual orientation

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

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<v Speaker 1>is the argument that Justice Department is making? But the

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<v Speaker 1>justin Department is making a relatively straightforward argument that employers

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<v Speaker 1>have been making for some time. Uh, and that is

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<v Speaker 1>that the statue was not intended at the time it

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<v Speaker 1>was passed in nineteen sixty four to include sexual orientation

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<v Speaker 1>as one of its prohibitions. Uh. And they also look

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<v Speaker 1>at some of the statutory language, although that's not as

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<v Speaker 1>clear cut up an argument for them. But so their

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<v Speaker 1>their argument is mostly that this is something Congress should handle,

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<v Speaker 1>and Congress has considered over the years but has failed

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<v Speaker 1>to include as part of Title seven. So Anthony, then,

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<v Speaker 1>what is the plaintiff's argument that, in fact, and some

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

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

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<v Speaker 1>there's a couple of theories there. There's um but I

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<v Speaker 1>think the cleanest theory is that the text itself supports it.

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<v Speaker 1>So um, you know, the Scrime Court established a test

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<v Speaker 1>which said that you know, if the if a person

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<v Speaker 1>and an employee is mistreated for a reason that's only

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<v Speaker 1>because of their sex um, that that that's simple enough.

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<v Speaker 1>That's um that sex discrimination. So if employer mistreats a

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<v Speaker 1>female worker because she has an intimate relationship with another woman,

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<v Speaker 1>but they wouldn't mistreat her if she had an intimate

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<v Speaker 1>relationship with a man, um, that is clearly about her

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<v Speaker 1>sex um. And so that that the text of the

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<v Speaker 1>Title seven supports her her cause of action for sex discrimination. Michael.

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<v Speaker 1>Another government agency, the Equal Employment Opportunity Commission, filed a

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<v Speaker 1>brief contradicting the Justice Department, and the Justice Department said,

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<v Speaker 1>and it's brief that the e e o C was

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<v Speaker 1>not speaking for the United States. Who speaks for the

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<v Speaker 1>government in this case as far as the Second Circuits concerned. Well,

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<v Speaker 1>I have to say this was to me the most

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<v Speaker 1>unusual part of the Just Department's brief that the u

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<v Speaker 1>C file to briefs several weeks ago on behalf of

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<v Speaker 1>the employees and people play. An Opportune Commission is a

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<v Speaker 1>government agency UH, and it's the agency that traditionally UM

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<v Speaker 1>speaks in cases involving private employers. They have the jurisdiction

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<v Speaker 1>over private employers. So and it was the e o

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<v Speaker 1>C that the court asked two for their views on this.

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<v Speaker 1>But the Just Department UH did come in yesterday and

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<v Speaker 1>made that claim that the UC does not speak on

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<v Speaker 1>behalf the United States, and it's not at all clear

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<v Speaker 1>then who they do speak on behalf of, because traditionally

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<v Speaker 1>they do they speak on the HAFF the United States.

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<v Speaker 1>So you have to government briefs and they are diametrically opposed.

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<v Speaker 1>There is nothing in them. There is no commonality in them.

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<v Speaker 1>And the theory that the Department is now opposing is

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<v Speaker 1>a theory that was developed primarily in the last few

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<v Speaker 1>years by the e o C. It's a theory it's

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<v Speaker 1>been around a while, but the UC really got it

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<v Speaker 1>going in the last few years. So they are not

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<v Speaker 1>just kind of them in briefs, but also the position

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<v Speaker 1>that the UC has staked out Over the last few years.

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<v Speaker 1>We've been talking with Michael Selman, At, professor at George

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<v Speaker 1>Washington University Law School, and Anthony Christ, professor at the

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<v Speaker 1>Chicago Kent College of Law, about the Trump administration putting

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<v Speaker 1>itself in the middle of a major private employment case

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<v Speaker 1>by filing a brief urging the Federal Appeals Court Manhattan

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<v Speaker 1>to rule that the federal civil rights law does not

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

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<v Speaker 1>unusual in the briefs in support of the plaintiff is

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<v Speaker 1>that it's not just from groups like the a C,

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<v Speaker 1>l U, LAMBED, and the e o C, but also

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<v Speaker 1>from dozens of major US companies across the spectrum, from

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<v Speaker 1>Microsoft and Google to LIFT and Levi Strauss. Even though

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<v Speaker 1>this could lead to more employee lawsuits, how striking is

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<v Speaker 1>that and how important to the second circuit? I think

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<v Speaker 1>it's quite striking. The brief is one that argues for

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<v Speaker 1>extending the law that would apply to these employers, so

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<v Speaker 1>at least theoretically, it would subject them to potentially greater liability.

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<v Speaker 1>But the employers clearly and they articulated very nicely in

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<v Speaker 1>the brief believe that it is in everyone's interests, including

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<v Speaker 1>the companies, to provide protection for their gay and lesbian,

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<v Speaker 1>transgender employees. That they believe it would make for a

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<v Speaker 1>more productive workforce. Um. And it's also something that they

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<v Speaker 1>all are committed to. UM. And my sense is that

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<v Speaker 1>this brief is likely to have a strong influence on

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<v Speaker 1>the second Stary Court of Appeals and ultimately if this

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<v Speaker 1>case were to go to the Supreme Court. The Supreme

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<v Speaker 1>Court which tends to take the views of the companies

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<v Speaker 1>in these areas very seriously when they are UM advanced,

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<v Speaker 1>and particularly in this situation where the companies would be

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<v Speaker 1>potential subjecting themselves to greater liability, something that is quite

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<v Speaker 1>unusual for the companies to advocate for Anthony. On the

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<v Speaker 1>other hand, that the Justice to nament uh it takes

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<v Speaker 1>the position that really this is a question for Congress,

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<v Speaker 1>that it isn't covered by current law. In Congress has

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<v Speaker 1>to decide whether or not this law should cover gay people.

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<v Speaker 1>Do they have a point? Um? So I think at

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<v Speaker 1>the end of the day, UM, you know, courts are

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<v Speaker 1>well equipped to handle issues of statutory interpretation. It is um,

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<v Speaker 1>you know, the duty and the prerogative of the judiciary

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<v Speaker 1>to interpret the law and to say what the law is. UM.

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<v Speaker 1>And it's it's true that Congress could make clear that uh,

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<v Speaker 1>sex orientation discrimination is expressly banned in Title seven. UM.

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<v Speaker 1>But just as UM, efforts to expressly put that into

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<v Speaker 1>law have haven't made much headway. UM. There hasn't been

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<v Speaker 1>any effort to overturn current the Highway decision from the

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<v Speaker 1>Seventh Circuit which found sexual orientation discrimination claims are actual

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<v Speaker 1>Undertitle seven. And I think that's that's exceptionally important to

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<v Speaker 1>recognize too. UM. And at the end, at the end

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<v Speaker 1>of the day, if the if Congress doesn't like these

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<v Speaker 1>rulings UM that find sex orientations discrimination claims are colorable

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<v Speaker 1>under Title seven, they can come back and overturn the

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<v Speaker 1>court's decisions UM with with a statute later on down

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<v Speaker 1>the road. Michael. Civil rights activists are concerned that these activities,

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<v Speaker 1>the last two that we've seen that the Trump administration

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<v Speaker 1>is trying to roll back protections that have been won

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<v Speaker 1>by the LGBT community under previous administrations. Are they right

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<v Speaker 1>to be concerned? It does seem like there's a reason

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<v Speaker 1>to be concerned here, um. And this is also inconsistent

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<v Speaker 1>with what the Trump administration UH has stated that they

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<v Speaker 1>would be doing when they came in. UM. It's not

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<v Speaker 1>surprising in the sense that their views are consistent with

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<v Speaker 1>you know, many companies views and also with conservative Republican

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<v Speaker 1>views in terms of whether the law should be extended

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<v Speaker 1>to protect the sex orientation. But I think there is

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<v Speaker 1>grounds for concern here and probably in other areas too,

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<v Speaker 1>in terms of workplace protectives that have been gained over

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<v Speaker 1>with the Obama administration. That this also indicates that the

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<v Speaker 1>administrations can have significant power UH and just changing positions

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<v Speaker 1>when they come into office. Anthony that speaking of the

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<v Speaker 1>Obama administration, one of the things that the JUST departments

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<v Speaker 1>arguing here is basically, if you kind of read between

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<v Speaker 1>the lines that the Obama administration and it's e o

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<v Speaker 1>C kind of changed the way that the government had

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<v Speaker 1>interpreted this law and they're going back to the way

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<v Speaker 1>it had been interpreted for years and years. Are they

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<v Speaker 1>right about that? I think? I think the Obama administration

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<v Speaker 1>UM had a kind of wait and see generally approach

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<v Speaker 1>towards this particular issue. But of course the eo C

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<v Speaker 1>groundbreaking ruling in certainly changed the landscape UM on how

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<v Speaker 1>LGBT rights discrimination claims are are viewed. UM. While it's

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<v Speaker 1>certainly true that these types of claims and these types

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<v Speaker 1>of arguments didn't have a lot of traction before the

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<v Speaker 1>Abom administration came in, the you know, UM, at the

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<v Speaker 1>end of the day, UM, the law shifts over time. UM.

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<v Speaker 1>And and we have better understandings of how the law

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<v Speaker 1>operates and how the law should operate. And I think

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<v Speaker 1>that legal change is inevitable with changes in administration. So

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<v Speaker 1>what the Abom administration did ultimately is an extraordinary It

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

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<v Speaker 1>inevitable change that I think will continue to gain traction

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<v Speaker 1>and more success in courts that our courts across the country.

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

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<v Speaker 1>just did that federal appeals courts have been divided on

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<v Speaker 1>the issue. In April, the Chicago Court of Appeals became

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<v Speaker 1>the first federal appeals court to rule that anti gay

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<v Speaker 1>discrimination is illegal under Title seven of the Civil Rights Act.

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<v Speaker 1>And then in May, Manhattan's Federal Court of Appeals agreed

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<v Speaker 1>to re hear this case on bank with all the

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<v Speaker 1>judges that means that had been tossed out by a

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<v Speaker 1>three judge panel. Does that give any inkling of how

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<v Speaker 1>the court might rule uh? I think in the Second

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<v Speaker 1>Circuit case, UH, it'll be interesting to see whether the

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<v Speaker 1>Supreme Court um gets involved in it. One of the

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<v Speaker 1>other cases before the Second Circuit has an opportunity to

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<v Speaker 1>rule here. They dismissed the case based on prior precedent

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<v Speaker 1>uh in the Circuit and the only way that that

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<v Speaker 1>could be reconsidered was by the full Court doing so

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<v Speaker 1>on bank uh and UH. This the Court may wait

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<v Speaker 1>for this case because this case is getting a lot

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<v Speaker 1>of attention. But currently there is a conflict in the

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<v Speaker 1>courts because this While the Seventh Circuit did extend the

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<v Speaker 1>law to protect caves and landspanes and transgender individuals, the

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<v Speaker 1>Eleventh Circuit, which covers a number of Southern states, held

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<v Speaker 1>to the contrary and held like the Just Department is

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<v Speaker 1>now advocating. So there is currently a conflict that the

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<v Speaker 1>Supreme Court could take UM. But this, this case in

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<v Speaker 1>front of the Second Circuit I think is likely to

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<v Speaker 1>be the one that the Supreme Court will ultimately address

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<v Speaker 1>the issues on. Well, Anthony, Let's say the case does

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<v Speaker 1>get to the Supreme Court. There, no matter what happens,

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<v Speaker 1>there is going to be a circuit split here. What's

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<v Speaker 1>likely to happen up there? Are we going to have

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<v Speaker 1>another divided court with Anthony Kennedy making the decision. Um, Well,

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<v Speaker 1>any controversial case, it's it's probably one where Justice Kennedy

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

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<v Speaker 1>this presumes that Justice Kennedy is still on the court

0:13:50.360 --> 0:13:53.440
<v Speaker 1>when this case gets to the Supreme Court, nificates to

0:13:53.440 --> 0:13:56.920
<v Speaker 1>the Supreme Court. Um. I think Justice Kennedy's pigeon positions,

0:13:56.920 --> 0:14:00.680
<v Speaker 1>which are generally favorable towards gay rights, is certainly um

0:14:00.679 --> 0:14:04.000
<v Speaker 1>a hopeful sign for the employee here. But even Chief

0:14:04.040 --> 0:14:07.120
<v Speaker 1>Justice Robertson in the burgher felt or arguments talked about

0:14:07.160 --> 0:14:12.720
<v Speaker 1>sexual orientation discrimination and as a form of sex discrimination, um,

0:14:12.720 --> 0:14:15.080
<v Speaker 1>in the marriage case. So so there might even be

0:14:15.160 --> 0:14:23.200
<v Speaker 1>a chance to convince Chief Justice roberts there as well. Michael,

0:14:23.640 --> 0:14:27.560
<v Speaker 1>A little problem with my microphone there, Michael. Let's just

0:14:28.120 --> 0:14:35.080
<v Speaker 1>go over the implications beyond employment law, for example, implications

0:14:35.080 --> 0:14:39.240
<v Speaker 1>and education of this decision and of a final Supreme

0:14:39.280 --> 0:14:46.880
<v Speaker 1>Court decision. Just the the education law that governs UH

0:14:47.440 --> 0:14:51.360
<v Speaker 1>with respected gender the Title nine. The same issues are

0:14:51.400 --> 0:14:54.880
<v Speaker 1>being addressed in UH colleges and also high schools, and

0:14:55.320 --> 0:14:59.160
<v Speaker 1>are also implicated in the transgender bathroom issues that have

0:14:59.240 --> 0:15:03.560
<v Speaker 1>been a rising, So whatever is decided here by the

0:15:03.600 --> 0:15:06.480
<v Speaker 1>Supreme Court is likely to have an effect on those

0:15:06.600 --> 0:15:10.680
<v Speaker 1>education cases as well. UH, and that if this case

0:15:10.720 --> 0:15:12.640
<v Speaker 1>does get to the Supreme Court. I see these cases

0:15:12.680 --> 0:15:15.240
<v Speaker 1>as largely an outgrowth of the marriage equality cases, and

0:15:15.280 --> 0:15:20.760
<v Speaker 1>I think for that reason, it seems to me likely

0:15:20.840 --> 0:15:24.600
<v Speaker 1>that Supreme Court may aside with the employees on this

0:15:24.640 --> 0:15:29.240
<v Speaker 1>one and find that the statute should be construed to

0:15:29.440 --> 0:15:32.520
<v Speaker 1>include sexual orientation as a prohibition. But it's always hard

0:15:32.560 --> 0:15:34.880
<v Speaker 1>to say, and Justice Kennedy may not be on the

0:15:34.880 --> 0:15:36.920
<v Speaker 1>Court at the time this case gets there. Just depends

0:15:36.960 --> 0:15:39.280
<v Speaker 1>on the timing of both Um, you know how long

0:15:39.320 --> 0:15:40.960
<v Speaker 1>he stays in the court and how long these cases

0:15:41.000 --> 0:15:42.880
<v Speaker 1>take to get there. But I do think that they're

0:15:42.880 --> 0:15:45.280
<v Speaker 1>headed for the Supreme Court at some point. It's great

0:15:45.440 --> 0:15:48.280
<v Speaker 1>always to have you both on Bloomberg Law. That's Michael

0:15:48.320 --> 0:15:51.240
<v Speaker 1>sell Me, professor at George Washington University Law School, and

0:15:51.520 --> 0:15:54.720
<v Speaker 1>Anthony christ professor at the Chicago Kent College of Law.

0:15:55.040 --> 0:15:59.160
<v Speaker 1>We're going to be going to President Trump Live in

0:15:59.280 --> 0:16:01.280
<v Speaker 1>just a few moments. He is going to be giving

0:16:01.320 --> 0:16:06.000
<v Speaker 1>a speech to law enforcement on Brentwood, Long Island