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Speaker 1: The federal law known as Title seven prohibits employers from

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Speaker 1: discriminating against anyone because of sex, but does that prohibition

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Speaker 1: include discrimination based upon sexual orientation. So far, the federal

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Speaker 1: courts have said no, but the E e e O C

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Speaker 1: disagrees and has been harshly critical of the way the

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Speaker 1: courts have addressed the question. Now, the full Seventh Circuit

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Speaker 1: Court of Appeals in Chicago has heard arguments about whether

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Speaker 1: it should become the first federal court to agree with

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Speaker 1: the E e e O C and to hold the discrimination

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Speaker 1: against gay people is covered by federal employment law. With

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Speaker 1: us to talk about the case today are Anthony christ,

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Speaker 1: a professor at Chicago Kent College of Law, and Michael

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

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Speaker 1: Michael the Seventh Circuit is hearing this case on bank

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Speaker 1: after a an adjunct professor at a community college, sued

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Speaker 1: because she claimed she didn't get full time employment because

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Speaker 1: she is gay. The look the first panel of the

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Speaker 1: Seventh Circuit that's now being reviewed. The three judge panel

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Speaker 1: said that she didn't have a claim under Title seven,

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Speaker 1: but they didn't seem entirely happy about the decision. When

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Speaker 1: you read it. What is it that the Seventh Circuit

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Speaker 1: panel said that the full Court is now reviewing. Well,

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Speaker 1: this is an issue that has been lurking in the

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Speaker 1: courts for quite some time, actually going back to the

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Speaker 1: nineteen seventies, but it has picked up steam with the

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Speaker 1: e O C decision in two thousand and fifteen. So

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Speaker 1: with the little with the initial decision from the Seventh circuited,

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Speaker 1: then you're right, it was quite unusual as a long

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Speaker 1: decision discussing all of the previous cases and suggesting that

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Speaker 1: although that they were bound by their prior precedent, which

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Speaker 1: had held that Title seven does not prohibit discrimination based

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Speaker 1: on sexual orientation, the judge right in the opinion also

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Speaker 1: concluded that the law was quite unsatisfactory currently and had

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Speaker 1: created a framework that was hard to justify. And so

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Speaker 1: she suggests or hinted that I think it's a better

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Speaker 1: word in terms of the opinion, that it was time

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Speaker 1: for the court to reconsider their prior decisions and that

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Speaker 1: could only be done by beyond bank court Tony. Several

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Speaker 1: of the judges focused on some Supreme Court cases, and

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Speaker 1: Judge David Hamilton's focused on a landmark Supreme Court decision

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Speaker 1: establishing that gender stereotyping is actionable as sex discrimination. And

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Speaker 1: he said, I have a hard time drawing a principal

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Speaker 1: distinction between discrimination against someone for looking gay and being gay.

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Speaker 1: Is that a good argument? I think that's a great argument. Um.

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Speaker 1: You know, the court, the entire court when when discussing

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Speaker 1: this particular point, that that case being price Warehouse versus Hopkins, Um,

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Speaker 1: I thought that it was really irreconcilable to have a

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Speaker 1: employment protections for people who are you know, falsely imputed

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Speaker 1: the wrong sectional orientation, but those who are actually discomminated

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Speaker 1: against on the basis of secutional orientation or left out

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Speaker 1: in the cold. Um. You know it really it speaks

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Speaker 1: to the idea I think that when we when we

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Speaker 1: looked a statutes statutes and trying to divine what they mean,

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Speaker 1: we can't just look to what Congress actually intended we

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Speaker 1: in terms of the principal evil, but we have to

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Speaker 1: look at it's justice. Lee has said in a layer

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Speaker 1: case reasonably related evils. Um. And and so you know,

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Speaker 1: just as much as it doesn't make sense to allow someone,

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Speaker 1: um to get away with sexual harassment in the workplace, um,

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Speaker 1: you know, on the basis of gender stereotyping. We shouldn't

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Speaker 1: allow people to use those same type of stereotypes to

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Speaker 1: actually discriminate on the basis of sexual orientations. Michael, the

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Speaker 1: Court in the lower the first decision that the three

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Speaker 1: judge panel also referred to Um oberg Fell and the

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Speaker 1: gay marriage decisions, and how all the what doesn't directly

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Speaker 1: bear on statutory interpretation. It raises some interesting questions. What

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Speaker 1: was the court saying there? Well, the um that was

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Speaker 1: also relevant to the Court's decision to take a new

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Speaker 1: look at their past precedent because a Judge Posner, who's

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Speaker 1: probably the most influential Court of Appeals judge and certainly

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Speaker 1: the most influence on the Seventh Circuit, suggests that the

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Speaker 1: law is evolving and it may be time for the

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Speaker 1: Court to, without congressional action, to acknowledge that the law

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Speaker 1: is changing to incorporate protections against sexual orientation. Uh. And

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Speaker 1: what they mentioned in and it took up a significant

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Speaker 1: part of the argument back and forth in terms of

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Speaker 1: the the evolution and the marriage issues that these days,

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Speaker 1: you know, someone could get married, and this has been

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Speaker 1: an argument made by a lot of the groups pushing

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Speaker 1: to change the law. Someone could get married on the weekend,

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Speaker 1: it could be fired on Monday because of their sexual orientation. UM,

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Speaker 1: and that that doesn't make much sense, especially when you're

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Speaker 1: take into account the way the law has unfolded. Is

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Speaker 1: was just described that what the court currently does is

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Speaker 1: it does prohibit discrimination based on what's called gender nonconforming.

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Speaker 1: So if someone is not conforming tow gender stereotypes, orture

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Speaker 1: the notion of what a man or a woman should

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Speaker 1: be like, they can find protection, UM, so long as

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Speaker 1: the discrimination is not based on purely on their sexual orientation.

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Speaker 1: And that's to where the Court was having a hard

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Speaker 1: time justifying that, both in terms of the evolutional law

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Speaker 1: with respect to marriage and also in terms of a

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Speaker 1: practical just the case for why we would ever create

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Speaker 1: a law like that. Tony, tell me about the e

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Speaker 1: o c S position on this and whether any courts

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Speaker 1: have followed it. Yeah. So, in July of UM, the

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Speaker 1: e o C had a was faced with this issue

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Speaker 1: of whether UH Title seven sex based or anti discrimination protections.

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Speaker 1: First sex discrimination included sexual orientation discrimination, and they ruled

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Speaker 1: three to two that that Title seven UH did in

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Speaker 1: fact protect sex orientation. Now, of course, the e o

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Speaker 1: C's ruling here is very persuasive, and generally speaking, the

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Speaker 1: courts will give deference to that UM. And so ultimately

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Speaker 1: it will be up to the courts to to decide

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Speaker 1: whether the e o C's interpretation is correct. UM. But

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Speaker 1: there have been a number of cases percolating. I think,

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Speaker 1: first off, the Seventh Circuit is very likely to to

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Speaker 1: rule um over ruled their precedent and rule alongside with

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Speaker 1: the e o C on this issue. That recently November,

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Speaker 1: early in November, UM, there was a district federal District

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Speaker 1: court in Pennsylvania which also held that Title seven sex

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Speaker 1: based discrimination protections included sexual orientation or included discrimination against

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Speaker 1: or protections against discrimination on the basis of sexual orientation.

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Speaker 1: And we have a number of other circuit courts will

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Speaker 1: which will hear issue, which will hear these types of

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Speaker 1: cases of the the Eleventh Circuit in the second circuit UM.

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Speaker 1: And I think that given the trajectory of the law

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Speaker 1: as a ole um, given some of these gender stereotyping cases,

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Speaker 1: given the evolution of Title seven, expanding Title seven to

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Speaker 1: protect against same sex sexual harassment, uh, you know, noting

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Speaker 1: a burgha fil uh lawrence versus Texas. Some of these

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Speaker 1: other decisions which would recognize that that, you know, the

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Speaker 1: Federal Constitution protects against sexual orientation discrimination. I think given

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Speaker 1: all these things as a whole, it's very likely that

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Speaker 1: the courts will side with the e O c um

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Speaker 1: and and adopt their reasoning. We are talking about a

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Speaker 1: lawsuit in federal court in Chicago that's now been heard

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Speaker 1: by the Full Seventh Circuit about whether or not Title seven,

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Speaker 1: the Federal Anti Anti Employment Discrimination Statute, covers sexual discrimination

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Speaker 1: as a covered category and thereby protects people from being

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Speaker 1: fired because of their sexual orientation. We're talking about the

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Speaker 1: case which was just argued in the Full Seventh Circuit

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Speaker 1: last week with Anthony christ of the Chicago Kent College

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Speaker 1: of Law and Michael Selmy of George Washington University Law School. Michael,

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Speaker 1: over the years is not a brand new issue. As

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Speaker 1: we've discussed. Over the years, there have been attempts to

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Speaker 1: get Congress to change the legislation a men Title seven

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Speaker 1: so that sexual orientation is clearly covered by the statute,

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Speaker 1: and Congress has consistently refused to do so. How should

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Speaker 1: the courts treat that fact in interpreting this lawsuit. Well,

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Speaker 1: that is one of the stronger arguments that the defendants

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Speaker 1: the Community College raised in this issue um mainly that

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Speaker 1: it should be left to Congress to determine whether the

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Speaker 1: scope of the statute includes sexual orientation. And it is

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Speaker 1: the case that I think it's going on twenty years

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Speaker 1: now that efforts to expand the statute to clearly include

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Speaker 1: sexual orientation have not progressed. It's not that they have

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Speaker 1: been defeated, it's that they generally have just sat in

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Speaker 1: committee um. So for whatever reason, Congress has not been

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Speaker 1: willing to address the issue um. The Seventh Circuit did

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Speaker 1: not seem persuaded by that, at least in the argument.

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Speaker 1: And one of of things is that Congress can always

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Speaker 1: change the law if it turns out that the Seven

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Speaker 1: Circuit interprets it inconsistent with congress Is intent. So if

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Speaker 1: this Court were to hold that the law did include

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Speaker 1: sexual orientation, Congress could reverse that statutorily, just as they

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Speaker 1: could expand the statute on their own. So it didn't

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Speaker 1: seem that the Court was persuaded by that. And the

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Speaker 1: Court also felt that the law was clearly moving in

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Speaker 1: the direction of incorporating sexual orientation, particularly in light of

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Speaker 1: some of the Supreme Court cases with respect to same

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Speaker 1: sex marriage and the like, And so they also thought

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Speaker 1: that they were taking uh initiative from the Supreme Court

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Speaker 1: in considering whether the statute should be considered judicially to

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Speaker 1: include sexual orientation. Tony Judge Posner said, you seem to

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Speaker 1: think the meaning of the statute was frozen on the

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Speaker 1: day past. That, of course is false. Are we bound

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Speaker 1: by what people thought in nineteen sixty four? And another

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Speaker 1: judge for it up the case of Loving, which is

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Speaker 1: a famous case movie out about it, tell us about that. Yeah.

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Speaker 1: So so for I think, first off, it's really hard

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Speaker 1: to figure out what exactly Congress meant UM and intended

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Speaker 1: in nineteen sixty four when they prohibited UH sex based

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Speaker 1: discrimination in employment. And part of the reason for that

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Speaker 1: is because the sex based discrimination component of Title seven

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Speaker 1: UM has a really interesting history. So it was thrown

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Speaker 1: in UH kind of at the last minute by a

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Speaker 1: representative from Virginia named Howard Smith. He was a chair

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Speaker 1: of the Rules Committee, staunch opponent of civil rights across

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Speaker 1: the board, and sex based discrimination UM was thrown thrown

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Speaker 1: in the mix in an attempt to sink the entire

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Speaker 1: enterprise of the Civil Rights Act. So you know, effectively UH.

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Speaker 1: You know, he he thought that that racial quality would

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Speaker 1: UH would would take a hit if if women UM

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Speaker 1: and women's rights were thrown in the same lot. You

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Speaker 1: know that that didn't come to pass, and Entitle seven

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Speaker 1: UH made into law with both race discrimination protections and

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Speaker 1: sex based discrimination protections, among others UM. And so that

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Speaker 1: that's that's a tricky aspect of trying to divine what

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Speaker 1: exactly Congress intend at nineteen sixty four. But as a

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Speaker 1: trick as a as a general matter, you know, we

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Speaker 1: don't necessarily adhere ourselves to what legislators intended UM when

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Speaker 1: they wrote the statutes. So for example, you know, the

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Speaker 1: Sherman Antitrust Act, and Judge Posner pointed this out, UH

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Speaker 1: was was enacted in the eighteen ninety but we use

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Speaker 1: modern economic theories in in its application that weren't available

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Speaker 1: to legislators in ninety and they could have had no

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Speaker 1: way of figuring out UM. In In five, the Interstate

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Speaker 1: Commerce Commission UH interpreted the Interstate Commerce Actor require full

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Speaker 1: integration on railroads, and that had not been the case

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Speaker 1: for many years. And I don't think most folks would say, oh,

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Speaker 1: the Interstate Commerce Act in the late eighteen hundreds was

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Speaker 1: written to advanceable rights, and this is the case in

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Speaker 1: you know, other employment discrimination cases. Um, you know, we

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Speaker 1: really we've done more with with laws than what Congress

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Speaker 1: may have initially intended. Well, Michael, I think we're gonna

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Speaker 1: have to leave it there. Our thanks to Tony Tony

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Speaker 1: Christ from Chicago Kent College of Law and Michael Selmy

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Speaker 1: of the George Washington University Law School. Thank you for

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Speaker 1: being here on Bloomberg Law. Coming up on Bloomberg Law,

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Speaker 1: we'll be talking about arguments in the Supreme Court about

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Speaker 1: whether the states of North Carolina and Virginia engaged in

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Speaker 1: racial jerrymandering when they drew their legislative districts. This is

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Speaker 1: Bloomberg