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Speaker 1: This week marks the second anniversary of the Supreme Court's

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Speaker 1: decision making gay marriage legal. The legal fight for gay

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Speaker 1: rights obviously is continuing, but it still may surprise you

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Speaker 1: to know that l g B t Q employees are

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Speaker 1: not protected against workplace discrimination under federal civil rights laws

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Speaker 1: in every state. In fact, in April, the Chicago Appeals

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Speaker 1: Court became the first federal appeals court to rule that

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Speaker 1: anti gay discrimination is illegal under Title seven of a

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Speaker 1: Civil Rights Act. Then in May, Manhattan's Federal Appeals Court

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Speaker 1: agree to re hear an appeal where a three judge

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Speaker 1: panel had tossed out the case of a skydiving instructor

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Speaker 1: who claimed his employer fired him because he was gay,

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Speaker 1: and the amiicus briefs have been piling up in support

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Speaker 1: of the employee. What's unusual is that the briefs are

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Speaker 1: not just from groups like the A C, l U, LAMBDA,

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Speaker 1: and the E E O C, but also from dozens

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

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Speaker 1: and Viacom to lift Ben and Jerry's and Levi Strauss.

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Speaker 1: Joining us are Michael Selmi, a professor at George Washington

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Speaker 1: University Law School, and Anthony christ a professor at the

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Speaker 1: Chicago Kent College of Law, Michael tell Us what the

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Speaker 1: legal issue is facing the Second Circuit under Title seven.

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Speaker 1: The legal issue, which, as you noted, UH has been

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Speaker 1: popping up in a number of courts recently, is that

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Speaker 1: whether Title seven, the primary federal statute that prohibits discrimination

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Speaker 1: based on gender UM includes or extends to protecting individuals

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Speaker 1: based on their sexual orientation, so that gays, lesbians, transgender

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Speaker 1: individuals would be able to sue under Title seven if

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Speaker 1: the statute is interpreted to include sexual orientation preference UM

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Speaker 1: as a category of that falls under the statute. Anthony,

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Speaker 1: this sounds a lot like an issue the Supreme Court

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Speaker 1: almost grappled with this term, having to do with whether

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Speaker 1: transgender student got access to bathrooms that corresponded with their

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Speaker 1: gender identity. Is it basically the same same legal question? Yeah? So,

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Speaker 1: so there are certainly different nuances to to that case,

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Speaker 1: the Grim case UM and the Title seven case that's

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Speaker 1: UH presented to the Second Circuit UH in the next

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Speaker 1: a few months. But at the end of the day,

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Speaker 1: the question is more or less the same. What does

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Speaker 1: it mean to discriminate on the basis of sex? And

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Speaker 1: the Supreme Court has I think established a really simple

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Speaker 1: test and back to Sucreme Court said, it's a simple

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Speaker 1: test um to show towards to evidence whether sexual sex

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Speaker 1: discrimination has occurred. Um. And if you if you think

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Speaker 1: about it, you know, at the end of the day,

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Speaker 1: if an employer discriminates against someone because of their sexual orientation,

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Speaker 1: they're really discriminating because of the person sex that they're

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Speaker 1: having an intimate relationship with. And at the end of

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Speaker 1: the day, Um, you know, if if an employee is

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Speaker 1: mistreated because they had an intimate relationship with a person

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Speaker 1: one sex, but they wouldn't because if they they have

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Speaker 1: a relationship with a person of the other sex. Um,

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Speaker 1: you know, the causation is mistreatment based on sex and

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Speaker 1: it's sex discrimination. Michael. In their brief, the attorneys general

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Speaker 1: of New York, Connecticut, and Vermont argue that sexual orientation

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Speaker 1: discrimination is a form of sex stereotyping. Are they using

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Speaker 1: that argument because of the Supreme Court precedent prohibiting gender stereotyping? Uh?

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Speaker 1: In part Yes, this hasn't been an issue that the

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Speaker 1: eu C in particular over the last few years has

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Speaker 1: been very strong on and has been pushing and they've

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Speaker 1: been pushing this particular interpretation, uh that discriminating based on

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Speaker 1: someone sex orientation is treating them, uh in a stereotypical

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Speaker 1: way because the individuals who are gay or lesbian, transgender

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Speaker 1: do not fit the norm of a stereotype that individuals

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Speaker 1: may have regarding what a man or a woman should be.

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Speaker 1: And this argument has been around for a while. It's

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Speaker 1: consistent with some of the issues of the Supreme Court

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Speaker 1: has addressed in sexual harassment cases. Um. And so it's

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Speaker 1: become the common argument to extend Titles seven to include

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Speaker 1: sexual orientation. Anthony. So Michael just mentioned the e o

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Speaker 1: C position in this case is that something that is

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Speaker 1: going to change because of the Trump administration and fo

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Speaker 1: is that going to significantly change the state of these lawsuits?

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Speaker 1: So the e o C. There hasn't been any indication

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Speaker 1: thus far that that there's um any motivate or there's

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Speaker 1: any plans on changing their position on this issue. UM.

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Speaker 1: But at the end of the day, it's this is

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Speaker 1: a matter of statutory interpretation for the courts, and why

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Speaker 1: the e e o C s for persuasive and uh

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Speaker 1: you know there there uh you know, their opinions are

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Speaker 1: are ones of the courts will look at and take seriously,

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Speaker 1: you know, this is still an issue of statutory interpretation

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Speaker 1: and that's up to the courts um to decide. And

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Speaker 1: I think that that's um. You know, the courts are

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Speaker 1: equipped to do that. And uh, you know, the Second

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Speaker 1: Circle will do exactly what the Seventh Circuit did and

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Speaker 1: take a hard look at the text of the statue

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Speaker 1: and the underlying theories and make a decision based based

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Speaker 1: on their best judgment. We've been talking about an upcoming

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Speaker 1: hearing at the Second Circuit that could provide a legal

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Speaker 1: shield for gay workers under federal civil rights laws, with

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Speaker 1: Michael Selmy, professor at George Washington University Law School, and

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Speaker 1: Anthony Christ, professor of the Chicago Kent College of Law.

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Speaker 1: Anthony there were there are other decisions, other circuit court

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Speaker 1: decisions on this one in Georgia, and then there was

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Speaker 1: the Chicago Appeals Court which was the first to rule

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Speaker 1: that this actually could be under job discrimination under Title

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Speaker 1: seven for UM people who are gay. Now in the

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Speaker 1: they all seem to have different kinds of reasons for

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Speaker 1: their statutory interpretation, but in a concurring opinion, Judge Joe Flom,

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Speaker 1: who was appointed by President Reagan wrote that sexual orientation

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Speaker 1: discriminate constitution constitutes sex discrimination under Title seven without any

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Speaker 1: need to reinterpret the law. Do you agree with that? Yeah?

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Speaker 1: I think so. And like I said earlier, Um, the

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Speaker 1: Supreme Court's test for what constitutes sex discrimination is is

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Speaker 1: pretty you know, it's simple and and it cleanly fits

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Speaker 1: in the sexual orientation context. You know, given um, you know,

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Speaker 1: people if they're mistreated based on their sex orientation, they're

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Speaker 1: mistreated because, um, they're you know, the person that they're

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Speaker 1: you know, engage in intimate relationship with is quote unquote

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Speaker 1: of the wrong sexum in the employer's view. Um. And

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Speaker 1: it fits quite well with uh, the sex stereotyping theories

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Speaker 1: and other theories of sex discrimination under Title seven. So

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Speaker 1: I think, um, you know that that's concurring opinion captures

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Speaker 1: the exactly what is true Title seven. You know, you

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Speaker 1: don't have to reinvent Title seven or recreate something that's

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Speaker 1: not already there. It clearly banns sex sex orientation discrimination. Michael,

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Speaker 1: I want to ask you about a brief that was

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Speaker 1: filed the other day by dozens of major US companies.

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Speaker 1: They are actually arguing in favor of sexual orientation being

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Speaker 1: covered under Title seven, which UM, I guess would mean

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Speaker 1: they are um more likely to be sued for discriminating

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Speaker 1: on the basis of sexual orientation. How how striking or

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Speaker 1: significant do you find that brief? I have to say, Uh,

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Speaker 1: it did seem to me to be quite extraordinary, because,

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Speaker 1: as you noted, the companies are essentially arguing for an

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Speaker 1: expansion of the law that does not exist in most

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Speaker 1: of the country right now that would apply to them

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Speaker 1: and potentially expand the areas of liability for the company

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Speaker 1: than that. From that perspective, it seems differed from the

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Speaker 1: circumstances where companies have joined UH in amigus briefs in

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Speaker 1: support of affirmative action, which would be where when they

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Speaker 1: did that, they were arguing that the Supreme Court should

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Speaker 1: not ban affirmative action, that they wanted to be able

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Speaker 1: to voluntarily engage in a firm of action. This does

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Speaker 1: seem quite different, and that they are arguing that the

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Speaker 1: law should be more comprehensive, UM subjecting them to more liability.

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Speaker 1: How influential will be, It's it's hard to know. Um.

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Speaker 1: There will be a lot of amicus briefs filed here

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Speaker 1: and then eventually in the Supreme Court when this issue

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Speaker 1: gets there, probably next year. Um, and uh. The Supreme

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Speaker 1: Court has certainly taken the business communities views in these

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Speaker 1: areas UM seriously, so from that perspective, it could definitely

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Speaker 1: have a significant effect, Anthony. How many companies have their

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Speaker 1: own non discrimination policies in effect? Um, Well, if you

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Speaker 1: look at most of the you know, this country's largest corporations, um,

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Speaker 1: the overwhelming majority of them have sexual orientation and gender

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Speaker 1: identity expressly included in their in their own policies. And

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Speaker 1: I think one of the important things to note, um,

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Speaker 1: from at least the legal angle here, um, is that

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Speaker 1: these companies that are asking the Second Circuit to interpret

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Speaker 1: Tunnel seven to include sexual orientation discrimination claims are really

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Speaker 1: telling the court uh that that they have no reliance

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Speaker 1: interests in maintaining this outdated precedent. So, in other words,

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Speaker 1: if the Court does interpret Tunnel seven, I think correctly

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Speaker 1: that sexual orientation discrimination is sex discrimination. Overturning the seventeen

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Speaker 1: year old precedent won't won't cause some dramatic upheaval in

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Speaker 1: the way employers do business because so many of them

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Speaker 1: already included in their own policies, and many of them

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Speaker 1: operate in states and localities that have non discrimination protections

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Speaker 1: expressly written now for LGBT persons as well. Michael You

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Speaker 1: a minute ago mentioned the Supreme Court. Um, folks on

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Speaker 1: the left breathe the big side of relief this week

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Speaker 1: when Anthony Kennedy didn't retire at the end of this term. Uh,

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Speaker 1: certainly possible you were retired at the end of next term. Um.

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Speaker 1: If the Court, if it doesn't get to the court

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Speaker 1: until after Kennedy has been replaced by Donald Trump appointee,

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Speaker 1: is there really a whole lot of prospect of that

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Speaker 1: the Court would say that that Title seven includes sexual

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Speaker 1: orientation with Justice Kennedy on the court. Um. I think

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Speaker 1: there is a possibility. It's not to me. This is

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Speaker 1: actually a difficult statutory interpretation question, in part because the

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Speaker 1: history of the statute is so clear that sex orientation

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Speaker 1: was not intended to be included in the original passage

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Speaker 1: of the statute, and there have been efforts to amend

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Speaker 1: the statute over time to extend the protections to sexual orientation.

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Speaker 1: So I think the conservative majority of the Court it's

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Speaker 1: going to have a hard time. UH, is likely to

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Speaker 1: have a hard time interpreting the Statute to include sexual orientation. However,

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Speaker 1: Justice Kennedy has been very progressive and very good on

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Speaker 1: spending constitutional rights to include same sex marriage and for

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Speaker 1: other protections for gays and lesbian transgender individuals, and it's

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Speaker 1: quite possible that he would take an approach kind of

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Speaker 1: like Judge Posner did in the Court of Appeals where

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Speaker 1: he said it, you know, it's just time that we

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Speaker 1: extend the statute. He may not be as bold to

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Speaker 1: say it as directly as Judge Posner did, but I

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Speaker 1: think there is some possibility that Supreme Court would interpret

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Speaker 1: the Statute to include sexual orientation. Anthony. The Second Circuit

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Speaker 1: takes a very few cases on bank, meaning that all

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Speaker 1: the judges will sit and listen. In the last six years,

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Speaker 1: it only reconsidered two cases on bank. Why do you

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Speaker 1: think it took up this case? So, I think the

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Speaker 1: so the Second Circuit generally has a philosophy that if

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Speaker 1: a circuit precedent needs to be taken up on bank, uh,

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Speaker 1: it's probably worthy of a certain from the Supreme Court.

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Speaker 1: So they try to um they tend not to grant

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Speaker 1: those cases, and so very sparingly, and I think here

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Speaker 1: this is just such a case of great significance and

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Speaker 1: importance to the country as a whole. Um And given

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Speaker 1: the rapidly changing uh you know amount or the changing

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Speaker 1: jurisprudence on LGBT rights both Entitled seven in the constitutional landscape,

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Speaker 1: it's hard to sustain their two thousand opinion um. And

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Speaker 1: there they're two thousand of ruling that such orientation isn't

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Speaker 1: covered under Title seven. And the only way for the

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Speaker 1: second started to correct that themselves to do it through

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Speaker 1: all right, I'm sorry, we'll have to leave it there.

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Speaker 1: That's Anthony christ of Chicago Kent Law School and Michael

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Speaker 1: Selmy of George Washington University Law School,