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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. A coalition of

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Speaker 1: twenty two states is urging the Supreme Court to extended

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Speaker 1: decades old workplace discrimination law to cover gay and transgender

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Speaker 1: employees who can be fired for no reason in many

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Speaker 1: parts of the country. And what is the position of

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Speaker 1: the Trump administration in a trio of cases before the Court?

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Speaker 1: That depends on which agency you ask. Joining me is

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Speaker 1: Steve Sanders are professor at the Mars School of Law

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Speaker 1: to Indiana University, Steve, the Justice Department and the Equal

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Speaker 1: Employment Opportunity Commission clash on this issue. What are their positions?

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Speaker 1: The e o C, which institutionally is concerned with employment

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Speaker 1: discrimination in and has a lot of experience with matters

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Speaker 1: of employment discrimination, takes the position that the nineteen sixty

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Speaker 1: four law which prevents sex discrimination in the workplace, also

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Speaker 1: includes sexual orientation and gender identity, but essentially discrimination against

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Speaker 1: gays and lesbians because of who they want to have

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Speaker 1: romantic relationships with or discrimination against a person because they

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Speaker 1: have transitioned genders. That those things are by definition discrimination

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Speaker 1: on the basis of sex if sex is understood broadly

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Speaker 1: enough to include things like gender stereotypes or assumptions about

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Speaker 1: the capabilities of men and women. The Trump administration, through

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Speaker 1: its Justice Department, is taking the position in an upcoming

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Speaker 1: trio of Supreme Court cases that No, the federal sex

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Speaker 1: anti sex discrimination law essentially very narrowly means that women

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Speaker 1: and men can't be treated differently, that women can't be

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Speaker 1: discriminated in the workplace because their women, and men can't

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Speaker 1: be discriminated against because their men. But that it's reaching

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Speaker 1: too far to stretch the understanding of sex that single

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Speaker 1: word in the federal statute to encompass one's sexual orientation

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Speaker 1: or gender identity. So Steve, the Justice Department represents the

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Speaker 1: e o C before the Supreme Court in in one

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Speaker 1: of the cases involving a former funeral director who's transgender.

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Speaker 1: The Justice Department's response at the Court cemented its position

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Speaker 1: against e o C s win at the appeals court.

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Speaker 1: So which position are the justices likely to rely on? Well?

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Speaker 1: Clearly that the justices. Well, the justices will will consider

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Speaker 1: the arguments made by the Trump administration. The Solicitor General

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Speaker 1: will be the person representing the Trump administration. The Solicitor

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Speaker 1: General speaks for the Justice Department and for this particular administration. Um. Generally,

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Speaker 1: federal courts give some attention, some level of deference to

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Speaker 1: the E e O c S judgment on matters just

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Speaker 1: because it is a specialized agency that has a lot

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Speaker 1: of experience with history with matters of employment discrimination. The

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Speaker 1: senses their knowledgeable experts and their opinion is worth something.

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Speaker 1: But at the end of the day, the Justice Department

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Speaker 1: does essentially outrank the e e O c um And

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Speaker 1: and it's the Justice Department that is weighing in here

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Speaker 1: as a Mikas curier, as a friend of the court

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Speaker 1: in this dispute between two private parties, a funeral home

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Speaker 1: and its former employee. The federal government is not a

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Speaker 1: party to this case. The Trump Administration is not being sued.

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Speaker 1: The Trump Administration is basically weighing in to give its

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Speaker 1: opinion about what the proper outcome of this case should be.

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Speaker 1: What does it mean for employers to have the different

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Speaker 1: opinions on this issue from the Justice Department and the

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Speaker 1: e o C. Does it have any effect on them? Well,

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Speaker 1: the you know, probably many management side employment lawyers would

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Speaker 1: tell you to honor the most restrictive or pay attention

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Speaker 1: to the interpretation of law that is most protective. But

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Speaker 1: but another important thing to remember in answering that question is,

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Speaker 1: on this question, the law actually varies depending on what

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Speaker 1: part of the country you're in. So some lower courts,

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Speaker 1: federal courts of appeals, have come to the conclusion that

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Speaker 1: Title seven, this employment nondiscrimination law we're talking about, does

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Speaker 1: cover sexual orientation and gender identity. And in states that

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Speaker 1: are under the jurisdiction of those courts of appeals, that

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Speaker 1: is the law right now that employers would have to follow.

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Speaker 1: But there are other parts of the country governed by

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Speaker 1: other federal courts of appeals that have either rejected that

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Speaker 1: understanding or have not reached that understanding. And so um,

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Speaker 1: as a matter of federal law, it is not the

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Speaker 1: law in those parts of the country that sexual orientation

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Speaker 1: or gender identity discrimination is illegal. Um. You know, if

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Speaker 1: the e o C is on the other side of

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Speaker 1: your case, chances are you should be a cognizant of

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Speaker 1: the e O C. S position. But again, I think

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Speaker 1: all this is going to be clarified this coming year

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Speaker 1: by the Supreme Court, and this variation in the law

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Speaker 1: from different parts of the country or different federal agencies

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Speaker 1: will be cleared up, you know, within the year. Do

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Speaker 1: you have any feeling for how the Court might rule

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Speaker 1: in these cases? You know, I am. I am skeptical

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Speaker 1: all that. So I am somewhat skeptical that the Court

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Speaker 1: is going to interpret Title seven in this way. That

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Speaker 1: the conservative justices on the Court who are in the majority,

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Speaker 1: are generally committed to a way of reading statutes, reading

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Speaker 1: federal laws that is more restrictive, that is more deferential

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Speaker 1: to what Congress thought was doing in nineteen sixty four,

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Speaker 1: not how we understand sexuality today. That's kind of evolving

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Speaker 1: understanding of the meaning of words. But there are some

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Speaker 1: conservative judges in lower federal courts that have gone along

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Speaker 1: with the E. E E O c S understanding. So I

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Speaker 1: I think it may be a situation where good lawyering

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Speaker 1: could make a difference. Um, I don't think it's certainly

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Speaker 1: not a slam dunk. But at this point, if I

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Speaker 1: were someone who you know, liked that understanding of federal law.

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Speaker 1: I would be a little nervous about what this Supreme

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Speaker 1: Court is going to do in these cases. About a

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Speaker 1: minute here. Does the absence of Justice Kennedy make a

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Speaker 1: difference in these cases? I'm not sure it does. Justice

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Speaker 1: Kennedy was a great protector and a great uh. He

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Speaker 1: was responsible for a number of great court court victories

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Speaker 1: for gays and lesbians, but those were all based on

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Speaker 1: interpretation of the Constitution and interpretation of words and doctrines

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Speaker 1: and constitutional law that are inherently sort of malleable and evolving.

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Speaker 1: Justice Kennedy was not necessarily as progressive. He tended to

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Speaker 1: be somewhat more conservative and somewhat more restrictive in his

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Speaker 1: reading of statutes, including Civil Rights Statute. So I don't

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Speaker 1: think it makes a huge difference, not the difference it

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Speaker 1: would make if this were a constitutional question involving the

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Speaker 1: rights of gays, lesbians, are transgendered people. Well, as you say,

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Speaker 1: we'll learn before the end of next term. Thank you

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Speaker 1: so much, Steve. That Steve Sanders, a professor at the

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Speaker 1: Morraw School of Law at Indiana University. Thanks for listening

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Speaker 1: to the Bloomberg Law podcast. You can subscribe and listen

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Speaker 1: to the show on Apple Podcasts, SoundCloud, and on bloomberg

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Speaker 1: dot com slash podcast. I'm June Brosso. This is Bloomberg

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Speaker 1: Pat the Tent under conta