During oral arguments before the full Second Circuit Court of Appeals, Judge Rosemary Pooler said, it's a little bit awkward to us to have the government on both sides of this case. But that's where the Trump administration was on opposite sides in a case that's attracted nationwide attention and could result in a landmark decision on whether Title seven of a Civil Rights Act of nineteen sixty four protects gay and lesbian workers from bias as its protected workers from gender
and racial bias for more than half a century. The Equal Employment Opportunity Commission argued that the federal law would protect the plaintiff, a skydiving instructor who said he was fired because he was gay, But the Justice Department sided with the employer, saying Congress did not intend to include gay and lesbian discrimination in the civil rights law. Joining me is Professor Anthony Christ of the Chicago Kent College of Law. Anthony explained what the basic issue is here.
So the basic issue here is whether sexual orientation discrimination is a form of sex discrimination um and and therefore actionable under federal employment into discrimination law. Uh So, federal law expressly says that sex discrimination is banned. Um. And the argument here is that if an employer takes action against an employee because of their sexual orientation, that they're necessarily taking into account their sex and the sex of
their of their intimate partner. And as a consequence, Um, that's just playing old sex discrimination and banned under federal law. And what's the argument of the Justice Department. So the Justice Department essentially says a few things. First that sixty four UH, Congress never intended to cover sexual orientation discrimination
claims when they banned sex discrimination in the workplace. Um. And And the second second argument is that a number of cases were decided prior to that held the sexual orientation discrimination wasn't actionable. Congress overhauled the Federal Civil Rights Act in a number of important ways entitled seven, but that they that in UH not protecting sexual orientation discrimination expressly that they in fact in effect ratified those decisions.
And finally that Congress has rejected bills to specifically amend Title seven to protect against sexual orientation discrimination. And for all those reasons, UM, the sex discrimination is should not be interpreted as including UH or as a sexual orientation discrimination shouldn't be thought of as a subset of sex discrimination. Anthony does precedent favor the Justice Department's position because the full Seventh Circuit April overturned its own precedent and held
that sexual orientation bias necessarily a sex discrimination. But an Eleventh Circuit panel ruled the opposite in March, and the Second Circuit panel in this case ruled the opposite. So where does precedent stand. Well, in the Second Circuit, it's in precedent since two thousand in a case called Silington that sexual orientation claims aren't cognizable under Title seven UM.
And I think that a number, you know, number of district courts UM have have joined the Seventh Circuit in ruling UH for LGB plaintiffs, So that the trend seems to be favoring sexual orientation claims or sexual plaintiffs brings sexual orientation claims. But you're correct that by and large most circuit course of appeal have have held the opposite.
So we'll see where the trend goes. UM. But I certainly think it's telling that the fact that the Second Circuit wanted to rehear this case that they're that they're seriously re examining that two thousand precedents. That was going to be my next question, because the Second Circuit rarely here's cases on bank or with all its judges. So
does that tell you how important this case is? Oh? Absolutely, Generally speaking, the Second Circuit it is loth to go unbunked um, And they will only do so typically if they think it's actually worth uh uh you know, worthy of Supreme Court review. And so they generally don't uh don't go through this procedure. So I think that this is a strong signal that they're really seriously taking a hard look at this and and very well may overturned
that that two thousand error precedent. The Justice Department's lawyer refused to answer the judges questions about how the riff developed between the Justice Department and the e e o C. So how do the judges weigh the different government positions, which do they give more weight to? Well, Well, the e o C is, of course the agency charged with the enforcement and implementation of Huttle seven um. And so their their guidance here will be, you know, may very
well be persuasive. Um. The Department of Justice, of course is you know, their opinion will be accorded weight too, because again there they are representing the as the United States, and they are the nation's largest employer. So you know, time will tell how these these arguments weigh out. But at the end of the day, what will guide and control the judge's decision is their interpretation of the statute. Is there any question that this case or one like
it will end up at the Supreme Court? Uh? Time time will tell there too. I think it's much more likely now that you have a split among the circuit courts of appeals, UM, that the Supreme Court will ultimately here. Whether it's the eleventh Circuit case, this case or or
another one, we'll see ultimately. Um, the bigger issue may be whether an employer or defendant really wants to appeal this decision, because that might be at the end of the day about employment decision if you in terms of branding to be associated with the case where you're defending anti gay bias. But um, you know, this case may
very well be that vehicle. Um. The Administration stands challenges a group of fifty companies and organizations, including Microsoft, Google, and Viacom, that file documents in June arguing that discrimination based on sexual orientation should be illegal. How does the court weigh an amicus brief like that, Um, of course I think it's uh. Any amicus brief will will be from from a group of UH companies like that will certainly have some impact in terms of least bringing attention
UH to the issue in a in a different way. UM. It's certainly telling. It's significant to the extent that in theory, the position that these companies have taken would potentially open them up to more liability. And that, of course, I think, UM, you know, gives it a particular I think amount of cachet that some of the other amicus briefs may not UM.
But importantly, I think what it signals to the judges is that these companies don't have a reliance interest on the status quo remaining UM and that if they do, in fact overturn that old precedent that there's there won't be some large upheaval in current practice and procedure because these companies are in fact inviting the court to UM embrace a more expansive understanding of Title seven. Because from these companies perspectives, that's good for the workplace, and it's
good for workers only about thirty seconds. But at one point the argument of the Justice Department was that this shouldn't even be in the Second Circuit because the states covered by the Second Circuit have state laws that cover this. I yeah, I I personally don't find that persuasive because ultimately it's up to the course to interpret what federal law says, um. And so we you know, we will see,
time will tell. But there are of course many, many states that don't have state protections, and so this will ultimately be an important, uh important of decisions for people in states without LGBT specific employment protections. Well, it's always a pleasure to have you. Um. That's Professor Anthony christ He is a professor at the Chicago Kent College of Law.