Trump Targets Protections for LGBT Workers (Audio)

gays and lesbians nationwide. The Justice Department filed a brief urging the Federal Appeals Court in Manhattan to rule that a federal civil rights law does not protect employees from discrimination based on sexual orientation. The administration stands challenges not only civil rights groups, but also dozens of major companies, from Microsoft to Levi Strauss, who filed briefs on the side of the employee, a former diving instructor who claims

he was fired for being gay. Our guests are Michael sell Me, a professor at George Washington University Law School, and Anthony christ, professor at the Chicago Kent College of Law. Michael, let's start with the basics. What is the issue facing the second circuit under Title seven? The issue which is one that has been coming up in a series of cases recently, is whether Title seven, the primary statute that governs discrimination in the workplace and prohibit discrimination based on

race and gender, national original religion. The question is whether that statute, the prohibition on discrimination based on sex discrimination extends to prohibition on discrimination based on sexual orientation. And there has been two recent Court of Appeals decisions and they have been split, and then this second circuit case is the most recent and becoming the most prominent of those cases. Anthony the in the you know, in the past, courts had generally ruled hadn't they that that, in fact,

sexual orientation was not protected by this law? And that was because they said that Congress was a hadn't intended to cover it. Why has Why have things changed? Well, I think a number of things have changed so um. Of course, there's a landmark decision um plurality decision from the Supreme Court in UH called Price Waterhouse, which basically said that people who don't conform to gender norms and gender stereotypes have an action epic cause of action or

Tuttle seven um. And since then we've had a tremendous uh, you know, ground swell of change and how we understand sexual orientation and how sex orientation fits within the law, both in constitutional cases and statutory cases. And I think we've come to a better understanding that such orientation discrimination

is uh inexorably linked to such sex discrimination. Um. And so I think that the reason why the courts have been evolving on this issue is in large part just in our society is better under standing of sexual orientation and how sexual orientation operates people's everyday lives. Michael, what is the argument that Justice Department is making? But the justin Department is making a relatively straightforward argument that employers

have been making for some time. Uh, and that is that the statue was not intended at the time it was passed in nineteen sixty four to include sexual orientation as one of its prohibitions. Uh. And they also look at some of the statutory language, although that's not as clear cut up an argument for them. But so their their argument is mostly that this is something Congress should handle, and Congress has considered over the years but has failed

to include as part of Title seven. So Anthony, then, what is the plaintiff's argument that, in fact, and some courts have adopted, I guess. But what is the plaintiff's argument that Title seven should cover discrimination against gay people? Um? Well, there's a couple of theories there. There's um but I think the cleanest theory is that the text itself supports it.

So um, you know, the Scrime Court established a test which said that you know, if the if a person and an employee is mistreated for a reason that's only because of their sex um, that that that's simple enough. That's um that sex discrimination. So if employer mistreats a female worker because she has an intimate relationship with another woman, but they wouldn't mistreat her if she had an intimate relationship with a man, um, that is clearly about her sex um. And so that that the text of the

Title seven supports her her cause of action for sex discrimination. Michael. Another government agency, the Equal Employment Opportunity Commission, filed a brief contradicting the Justice Department, and the Justice Department said, and it's brief that the e e o C was not speaking for the United States. Who speaks for the

government in this case as far as the Second Circuits concerned. Well, I have to say this was to me the most unusual part of the Just Department's brief that the u C file to briefs several weeks ago on behalf of the employees and people play. An Opportune Commission is a government agency UH, and it's the agency that traditionally UM speaks in cases involving private employers. They have the jurisdiction

over private employers. So and it was the e o C that the court asked two for their views on this. But the Just Department UH did come in yesterday and made that claim that the UC does not speak on behalf the United States, and it's not at all clear then who they do speak on behalf of, because traditionally they do they speak on the HAFF the United States. So you have to government briefs and they are diametrically opposed. There is nothing in them. There is no commonality in them.

And the theory that the Department is now opposing is a theory that was developed primarily in the last few years by the e o C. It's a theory it's been around a while, but the UC really got it going in the last few years. So they are not just kind of them in briefs, but also the position that the UC has staked out Over the last few years.

We've been talking with Michael Selman, At, professor at George Washington University Law School, and Anthony Christ, professor at the Chicago Kent College of Law, about the Trump administration putting itself in the middle of a major private employment case by filing a brief urging the Federal Appeals Court Manhattan to rule that the federal civil rights law does not

protect employees from discrimination based on sexual orientation. Michael, what's unusual in the briefs in support of the plaintiff is that it's not just from groups like the a C, l U, LAMBED, and the e o C, but also from dozens of major US companies across the spectrum, from Microsoft and Google to LIFT and Levi Strauss. Even though this could lead to more employee lawsuits, how striking is that and how important to the second circuit? I think

it's quite striking. The brief is one that argues for extending the law that would apply to these employers, so at least theoretically, it would subject them to potentially greater liability. But the employers clearly and they articulated very nicely in the brief believe that it is in everyone's interests, including the companies, to provide protection for their gay and lesbian, transgender employees. That they believe it would make for a

more productive workforce. Um. And it's also something that they all are committed to. UM. And my sense is that this brief is likely to have a strong influence on the second Stary Court of Appeals and ultimately if this

case were to go to the Supreme Court. The Supreme Court which tends to take the views of the companies in these areas very seriously when they are UM advanced, and particularly in this situation where the companies would be potential subjecting themselves to greater liability, something that is quite unusual for the companies to advocate for Anthony. On the other hand, that the Justice to nament uh it takes the position that really this is a question for Congress,

that it isn't covered by current law. In Congress has to decide whether or not this law should cover gay people. Do they have a point? Um? So I think at the end of the day, UM, you know, courts are well equipped to handle issues of statutory interpretation. It is um, you know, the duty and the prerogative of the judiciary to interpret the law and to say what the law is. UM. And it's it's true that Congress could make clear that uh,

sex orientation discrimination is expressly banned in Title seven. UM. But just as UM, efforts to expressly put that into law have haven't made much headway. UM. There hasn't been any effort to overturn current the Highway decision from the Seventh Circuit which found sexual orientation discrimination claims are actual Undertitle seven. And I think that's that's exceptionally important to

recognize too. UM. And at the end, at the end of the day, if the if Congress doesn't like these rulings UM that find sex orientations discrimination claims are colorable under Title seven, they can come back and overturn the court's decisions UM with with a statute later on down the road. Michael. Civil rights activists are concerned that these activities, the last two that we've seen that the Trump administration is trying to roll back protections that have been won

by the LGBT community under previous administrations. Are they right to be concerned? It does seem like there's a reason to be concerned here, um. And this is also inconsistent with what the Trump administration UH has stated that they would be doing when they came in. UM. It's not surprising in the sense that their views are consistent with you know, many companies views and also with conservative Republican views in terms of whether the law should be extended

to protect the sex orientation. But I think there is grounds for concern here and probably in other areas too, in terms of workplace protectives that have been gained over with the Obama administration. That this also indicates that the administrations can have significant power UH and just changing positions

when they come into office. Anthony that speaking of the Obama administration, one of the things that the JUST departments arguing here is basically, if you kind of read between the lines that the Obama administration and it's e o C kind of changed the way that the government had interpreted this law and they're going back to the way it had been interpreted for years and years. Are they right about that? I think? I think the Obama administration UM had a kind of wait and see generally approach

towards this particular issue. But of course the eo C groundbreaking ruling in certainly changed the landscape UM on how LGBT rights discrimination claims are are viewed. UM. While it's certainly true that these types of claims and these types of arguments didn't have a lot of traction before the Abom administration came in, the you know, UM, at the end of the day, UM, the law shifts over time. UM. And and we have better understandings of how the law

operates and how the law should operate. And I think that legal change is inevitable with changes in administration. So what the Abom administration did ultimately is an extraordinary It isn't something radical, UM. And I think it was an inevitable change that I think will continue to gain traction and more success in courts that our courts across the country.

Despite the Trump administration's position, Michael, We've mentioned and Anthony just did that federal appeals courts have been divided on the issue. In April, the Chicago Court of Appeals became the first federal appeals court to rule that anti gay discrimination is illegal under Title seven of the Civil Rights Act. And then in May, Manhattan's Federal Court of Appeals agreed to re hear this case on bank with all the judges that means that had been tossed out by a

three judge panel. Does that give any inkling of how the court might rule uh? I think in the Second Circuit case, UH, it'll be interesting to see whether the Supreme Court um gets involved in it. One of the other cases before the Second Circuit has an opportunity to rule here. They dismissed the case based on prior precedent uh in the Circuit and the only way that that could be reconsidered was by the full Court doing so

on bank uh and UH. This the Court may wait for this case because this case is getting a lot of attention. But currently there is a conflict in the courts because this While the Seventh Circuit did extend the law to protect caves and landspanes and transgender individuals, the Eleventh Circuit, which covers a number of Southern states, held to the contrary and held like the Just Department is now advocating. So there is currently a conflict that the

Supreme Court could take UM. But this, this case in front of the Second Circuit I think is likely to be the one that the Supreme Court will ultimately address the issues on. Well, Anthony, Let's say the case does get to the Supreme Court. There, no matter what happens, there is going to be a circuit split here. What's likely to happen up there? Are we going to have

another divided court with Anthony Kennedy making the decision. Um, Well, any controversial case, it's it's probably one where Justice Kennedy is deciding vote. Um. So there's two things, of course, One, this presumes that Justice Kennedy is still on the court when this case gets to the Supreme Court, nificates to the Supreme Court. Um. I think Justice Kennedy's pigeon positions, which are generally favorable towards gay rights, is certainly um

a hopeful sign for the employee here. But even Chief Justice Robertson in the burgher felt or arguments talked about sexual orientation discrimination and as a form of sex discrimination, um, in the marriage case. So so there might even be a chance to convince Chief Justice roberts there as well. Michael, A little problem with my microphone there, Michael. Let's just go over the implications beyond employment law, for example, implications and education of this decision and of a final Supreme

Court decision. Just the the education law that governs UH with respected gender the Title nine. The same issues are being addressed in UH colleges and also high schools, and are also implicated in the transgender bathroom issues that have been a rising, So whatever is decided here by the Supreme Court is likely to have an effect on those education cases as well. UH, and that if this case

does get to the Supreme Court. I see these cases as largely an outgrowth of the marriage equality cases, and I think for that reason, it seems to me likely that Supreme Court may aside with the employees on this one and find that the statute should be construed to include sexual orientation as a prohibition. But it's always hard to say, and Justice Kennedy may not be on the

Court at the time this case gets there. Just depends on the timing of both Um, you know how long he stays in the court and how long these cases take to get there. But I do think that they're headed for the Supreme Court at some point. It's great always to have you both on Bloomberg Law. That's Michael sell Me, professor at George Washington University Law School, and Anthony christ professor at the Chicago Kent College of Law. We're going to be going to President Trump Live in

just a few moments. He is going to be giving a speech to law enforcement on Brentwood, Long Island