Skip to main content

tv   Zarda v. Altitude Express Oral Argument  CSPAN  October 20, 2017 11:04am-12:54pm EDT

11:04 am
knee again, but look, i don't blame them. i don't blame them. we are in war. i didn't like it, but at the same time when you're in a war and you are captured by the enemy, you can't expect, you know, to have tea. >> fifty years after his capture john mccain talks about the impact of the vietnam war on his life in the country sunday at six and 10 p.m. eastern on american history tv on c-span3. >> the second circuit court of appeals heard the oral argument. they'll decide whether sexual orientation discrimination is protected under title vii of the civil rights act. in 2010 daniel sardella skydive instructor filed a lawsuit
11:05 am
alleging he was fired because of his sexual orientation and revealed to client that he was gay. 13 of the judges participated. >> good afternoon. each side has been assigned 30 minutes divided ten minutes per person. and that time may be exceeded depending on how things go during the argument. we will hear from mr. anthony. >> good afternoon, your honor and all your office. forgot to introduce my cocounsel who worked with me on this case. we are proud to represent the executors of the estate and asked the court to construe and unite title vii with life as a
11:06 am
live at and under the plain language in its interpretations. we ask you find that sexual orientation discrimination is sex discrimination under title vii. don florida was a male. he was known as carefully is not traditionally feminist but he was a great skydiver. when a customer complaint he identified himself as gay he was fired. and for that revelation his violation of the statute because his sex, a male who was attracted to other men, was a motivating factor in the adverse action. in this case identified only because he was accused of being straight.
11:07 am
and he was proud of being gay and in the mail workplace of the skydiving community jokes were often made that jokes were often sexual. >> is he alleging he was fired because he was gay, or because he disclosed that he was gay? >> the precise nature of -- >> it's all part of the puzzle. he was known to be gay but because he came out as gay to a customer, he was discriminated against because of that and that identification was a sex discrimination, because it dovetailed with his being male and being attracted to other men. the simplest interpretation of
11:08 am
the statute, i believe, is in the judge concurrence, although i didn't stated in my brief, or didn't recite it in my brief, but the judge is really quite to the chest and holds that if title vii, title vii requires that a plaintiff need only identify that sex was a motivating factor. and that sexual orientation cannot be extricated from saks. therefore, the two are one and the same. there are also two other
11:09 am
evidentiary theories, i don't know what you want to call them, routes, to interpreting sexual orientation discrimination and sex discrimination. the first and most obvious one would be associational discrimination, whereby an employer, if he makes or takes an adverse action against an employee because of the protected class with whom the employee associates has been found to have violated title vii. the judge held this precisely, the opposition, allegedly, that -- >> are you alleging association of discrimination here, and what are the facts that support that claim? >> well, i think that in and of
11:10 am
itself a man who identifies as gay associate with other men, and who is seen as associate with other men, in addition to this case we don't want to ask exclude single people but in addition to this case, mr. zarda also trolled the female -- told the female skydiver who he says was uncomfortable because of the sexual joe, that i'm gay and have the ex-husband to prove it. and his ex-husband was not his husband. it was just a phrase he used was the executor of his estate and is in court today. and so that was the association. that could be a specific association but is a general association here the third theory or evidentiary route to reaching a violation of title vii would be sex datatypes. >> isn't that the only one at least who pleaded with sex
11:11 am
stereotypes? >> i believe you're right. >> the summary judgment was granted on that, and you didn't appeal it. how is stereotyping still before us? >> i don't understand the panel opinion that says stereotyping is, well, the panel said -- >> the rule was unavailable. explain the district court found zarda failed to establish proximity between his termination just gender stir types and you didn't child set on appeal. >> i understand your point now, and what that takes into account is the at the messy argument -- effeminacy argument that a male may make your i do not conform to sexual stereotypes and that i am effeminate in certain ways,
11:12 am
but we did argue that after baldwin came down and we moved to reopen title vii, that sexual orientation is the ultimate or the gay orientation in this case is the ultimate sex startup. so while there were a few snippets of pink toenails and whatnot, the argument is the ultimate sex stereotype, as opposed to the being -- the bean counting approach to welcome he wore womanly close and you spoke, his voice sounded gay and whatnot. it is broader sex stereotype. >> are you saying that date is sex stereotyping? >> gay or -- it is the ultimate sex stereotype, in that men are
11:13 am
expected to prefer women affectionately and sexually, and women are supposed to enjoy that protection, that affection. >> to that extent is it the stereotype that's being applied to both sexes? i ask this because the concern we have is whether we have a discrimination that fits within sex discrimination or something different that while discriminatory may not differentiate between men and women. so is the sex stereotyping you are talking about applicable equally to men and women homosexuals? >> that is a question that comes up again and again, and the answer is that it does apply equally but both men and women are being discriminated against.
11:14 am
>> but is that what sex discrimination under title vii is meant to prohibit? >> well, that's a very broad question and i could go, i mean, i could write a whole article for you about that, the giveaways that courts have interpreted sex discrimination under title vii. and a comparative example would be what if an employer discriminated against christians who dated christians? are they being treated the same or are they being discriminated against because they are christians? the same rationale, although it is not exactly precisely on point, was made in loving against virginia, wherein courts have held for many years that
11:15 am
the races were treated equally but, in fact, each race is being treated, being discriminated against. and in our belief that discrimination is against don zarda because he was a man, because it was a motivating factor in his termination. had he been a woman this wouldn't have happened. >> let me ask you about that. if the client had been assigned to a woman skydiver who identified herself as gay, it seems to me from the facts we have before us that the client probably would have complained just as much in the female instructor would've been fired, too. am i missing something?
11:16 am
>> that's hard to say. i cannot speculate whether it was that clients boyfriend who complained, but the reason it came up in this case was that don was accused of having some sexual valiance with this woman, and he took himself out of the equation announcing he was gay. if you been a woman, i don't think that in a heteronormative society someone would've made a joke like that, and the events would not have played out as they had. >> you will have three minutes. >> thank you very much. >> mr. horowitz. >> question before the court is a pure question of law, whether
11:17 am
title vii prohibits discrimination on the basis of sexual orientation. how to respond to the criticism of the comparator, hypotheticals in particular, the criticism that comparators change both the sex and sexual orientation of the hypothetical employee? >> well, your honor, the goal in terms of the analysis is to determine the effect of the individual sex on the way they are treated. so to do that the man heart decision tells us that what we do is to look at the individual. if you change the sex of the individual, and the outcome would be different, that's this clinician because -- >> so one of the criticism leveled by the department and by mr. adam, a woman who was fired for chronically using the men's
11:18 am
restroom or locker room without a been fired had you been a man but it's pretty clear that an employer could fire her without violating title vii. what is your response to that? >> well, your honor, the bathroom issue while it's often both the two transgendered is commissioned us have been relevant or at least not a source of when not relevant to the case of sexual orientation discrimination. to bring it up, concedes that sex is an element, i'm sorry, that sexual orientation discrimination involves an element of sex. >> isn't that criticism designed to show a weakness in the comparative test? it's not a perfect test, would you agree with that? >> i wouldn't say, in the focus of the manhart i think a very useful test, where it's not you try to, , you need to find an identical comparator location but what you're doing is comparing the individual with
11:19 am
the hypothetical situation which saint individual but different sex, is how can and that's exactly what loving tells us what to do in the race context. here at the place equally in the sex context. but if i make it to your point about the bathrooms. by conceding that sex is relevant to the question of sexual orientation, then bringing up the bathrooms and that's essentially saying, let's look at the terms and conditions. but which bathroom one uses is very different from one's choice of a partner, and the choice of the partner has been held by the supreme court numerous times to be fundamental. >> when you say you change the sex for the test, it seems to me there's still a little ambiguity as to how we do that. to use this case as an example,s it that we change it and say a woman instructor says i'm gay, or i think what you are urging
11:20 am
us to do is say, a woman instructor says i'm attracted to men. the comparison could be either one and we might get different answers. what guidance would you give us? >> i believe what your question gets asked is the focus of the analysis in terms of the individual. and here case after case of said you focus on individuals experience. and so -- >> we have male instructor who told a female client i'm gay. so why is the comparison not a female instructor saying to the woman klein, i'm gay? >> in the case of a female instructor saying the same thing under price waterhouse, if her sexuality was determined to be the reason that she was fired, that would both mr. zarda case,
11:21 am
the hypothetical case, the person will be fired for not comported with the employers or in this case the customers view of proper gender roles. >> i understand that but that doesn't get as to whether that's a matter of sexual orientation that's different from sex discrimination. some essenes curious to say that in that circumstance both a man and a woman would be fired and its sex discrimination. so how do we reach that conclusion? >> in that situation both the man and woman would be fired because they are not comport in with this view of proper gender roles. >> which i suggested to cocounsel is now being applied equally to both men and women. there is a presumption, and a stereotype, a bias, whatever we want to call it, that people should be attracted to people of their same-sex, and it's applied to both men and women.
11:22 am
i'm having trouble understanding how that is discrimination that differentiates between men and women as opposed to a different kind of discrimination that we might well wish to, you know, prohibit but that's not sex discrimination. >> i believe it still is sex discrimination because what you're doing is you're holding both individuals and the case both the men and women who are five for the sexuality, you are holding them to the same standard of gender behavior that price waterhouse says is not appropriate. >> to be clear then, mr. horowitz, in your response, it sounds like it's not the manhart test if you have now switched the ground to another argument which is the argument for sexto typing because i think what are question for going to was, why shouldn't we, if the test is just if a woman says the same thing it would be different? what is it that the right way of applying that test?
11:23 am
>> and i apologize if i misunderstood your point. that's exactly right. with these two is recently at , these three paths we have proposed, some a bit more comfortable in a given situation than another, but the underlyin underlying, the ultimate underline idea with all three is that sexual orientation is within discrimination because of sex and, in fact, that's based on how the law has been interpreted. and to try to cut them out, sorry, to cut sexual orientation out of the protections in parts into title vii jurisprudence, and exclusion that is just out there. but you're exactly right, that in the case it is easier press to look at price waterhouse announces sexual stereotyping rather than looking at the individual. although i believe it still works in the context because you can bring the individual with,,
11:24 am
hypothetical, same individual, same conduct but different sex. >> you are using sex and gender interchangeably? is a problematic? >> much like with the supreme court has done, for the purposes of this issue i and using them interchangeably as the court something. i don't believe that's -- >> the statute does refer to gender. >> the statute does it but price waterhouse does use gender and sex interchangeably. so that's how the courts have approached that issue. >> are you saying that test, the language of the statute is discrimination because of an individual sex. are you saying the but for test is the best interpretation of that language, or are you sinks something specific that sexual orientation cases? >> i'm saying that but for test is the most appropriate.
11:25 am
>> there are additional cases beyond the example of restrooms that does seem to follow like the ninth circuit or the recent case in the fourth circuit. the sexes are treated differently, but there is a determination that's not an adequate basis for finding violation of title vii because are not similarly situated. >> that's correct, your honor. in terms of the trends and conditions apply to each sex, this court held in the mercantile exchange case that in that case the idea of a manhart test didn't apply to a hair length restriction and the court held in that case where the something relative trivial it did need to be applied. >> whether the but for test can be title vii, interpretation of the language of discretion because individual sex, or am i
11:26 am
misunderstanding? >> that but for in that case is one useful path to look at. at my back cover every fact pattern. in that case, for example, that was the restriction of the court held because it was relatively trivial, the difference in treatment didn't go to something fundamental about transit conditions, but one could imagine a case which it really would in which the standards that one sex is healthy are very different from sex that others is healthy of. >> your adversaries say that civil rights act amendments of 1991 should be understood as ratifying the proposition that sexual orientation discrimination is not prohibited under title vii. >> yes, your honor. that's incorrect for several reasons. first the pension benefit guarantee court case holds.
11:27 am
legislative inaction is a very poor means of determining congressional intent. particularly in this case, it's a poor grounds for a number of reasons, including that you don't know what the grounds for amending the statute or not amending the statute might be. it might be the sentence is already included. it might be they think it doesn't go far enough. there might be something else about the bill. >> isn't there a difference between legislative inaction and legislative reenactment of the statute with the whole set of amendments, in the face of a broad consensus of traditional opinion as to what the statute means? >> i would disagree with the broad consensus. at the time that, 1991 when congress was taking up the issue of amending the civil rights act, there were only a few circuit court cases, night had looked into the decision, none
11:28 am
had looked into issue with any sort of rigor. congress a generally amends statutes in response to supreme court holdings, not those of circuit courts. in this case one could just as easily argue that because price waterhouse was one of the driving cases that led to the amendment and the price waterhouse analysis focus on sexual stereotyping, but congress didn't cut sexual orientation out of the protections of the statute when they could have and they had done that in 1990 with respect to the ada. they had done that in 1973 with respect to the rehabilitation act. >> and you say that congress generally amends in response, are you aware of any congressional action by way of amendment or reenactment that's in response to a circuit court decision? >> i am not. >> do you think the legislative intent in 1964 is relevant? >> no, your honor. i do not.
11:29 am
justice scalia said it's the word of the statute rather than the concerns of the legislators that tried interpretation of the statute. >> there have been legislative acts in response to circuit court decisions, but they've been explicit and indicating their disagreement with those decisions, and changing the law in response to those decisions. i take it in this case your argument is that there's a mention of any of the relevant circuit court decisions, and to the extent that the court of appeals decisions are mentioned, there are about different issues and that the purpose of the 1991 amendments was to expand the scope of protection protectionn to contracting. that's the language, isn't? >> is exactly right. >> could you address the change of position you have seen over
11:30 am
the course of the years? >> certainly, your honor. we took a a fresh look at the issue much as the court did, much as chief judge concurrence in the christiansen case did we took a new look at that in light in part of the supreme court's guidance over the past 17 years, and in part based on our conversation with stakeholders both employers and employees. and when we swept away the preconceptions and just look at the legal argument we concluded that based on the way courts have interpreted title vii, sexual orientation discrimination is and cannot be separated from -- >> you agree that these arguments were available well before baldwin? >> yes, your honor. they were available, but i think
11:31 am
seventh circuit and perhaps the circuit in the eeoc just perhaps did not -- >> they were available to the eeoc, so they've been aware of these arguments for years, is that correct? >> we have been aware of these arguments the same way the courts have, your honor. >> as to the deference we all your position as to the deference we owe to your position then, what's the change and would you say about what deference we do out to your interpretation of the statute? >> well your honor under skidmore we are entitled on the persuasive value of arguments, but in the second the persuasive fight is important to keep in mind the eeoc position in the broader administrative framework. >> how is that different from deferring to your argument today? it's a question of the strength
11:32 am
of the argument. >> it certainly, it's reflection to strengthen the argument but it's also an argument that has been informed by our experience as the agency that was passed by commerce with the interpretation. the administration and enforcement of title vii. and, in fact, when we went to revisit our approach to the issue, we solicited input from stakeholders including both employers and employees, and that helped us come to our -- >> did that include doj? >> i'm not aware. >> we would love to hear from the federal government, but it's a little awkward for us to to e federal government on both sides of this case. >> indeed, your honor. [laughing] >> your point is, on the deference . in which you are acknowledging is your argument
11:33 am
is not entitled that chevron deference which would be the highest form of deference. >> correct. >> but is simply entitled to deference to the extent the argument is persuasive. that takes into account under administrative law changing conceptions that administrative agencies may have over time as to particular legal questions. >> that's exactly right. >> does the eeoc have positioned about the concurrence? is it something that eeoc could agree with? >> certainly the judges approach where he looks at whether somebody is indiscriminate against because of sex and he looks at it in terms of they are a man whose relationship with another man and so if that is what drives the employers animus and that's discrimination necessarily
11:34 am
because of sex. and that is fully in line with our position. >> may i ask you a question on sexto typing? in price waterhouse, jesses brennan plurality opinion suggests not all sexto typing will support a title vii claim. i'm wondering if you can screw that to mean -- construe that it's evidence any particular case has to speak or support a finding of intent to discriminate between men and women? >> i think it has two bespeak a finding that it's an intent to keep come to sort of hold employees to a standard of behavior in conformance with the employers views of what behavior is proper for men and women. >> that would imply they're all sex stereotyping of prohibiting. the particular example justice brennan gives is one where he thinks women are put into a 22.
11:35 am
be too aggressive and you're not considered feminine enough, don't be aggressive and you won't succeed the way your male counterparts do so you'll be fired if you are too aggressive and fired if you're not aggressive. that's the catch 22 that he says title vii takes women out of. then it's the very next paragraph that suggests that not all sexto typing will present a title vii violation. so i'm trying to figure out where you think psych stereotyping plays in all of this. many of the arguments that have been presented have suggested to us that sexto typing is prohibited sex discrimination. and having a little trouble with that in light of what is that in that part of ice water house. >> perhaps he goes back to the
11:36 am
decision where it be sexto type at issue is hairline, for example. this court said that the relatively trivial distinction, and so based on that the court was not prepared to find that there was this commission because of sex. in terms of where it sexual intake is involved, as far from trivial. that's a fundamental right. even if there is an exception at the level of hair length, that would not apply. >> why the difference with something as trivial and when something is important of course as a matter of public policy, but where do you get a rule out of the statute that says trivial sex discrimination are not discrimination on the basis of sex, where trivial sexto typing issues are not discrimination on the basis of sex but big-time sexto typing is? >> that's the way this court has
11:37 am
interpreted the statute and interpreted manhart. >> so there's difference between trivial and fundamental discrimination under -- >> yes. >> and a sex stereotyping that applies to both men and women in that people should be attracted to persons of the same sex, how does that now play and? >> sexto typing, that says that if you are a man attracted to men or women attracted to women, either way you don't meet the stereotype that the employer, that the employer has for how your gender should behave. so in the case you are being put to a question, do i keep my job, or do i have my choice of partner? >> but is it putting a disadvantage on one sex, either men or women, or is it putting a disadvantage on homosexuals and
11:38 am
that that is that the distinction? it's not men and women. it's homosexuals versus heterosexuals. >> is putting a distinction on an individual basis because of sex. and when an individual is discriminated against because of sex, regardless of other people that might fit in that group, looking at the individual, that is discrimination. >> is it sex discrimination, in your view, if an employer fires an employee for cohabiting out of wedlock? >> yes, your honor. well -- >> that would make this a very broad doctrine, wouldn't it? >> or for cohabiting out of wedlock, that might -- but sex was not a factor of the cohabitation. that would be apply to men and women cohabiting. >> it would apply to men and
11:39 am
women, men and women who are homosexual or heterosexual. i'm just asking a really broad question, whether there are any limits to the doctrine that you are proposing. >> in that case i don't know if it fits within one of the paths of analysis that we suggested. >> it may not but that is sort of what i'm asking the question. >> righty. so in the case i think if speedy it would be based on sex, would it not? >> would not be based on the individual sex. no, your honor. i don't leave so, if it's cohabiting. that might race of the concerns but it wouldn't be in that case i don't it would be a distinction. >> but it would if the right man and a man, or a or a woman? >> if a man would be terminated
11:40 am
for cohabiting with the women, but it women would also come for a man, and a woman, then in that case the manhart test, it doesn't seem like that would result in, i don't think either under manhunt on the price waterhouse analysis. >> thank you. >> thank you, your honors. >> mr. nevins. >> thank you. title vii bans sex discrimination because of sex necessarily includes a bar and discrimination are sex orientation because discrimination, discriminate based on sexual orientation is differential treatment base of whether an employee is male or female if a hypothetical female employee named denise would be hard to retain with involvement with a man, but don zarda was not the with sexist termination.
11:41 am
in response to the judges immediate previous question i think one of the ways in which the courts have gotten off the rails on this is based on the opinion, the court says sex does not mean the sex you have pics sex means the sex that you are. so in other words, if an employer were to condemn all extramarital affairs all instances of cohabitation equally, the matter who was involved, that would be okay under title vii because title vii does that mean the sex you have. but to affix a scarlet a at the pink slip on the women who has an affair but not the man who has an affair, as we run into the problem under title vii. >> it does have religious freedom ramifications. >> it probably does, and i believe the express is not involved in such things and that would be a weighty consideration. one of the pearls of wisdom that the christiansen incurrence left
11:42 am
us with is weaned you don't have all the best arguments and don't have all the full argument in front of you, and may not be the best moment for you to opine on broad statements of what discovery and what is not covered. i believe, your honor, i feel confident it will come another day which this court will be called upon to address the question but that day is not before the court today. >> could you address more in more specific what you heard about the comparator approach and how we should think about the comparator approach? >> the court as a benefit of our take on it, which is that you take was exactly right in the christiansen concurrence. >> that's why i asked the question. [laughing] >> and i go back to the nettle tea, we tried to come up with a nonalcoholic analogy but i do believe it you have vodka and you change grapefruit, or
11:43 am
grapefruit orange juice you a change would think they're trying to change that -- pull a check on this court. you change the screwdriver to a greyhound. but what happens -- >> how do you change it in this case? >> first, and i appreciate your questions earlier because i think where to look at what the significance of what it means to say i am gay. because let's be honest, if you're saying i'm a man attracted to men, or in the case of the woman, i'm a woman attracted to women we cannot divorce that from what's going on. so, therefore, if that would not be problematic for a woman to say i'm attracted to men but is problematic for man to say it -- >> that's not what he said. >> i understand that but those who say i'm gay, 100 you to to go that meant you were a very happy person. but today the significant -- >> the likelihood that it women would have said in this case may
11:44 am
be suspect because the reason the instructor said it here was to put aside her concerns that she would be sexually molested in the course of this close contact. but now we we're applying the t and you are saying don't change anything except the sex of the plaintiff. okay, but you don't want to do that. you want to interpret what the plaintiff said. i'm not sure why that is not playing with it as much as what some of the things your adversaries have urged us to do is, if a woman had told this client she was gay, she would have what? i think the male companion might've been even more upset. the criticism would've been greater. what am i missing? >> your honor, my very capable friend you have to go back with any ruling that the googling ts
11:45 am
court would issue and prove that it was, sex was a motivating factor. so in other words, as the demonstrated as any statement by any instructor that involved sexual interest was grounds for termination, that's a different case. but here what the allegation is that he is is, what he said was on the man attracted to men and so that was the problem. they have to show that that would not of been the case if a woman had said something like that. they are very capable of doing that on a few but i think it's a reason why this court, if he can make that shelley, does he have a title vii claim? >> let's say you have a situation which an employer would equally fire male and female homosexuals. is that sex discrimination under title vii? >> if i could, if an employer
11:46 am
says i have seen statistic about the film of the interfaith marriages and i see speedy just a hypothetical i i gave you. an employer would file -- fire a male or female homosexuals. >> is discrimination against same-sex relationship, sandisk michigan someone interfaith relationship, is at the same description get some in an interracial relationship, , and they all are equal. >> might problem with that is the factor, which is race, is itself one that is deemed? here that's not quite what's going on. >> i would respectfully disagree that -- >> tommy why. >> because if i say, all i'm saying is no interfaith relationships -- tell me why. >> as my colleagues had title vii applies to the individuals. in order to enforce that you have to know what my religion is and what my spouses religion is. the difference between those is what possibly to be fired, and
11:47 am
that is this commission based on my religion. the same way you can say, try to mask it in neutral terms and say it's discrimination against a win in a relationship but to apply that, you have to know pat is patricia and not patrick in accounts receivable. for an individual to be discriminate against you have to know what the religion is and what their sex is in my hypothetical and so, therefore, the same rules should apply. and in that sense i do want to touch on an argument that was offered by the other side which, if there's one radical reinterpretation of title vii being offered before this court today, it's not by me and the two gentlemen who pursue me to this microphone. the idea, first off, , desquamation against people interracial relationships is as we often say often and almost always because of racist motives
11:48 am
and ideology and because someone deems one race to be inferior or superior. but please do not believe that that is a necessary condition to define disco michigan somebody in an interracial relationship or or in my hypothetical it's not necessary to find desquamation against somebody who is in an interfaith marriage. one is not exonerate and we know this from man hard by equal application or benign motives or even scientific fact underscoring the nature of the differential treatment. none of that matters. title vii releases the court from that kind of inquiry. it condemns all discrimination on any of the enumerated traits the same way, and you -- >> i think we just heard an argument it condemns nontrivial discrimination. >> and i, i join most of what my eeoc colleagues said.
11:49 am
although, the court, this court has been a little bit cryptic and why, back in the '70s and then again in the '90s, exactly what rationale it was using to find that the hair length was acceptable. what has happened in many of the other circuits is, and especially in hair length cases, they go, well, it clear he says you can avoid policy of men and one policy for women. so say you can have shoulderlength hair if you're a man but you can enter woman would seem problematic. the way they got around that was to come up with various tests here i will say the supreme court has ever signed on to in the of these differential treatment rationales. but this court doesn't have to do any more work than it needs to in overturning the cases by overturning it doesn't want to because it can rest on the rationale that my colleague
11:50 am
mentioned which is in all this distinct as in the case of what the court deemed trivial request asking a man to give up his relationship with a man or a marriage to a man is now something we didn't know 20 years ago with the courts had not recognized was an actual constitutional right, and now we do. >> note those cases again trying to question whether the but for tests can be the best construction of the language or we had to say the cases are wrongly decided or there are exceptions, they are not covered by the man hard test? >> this court may very well need to come should probably revisit those cases. it's pretty clearing that they don't mention price waterhouse even though it was decided secures after price waterhouse -- price waterhouse. if you ask me to have to overrule them? i agree 100% there is something, there's a differential between what the supreme court has said
11:51 am
and what the circuit courts have said as far as tolerating gender-based differentials. if you don't want to do any more work than you have to in overruling, it would be sufficient just to rest it on the differential, did not involve a constitutional right and the differential here with mr. zarda, absolutely does. >> there's no prohibition on discrimination against people for exercising their constitutional rights. a private employer, as we read a lot in the newspapers last couple of days can fire someone for expressing his political opinions. >> absolutely. we sorely have and would only differential on the sex. it's not just gay men and lesbians have right to marry. it's everyone has a fundamental right to marry. and so and it would only be problematic -- >> an employer could prohibit
11:52 am
nonmarital sexual relationships among employees or marriages, instead we were all single voice or something like that. >> whatever problems would be under that i don't think they would fall under title vii. >> just to be sure i understand where you take us on this. if we had an employer whose entire workforce was male and he undoubtedly fired a male because he is homosexual, no question about it, and replaced him with a heterosexual male, you have an employer engaged in sex discrimination? >> we do and i think that tracks on fact pattern very nicely. the other problem with the department of justice -- >> tell me why. usually we think of these as advantage in men over women or vice versa, or disadvantaging one sex over another. but not disadvantaging within sex unless it's the benefit the
11:53 am
other sex. so i'm not sure asked how he would work and that hypothetical i gave you. >> just understanding the offshore sundowner offshore service was an all-male work environment. and joseph can we don't exactly why he was singled out for the sexual harassment that none of the of the men, and he was only on that, we don't know why, was it because he was more available, because he is weaker? he was gay himself and, therefore, we don't know what that was but it didn't matter. he is being male was, make him attractive to the supervisor and that's all that mattered and, therefore, sex discoloration occurred. >> harassment case. >> absolutely. differential treatment. manhart is very careful. it doesn't seek treatment treatment of one sex that would be better if you were the other sex pic .
11:54 am
this is different and that's important. the doj brief says it was the treatment, that's what matt hart says and that's not what the law is. >> thank you. >> i appreciate the privilege of addressing the court. >> mr. zabell. >> may it please the court. i feel like we are here on false pretense. the fax to the extent that even argue to today, and it's only been a small part of the argument, don't resemble what's being argued. donald sardis was at the question before, a pure question of law. i understand that but if you decide this. question of law without taking into account the fax, then you are doing the law a disservice and we're exceeding the judicial mandate. >> let me ask you along those lines, you argue that mr. zarda didn't raise his current claim
11:55 am
to the eeoc. >> i quote, i am not, not being underlined, making this charge on the grounds that i was discriminated on the grounds of my sexual orientation. that's special appendix three, paragraph two. that's his sworn affidavit to the eeoc. >> why was he going get at the time? baldwin wasn't issued and eeoc had taken the controversy position. he filed a motion for reconsideration before the district court to reconsider the summary judgment on exactly that basis. how could he have done anything else to tee up the issue? >> the same way did it in ipo. she came at a set because i discriminate against because of sexual orientation. if they want to instruct the claim and if you want to change the law they have to plead facts to support that. >> how about the eeoc charge?
11:56 am
he says, and i quote, in addition to being discriminated against because of sexual orientation, also his fight against come to skim against because of gender. >> right. >> isn't that precisely, then he goes on to say he was fired because the levity used honestly referred to his sexual orientation and did not conform to the state male macho stereotype. isn't that the kind of claim that zarda is urging us to say is included? >> if you look at his eeoc charge as his ticket to file a a complaint in federal court, you look at a thorough complaints, one, two, three complaints failed to allege discoloration based upon sexual orientation under title vii. they imagined under the state human rights law but not under title vii. they just go with the sexual stereotypes, which were
11:57 am
addressed by the judge and dismissed. >> you raised this before the district court -- did you raise this argument before the district court in the reconsideration motion, or before the panel to this court? >> it was raised before the district court. >> you said he didn't exhaust this. i didn't find that in the district courts of record. >> that was absolutely argued before the district court. >> you say that he didn't raise the sexual orientation claim and the complaint before the texas court, correct? >> the claim he raised is the sexual stereotype complaints that were raised before the district court, which the judge addressed and which the first panel acknowledged. >> your memorandum of law, right, in support of their motion for summary judgment says one of the plaintiffs theories is that he was terminated because of his sexual orientation.
11:58 am
you responded, didn't you, by arguing that plaintiff cannot advance i title vii argument for sexual orientation because of this court's decision in simonton. so are you conceding that these claims were in fact, properly before the court? >> i am not conceding that. there are alternate arguments. so if he does not raise the issue of being discriminate against because of his sexual orientation, in his eeoc charge, then he doesn't get the opportunity now seven years after filing the eeoc charge after all the facts are out in this case to now somehow an end his pleading and the amend hisc charge to say no, no, no because the court might be willing to change its interpretation of the application of title vii to sexual orientation, i want to now change my eeoc charge to make it fit what the court might consider.
11:59 am
that is exactly what he allege the eeoc. i was waiting for this court to say to me why shouldn't we will kindly? my response is because in highly they allege discrimination based upon sexual orientation. so here we may have the only claims we need to investigate from eeoc charge in the brought forward to federal complaint, we looked at the allegations. those allegations were investigated by the eeoc. we report on fair notice and they decided by judge -- >> can you point to where you argue the exhaustion before here? where did you make the exhaustion argument? >> that i did not -- other than arguing in the reconsideration that it was not raised, that was a place and was argued. >> so the plaintiffs argue that you waived the waiter by not raising it anytime before today. >> yes. jurisdiction is not waived and as part of argument. if he has no, if the plaintiff
12:00 pm
has the right to be before this court because there is no jurisdiction or is asking this court to make a decision that's going to send this case back to the judge to decide the sexual orientation case that was applied under the eeoc, then he's sending this court on a fool's errand. .. whether discrimination based on sexual orientation violates title vii
12:01 pm
was ruled on by the district court. correct? >> yes. >> so why isn't that issue before us now. >> it shouldn't be, it obviously is before you, it shouldn't be because, if you look at his eeoc charge, he specifically disavows that this is a claim about his sexual orientation. >> i'm still confused about the charge. the way i have it from the special appendix three, he does start by saying i'm not making this charge from the grounds that i was discriminated against on the grounds my sexual orientation but i'm making this charge because in addition to being discriminated against because of my sexual orientatio orientation, i was also discriminated against because my gender. that is poorly written. the second sentence contradicts the first but it clearly raises the issue of sexual orientation. why am i wrong in reading it that way? >> reading it in that vacuum
12:02 pm
it does contradict but reading it where he is also asserting a claim of sexual orientation under the state human rights law where it's permissible, it makes sense. you can read it. i am not claiming sexual orientation discrimination under title vii because when you look at the next paragraph, he talks about specifically what he is alleging. and that specifically what he was alleging is mirrored in complaints 12 and three of his federal lawsuit, and that's what was analyzed by the judge. >> he goes on to say my claim is that because i didn't, i suffered adverse employment. >> no, i'm sorry. it's not my place to say no, but it is judge bianco's determination that his sexual stereotype claims failed because there was no way a jury could conclude that what he specifically alleged could
12:03 pm
support a claim for his termination for sexual orientation, and that part. >> to get to the judgment under the new york labor law, we act under a different standard of proof or causation. >> yes and no. yes the judge let it go but in the judge's decision he said the facts that were alleged, when coupled with testimony that could come out of trial could support a claim. the problem is now we have a closed record. the facts that came out of court came out. we had people come in and testify, and it wasn't what the plaintiff said. the young lady who was jumping with him said he made the joke about being strapped to me, and he only disclosed to me his sexual orientation when he felt that i was uncomfortable because he was hitting on me. so if anything, he was terminated for heterosexual activity and he tried to cover that pricing to her, don't worry about me, i'm gay, i just broke up with my boyfriend.
12:04 pm
oh by the way, i'm falling from the sky strapped to the sky while he sing it. counsel would say he said he's gay and that's out of context. don't feel uncomfortable that i'm nuzzling you and trying to speak to you in affectionate way which is what she testified. speaking of nuzzling, that reminds me of forces, which i live with on occasion. why is this part way before the horse. were trying to decide whether what's alleged fits within title vii. we are not at the point where we are analyzing, where we are able to analyze the facts of the case, unless for some reason you've made an argument. >> but you're sort of arguing today, the facts are there and they don't support the claim. >> because those facts have already been before a jury and a jury has already concluded under the state standard that
12:05 pm
he was not discriminated against based on sexual orientation, and to the extent that we look at the judge's decision, it seems to be moving for a standard as for whether or not sexual orientation discrimination occurred, and if that's the case, if we take that standard then you have to decide the jury verdict under the state law, which was a standard, also has to apply here. again, you are being sent on a fool's errand, on facts that don't reflect what came out at trial. >> the standards are different. the federal standard is a motivating factor, not the butt forest standard under which your client prevailed. >> i understand that, but when i read the judges concurrence. >> i'm not sure you're reading it as fully as one might.
12:06 pm
>> when i hear everyone argue, part of the argument is you look for it and you make a decision, and if you're taking that decision, you cannot divorce that from the verdict that we already have. icm out of time, unless you are out of questions. >> thank you. >> thank you for the honor. >> in light of the judicial consensus that existed for over 50 years, that title vii prohibition on to discriminatio discrimination, there are three reasons why congress has ratified that position. >> can i interrupt and ask a question about why you're here? this is ordinarily deferred on title vii questions. >> no, your honor, the oc has control over private party litigation but d.o.j. has primary control over primary
12:07 pm
litigation and it's also the lid nation's largest employer. >> the statute would apply equally, whether it's a private party or public party so the government has an interest both in its regulatory capacity on the public sector side. >> who was the representative from the civil sector. >> yes, he was the acting head at the time the brief was filed. >> when they filed a brief, the d.o.j. did not. is there some reason why one wasn't filed then but it is filed now. >> i'm not sure. has there been any discussion about that. >> is that the reason. >> it's before my time at the departments wirelessly couldn't tell you. >> what is the process within the government where you've got, i know it varies with respect to which agencies are
12:08 pm
talking about, whether they have independent litigation authorit authority, with respect to the eeoc and the department of justice, what is the process that is entered into in terms of filing a brief? >> i'm not exactly sure what you're getting at. >> can the eeoc file its own brief without consultation the department of justice? that goes back to the judge's questions. >> that's a fairly complicated question and i would try to hel help. what i will say is this. the eeoc as authority to file the brief they filed and the department of justice has the ability. >> you know it's the employment litigation section was consultant training. >> i don't the kids and appropriate for me to disclose. i will note, as the questions
12:09 pm
noted, the acting head was on a brief as well as the acting head of the civil division. >> as part of this process, does d.o.j. sign off on a brief that eeoc intends to file. >> i don't it's appropriate for me to interpret. >> i just asked if it's the procedure. >> your honor, i don't pick it's appropriate for me to, as to whether we signed off on the briefs. >> ordinarily, with d.o.j. sign off on a brief filed by an agency of government? >> your honor, i'm sorry. >> don't they have their own litigation authority? there are cases brought in the name of the eeoc and this court and the circuit and everyplace else in the country without d.o.j. approval. >> we are not disputing that they have the authority to file the brief they filed. beyond that i don't think it's
12:10 pm
appropriate for me to comment on the degree to which the department was involved. >> i for one an and prepared to proceed on the assumption that you are here. >> think you're right your hono honor. [laughter] >> let me ask you this, since you are here. why can't the associational analysis be performed, notwithstanding a stable meaning of the word sex for the past 50 years as denoting men and women. in short, on the analysis with race. you have men and you have women, but a person of a certain race, cohabitating with the person of another race is discriminated against. >> there's a fundamental difference between race and
12:11 pm
when it comes to association and discrimination. if you say someone discriminates on the base of an interracial marriage, other everyone would call that person a racist but if you say is based on sexual orientation you might call that person a lot of things but you would not call them a sexist. >> you might call them a homophobe, if i understand what that word means. >> you might do that but you might not call them a sexist. when you discriminate against interracial marriages, you are treating back and white people differently and you are doing so based on views of racial superiority. when you discriminate on the basis of. >> the same thing would apply to people of two races even if one of the races is not white and one of the races is not black. >> on. even in that circumstance, you are treating individuals differently who are otherwise
12:12 pm
similarly situated and that's simply not true when you're dealing with the men in the context of a sexual relationship. these arguments are not new. the associational argument. >> can you point me to some cases that make this proposition? >> i was about to say, the argument was made in the ninth circuit in 1979 and it was rejected and there were several other circuits that rejected in general the argument that sexual orientation was within discrimination, and then in 1991, congress engaged in an amendment to the civil rights act and it overturned several other areas were disagreed with the judiciary and it did not overturn these cases. under cases. >> when you said disagree with the judiciary, one of my
12:13 pm
colleagues pointed out, without include circuit court decisions are only supreme court decisions. >> in the 91 amendment it was supreme court decisions but accordingly they have found ratification and circumstances were congress has rejected lower court decisions. i would point to the case and are brief. they did two things on the ratification that are critical and both which reject the arguments made here today. >> i understand your argument, but when you have a more power for argument if a sexual orientation discrimination cases in 1991, in the context of that specific act, congress specifically dealt with. they knew how to deal with specific acts, it did so in the 1991 dishes in specific but it didn't do so with sexual orientation dissemination. why are you saying we can make that leap to say even though
12:14 pm
they didn't talk about it, they really did which is what you are saying. >> i have three points about that. the first is him about exactly what the supreme court did where the question in the case was whether they had a jury trial and what the supreme court said was that congress was trying to incorporate the flsa and they can't text lower courts and only a handful of lower court. they had found ratification based on that. moreover and directly responsive to your question. >> if i could just finish, to further their point they said congress overturned the other aspects of jurisprudence. what do they point to? lower court opinions on this
12:15 pm
goal of the rights, not the question of the jury trial but other context, and they said because congress overturned other parts, we will assume they ratified the part they didn't touch. that is also exactly what the supreme court did in another decision. they said the 91 civil rights movement, the very issue here, the supreme court said when congress overturned a variety of other supreme court decisions in other areas, but didn't touch the case about the supervisor tori liability, they ratified that. you're right it would be in the civil rights bill as specifically talked about sexual orientation and they said we like all those decisions but the supreme court never said that the test for ratification. what they have said as if they have a comprehensive amendment to the statute, leave judicial
12:16 pm
consensus on one issue and overturn areas in another, even when it's lower court, that is ratification. that said, i will also note that the 91 congress did address sexual orientation specifically because in 1991, just like in every congress going back to 1974, there was a bill put forward congress to actually add sexual orientation, and the bill sponsor said that was necessary because federal law did not cover it. despite that, congress did not enact that bill and has never enacted the bill, and that's what fundamentally is different from the opinion that the eeoc reliance on. the situation was that th they had taken a certain position, there was a bill to ratify it, they didn't pass the bill and the supreme court says we don't know if they didn't pass the bill because they already agreed or whether they disagreed. that is totally distinguishable from the context like this were every circuit court, for 50 years
12:17 pm
has said this is not covered, every year from 1974 congress has had a bill before it to overturn it, and every time they don't do it. >> can i go back to the associational argument? i'm synthetic to your point that the laws are a fundamental aspect of white's primacy, and we can't say that about this, that bigotry against homosexuals is somehow about hostility to men or women as such, but what about the case of religion? if you had an employer who was an orthodox jew who had a workforce of mixed religion people, but then one of his jewish employees married a christian and he fired that person, isn't that an example of religious discrimination that doesn't have to do with the special role of miscegenation laws or some
12:18 pm
aspect of racial superiority or something like that. >> i'm not sure that wouldn't be based on religious superiority but the more fundamental point is that in that circumstance, you are treating similarly situated jews and christians. >> no, the christian community another christian and the christian can marry a muslim or jew. he doesn't care about that. he doesn't want to see jews marrying non-jews. >> so the jewish person is being treated differently than similarly situated non-jewish people. >> that's the argument he has made. the differences, unlike jews and non- jews who there is no factual differences and the law does not recognize differences between them, there are real differences between men and women in the law recognizes differences between men and women. this is illustrated by the situation of the bathroom
12:19 pm
where everyone recognizes that title vii does not prohibit having single-sex bathrooms. the eeoc comes today and says the reason that's okay is because it's trivial and that is frankly an astonishing proposition for them to take because if the argument is that bathrooms are not a condition that matters for discrimination, then you could have black bathrooms and white bathrooms. it's the same exact condition. they have no argument for why you can't have segregated bathrooms today. that is obviously wrong, and what it demonstrates. >> so it's sort of okay in discriminations because there's real differences but other is not. >> that is absolutely the case. >> but it's permitted by title vii. that is true, but the critical difference your honor is that
12:20 pm
discrimination requires treating people who are similarly situated differently. unlike with race, where black people and white people are similarly situated in all relevant respects under both law and fact, men and women are not soon similarly situated. the law recognizes there are physical differences between men and women. >> does this have something to do with this issue. >> yes your honor. the same exact physiological differences that are relevant and bathrooms are the same differences that employer is allowed to take account of when they are regulating their employees based on their off the work sexual relationships. there were several questions about this and the eeoc agreed that employers, under title vii are allowed to do that. they are allowed to regulate their employees off the job sexual behavior. they are allowed to say if you cheat on your spouse you're fired. if you're promiscuous, you're fired. none of that is covered by title vii. title vii only covers race and sex and religion and other protected traits.
12:21 pm
>> do you agree ethnicity is covered by title vii. >> yes. i think it can be viewed as a subset of race. >> why is that. >> i just think as a matter of ordinary english, you can parse race and ethnicity. >> he said i look at the dictionary and homosexuality is a subset you can't distinguish that from. why is that the same analysis you would apply in the context of ethnicity which we found, and you agree is covered by title vii, but the word ethnicity is not an title vii. >> i'm not disputing it as a logical matter. you could view sexual orientation is a subset of sex but you can also, with the logical matter view it as a distinct category for the question is under the statute that was passed by congress, which one of those two it is, and we know very well which
12:22 pm
one it is because several times congress has prohibited it saying. >> not in, when laws are passed in a contemporaneous congress, then they have a different impact than when laws are passed separately. would you agree. >> i think that's right, but in this context it gets it exactly backwards. think about what would happen today if congress were to pass a statute that says no sex discrimination. it would be indisputable that that didn't cover sexual orientation discrimination. >> if it covered if it just said sex discrimination, i think it would be indisputable that does not also cover sexual orientation discrimination. the reason being, you would have both, until this year, and i'm brokered set of case law saying the two were distinct and you would have several prior acts of congress that treated them as distinct. so, if that's the case today, then surely in 1964 when
12:23 pm
congress passed the same exact word, they didn't have some broader notion compared to what we would have today. it just makes no sense. >> sometimes the statute can be read to prohibit a comparable evil. >> i don't dispute the proposition your honor. that is absolutely true, but is not applicable here. the point was the statute covered sexual harassment in plain english. the only questions whether the prohibition encompassed same harassment. by same-sex it clearly does. >> , excuse me. you said by plaintext to cover sexual harassment, but that's not written in the statute. it just does discrimination because of sex. it took quite a series of cases to construe that to include sexual harassment. i'm just remembering.
12:24 pm
>> i'm not as sure exactly how long it took but it seems to me when i was discrimination that supports that covers sexual harassment there is a case in the 70s i went through an extensive review of the history of the civil rights act, and labored over this because the initial inclusion of women at all was subject to question. i would suggest you that the statute has grown more in line with justice scalia's description and what the judge just referred to and you are acknowledging. >> let me qualify what i said. if he even if you think there was a debate on how clear it wa was, once merit is held that it was once covered there's no merit that it same-sex or opposite. there's nothing in the language of the statute that can get you there.
12:25 pm
so that was justice scalia's point that the congress might not have been thinking about that fact pattern but it's covered by the text. in this context, on the other hand, discrimination have always been understood, not just in terms of the subjects but in terms of ordinary english as confirmed by the fact that every court, for 50 years held this. the eeoc held it for 50 years in the eeoc, by the way. >> you keep mentioning the 50 years, but the landscape changes in terms of the law. marriage it's different now. >> 20 years your honor, after price waterhouse. >> why can't the same be said about sexual orientation. the landscape has changed. >> because even after price waterhouse, every court in the country, for another 20 years said that, including the eeoc. they had cases explaining that they didn't change their position and i would urge this court to read them.
12:26 pm
those eeoc opinions are not any differently reasoned than the court opinions from 1979 that we've cited that we say congress ratified. there is a fairly common sense intuitive difference between sex discrimination. >> i thought you just said you could see it as a logical matter that sexual orientation could be a subset of sex. >> as a logical matter. there's a difference between as a theoretical matter you can come out with a hypothetical construct. >> the government's position that the plaintext of the statute clearly excludes sexualization. >> i think it is clearly the better reading so yes, but i think this court doesn't need to get into whether it's ambiguous or not because any ambiguity is resolved. >> can you point me to what language in the provision of title vii clearly excludes title vii and sexual orientation.
12:27 pm
>> it means treating similarly situated men and women differently. that is not happening here any differently than it is for bathroom. i will say this. it is no less ambiguous than whether title vii bands single-sex bathrooms. since i don't think anyone thanks it does and i don't think any court has ever held it and will ever hold it in their only argument for why it's different is an argument that would blow a massive hole in the statute by saying that terms and conditions don't cover bathroom such that we could have colored bathrooms again. i think that it's clearly the better interpretation. even if you don't think it's unambiguous, it is certainly, at least, a strong enough interpretation that the fact that congress has ratified it repeatedly in various ways should count. if i could make one last point on ratification, they .2 the opinion. >> i'm just having trouble with your term ratification. when i hear the word ratification, i understand
12:28 pm
that to mean an explicit statement. where is the explicit ratification. the way i am using the term, and i'm not wedded to the term, but it's the principle and focusing on that when there is a judicial consensus on an issue and congress amends the statute and leaves that consensus undisturbed, that is a ratification of that position. that is what the court held. >> did you have nine courts ruling. >> and in the cases that you're mentioning, with respect to the 91 act, you have three courts that have acted in that area at that time.
12:29 pm
>> two points. first of all i think technically it's four and five, but more importantly, they had less than that. they found ratification. four is a ho whole lot more than one. i did want to make one other point about congressional acquiescence. ratification is when congress actually amends the statement. they have been presented with the bill to undo this consensus and a has not acted. i would point this court to where the court found, based on two circuit courts and a handful of district courts of the congress hasn't disturbed that is strong evidence.
12:30 pm
here we have every federal circuit court for over 20 years and now you have congress, using the term sexual orientation and doing it by saying sex or sexual orientation that is what they did in the discrimination act in 1978. >> finish your. >> yes, when they overturned gilbert in 1978 they said sex including pregnancy which made they thought it was part of that. >> thank you for your argument. >> i would like to say that the court appreciates him
12:31 pm
accepting the court's invitation to brief the argument that he's about to make. >> thank you your honor. however it's applied, they do not categorically define sex discrimination. we've had ample discussion of why that's true, particularly with regard to segregated bathrooms but also with the fbi literally having different standards for numbers of push-ups between men and women and a man for whom it was apparently mr. bowers wife dreams become a special agent of the fbi missed it by a few, and if he had been a woman, he absolutely would of been made a special agent. it was not disputed and yet that was not discrimination. as applied by the appellate here, but maybe also sometimes by the way the government would put it gives you false positives. it cannot and does not define what is discrimination.
12:32 pm
i don't really have much of a strong position about how it should be applied here, largely because it's not an interpretive device. it's not a device for interpreting. it can provide clues as to whether the real reason was discrimination, but it doesn't provide the answer. a few other examples, we talked about trivial in terms of conditions but i agree with my friend from the justice department, bathrooms are not trivial. osha requires sex segregated bathrooms. the true reason has to be because you are a man.
12:33 pm
i would say -- there was a different requirement that flight attendants be unmarried and that was an unequal burden. men are allowed to wear makeup and men cannot and women are allowed to color their nails and men are not. they said it was not an undue burden. >> they said it was because he was gay, not because he was a man. isn't that arguably an incomplete answer?
12:34 pm
saying summons is gay is shorthand for saying that the person is attracted to other men. that is the real reason, if you pursue it more. in the price waterhouse case, for example, if price what her house had argued that they discriminated against and hopkins, not because she refused to wear makeup, but because she was a gender nonconforming person, would that have been a defense? >> no, and it strongly depends on price waterhouse and a catch 22. the problem is the catch 22. she was aggressive but you had to be aggressive to get the promotion. price waterhouse would have fired a decile or passive man,
12:35 pm
presumably under the catch-22 and the facts that were given but it is not true that merely being nonconforming to gender by itself gives you a sex dissemination claim. it has to also be true that there is something additional, evidence of misogyny, evidence of highly traditional sexist views about women and children , that's kind of the back case from this court. there has to be something more. it is not true that stereotyping standing alone can give rise to a sex discrimination charge. going back to the trivial point, the issue of wearing makeup was so important to her that she quit her job that she had for very long time because of it. i do not understand talking about dress codes and bathrooms as if there nothing to people. they can be extremely important. >> why is it that you seem to believe title vii was directed
12:36 pm
at mms. there are these adverse impact cases under title vii i have nothing to do with that. >> that's a different provision in the statute. if you interpreted me to say it's only about animus than i should clarify. the treatment section is not only about that but is about what motivated the decision. animus is the smoking gun evidence that the subject category motivated the decision. >> maybe i misunderstood to view it as some helpful interpreter that does call to mind some of the difficulty of interface marriages but i would like to briefly address.
12:37 pm
it was positive about the jewish employer marrying out of phase, the absolutely would be discrimination on the basis of religion, almost without question because the jewish employer would have an idea, a notion of how jewish persons were supposed to have behaved and they would impose that and the truthful answer would have been i fired you because you are a jew and jews are not supposed to do that. >> i don't see why you couldn't say exactly the same words that you just said, substituting man for juice. >> the words could be used, but there actually is no word for somebody who is just opposed to interracial relationships. >> would you say there's no word for someone who's opposed to interracial relationship.
12:38 pm
>> you just made exactly my point. on the interracial discrimination cases, all that is is a statement that there is no studied neutral opposition to interracial relationships. it doesn't exist. when somebody says i oppose interracial relationships, they are effectively saying, in this country, i am a white supremacist. there is no room for someone who says i oppose homosexual relationships. i'm not saying that's impossible, i'm saying it's racist.
12:39 pm
[inaudible] i think it's possible that a member of another race would view the same marriage or a liaison. >> what i mean is there's no studied, there's one that's not race neutral. you're saying an asian person objects are chinese person objects to them marrying a non- chinese person. that would be exactly the same as the jewish christian marriage hypothetical. chinese people have an idea of how they should behave and they fire someone because they're chinese. >> you are saying the animus is not against whatever sex it is that the person is marrying, the animus and the bias is specifically against gays. it doesn't have anything to do
12:40 pm
with men. >> that's correct. >> and one who is bigoted against a man has nothing against men, but someone who is opposed to someone of his race marrying someone of another race does have something against the other race. if at the point? >> that is very close to what i'm saying. i don't like the associational line of cases for a lot of reasons and i think it's much more about racial stereotyping on the race of the employees so the instance of a white marrying a black person and how white should behave, i would take issue with that a little bit but it would qualify in the following sense that it's more possible that a gay man could be fired because there were an issue with gay men as opposed to gay women and the justice department, and i both conceive that would
12:41 pm
be sex dissemination and that's where juries have to get into the evidence injuries have to look at why the person was fired. i will qualify that way. >> how do we sidestep the associational piece which you are not comfortable with because it seems to me we have that lurking out there and it can be used as a guidepost. >> i would give you a couple ways to sidestep it. number one, a lot of the failures of the tax for us could be discrimination as well. i prefer to go to the bathroom with other men, for example therefore i associate with other men in the toilet. if you discriminate against me. [inaudible] we had discussions in the past year end a half about locker room talk, it's not all great and much of it is not, but at the same time there's an associational element as well. but also beyond that, what i would say is associational discrimination doesn't get you much more than that but for
12:42 pm
test. when it's known to have false positives it's really not adding much for us. on race, that is as perfect as a test could possibly be for reasons that my friends alluded to. the way i would discuss the associational discrimination cases is to make exactly that point emma that there are defenses between race and sex and we need to look no further than again, go back to the bathrooms, after the 64 act was passed, everyone understood that race segregated bathrooms had to go and yet osha to this day required segregated bathrooms and no one has persuasively distinguished from the issue of segregated bathrooms. talking about the discussions they had in the courts it doesn't appear that they had this issue in their mind. it doesn't appear to have been discussed. >> let me interrupt.
12:43 pm
i am not pompous all the way through, but title vii focuses on economic opportunities. segregated bathrooms have little to do with economic activity but employment discrimination, firing an employee and making other adverse moves does. mr. zardari lost his job because of the actions taken against him. could you explain why that might not be a useful distinction. >> to be clear, if you go to the osha regulations on bathrooms, they think it's very important. but also, the hypothetical really is, a man wants to use the women's toilet as a transgendered man and it was very important to them.
12:44 pm
and yet the same time, that is not sex discrimination. >> wires using the bathroom important to an economic opportunity. >> your comfort level of whether or not you can comfortably relieve yourselves has a lot to do with whether you can comfortably work during the day. >> i don't understand actually how bathrooms are that critical, as a matter of title vii. they may be critical for osha or some other regulation or law but not as a matter of title vii. >> number one, i would say that would be news to people who woke up that racially segregated toilets could not be used after the civil rights act under this exact provision , but also, they are absolutely, it's absolutely an adverse resolution when she was fired because she wanted to use the women's toilet. she was fired. the bathrooms have to be
12:45 pm
followed, the rules have to be followed just like dress code. i own a tennis club, say, and i have tennis pros and i said to my prose, you can only enter mixed doubles tennis tournament and someone comes to me and says i would like to enter a regular match and we say no when i say if you was a woman he could play with the other men. it's an associational discrimination test. i'm discrimination against him on who he wants to play tennis with credits all the things in this case. what i'm you hear back is that's trivial, there is no hierarchy of values and title vii. the text doesn't support it. think you. >> you have three minutes in the bottle. >> thank you your honor. i would agree with my friend from chicago that there is no hierarchy in title vii.
12:46 pm
all five of the protected categories are treated the same and you see that in footnote on nine of price waterhouse. i thought we would get through this without an extended discussion on bathrooms, but i knew what happened. >> my question to you at the beginning was about this bathroom example and which you have just heard, your adversaries used that to a somewhat effective way to say we wouldn't consider allowing racial difference. can you answer their argument. >> what if men and women have different equipment and there's different equipment in the men's room than there is in the women's room. it is a custom, it is such a
12:47 pm
small consideration that for bathrooms to swallow the entire question is really to focus on a matter that doesn't matter to our economic opportunities which is what title vii is about. with respect to the charge, i contend that when we came into this case, we wanted to bring this theory to the district court, we wrote the charge as best we could to support our state claim and federal claim. we believe we did it well, as best we could, as poorly written as it was, but when baldwin came down, within
12:48 pm
weeks we asked to reopen the question in our request was denied. i would also suggest that the eeoc, with respect to the legislative intent, i don't think there has been an answer to the benefit that holds that legislative history is hazardous to for inferring intent. in that case, it cited an opinion from 1962 which itself cited cases from the 1940s so we have not 50 years of cases that hold against us, but we have an unbroken 80 years of case that hold that negative legislative history is not a basis to make a
12:49 pm
decision. the butt for question will be something that necessarily is going to depend on the context and the facts. we cannot guarantee that it will work in every context, but it was held that we see no basis in the statute to be unduly formal and doesn't apply in that male on male harassment does not apply in sexual harassment was not an established theory until 1979 in a district court case. for years, courts have held
12:50 pm
that sexual attraction between men and women in this is not what title vii was intended to protect and eventually courts began to get it right. there's no question now, the court has to interpret the statute. your honor, you know how the sausage is made. you wrote a book on it. >> at least you read it. one thing you pointed out is that agencies are generally the primary interpreters of statute and that gives weight to the eeoc interpretation where the d.o.j. in this case does not govern exclusively
12:51 pm
employment discrimination, and i believe that i have to say unless there's any further questions. >> thank you. >> thank you all for your preparation and good arguments. the court will reserve the decision. the clerk will adjourn court. ♪ ♪ landmark cases, a c-span history series about the spring court returns in february. join us as we hear the human stories have constitutional drama behind 12 frequently cited cases heard by the high court. landmark cases, live on c-span getting in february. later today, a form on recent supreme court rulings involving freedom of speech with attorneys and scholars. five coverage begins at 5:00 p.m. eastern on c-span. you could also was told on
12:52 pm
c-span.org or listen on the free c-span radio app. federal reserve chair janet yellen speaks tonight at the national economist club dinner. live at 7:15 p.m., also on c-span, again it's online at cspan.org and on the radio app. >> sunday night on "after words". >> over 90% of sexual harassment cases end up in settlement. what does that mean? that means that the woman pretty much never works in her chosen career ever again and she can never talk about it, she's gagged. how else to resolve sexual harassment suits? we put in arbitration clauses which make it a secret proceeding. nobody ever finds out about it if you file a complaint. you can never talk about it, ever, neve nobody ever knows
12:53 pm
what happened to you and your also terminated from the company and the predator is left to still work in the same position in which he was harassing you. so this is the way our society has decided to resolve sexual harassment cases, to gag women so we can say we've come so far in 2017. >> gretchen carlson talks about sexual harassment in her new book be fierce, stop harassment and take your power back. she is interviewed by washington post columnist sally quinn. watch "after words" at nine eastern on book tv two. >> defense department, fbi and homeland security department officials testify about the nation cyber security and defense capabilities against cyber attacks. the senate armed services committee held a hearing yesterday. [inaudible

18 Views

info Stream Only

Uploaded by TV Archive on