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tv   Zarda v. Altitude Express Oral Argument  CSPAN  October 20, 2017 3:59am-5:50am EDT

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of the rod of versus altitude express. case resolves -- revolves zarda who alleges he was fired because he revealed he was day to a client. his estate is continuing this suit. his oral argument is one hour and 45 minutes. >> good afternoon. assigned 30s been divided 10 minutes per person. that time may be exceeded depending on how things go during the arguments. antonio.ear from mr. >> good afternoon, your honor.
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this is steve bergstein, my cocounsel who worked with me on this case. represent theo executors of these are to estate. with life as we live it under the plain language of its interpretations. we ask that you find that sexual orientation discrimination is -- under tile 7. don zarda was a male. he was known as gay though he efiminate. when he identified himself as gay, he was fired. for that revelation, it was violation of the statute because his sex, a male, who was
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attracted to other men was a motivating factor in the adverse ction. in this case, he identified as gay only because he was accused of being straight. and he was proud of being gay and in the workplace of the skydiving community, jokes were -- jokes were often sexualle >> is he claiming that he was fired because he was gay or that e disclosed that he was gay. it is all part of the puzz. he was known to be gay. because he came out as gay to a
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customer, he was discriminated against because of that. that i dentification was a sex discrimination because it dove being male and eing attracted to other men. the simplest interpretation of the statute i believe is in -- i didn't state it in my brief or recite it in my brief. the judge holds that a title seven requires that -- it only identified that sex was the motivating factor.
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that sexual orientation cannot be exindicated from sex. there are two other theories, i don't know what you want to call them. the first andting
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most obvious one would be associational discrimination. where by an employer, if he makes a 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 seven, the judge held this precisely the opposition alleges that -- >> are you alleging associational discrimination here and what are the facts that support that claim? >> well, i think that in and of itself, a man who identifies as gayuates with other men. in addition -- we don't want to exclude single people but in addition in case, mr. zarda told the female skydiver who was uncomfortable because of the sexual joke that i'm gay and i have the ex-husband to p or evi reaching a level would be sex stereo types. >> isn't that the only one you pleaded with sex stereo types? >> i believe you're right. how is stereo typing still before us? >> i don't understand the panel opinion that says stereo typing is -- well, the panel opinion said -- >> unavailable to zarda. explained zarda failed to establish proximity between his -- and failure to conform to gender types. > i understand your point now.
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what that takes into an account, the argument that a male may make. i do not con form to sexual stereo types in that i am effeminate in certain ways but a e did argue that after baldwin came down, that sexual is tation is the ultimate he ultimate sex stereo type. he ultimate sex stereo type. well, he wore womanly clothes
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and he spoke and his voice sounded gay and whatnot. it is broader sex stereo type. >> are you saying that gay is sex stereo typing? >> it is the ultimate sex stereo men are expected to prefer women prefer women and women are supposed to enjoy that affection. >> to that extent is the stereo type 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. is the sex stereotyping you're
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talking about applicable equally to me and women homosexuals? >> that is question that comes up again and again. the answer is that it does apply equal but both me and women are being discriminated against. >> is that what sex discrimination under title 7 prohibits? >> that is a very broad uestion. i could write a whole article bout that for you. an example would be what if they discriminated against christians who dated christians. are they being treated the same?
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the same rationale. although it was not made the ame point. but in fact each race is being discriminated against. in our belief, the don imination is against zarda because he was male.
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it seems to me the facts that we have before us, they would have clained just as much. m i missing something? i cannot speculate as to whether it was the client's boyfriend who complained. the reason it came up in this case was that don was accused of of having some sexual dalliance with this woman and he took himself out of the equation by announcing he was gay.
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i think the events would have played out as they have. >> you'll have three minutes. > thank you very much. whether title seven prohibits discrimination on the basis of sexual orientation. how do you respond to the criticism of the compareer. >> theticals in particular,
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this is a pure question of law, whether title vii prohibits discrimination on the basis of sexual orientation. how do you respond to the criticism of the comparator, hypotheticals in particular, the criticisms that comparator with the sexual orientation of the employee? >> the goal in terms of the analysis is to determine the effect of the individual's sex on the way they were treated. to do that, the manhart decision tells us that we look at the ndividual. if you change the sex of the individual and the outcome would be different, that would be iscrimination. >> your honor, the bathroom issue, while often relevant to issues of transgender discrimination, it has never
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been relevant to cases of sexual orientation discrimination. it concedes that sexual orientation discrimination involves an element of sex. >> isn't that criticism designed to show a weakness in the comparator test? it is not a perfect test. would you agree with that? >> in the focus of manhart, i think it is a very useful est. you don't necessarily need to find an identical comparator. what you are doing is comparing he individual with a hypothetical situation. the same individual, but a different sex. is the outcome different? here, it applies equally in the sex context. to your point about the bathrooms, i concede that sex is
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irrelevant to the question of sexual orientation. then, bringing up the bathrooms is essentially saying let's look at the terms and conditions. but which bathroom one uses is different from one's choice of a partner, and the choice of a partner has been held by the supreme court many times to be fundamental. >> when you say change the sex for the test, it seems to me there is still a little mbiguity as to how we do that. to use this case as the example, is it that we change it, and say a woman instructor says i am gay, or i think what you are urging us to do is say a woman instructor says i am attracted to men. the comparison could be either one, and we might get different answers. what guidance would you give s? >> i believe what your question gets at, the focus of the analysis in terms of the individual, and here, case after case has said you focus on the individual's experience. >> we have a male instructor who told a female client, i am gay. so why is the comparison not a female instructor saying to the woman client, i am gay? >> in the case of a female instructor saying the same thing under price waterhouse, if her
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sexuality was determined to the reason she was fired, that would both in mr. zarda's case and the hypothetical case, this person ould be fired. >> that gets us to the matter of whether sexual orientation is different from sexual discrimination. in that circumstance, both the man and woman would be fired, and it is sex iscrimination. >> in that situation, both the man and woman would be fired because they are not cavorting with this view of proper gender roles. >> which i suggested to cocounsel is now being applied equally to both men and
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women. here is a presumption, a stereotype, a bias, whatever we want to call it, that people should be attracted to people of their same sex, and it is applying to both men and women. i am having trouble understanding how that discrimination differentiates between men and women as opposed to a different different discrimination that we might ell wish to discuss. >> i believe it is discrimination because you are holding both individuals, both the man and woman, fired for their sexuality. you are holding them to the same standard of gendered behavior that price waterhouse says is not appropriate. >> to be clear, your response to judge raggi's question, it is not the test. you have switched the ground to another argument, which is the argument for sex stereotyping.
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what her question was going to is why shouldn't we -- if a woman says the same thing, it would be different. why isn't that the right way of applying that test? >> i apologize if i misunderstood your honor's point. with these three paths we have proposed, some may fit better than others. but the underlying idea with all three is that sexual orientation is within discrimination because of sex, and that is based on how the law has been interpreted. and to cut sexual orientation out of the protections in parts of title vii jurisprudence, an exclusion that is not there. in that case, it is easier to look at the price waterhouse analysis of sexual stereotyping rather than looking at the ndividual. although i believe it still works in that context because you are comparing the individual with -- hypothetical, same ndividual, same context.
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>> if you are using sex and gender interchangeably, is that problematic? >> for the purposes of this issue, i am using them interchangeably as the courts have done. >> the statute does not refer to ender. >> the statute does not, price waterhouse doesn't use them interchangeably, and that is how the courts have approached that issue. >> are you saying that test -- and the language of the statute is discrimination because of an individual's sex. are you saying that the test is the best interpretation of that
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language, or are you saying something specific about sexual orientation cases? >> no, i am saying the but/for test is the most appropriate. >> there are additional cases beyond the example of restrooms that does seem to follow, like the ninth circuit where the recent case in jurisprudence, the sexes are treated differently. but that is not an adequate basis for finding in title vii because they are not similarly ituated. >> that is correct. in terms of the terms and conditions applied to each sex, this court held in the mercantile exchange case, the idea of a manhart test did not apply to a hair length restriction. in that case, something relatively trivial an issue, it did not need to be applied.
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but with respect to -- >> with respect to the meaning of title vii, the interpretation of language of discrimination on sex. >> the but/for is a useful way of looking at it. the court held that because it was relatively trivial, the difference did not go to something fundamental about terms and conditions, but one could imagine a case in which it really would, in which the standards one sex was held to are different from the standards another sex was held to. >> your adversaries say the civil rights act amendment of 1991 should be understood as ratifying the proposition that sexual orientation discrimination is not prohibited under title vii. >> yes, your honor, and that is incorrect for several reasons. first, the case holds. legislative inaction is a very poor means of determining congressional intent, particularly in this case.
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it is a poor grounds for many reasons, including that you do not know what the grounds for amending the statute or not imaging the statute might e. it might already be included, it might be they do not think it goes far enough. >> isn't there a difference between legislative inaction and legislative reenactment of a statute with the whole set of amendments, in the face of a broad consensus of traditional opinion as to what the statute means?
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>> i would disagree with the broad consensus. at the time -- 1991, when congress was taking up the issue of amending the civil rights act, there were only a few circuit court cases, none had looked into the issue with any sort of rigor. congress 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 focused on sexual stereotyping, but congress did not cut sexual orientation out of the protections of the statute when they could have, and they did that in 1990. >> when you say that congress generally amends in response --
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are you aware of any congressional action by way of an amendment or reaction in response to a circuit court decision? >> i am not, your honor. >> do you think the legislative intent in 1964 is relevant? >> i do not. justice scalia said it is the words of the statute rather than the concerns of the legislators that drives the interpretation f the statute. >> there have been legislative acts in response to the circuit court decisions, but they have been explicit in indicating their disagreement with those decisions, and changing the law in response to those decisions. in this case, your argument is that there is no mention of any of the relevant circuit court decisions to the extent that the court decisions are mentioned, they are about different decisions.
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and the purpose of the 1991 amendments was to expand the scope rather than contract them. >> could you take a moment to address the change in position you see over the course of the years? >> certainly, your honor. we took a fresh look at the issue, much as the court did, much as the judge's concurrence in another case did. we took a new look at that in part of the supreme court's guidances over the last 17 years. in part, based on our conversation with stakeholders, employers and employees. when we swept away the preconceptions and looked at the legal argument, we concluded that based on the way courts had interpreted title vii, sexual orientation discrimination is and cannot be separated --
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>> do you agree these arguments were available well before baldwin? >> yes, your honor. they were available, but i think the seventh circuit and perhaps the circuit and the eeoc perhaps did not -- >> they were available to the eeoc. they have 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 owe your position now as opposed to the deference we owed your position then, what is the import of the change and what would you say about what deference we do owe to your interpretation of the statute? >> we are entitled to deference
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based on the persuasive value of our arguments, but in assessing the persuasive value, it is important to keep in mind the eeoc's position in the broader administrative framework. >> how is that different from deferring to your argument today? it is a question of the strength of the argument, not the fact that you are the eeoc. >> right, it is a reflection of the strength of the argument, but also a reflection of the interpretation, the administration, and the enforcement of title vii. 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 --
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>> and the doj? >> i am not aware. > we would love to hear from the federal government, but it is a little odd for us to have the federal government on both sides of this case. >> indeed, your honor. >> what you are arguing is that your argument is not entitled to chevron deference, which is the highest form of deference, that it is simply entitled to deference to the extent that the argument is persuasive. that takes into account under doctrines of administrative law the changing conceptions that administrative agencies may have overtime as to particular questions. >> that is exactly right. >> does the eeoc have a position about the concurrence in another case? is that something the eeoc could agree with? >> the judge's approach where he looks at whether someone has been discriminated based on sex, and he looks at whether a man was in a relationship with another man, if that is what
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drives the employer, that is discrimination necessarily because of sex. that is fully in line with our osition. >> may i ask you a question on your view of sex stereotyping? in the plurality opinion, it suggests that not all sex stereotyping would support a title vii claim, and i wonder if you could construe that to mean that sex stereotyping that is evident in any particular case has to speak or support a finding of intent to discriminate between men and women? >> i think it has to speak to a finding that it is an intent to hold employees to a standard of behavior in conformance with the
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employer's views of what is proper for men and women. >> that would imply all sex discrimination is prohibited. the scope is one where he believes women are put into a catch-22. be too aggressive, and you are not considered feminine enough. don't be aggressive, and you will not succeed the way your male counterparts do. you will be fired if you are too aggressive, and fired if you are ot aggressive. that is the catch-22 that he says title vii takes women out of. it is the very next paragraph that suggests that not all sex stereotyping will present a title vii violation. so, i am trying to figure out where you think sex stereotyping plays in all this? any of the arguments presented
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have suggested to us that sex stereotyping is prohibited sex iscrimination, and i am having a little trouble with that, in light of what was said in that part of price waterhouse. >> perhaps it goes back to the decision where it is the sex stereotype decision on hair length. the court said that is a relatively trivial distinction, so based on that, the court was not prepared to find there was discrimination on the basis of sex. but sexual discrimination is far from trivial. that is a fundamental right. that would not apply. > why it is different when something is trivial and when something is important is a matter of public policy, but where do you get a rule out of
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the statute that says trivial sex discriminations are not on the basis of sex, whereas other forms of discrimination are? >> that is the way this court has interpreted the statute and manhart. >> there is a difference or a distinction between trivial and fundamental discrimination in title vii? >> and sex stereotyping would apply to both men and women, in that people should be attracted to persons of the same sex. how does that now play in? >> the sex stereotyping says that if you are a man attracted to men or a woman attracted to women, either way, you do not meet the stereotype that the employer has for how your gender should behave. in that case, you are being put into question, do i keep my job or do i have my choice of
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partner? >> but is it putting a disadvantage on one sex, either men or women, or is it putting a disadvantage on homosexuals? and if that is now the distinction, it is not men and women, it is homosexuals versus heterosexuals. >> it is putting a distinction on an individual basis because f 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. >> that would make this a very broad doctrine, wouldn't it? >> for cohabiting out of wedlock
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-- the text was not a factor. that would apply to men and omen cohabiting? >> it would apply to men and women, it would apply to men and women who are homosexual or heterosexual. i am asking a really broad question, whether there are any limits to the doctrine that you are proposing? >> in that case, i do not know if it fits within one of the paths of analysis we have suggested in our briefing. >> it may not. it would be based on sex, would it not? >> it would not be based on the individual's sex. no, i don't believe so, if it is ohabiting. that might raise other concerns,
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but it would not be -- in that case, i do not believe it would be a distinction. >> what it if it was a man and a man, or a woman and a woman? >> if that were the grounds for the distinction. but if a man were to be terminated for cohabiting with a woman in that case, the manhart test -- i don't think under manhart or price waterhouse nalysis. >> thank you. on the house of lambda legal. the ban on discrimination based on sex necessarily includes the ban because discrimination -- to discriminate based on sex discrimination -- if a hypothetical employee were to be
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hired despite a romantic involvement with a man, which donald zarda was not, we have sex discrimination. in response to the previous question, i think one of the ways in which the courts have gotten a little off the rails on this is based on the opinion where the court says sex does not mean the sex you have, it means the sex you are. if an employer were to condemn all extramarital affairs or all instances of cohabitation equally, no matter who is involved, that would be ok under title vii, because title vii does not mean the sex you have. but to put a scarlet a or a pink slip on a woman who has an ffair but not a man who has an affair, that is where you run nto the problem.
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>> it does have ramifications. >> it probably does, and i believe the attitude expressed does not invoke such things. one of the pearls of wisdom that the concurrence left us with is when you do not have all the best arguments and do not have all the full arguments in front of you, it may not be the best moment to opine on statements of what is and is not covered. your honor, i feel confident there will come another day in which this court will be called upon to address this question, but i do not believe that day is before the court today. >> could you address in more specifics what you have heard about the comparator approach and how we should think about the comparator approach? >> the court has the benefit of our take on it, which is that your honor's take was correct in
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the christiansen concurrence. >> that is why i asked the uestion. >> and i will go back to the analogy. we tried to come up with a nonalcoholic analogy, but i believe if you have vodka and you change orange juice to grapefruit juice, you have only changed one thing. they are trying to play a parlor trick. i think you're changing two things. by saying you are changing a screwdriver to a greyhound. >> how do you change it in this case? in this scenario, tell me how you do it. >> i appreciate your questions earlier, because i think we need to look at the significance of what it means to say i am gay. if you -- say you are a woman attracted to women, we cannot divorce the reality of what is going on.
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if it would not be problematic for a woman to say they are attracted to men -- >> that is not what they said. >> i understand that, but for those to say i am gay 100 years ago, it would mean you are a happy person. today -- >> the likelihood a woman would have said it in this case would have been 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. you don't want to do that. you want to interpret what the laintiff said.
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i think the male companion would have been more upset. the criticism would have been greater. what am i missing? >> they have to go back and prove that sex was a motivating factor. any statement by any instructor that involved their sexual interest was absolutely grounds for termination, that is a different case. but here, what a allegation is what he said is i'm a man attracted to men. that was the problem. they have to show that that would not have been the case if a woman had said something like that. they are very capable of doing that on appeal. e can make that --
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>> let's say you have a situation in which an employer would equally fire male and female homosexuals. is that sex discrimination under title 7? >> if an employer said i have seen the statistics about the failure of interfaith marriages. >> use the hypothetical i gave you. >> they all are equal. >> the factor, race in itself is one that is deemed invidious. here that is not quite what is going on. >> i would respectfully
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disagree. >> tell me why. >> all i'm saying is no interfaith relationships and title 7 plies to the individual. in order to actually enforce that, you have to know what my religion is and what my spouse's religion is. the difference between those is what prompts me to be fired that is discrimination based on my religion. the same way that you can say and mask it in neutral terms. in order apply that. and have a problem when pat marries robert you have to know pat is patricia in accounting and not pat in accounts receiveable. it is the same rules should apply. in that sense, i want to touch if there is one
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interpretation that is being offered before this court today, it is not by me and the two gentlemen who proceeded me to this microphone. the idea that first off, discrimination with people in interracial relationships is often and almost always because racist motives and ideology and because someone deems one race to be inferior or superior. please do not believe that is a necessary condition used to define criticism. or that this is the same way in my hypothetical. one is not exonerated. we know this from manhart. underscoring the nature of the differential treatment. what has to -- none of that matters. title 7 releases the court from that kind of inquiry.
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it condemns all discrimination on any of the traits the same way. >> it doesn't condemn all discrimination. it condemns nontrivial discrimination. what my e.o.c. colleagues it doesn't say exactly what rationale it was using to define the hair length was acceptable. what has happened in many of the other circuits is, especially in hair length cases, they go well, it clearly says you can't have one policy for men and one for women. you can't have shoulder length hair if you're a man but you can if you're a woman would seem problematic and the way they got
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around that was to come up with various tests. the supreme court never signed on to any of these differential treatment rationales but the court doesn't have to do anymore work than it needs to if it doesn't want to. it can rest on the rationale that my colleague mentioned which is that all that is being asked of that case is that the court gained something trivial. asking a man to give up his relationship to a man or a marriage to a man is something we didn't know 20 years ago or the courts hasn't recognized as a constitutional right. >> don't those cases draw into question whether it can be the best construction of the anguage? they are not cord by the manhart
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test. >> this court should probably revisit it. it is pretty glaring it doesn't mention price waterhouse. if you're asking me, do we have to overrule this? i agree with you 100% there is something, there is a differential between what the supreme court said and what the circuit courts have said as far as tolerating gender-based differentials. if you don't want to do anymore work in overruling it, it is sufficient to rest on the differential there did not involve the constitutional right and the differentials here with mr. zarda. >> there is no prohibition on discriminal nation nating against people for exercises their constitutional rights. a private employer as we have read a lot in the newspaper the last couple of days can fire someone for expressing his political opinions. >> absolutely, your honor.
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we certainly have. it is not just gay men and lesbians who have the fundamental right to marry. it is everyone is who has the fundamental right to marry. prohibit oyer could nonmarital sexual relationships among employees or marriages. >> whatever problems would be with that, i don't think they would fall under title 7, your honor. >> to be sure i understand where it would take us on this, if we had an employer whose entire workforce was male and he fired a male because he was homosexual, no question about it. and replaced him with a heterosexual male. do we have an employer engaged in sex discrimination? >> we do. another problem with the
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department of justice -- tell me why. usually we think of these as advantaging men over women or vice versa or disadvantaging one sex over another. but not disadvantaging within sex unless it is to benefit the other sex. so i'm not sure as to how it would work in that hypothetical i gave you. >> just understanding the offshore sundown services was a real working environment. joseph on call, we don't know why he was singled out for the sexual harassment that none of the other men and it was only men who were -- we don't high in why. was it because he was cuter? was it because he was more available? because he was weaker? he was actually gay himself. we don't know what that was. it didn't matter.
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his being male, even attracted to a supervisor. that's all that mattered and erefore sex discrimination occurred. also manheart is -- you have to be careful. it doesn't say treatment of one sex is better. it says important. that's important. the treatment must be worth. that's not what manhart says and that's no what the law is. thank you for the privilege of ddressing the court. >> your, honor, may it please the court. i feel like we are here on false pretense. the facts to the extent they have been argued here today and it's only been a very small part of the argument don't resemble what's being argued. onald zarda --
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>> it's a pure question of law. i understand that. but if you decide this pure question of law without taking into account the facts, then you're doing the law a disservice and we're exceeding the judicial man day >> let me ask you along those lines. you argue that mr. zarda didn't raise his current claim to 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 3, paragraph 2. that's his sworn affidavit to the eeoc. >> the eeoc took a contrary position. a week after he files a reconsideration 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 that
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issue? >> she came out and said i am making this claim because i was discriminated against because my sexual orientation. if they want to assert the claim and if they want to change the law, they have to plead facts that support that. >> how about the eeoc charge? he says, and i quote, in addition to being discriminated against because of sexual orientation, also fired against discriminated against because of gender, right? >> right. >> sorry. ok. >> isn't that precisely -- and then he goes on to say, i quote, the used referred to sexual orientation and did not conform to the straight male macho stereotype. isn't that the kind of claim that zarda is urging us to say is included within title 7? >> if you look at his eeoc charge as his ticket to file a complaint in federal court and you look at his federal courts. one, two, three complaints failed to have alleged under title 7.
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they allege it under the human rights law but not under title 7. they just go with the sexual stereotypes which were addressed by judge bianco and dismissed. >> you raise this before the district court or the panel here? >> sorry. >> did you raise this argument before the district court in the reconsideration motion or before the panel in this court? >> it was raised before the district court in the reconsideration. >> you said he didn't exhaust this, your honor. i didn't find that in the district court's record. >> that was absolutely argued before the district court. >> you say that he didn't raise the sexual orientation claim commt complaints before the district court, correct? >> the sexual orientation claim that he claimed is the sexual stereotype complaints that he addressed before the district court. the first panel acknowledged. >> your memorandum of law, right, in support of the motion
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for summary judgment and i'm quoting, says, one of the plaintiff's theories is that he was terminated because of his sexual orientation. and you responded, didn't you, by arguing that plaintiff cannot advance a title 7 argument for sexual orientation because of this court's decision in simonton. so aren't you conceding these claims were in fact properly efore the court? >> i am not conceding that. they are alternate arguments. so if he does not raise the issue of being discriminated 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 amend
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his pleadings and amend his eeoc charge to say, oh, no, no, no, because the court might be willing to change its interpretation of the application of title 7 to sexual orientation, i want to now change my eeoc charge to make what the court might consider. that is exactly what he alleged to eeoc. i was waiting for this court to say to me, why shouldn't we rule like hydely? because in hydely they actually alleged discrimination based upon sexual orientation. here when we have the only claims that we need to investigate from an eeoc charge and then printed in part forward to his federal complaint, we
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looked at the allegations. those allegations were investigated by the eeoc, were put on fair notice and they were decided by judge bionco. >> would you point where you argued the exhaustion point 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 the only place it was argued. >> to the plaintiff's argue that you waived the waiver by not raising it any time before today? >> and jurisdiction is not waived and that's part of our argument. if he has no -- the plaintiff has no right to be before this court because there is no jurisdiction or he's asking this court to make a decision that's going to send this case back to judge bianco to decide a sexual orientation case that was not pled under the eeoc, then he's sending this court on a fool's errand. >> the court granted summary judgment relying on simonton, right? >> in part. >> well, in part. but that issue is before us now because the district court made a ruling based on simonton. >> and the district court also made a ruling that all of the allegations and now i'm taking
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from the decision of the first panel. all of the allegations regarding sex role stereotype weren't analyzed by judge bianco and denied. separate and independent. >> question of whether discrimination based on sexual orientation violates title 7 was ruled on by the district court. correct? >> yes. >> all right. so why isn't that issue before us now? >> it's not -- it shouldn't be before you. it obviously is. 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 eeoc charge. the way i have it from the special appendix 3, he does start by saying, i am not making this charge on the grounds i was discriminated against on the grounds of my sexual orientation. rather, i'm making this charge because in addition to being discriminated against because of my sexual orientation, i was
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also discriminated against because of my gender. that's poorly written, the second sentence seems to contradict the first. but it clearly raises the issue of sexual orientation. why am i reading it that way? >> reading it in that vacuum it does contradict it. reading it where he's 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 7 because when you look at the next paragraph, paragraph 3, he talks about specifically what he's alleging. and that specifically what he was alleging is mirrored in complaints one, two and three of his federal lawsuit and that's what was analyzed by judge bianco.
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>> he goes on to say, my claim is because i did not conform my appearance and behavior to sex stereotypes i suffered adverse employment action. that's what the legal question before us is. >> no. i'm sorry. >> go ahead. >> 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 support a claim for his termination for sexual orientation. and that part -- >> yet, the judge let it go forward under the new york labor law, correct? >> yeah. >> under a different standard of proof, causeation potentially, right? >> yes and no. yes, the judge let it go. in the judge's decision he said the fact that were alleged when coupled with testimony that could come out at 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 and testify,
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and it wasn't what the plaintiff said. the young lady who was jumping with him said, hey, he made the joke about being straped 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 by saying to her, don't orry about me. i'm gay. i just broke up with my boyfriend. oh, by the way, i'm falling from the sky strapped to this guy while he's saying it. so where his counsel says, well, he said to her he's gay, that's out of context. it's -- don't feel uncomfortable that i'm nuzzling you and trying to speak to you in an affectionate way which is what she testified. >> speaking of nuzzling, that sort of reminds me of horses which i live with on occasion. why isn't this cart way before the horse? we're here trying to decide what's alleged in the complaint fits within title 7.
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we're not at the point where we're analyzing -- where we're age to analyze the facts of the -- we're able to analyze the facts of the case. >> i didn't make an icbalintambli argument. >> they don't support the claim. >> because those facts have already been before a jury and the jury already concluded under the state standard that he was not discriminated against based upon sexual orientation and the extent we look at the judge's extension, his concurrence in christensen, it seems to be moving to a buck 4 standard as to whether or not sexual orientation discrimination occurred. if that's the case, if we take that buck 4 standard, then you have to decide that the jury verdict under the state law, which was a but for standard also has to apply here. again, you are being sent on a fool's errand on facts that don't reflect came out of trial. >> the standards are different. federal standard is a motivating factor. not the but for standard under which your client prevailed.
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>> i understand that. but when i read judge katzman's concurrence -- >> i am not sure you're reading it as fully as one might. >> when i read the -- i hear everybody argue. part of the argument is, yeah, you make the argument and make a but for decision. and if you're taking that but for decision, you cannot divorce that from the verdict that we already have. i see i am out of time. >> thank you. >> thank you. >> thank you for the honor. >> in light of the judicial consensus that was over 50 years that title 7's prohibition on sex discrimination does not read sexual orientation. there are three reasons congress ratified that decision. >> can i ask why you're
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here? does -- do they defer to eeoc? >> no, your honor. it has control over private party litigation. d.o.j. has primary control over put litigation and d.o.j. is of course the nation's largest mployer. >> private party. i don't understand. >> the statute which would apply equally if it's a private party or public party so the government has an interest on the public sector side. >> who is the representative, mr. wheeler? >> yeah. he was acting director when the brief was filed. >> the eeoc filed an amicus brief but the d.o.j. did not. is there a reason why was not filed then and one was filed now? >> i am not sure, your
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honor. >> has there been a discussion about that? >> i'm sorry. >> in november of 2016 -- [laughter] >> i thought that might be your answer. s that the reason? >> it's before my time at the department, yurn, so i honestly couldn't -- your honor, so i honestly couldn't tell you. >> what is the process within the government where you got -- i know it varies with respect to which agencys you're talking about, whether they have independent litigation 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 your honor. >> can the eeoc file its own brief without consultation with the department of justice? it goes back to judge pooler's question. >> that's a fairly complicated question.
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what i will say is this. the eeoc had the authority to file the brief that they filed in this case and the department of justice, of course, has the authority to file the brief that it has filed in this case. >> you know the employment section was consulted in connection with file this brief? >> your honor, i don't think it's appropriate for me to disclose the deliberative process within the department as to it. i will note as the question's noted, the acting head was on that brief as well as the acting head of the civil division. >> as part of this complicated process, does d.o.j. sign off on a brief that eeoc intends to file? >> again, i don't think it's appropriate for me to speak to internal deliberations and internal process. >> i ask if it's procedure, not internal deliberations. >> your honor, i don't think it's appropriate for me to comment as to whether we signed off on the briefs they filed. >> not this brief. >> or in general. >> ordinarily, would d.o.j. sign off on a brief filed by an agency of government?
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>> your honor, i'm sorry. >> doesn't the eeoc like the s.e.c. have its own litigation authority? there are cases brought in the name of the eeoc and this court -- of course every circuit every place in the country without d.o.j. approval, right? >> we are not disputing that eeoc had not -- i think i shouldn't comment on the degree which the department was involved in that. >> i am prepared to proceed on the assumption that you're here. >> thank you, your 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 last 50 years as denoting men and women? in short, if just on the analysis with race? >> so there's a fundamental -- >> you have men and you have women but the person of a certain race cohabitting with a person of another race is discriminated against.
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>> so there's a fundamental difference, your honor, between race and sex when it comes to associational discrimination. if you say that someone discriminates on the basis of interracial marriage, everyone would call that person is a racist. if you discriminate it on sexual orientation, you would not call them is they are a sexist and the reason -- >> you might call them a homophob. >> you would not call them a sexist and the reason you would not call them a sexist even though the person that discriminates against interracial marriage a racist because when you discriminate against interracial marriages you are treated similarly black and white people differently and you are doing it based on racial superiority. >> why do you need racial superiority? 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
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black. >> even though in that circumstance, your honor, you're still treating individual of two different minority groups differently who are otherwise similarly situated and that's simply not true when you're dealing with a man and woman in the context of sexual relationships. but -- and these arguments are not new. the associational argument was -- >> can you point me to some cases that make this proposition? support this proposition? >> well, so i was about to say. associational argument was made in the ninth circuit in desantis in 1979 and it was rejected. there are several other circuits that rejected in general the argument that sexual orientation was within sex discrimination. then in 1991, congress engaged in a comprehensive amendment to the civil rights act and it overturned several other areas
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where it disagreed with the judiciary and it did not overturn these cases. and under cases like -- >> when you say disagree with the judiciary, one of my colleagues pointed out before, would that include circuit court decisions or only supreme court decisions? >> so in the 1991 amendment it was a supreme court decisions but importantly the supreme court has found ratification in circumstances where congress has rejected lower court decisions. i would point to laurel lard v. ponds. both of which reject expressly the arguments made by the eeoc here today. >> i understand your argument but wouldn't you have a more powerful argument if sexual orientation discrimination cases were cases that in 1991 in the context of that specific act congress specifically dealt with. congress knew how to deal with specific acts. it did so in the 1991 decision specific court decisions but it didn't do so with sexual orientation decisions.
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why are you saying we can make that leap to say even though they didn't talk about it they really did? which is what you're saying. >> so i have three points about that, your honor. the first is that's exactly what the supreme court did in laurel lard v. ponds where the case in the case was whether the a.d.a. had a jury trial. and what the supreme court said was congress was trying to incorporate the flsa and within the flsa context, lower courts -- not the supreme court -- lower courts and only a handful of lower courts, one circuit court and a couple district courts had found a jury trial. the congress found ratification on that. moreover and directly in response to your question -- if i could just finish.
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>> i'll let you finish and i'll ask you a question. >> to further their point they said congress in a.d.a. overturned other aspects of flsa injuries prudence and what did they -- jurisprudence and what did they say? not the question of the jury trial right. other context and they said because congress overturned other parts of the flsa, we will assume that they ratified the part they didn't touch. that is also exactly what the supreme court did in the farager decision. the 1991 civil rights amendment, the very law that's at issue here, the supreme court said when congress overturned a variety of other supreme court decisions in other areas, but didn't touch the scope of supervisory liability for employers, they ratified that. so you're right, your honor. it would be stronger if the court -- if the 1991 congress in the civil rights bill had specifically talked about sexual
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orientation said we like all those decisions, but the supreme court has never said that's the touch for ratification. what the supreme court has said is that if you have a comprehensive amendment to the statute, leave standing judicial consensus on one issue and overturn areas in another area, even when it's lower court, that's ratification. that said, i will also note that the 1991 congress did address sexual orientation specifically because in 1991 just like in every congress going back to 1974 today, there was a bill put forward to congress to actually add sexual orientation and the bill's sponsor said that was necessary because federal law id not cover it. and despite that, congress did not enact that bill and has never enacted that bill. and that's what fundamentally is different from the ppgc opinion
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that the eeoc relies on. in ppgc the situation was that the ppgc had taken a certain position. there was a bill in front of congress to ratify it. they didn't end up passing the bill, and what the supreme court aid, we don't know if they didn't pass that bill because they already agreed with the ppgc or disagreed. that's totally distinguishable from a context like this whether every circuit court for 50 years 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 for a minute? 'm sympathetic to your point that any sodge nation laws are a undamental aspect of white supremacy and that's not -- we can't say that about this, but bigotry against homosexuals is somehow about hostility to men or hostility to women as such. what about in the case of religion? if you had an employer who has an orthodox jew who had a work force of mixed religion people but then one of his jewish employees married a christian
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and he fired that person, isn't that an compasm of religious discrimination -- example of religious discrimination, that doesn't have anything to do with misogination laws or region liss superiority? >> i don't know if it would be paced on religious superiority. setting that aside, the more fundamental point, your honor, in that circumstance you're treating similarly situated jews and christians and -- >> no. he christian can marry 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 otherwise similarly situated non-jewish people and that is why that -- >> why is that not the same as -- that's the argument that
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mr. nevins has made. >> that's the argument and the difference is unlike jews and non-jews who are no factual difference and the law does not recognize differences. there are differences between men and women and the law recognizes the difference between men and women. it's vividly illustrated in the situation of bathrooms where everyone recognizes that title 7 does not prohibit having single sex bathrooms. now, the eeoc comes here today and says the reason that's ok is because it's trivial and that is frankly an astonishing proposition for the eeoc to take. if the argument is that terms in bathrooms is not a condition that matters with a discrimination statute then you can have black bathrooms and white bathrooms. the same exact term and country kn. they have no argument why because of term and condition you can't have segregated -- racially segregated bathrooms today. that's obviously wrong and what it demonstrates is -- >> sex discrimination is sort of ok because there are real distinctions between men and women but a racial discrimination and religious
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discrimination is not? >> that's obviously the case. >> sexual prohibition is -- >> the critical difference, your honor, discrimination requires treating people who are similarly situated differently. and unlike with race where black people and white people are similarly situated under both law and fact, men and women are not similarly situated in all respects. the law recognizes there are real physical differences between men and women and -- >> something to do with this marriage issue? >> yes, your honor. the same exact physiological differences that are relative to bathrooms are the same exact physiological differences that an employer is allowed to take account of when they are regulating their employees based on their off-the-work sexual relationships. there are several questions about this and the eeoc agrees
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that employers under title 7 are allowed to do that. employees under title 7 are allowed to regulate their employees off-the-job sexual behavior. they are allowed to say if you cheat on your wife you're fired, romiscuous you're fired. that is not covered under title 7 because it only covers race and sex and other protected traits. >> ethnicity is covered under title 7? >> yeah. ethnicity can be viewed as a subset of race. >> why is that? >> i just think as a matter of ordinary english you can parce and ethnicity. >> it's a matter of ordinary english, i look at the dictionary and homosexuality is a subset -- you can't distinguish that from sex. why isn't that the same analysis that you would allow that you just applied in the context of ethnicity we we found and you agree is covered by title 7 but the word ethnicity is not in title 7? >> i'm not disputing as a logical matter, your honor. you could view sexual
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orientation as a subset of sex but you could also as a matter view it as a disttinket category and the question sunday this statute that's passed by congress which one of those two it is and we know very well which one it is because several times congress has actually prohibited sexual orientation discrimination. it has done so saying in addition >> not in a contemporary -- when laws are passed in a contemporaneous congress, then they have a different impact and when laws are passed separately from contemporaneous enactments, would you agree? >> i think you're right, your honor. in this context it gets it exactly backwards. think what happened today if congress were to pass a statute that said no sex discrimination, it would be indisputable that didn't cover -- >> did or did snot >> if it said sex -- did or did not? >> if it said discrimination it would cover sexual orientation. would you have a broken set of case law saying the two acts are
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istinct. and you have an act of congress saying it's distinct. if that's the case today, then in 1964 when congress passed the same exact word, they didn't have some broader notion of sex discrimination compared to what we have today. it just makes no sense, your honor, we're -- >> suggestion that sometimes the statute can be read to have a comparable -- >> i don't dispute the proposition, your honor. that's absolutely true, your honor. it's not applicable here. the point is the statute covers sexual harassment under plain english and questions does that prohibition encompass sexual harassment? by plain text it clearly does and the congress -- >> excuse me.
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you said by the plain text covers sexual harassment. that's not written in the statute. just cisdiscrimination because of sex and it took quite a series of cases to construe that to include sexual harassment. just remembering. >> i am not sure exactly how long it took but it seems to me when you have a statute that says you can't discriminate baced on the terms and conditions of sex that fairly readily supports it covers sexual harassment. >> barnes and costel from the 1970 eafments it went through an extensive review of the history of the civil rights act and that labored over this because the initial inclusion of women at all was subject to question. so i would suggest to you the statutes that grown more in line with justice scalia's description and the judge referred to you're ack knowledging -- >> let me qualify what i
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said. even if you say how clear it is sexual harassment period was covered, wund they held it was covered, there is no dispute that there's any deference before it's same sex or opposite sex harassment. here's nothing in the language that will get threw and that was justice scalia's point. congress may not have been thinking about that fact pattern but it's covered by the text. but in this context on the other hand, sex discrimination and sexual orientation discrimination have always been understood not just in terms of the subject of the intent of congress but in terms of ordinary english asthe fact that every court for 50 confirmed by years tells held it, the eeoc held it for 50 years. and the eeoc, by the way -- >> the landscape changes in terms of the law, right? marriage is different now. >> 20 years, your honor. after price waterhouse -- >> why can't the same be said about sexual orientation? the landscape has changed.
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>> even after price waterhouse and even after oncale in 1996, every court in the country for another 20 years said that including the eeoc. the eeoc had cases explaining that oncale didn't change their position. i would urge you to read hat. those eeoc opinions are not any differently reasoned than the court opinions from 179 that we cited that we say congress ratified. these are there is a fairly commonsense intuitive difference between sexual orientation and discrimination. >> i thought you would see it a logical matter that sexual orientation could be a subset of sex? >> as a logical matter there is a -- as a theoretical matter come up with a hypothetical but for construct -- >> is it the government's decision that the plain text of the statute clearly excludes exual orientation? >> i think it is clearly the
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better reading and so, yes. but i don't think this court needs to get into after guse or not -- >> can you tell me where it clearly excludes sexual orientation? >> ordinary definition of discriminate on the basis of sex is. it is treating men and women differently and that's not happening here any differently than it is for bathrooms. so i guess -- i will say this. it's no less ambiguous than whether title 7 bans single sex bathrooms. and since i don't think anyone thinks it does and i don't think any court has ever held it and will hold it and their only argument for why it's different is an argument that would blow a massive hole in the statute by saying terms and conditions don't cover bathrooms such we could have the clerk will designate bathrooms again i think it's a better interpretation. even if you don't think it's unambiguous it's certainly at least a strong enough interpretation that the fact
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that congress has ratified it repeatedly in various ways should count. if i could make one last point on ratification, your honor. which i said before, they point to the ppgc opinion -- >> having trouble with your term ratification. when i hear the word ratification, i understand that to mean an explicit statement as they have done -- congress has done in many, many cases. where is the explicit ratification? >> that's not the way i am using the term ratification. that's not the way the supreme court has used ratification in terms of communities and laurel lard v. ponds. the way i am using the term -- it's the principle i am focusing on -- is when there is a judicial consensus on an issue and congress amends the statute and leaves that consensus undisturbed, that's a ratification of that position. that's what the court held in laurel lard and that's what they held in inclusive
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communities. >> there is a difference in inclusive community, didn't you have nine court's rulings and in the cases you're mentioning with respect to the 1991 act, congressional act, you have three courts that have acted in that area at that time. >> no. well, two points. first of all, i think technically it's four and arguably five which we cited in our brief but more importantly, laurel lard had more than that. they cited 1/5 circuit opinion and one district court opinion and two that cited a handful of other district court pinions. four is more than one, your honor. i want to make the point about congressional acquiescence. ratification as we discussed is when congress amends the statute. congressional acquiescence is since 1991 year in and year out congress has been presented a bill to undo this consensus and
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it has not acted. unlike the ppgc case i would point the court to the kline decision which we cite in our brief where the court found based on two circuit courts and a handful of district courts that the fact that the congress having disturbed that was strong evidence that was the correct interpretation of staff ufmente here we have every federal circuit court, the eeoc frr over 20 years in the face of price waterhouse, in the face of oncale and you have congress passing statutes, using the term sexual orientation specifically and separately and moreover, doing it by saying, sex or sexual orientation, not saying as their argument would suggest, sex, including sexual orientation which is what they did in the pregnancy discrimination act in 1978. when congress overturned gilbert in 1978 -- when congress overturned gilbert in the regnancy discrimination act of in 1978, they said sex including pregnancy which they thought
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pregnancy was -- >> thank you for your rgument. >> may it please the court. dam. >> i would like to say the court appreciates mr. mortara accepting the invitation to make the arguments. >> the but for test, however it is applied, does not categorically define sexual orientation. particularly with regard to sex segregated bathroom and the bauer case where the f.b.i. aving different push-ups between a woman and a man and he wanted to become a special agent missed the push-up count by a few and if he had been a woman he would have been made a special agent. it was not disputed and yet that
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was not sex discrimination. the but for test as applied by i guess the aplate here but by the way the government puts it gives you false positives. so it cannot and does not define what is sex discrimination. i don't really have much strong position about how the but for test should be applied for because it's not an interpretive device. it's not a device interpreting title 7. it's in evidentiary standard it can provide clues as to whether the real reason with sex discrimination but doesn't provide the answer. a few other answers. we talk about trivial in terms of terms and condition. i agree bathrooms are not trivial. osha requires sex segregated bathrooms. actually requires a multitoilet situation that bathrooms be sex egregated. >> you say but for doesn't apply here. would you have a term that would be more accurate and helpful?
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>> i think i start at the top which is the true reason has to be discriminatory. the true reason has to be because you are a man, so that's the top. i think to full -- to sort of fill that out and get to that answer, i'd say the but for test is helpful. and then i'd say there has to be an unequal burden applied from one sex to another. that's what the ninth circuit does in their dress code line of cases which starts out with united and continental airlines having different weight requirements and one flight attendant unmarried and that imposes an unequal burden on the sexes but then ends up in jembings esperson where women have to wear makeup and men can't and women can color their ails and men cannot. it was not an unequal burden.
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same with the bauer case. >> you say as i understand it that a truthful response about why an employer fired a gay man would be because he was gay, not because he was a man. but isn't that arguably an incomplete answer? saying someone is gay is the shorthand for saying that the person is attracted to other men so that is the real reason. if you pursue it more. so in the price waterhouse case, for example, if price waterhouse had argued that they discriminated against ann hopkins, not because she refused to wear makeup, but because she was a gender nonconforming person, would that have been a defense? >> no. and the -- strongly depends on
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price waterhouse and the catch 20-20 eluded to earlier. the thing in price waterhouse, was a catch 22, you have to be aggressive. price waterhouse would have fired a docile or passive man given the facts given. it's not true merely being nonconforming gender by itself gives you a sex discrimination claim. it has to also be true there's something additional. evidence of misogyny. evidence of highly traditional, for instance, 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 sex stereotyping standard alone can give rise to a sex discrimination charge or ms. jesperson would have her job at harrah's casino. she quit her job that she had
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for a very long time because of it. so i really do not understand talking about dress codes and talking about bathrooms as if white eu deposit that title vii was directed at animus? deposit thatu title vii was directed at animus? >> it is not only about animus. motivated theat decision, and animus is the smoking gun evidence that the subject category automated the decision. >> maybe i misunderstood. you view animus as some helpful alternative tool.
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think animus is not just a helpful alternative tool. it is a look at the whole thing. if you look at the subject category group, and destroyed. that calls to mind some of the hypothetical in interracial relationships. on the interface hypothetical of the jewish employer bearing out-of-state. discrimination almost without question, because would haveemployer an idea, notion of how jewish persons were supposed to behave, and he would've imposed that notion on the jewish employee, and be truthful answer in the price waterhouse question would have been i fired you because you are a jew and jews are not supposed to do that. couldn'tt see why you say exactly the same words you just said, substituting man for jew. >> the words could be used, but
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they are -- that there actually is no word for somebody who is just imposed to interracial relationships, and the word we used to say -- >> would you save there is no word for somebody who was used to interracial relationship? made my point. on the interracial discretion -- discrimination cases, there is no studied neutral opposition to interracial relationships. there is a name for that person. >> are you saying it is
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of -- ble that members i am not saying that is impossible. >> you are assuming it is only white people based on an idea of who would object to someone -- a white person marrying someone of another race and i think just is implausible and i don't know why that person of the other race would look at the marriage or liaison with dismay. >> there's one that's not race neutral.
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in other words, you're saying a situation say an asian person -- a chinese person objects to a chinese person marrying a non-chinese person. that would be exactly the same as the jewish-christian hypothetical, be a chinese person an idea with how chinese people should behave firing somebody. >> the judge's question -- >> you are saying the animus is not against whatever sex it is that the person is marrying. the animus in the bias against gays case is specifically against gays. it doesn't have anything to do with hostility to men? >> that's correct. >> someone who is bigoted against a man -- has nothing to against men. someone who is opposed to someone of his race marrying someone of another race does have something against the other race, is that the point? >> that's 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 of the race of the employee. the instance of a white marrying a black person, it's about how whites should behave, i would take issue with that a little bit and i would qualify what you said only in the following sense.
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it is perhaps 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 concede that would be sex discrimination and that's why your -- where juries are going to have to get into the evidence and look at why the person was fired. i qualify it in that way. >> how do we sidestep the associational piece which you're not comfortable with because it seems to me we have that lurking out there and it can be used as a guidepost? >> i would say -- i'll give you a couple ways to sidestep it. number one, a lot of the instances of the failures of the but for text could be classed as associational discrimination as well. i prefer to go to the bathroom with other men, for example. and therefore i associate with other men in the toilet. and so if you discriminate against me or discriminate against me because i prefer to associate with men in the locker room, we had discussion about
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locker room talk. maybe it's not all great. much of it is not. but at the same time there's answeran associational element there as well. but also beyond that what i would say is, associational discrimination doesn't get you much more than the but for test. and when the but for test is known to have false positives in sex it's really not adding much for us. on race, the but for test is as perfect as a test could possibly be. for reasons that my friend from the justice department really alluded to. the way i would discuss the associational discrimination cases is to make exactly that point. that there are differences between race and sex and we need to look no further again i bring back to the bathrooms. after the 1964 act was passed,
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everyone understood that race segregated bathrooms had to go. ish osha sex segregated bathrooms. no one distinguished it from the issue of sex segregated bathrooms and talking about arguments courts did and didn't have. it doesn't appear that the hyley had the issue of the but for test and sex segregated bathrooms. it doesn't appear to have been discussed whereas -- >> let me interrupt for one second. again, i have not thought this all the way through but, you know, title 7 really focuses on economic opportunities. sex segregated bathrooms has very little to do with economic opportunity but employment discrimination, firing an employee, making other adverse moves, does. mr. zarda here lost his job because of the actions taken against him. so could you explain why that might not be an active distinction? >> to be clear, if you go to the osha regulations on bathrooms,
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they think bathrooms are very important. they have regulations about the numbers you're going to have and all this kind of thing. but also the hypothetical really is a man wants to use the women's toilet for whatever reason. that was the issue in cassel. a biological male who was a transgender woman wanted to use the woman's toilet and it was very important to them and very important to their economic opportunity. and ms. jespeson and her desire not to wear makeup. >> why is using the bathroom important to economic opportunity? >> your comfort level whether you can relieve yourself has a lot to whether you can perform work functions during the day. if you deprive somebody of the under -- >> to follow-up on judge carney's question. i don't understand how bathrooms are that critical as a matter of title 7. they may be a -- matter of osha but not title 7. >> that would be news to all the people who woke up racially segregated toilets could not be used after the civil rights act that we're talking about today
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under this exact provision we are talking about today. but also they are it is an adverse employment action. ms. cassel was fired because she wanted to use the women's toilet. she was fired. so sex segregated bathrooms exist and it's a rule employees have to follow just like dress codes. to round out the soig -- i own to a tennis club. i say you can only enter into mixed doubles tournaments. he said he would like to enter a regular doubles tournament and the question is no. the but for test is satisfied. now i tell you it's a man and he wants to play tennis with other men but i tell him he can't. but if he was a woman i say she can play with other men. it's an associational discrimination case. based on who i want them to play
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tennis with. what i am going to hear back, well, that's trivial. there is no hierarchy of values in title 7. the text doesn't support it. thank you. >> thank you. >> mr. antollino, you will have three minutes in rebuttal. >> thank you, your honor. i would agree with my friend from chicago there is no hierarchy in title 7. all five of the protective categories are treated the same and you see in footnote 9 of price waterhouse. there is no difference. and i had hoped that we would get through this argument without an extended discussion on bathrooms but i knew that it -- >> my question to you at the beginning was about this bathroom example. and you just heard your adversaries used that i think in a somewhat effective way to say,
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well, we wouldn't consider allowing racial difference in terms of use of bathrooms. can you answer their argument? >> well, 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 -- it is -- it is such a small consideration that for bathrooms to swallow the entire question is really to focus on a matter that doesn't matter to economic opportunities which is what eeo -- which is what title 7 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
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court and we wrote the charge as best we could to preserve both our state claim and our federal claim. and we believe we did it well as best we could, as poorly written as it was, but when baldwin came down we asked to reopen the question and our request was denied. i would also suggest that the eeoc -- oh, i also -- with respect to the legislative intent, i don't think there has been an answer to the pension benefit, the ltv court decision which holds the legislative history is a hazardous basis for infering intent. and in that case, it cited an early opinion from 1962 which itself cited cases from the 1940's.
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so we have not 50 years of cases that hold against us but we have an unbroken 80 years of cases that hold negative legislative history. it's not basis to make a decision. the -- the but 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 oncale held that we see no basis in the statute to be unduly
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formal and say it doesn't apply that male-on male harassment does not apply and sexual harassment as your honor has pointed out was not an established theory until 1979 in the district court case and for years courts have held -- while this is just sexual attraction between men and women, and this is not what title 7 was intended to protect. eventually courts began to get it right and there is no question now. the court has to interpret the statute. your honor, you know how this is -- you know how the sausage is made. you wrote a book on it. i got the title wrong in my brief but i did read it. [laughter] >> at least you read it. >> and one thing you pointed out
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is that agencies are generally the first, often the primary interpreters of statutes and thus that gives way to the eeoc's interpretation where the d.o.j., in this case, does not govern exclusively employment discrimination. i believe that's all i have to say unless there are any further questions. >> thank you. >> thank you. >> thank you, all, for your preparation and good arguments. the court will reserve decision. the clerk will adjourn clerk. >> court stands adjourned. [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> the u.s. senate passed for the 2010 budget, clearing the way for tax reform. kentucky senator rand paul was the only republican senators who boasted interest -- to vote
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against the legislation. monday, they take up the disaster relief bill, already passed in the house. >> c-span's "washington journal" live every day with the news and policy issues that impact you. coming up this morning, we will look at the federal response to the opioid epidemic in the u.s. we will discuss the future of the iran nuclear agreement. kerry johnson on attorney general jeff session's recent testimony. be sure to watch "washington journal" live at 7:00 a.m. eastern this morning. during the discussion. -- join the discussion. >> first lady melania trump presents her inaugural gown to national museum
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of american history. morning, collaboration efforts with international community to combat terrorism with florence probably. you can see her remarks live starting at 10:00 a.m. eastern on c-span two. >> this weekend on american history tv on c-span three, a look at controversial union and confederate generals during a live discussion with authors and historians from petersburg, virginia starting saturday at 9:00 a.m. and sunday at 9:15 eastern. the january 1968 weekly series abc scope examines the resistance to the vietnam war and the draft. >> we are living in a beast. lyndon johnston is a murderer and should be arrested for murder. there are no limits to dissent.
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i think the peaceful should have the anger. the emmys women whose children were killed by napalm, that is the anger they peaceful movement should look like. to use the tactic of disruption, because the american people are drunk with apathy. >> on sunday on oral history, we continue our series on photojournalist with diana walker. the i shouldt accept their offers to be behind-the-scenes. every time they offered it. anytime you see the president of the united states behind the scenes, you learn something about the president and you see something. it is important. i can be there for you. you can't be there, and everything i see is important.
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american history tv, all weekend, only on c-span3. former president barack obama was in virginia to campaign. appeared with mr. north and. this 50 minute portion of the rally begins with lieutenant governor northam. ♪ >> well, hello, virginia. >> [cheering] governor mcaulfe

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