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Old 10-08-2019, 05:15 PM
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Supreme Court to hear case about LGBTQ employment rights


NPR story here. (I see no thread about this already in GD.)

The suit is to settle whether Title VII employment protections "on the basis of sex" includes protection for LGBTQ persons. About half the states have state laws with this protection, but the other half don't. This suit, of course, is to apply federal law to the situation.

I have some thoughts about this. I am open to being persuaded that I am wrong, but here they are.

1. Including LGBTQ under "sex" wasn't on anyone's mind in 1964 (none of those people "existed" in 1964). It was to prevent favoring men over women (or vice versa in relatively rare cases).

2. I find myself agreeing with Justice Scalie on this point, that if the Supreme Court makes this change to the law, they might as well "just be a legislature."

3. I certainly think irrelevent personal factors such as sexual orientation and identity should not affect hiring and firing of anyone. If this principle is to become law, as it should, it should be done by the legislature, not the Supreme Court. I realize this is not practical at present, and that many people can be hurt by the absence of such protection in the meantime, but making this change through the courts will alienate many people from our lawmaking process, will be vulnerable to later judicial repeal, and will let the legislature permanently off the hook for dealing with this issue.

4. I see no merit in the argument that firing a man because he is gay (i.e. loves men) is an instance of sex discrimination as compared to the treatment of a woman who loves men (i.e. is straight). Straightforward homosexuality is not the same as having a particular gender. On the other hand, being gender fluid or trans are directly related to gender, and for that reason I see an argument why those should be protected under Title VII.

5. Yes, I understand that sexual orientation is not voluntary, hence my #3 above. I also understand that social mores and attitudes have changed drastically since 1964, which is why it should be easier to pass a law now that would have been inconceivable then.

So there it is. There might be other points that I have overlooked, but these are the main ones going through my mind. I won't be angry if the court rules in favor of the plaintiffs, but I would be much more sanguine about the future if Title VII was revised through legislative channels instead.
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Old 10-08-2019, 05:20 PM
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I agree. Courts shouldn’t be in the business of legislating. A lot of unintended consequences have resulted from courts overstepping their roles.
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Old 10-08-2019, 05:38 PM
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I see no merit in the argument that firing a man because he is gay (i.e. loves men) is an instance of sex discrimination as compared to the treatment of a woman who loves men (i.e. is straight).
I don’t see how you don’t see it.

Say I tell my boss that I’m married to a woman named Gwen, and he nods and says, “yeah, okay, whatever.” And say my co-worker tells the boss that she’s married to a woman named Gwen, and the boss replied, “whoa, hey, now, you just wait one damn minute, there: the policy here is, that’s fine if you’re a man — ask Waldo, he’ll tell you; that’s why he’s not fired — but you’re a woman, so you’re fired.”

That seems black-letter.
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Old 10-08-2019, 06:17 PM
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I don’t see how you don’t see it.

Say I tell my boss that I’m married to a woman named Gwen, and he nods and says, “yeah, okay, whatever.” And say my co-worker tells the boss that she’s married to a woman named Gwen, and the boss replied, “whoa, hey, now, you just wait one damn minute, there: the policy here is, that’s fine if you’re a man — ask Waldo, he’ll tell you; that’s why he’s not fired — but you’re a woman, so you’re fired.”

That seems black-letter.
You omitted the next sentence from your quote, which pretty much explains my position. "Straightforward homosexuality is not the same as having a particular gender." If the company rule is that neither men nor women can date or marry persons of the same sex as themselves, then the two sexes are being treated the same by the rule. (And please remember that I think such a rule should be illegal.) It's really as simple as that.
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Old 10-08-2019, 06:19 PM
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I fully expect the Republicans to win this one, regardless of the actual legal merits. They do have a majority on the SCOTUS.
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Old 10-08-2019, 06:24 PM
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It's really as simple as that.
Wasn’t that the same logic used—unsuccessfully—to defend anti-gay marriage legislation? The idea that a gay man has just as right to marry a woman as a straight man does, and no man (gay or straight) has a right to marry another man, so it’s not discrimination?
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Old 10-08-2019, 06:31 PM
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You omitted the next sentence from your quote, which pretty much explains my position. "Straightforward homosexuality is not the same as having a particular gender." If the company rule is that neither men nor women can date or marry persons of the same sex as themselves, then the two sexes are being treated the same by the rule. (And please remember that I think such a rule should be illegal.) It's really as simple as that.
As far as I know, they don’t get to pull that for race — saying, “oh, hey, whites can date or marry whites, and blacks can date or marry blacks: a fine rule, they’re being treated the same.” If I’m right, and they don’t get to pull that for race, then I can’t for the life of me see why they’d get to pull that for sex.
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Old 10-08-2019, 06:39 PM
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Originally Posted by ASL v2.0 View Post
Wasn’t that the same logic used—unsuccessfully—to defend anti-gay marriage legislation? The idea that a gay man has just as right to marry a woman as a straight man does, and no man (gay or straight) has a right to marry another man, so it’s not discrimination?
The question is not whether an anti-gay rule is discrimination, of course it is. The question is whether it covers an area that is protected by Title VII. I am arguing that this kind of discrimination was not originally intended to have been included under Title VII and that stretching the 55 year old wording of that law to include this kind of discrimination is achieving a good policy through bad practice.

The right to gay marriage was based on the due process and equal protection clauses of the Fourteenth Amendment. These are relevant to marriage because legal marriage is controlled end to end by laws. That is not the case for getting and keeping a job, but if the case could be made that it were, I would be much happier supporting the plaintiffs on a constitutional basis than on Title VII grounds.
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Old 10-08-2019, 06:41 PM
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As far as I know, they don’t get to pull that for race — saying, “oh, hey, whites can date or marry whites, and blacks can date or marry blacks: a fine rule, they’re being treated the same.” If I’m right, and they don’t get to pull that for race, then I can’t for the life of me see why they’d get to pull that for sex.
Race is clearly a protected class. Sex is also a protected class. The question here is whether "sex" as a protected class includes sexual orientation. I have explained elsewhere in this thread why I don't believe it does based on Title VII as it stands, but that the legislation should be amended to include it.
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Old 10-08-2019, 06:46 PM
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I would be much happier supporting the plaintiffs on a constitutional basis than on Title VII grounds.
Hey, I'd be all for a full-blown amendment to the effect that you can't be discriminated against on the basis of anything not relevant to Doing The Job. One would think in AD 2019 that one would be a cakewalk, yet it isn't.
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Old 10-08-2019, 06:50 PM
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Race is clearly a protected class. Sex is also a protected class. The question here is whether "sex" as a protected class includes sexual orientation. I have explained elsewhere in this thread why I don't believe it does based on Title VII as it stands, but that the legislation should be amended to include it.
But look again at that parallel: I’m not saying that someone of a given race has to make a claim about orientation to date people of Race A instead of Race B without getting fired, and I’m likewise not saying that someone of a given sex has to make a claim about orientation to date people of Sex A instead of Sex B without getting fired.

I’m simply and only saying that the former individual says “you wouldn’t fire me for doing this if I were of a different race,” and the latter individual says “you wouldn’t fire me for doing this if I were of a different sex,” and (a) they’re both right, and (b) we don’t let folks fire the former for that reason, even if the former never says anything about orientation; why would we let folks fire the latter for that reason, or ask the latter to say anything about orientation?
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Old 10-08-2019, 07:01 PM
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Has any legislator introduced a fix to this that would directly say ,”Yo homie discriminating against lgbtq folks is illegal.”
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Old 10-08-2019, 08:18 PM
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But look again at that parallel: I’m not saying that someone of a given race has to make a claim about orientation to date people of Race A instead of Race B without getting fired, and I’m likewise not saying that someone of a given sex has to make a claim about orientation to date people of Sex A instead of Sex B without getting fired.

I’m simply and only saying that the former individual says “you wouldn’t fire me for doing this if I were of a different race,” and the latter individual says “you wouldn’t fire me for doing this if I were of a different sex,” and (a) they’re both right, and (b) we don’t let folks fire the former for that reason, even if the former never says anything about orientation; why would we let folks fire the latter for that reason, or ask the latter to say anything about orientation?
If I understand you, you are drawing a parallel between a black man being fired for marrying a white woman, and a man being fired for marrying a man (to use examples). Have there ever been any cases, since either the Loving decision in 1967 or the Civil Rights Act of 1964 where anyone was fired for interracial marriage and then challenged that firing in court? (I realize that is a question that you and I may not be able to answer, but I think it's important.) If that has happened and courts ruled it illegal where the issue was decided not on the person's race but only on the interracial nature of the marriage being protected by Title VII, then you have an excellent point, which I would expect the plaintiffs in this case to use in their argument.

Imagine a company where there were plenty of people of all races but none with an interracial marriage, and then one employee marries someone of another race and gets fired. That's the kind of case I mean, where simple racial discrimination can't reasonably be alleged. I would be very interested to find such a case, and to study the decision.
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Old 10-08-2019, 08:27 PM
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Has any legislator introduced a fix to this that would directly say ,”Yo homie discriminating against lgbtq folks is illegal.”
The point is that a whole bunch of people want to be able to descriminate against LGBTQ folks, and aggressively so. Any attempts to legislate otherwise will be crushed by the Republican members of the house and Senate.
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Old 10-08-2019, 08:53 PM
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You omitted the next sentence from your quote, which pretty much explains my position. "Straightforward homosexuality is not the same as having a particular gender."
You're correct. Homosexuality is when you're attracted to folks who are the same sex as you. An employer can't determine whether you're homosexual without making a determination about your sex. They'll make a different decision based on what they determine your sex to be.

Alex is attracted to women. If Alex is a man, then Alex is heterosexual, and Alex keeps the job. If Alex is a woman, then Alex is homosexual, and Alex loses the job.

How is that not discrimination based on sex?

This isn't being about a court acting as a legislature. If anything, this is a legislature not thinking through the implications of the law they've written. A court that rules on the law as written, not on the law as it was probably intended to be written, should rule that such discrimination is illegal by the letter of the law.

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Old 10-08-2019, 08:58 PM
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You may be interested in Price Waterhouse v. Hopkins (1989). Ann Hopkins was denied a partnership in her accounting firm because she did not fit the partners' expectations of how a woman was supposed to behave. Hopkins rode a motorcycle, smoked, cussed, and could be quite blunt. She often outperformed her male coworkers but was told she needed to act more feminine if she ever expected that promotion.

The court ruled in Hopkins favor, in part, because the discrimination was because of her gender. i.e. Gender stereotyping. I imagine this might be a good hook for why employers shouldn't be able to discriminate against homosexuals. They're discriminating against people based on gender.
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Old 10-08-2019, 09:22 PM
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I'm not sure how I feel about this question, but I would like to point out that some states (Wisconsin is one) have, over the last 20-odd years, inserted "sexual orientation" in the various legal non-discrimination clauses.

In particular, it is illegal for licensed real estate agents to discriminate, not only for racial, religious, or sex differentiation reasons, but also for sexual orientation ones.

My point is that once legislatures decide to write these laws, they readily include the broader categories. This lends credulity to the concept that it is the legislature, not the courts, that should make this determination. 50 years ago, they screwed up, out of ignorance. Nothing prevents them from correcting the error now. But do they want to?
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Old 10-08-2019, 10:16 PM
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You're correct. Homosexuality is when you're attracted to folks who are the same sex as you. An employer can't determine whether you're homosexual without making a determination about your sex. They'll make a different decision based on what they determine your sex to be.

Alex is attracted to women. If Alex is a man, then Alex is heterosexual, and Alex keeps the job. If Alex is a woman, then Alex is homosexual, and Alex loses the job.

How is that not discrimination based on sex?

This isn't being about a court acting as a legislature. If anything, this is a legislature not thinking through the implications of the law they've written. A court that rules on the law as written, not on the law as it was probably intended to be written, should rule that such discrimination is illegal by the letter of the law.
I've pretty much answered most of this already. Your last paragraph I can't agree with, however, not with the part that thinks "sex" is the same as "sexual orientation" in this context, nor with the part that seems to think that, if they wanted to exclude sexual orientation, they should have specifically said so. In 1964.
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You may be interested in Price Waterhouse v. Hopkins (1989). Ann Hopkins was denied a partnership in her accounting firm because she did not fit the partners' expectations of how a woman was supposed to behave. Hopkins rode a motorcycle, smoked, cussed, and could be quite blunt. She often outperformed her male coworkers but was told she needed to act more feminine if she ever expected that promotion.

The court ruled in Hopkins favor, in part, because the discrimination was because of her gender. i.e. Gender stereotyping. I imagine this might be a good hook for why employers shouldn't be able to discriminate against homosexuals. They're discriminating against people based on gender.
It seems a stretch to me. Remember upthread where I said that gender fluid people and trans people probably have a better claim to gender protection than homosexuals? I think this falls under that.

Let me be clear again, for those who haven't read any more than this post. I want all LGBTQ people to be a protected class (among others) for employment, housing, and education (at least). I don't think that they can be so considered under current laws. I hope those laws will change.
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Old 10-08-2019, 11:32 PM
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If the company rule is that neither men nor women can date or marry persons of the same sex as themselves, then the two sexes are being treated the same by the rule.
The company rule is that men can marry women but women cannot marry women, that women can marry men but that men cannot marry men. I can see two instances of sexual discrimination right there. Whether or not most men want to marry men is beside the point, just like whether most men want to be secretaries is beside the point. There's nothing to clothe the naked discrimination once you state it sensibly, except to insist that the analysis is simply wrong for no further reason beyond it being wrong.
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Old 10-09-2019, 02:12 AM
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Has any legislator introduced a fix to this that would directly say ,”Yo homie discriminating against lgbtq folks is illegal.”
Yes, quite a few times. The most recent version passed the House of Representatives in May, and is currently being smothered in the Senate.

One of the problems with ginning up public support for a change in the law is that half the country thinks it's already the law.

Last edited by Lord Feldon; 10-09-2019 at 02:16 AM.
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Old 10-09-2019, 07:26 AM
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I think the OP sets out a pretty defensible position quite well. This strikes me as a pretty good instance of assessing how one feels about judicial activism. Full disclosure, I am quite liberal. I can think of several instances in which I've supported judicial activism that has balanced out overly conservative legislatures. But the problem with judicial activism is that it can work both ways.

I fully support prohibiting discrimination on the basis of sexual discrimination. But it seems that the appropriate resolution is through legislation - and/or through economic/social pressure. That the Repub majority in the Senate prevents a legislative solution may warrant being addressed at the polls, rather than through the courts. Is that a feature? Or a bug?
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Old 10-09-2019, 07:37 AM
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I think the OP sets out a pretty defensible position quite well. This strikes me as a pretty good instance of assessing how one feels about judicial activism. Full disclosure, I am quite liberal. I can think of several instances in which I've supported judicial activism that has balanced out overly conservative legislatures. But the problem with judicial activism is that it can work both ways.

I fully support prohibiting discrimination on the basis of sexual discrimination. But it seems that the appropriate resolution is through legislation - and/or through economic/social pressure. That the Repub majority in the Senate prevents a legislative solution may warrant being addressed at the polls, rather than through the courts. Is that a feature? Or a bug?
It’s a feature. Otherwise we get the situation we have currently where the federal judiciary is the ultimate political prize.
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Old 10-10-2019, 08:11 AM
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Can sex discrimination be described like this?

Employee A engages in activity X. If the acceptability of that behavior depends on the sex of A, it is discrimination.

If not, describe it more accurately.
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Old 10-10-2019, 08:26 AM
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Hey, I'd be all for a full-blown amendment to the effect that you can't be discriminated against on the basis of anything not relevant to Doing The Job. One would think in AD 2019 that one would be a cakewalk, yet it isn't.
This would undermine affirmative action.
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Old 10-10-2019, 08:33 AM
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Can sex discrimination be described like this?

Employee A engages in activity X. If the acceptability of that behavior depends on the sex of A, it is discrimination.

If not, describe it more accurately.
The question presented in this thread seems to be whether "x" is marrying a particular gender (e.g. if men get to marry women then so should women) or marry the same gender (anyone can marry the opposite gender but you can be discriminated against for marrying the same gender).
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Old 10-10-2019, 08:39 AM
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The question presented in this thread seems to be whether "x" is marrying a particular gender (e.g. if men get to marry women then so should women) or marry the same gender (anyone can marry the opposite gender but you can be discriminated against for marrying the same gender).
Yes, I think everyone is on the same page there.

Do you have an opinion on the definition I proposed?
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Old 10-10-2019, 09:11 AM
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The question presented in this thread seems to be whether "x" is marrying a particular gender (e.g. if men get to marry women then so should women) or marry the same gender (anyone can marry the opposite gender but you can be discriminated against for marrying the same gender).
But, again, as I understand it we’d come down like a hammer on an employer who patiently explained to a black guy that, no, see, I’m firing you because I disapprove of interracial marriage: granted, you could say “x” is “marrying a white woman”, in which case you could sue me into oblivion because I clearly let white guys do it and explicitly fire black guys for doing it — but, well, that’s the entire reason why I’m instead phrasing this as “marrying someone of a different race”.

I don’t believe we’d let an employer get away with that when it comes to race; and so I don’t see why we’d let one get away with it when it comes to sex.
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Old 10-10-2019, 12:01 PM
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Can sex discrimination be described like this?

Employee A engages in activity X. If the acceptability of that behavior depends on the sex of A, it is discrimination.

If not, describe it more accurately.
Usually, traditionally, sex discrimination in employment had strictly to do with the identity of the person's sex, not because of something the person does, especially something they do outside of work.

Some examples of sex discrimination (one is still legal):

"You can't work on the assembly line, you're a woman."
"We don't promote women to management."
"I'll never vote for a woman for president."
"You can't be a nurse, you're a man." (I don't know if that one was ever a thing, but I wanted to give a little equal time.)

Some employers had (still have?) things like morality clauses in their employment contracts that did include activity outside of work, but that is a separate consideration from sex discrimination.
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Old 10-10-2019, 12:28 PM
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1. Including LGBTQ under "sex" wasn't on anyone's mind in 1964 (none of those people "existed" in 1964). It was to prevent favoring men over women (or vice versa in relatively rare cases).
I don't understand this argument. Pornhub wasn't on anyone's mind when they wrote the First Amendment, but Pornhub is definitely covered by the first amendment. AR-15s weren't on anyone's mind when they wrote the Second Amendment, but AR-15s are covered by it. Gay marriage wasn't on anyone's mind when they wrote the Fourteenth Amendment, but it's covered. I could go on.

What the law actually says and what legislators hoped the law they voted on would or wouldn't accomplish are two different things. Courts can only rule on the former.

Last edited by DrCube; 10-10-2019 at 12:28 PM.
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Old 10-10-2019, 12:33 PM
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Originally Posted by Roderick Femm View Post
Usually, traditionally, sex discrimination in employment had strictly to do with the identity of the person's sex, not because of something the person does, especially something they do outside of work.

Some examples of sex discrimination (one is still legal):

"You can't work on the assembly line, you're a woman."
"We don't promote women to management."
"I'll never vote for a woman for president."
"You can't be a nurse, you're a man." (I don't know if that one was ever a thing, but I wanted to give a little equal time.)

Some employers had (still have?) things like morality clauses in their employment contracts that did include activity outside of work, but that is a separate consideration from sex discrimination.
You have not answered the question.

You did, however, give me 4 examples of sex discrimination that fit the definition I proposed.

Religion is a protected class. A religion is something a person practices, not something innate about them. If you logically follow the implication of your suggestion, it should be legal to fire someone for practicing their religion even if they only do so outside the workplace?

Last edited by Snarky_Kong; 10-10-2019 at 12:35 PM.
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Old 10-10-2019, 01:19 PM
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My point is that once legislatures decide to write these laws, they readily include the broader categories. This lends credulity to the concept that it is the legislature, not the courts, that should make this determination. 50 years ago, they screwed up, out of ignorance. Nothing prevents them from correcting the error now. But do they want to?
The obvious counter to this is that 50 years ago, if they had thought about sexual orientation, they would have explicitly not applied the protections to people of non-hetero sexual orientations but through their ignorance they accidentally wrote laws that protected them.

This sort of thing is exactly what has been determined by courts in the past with respect to gender discrimination. The writers of the 14th Amendment certainly didn't think that they were writing a law that prevented states from making gender-discriminatory law, but it turns out that they did. Because they were a little too high-minded and used words like "person" and "citizen" to describe who got rights, which it's pretty hard to argue don't apply to women, regardless of the general state of societal misogyny at the time.

The way to determine which of these arguments prevails is not by looking at the language modern legislatures use. It's by looking at the words in the actual law, and what they mean, both historically and presently. The fact that future laws explicitly call out gender doesn't mean that the 14th Amendment doesn't apply to gender discrimination. Future legislatures should make it more clear exactly what rights are being granted to whom so that we can avoid the courts having to sort things out, but the failure of past legislatures to be explicit means that the court has to figure it out, not that we assume that the rights they granted are always as narrowly constrained as their minds might have been.

Last edited by iamthewalrus(:3=; 10-10-2019 at 01:19 PM.
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Old 10-10-2019, 01:24 PM
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...
4. I see no merit in the argument that firing a man because he is gay (i.e. loves men) is an instance of sex discrimination as compared to the treatment of a woman who loves men (i.e. is straight). ..
Well, she wouldn't be fired "because she is gay".
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Old 10-10-2019, 01:32 PM
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The way to determine which of these arguments prevails is not by looking at the language modern legislatures use. It's by looking at the words in the actual law, and what they mean, both historically and presently.
This argument never seems to work when it's pointed out that the 2nd could hardly have meant people were allowed to purchase modern firearms.
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Old 10-10-2019, 01:51 PM
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"You can't be a nurse, you're a man." (I don't know if that one was ever a thing, but I wanted to give a little equal time.)
A better example would be "You can't be a stewardess because you're a man." A stewardess was, by definition, female. In 1971, a Supreme Court decision forced airlines to hire stewards again. The switch to the flight attendant title came later.

Not that I agree with your basic argument, but I thought you might appreciate a better example.
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Old 10-10-2019, 01:54 PM
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This argument never seems to work when it's pointed out that the 2nd could hardly have meant people were allowed to purchase modern firearms.
My impression is that it works exactly the way I suggested. The courts have applied this sort of reasoning to the 2nd in a similar way. The word "arms" doesn't just mean "the sorts of guns that existed in the 1780s". Just as the words "nor deny to any person within its jurisdiction the equal protection of the laws." doesn't just mean "black men are full citizens", which is kinda what we assume the 14th amendment framers were thinking of. Because AR-15s are undeniably "arms" just as women are "persons".

But maybe one of us is misunderstanding the other's argument here?
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Old 10-10-2019, 02:23 PM
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I see no merit in the argument that firing a man because he is gay (i.e. loves men) is an instance of sex discrimination as compared to the treatment of a woman who loves men (i.e. is straight). Straightforward homosexuality is not the same as having a particular gender. On the other hand, being gender fluid or trans are directly related to gender, and for that reason I see an argument why those should be protected under Title VII.
My gut reaction is exactly the opposite of yours. Discriminating against people based on sexual orientation violates Title VII, but discriminating against people who change sex during the course of employment does not violate Title VII.

As Left Hand of Dorkness so eloquently explained, employer discrimination based on sexual orientation hinges entirely on the employer's determination of the employee's sex. Applying the exact same no-homosexuality rule to a person of one sex, versus if they were of the other sex, results in discrimination; therefore discrimination with a basis of sexual orientation is a kind of discrimination on the basis of sex.

A person who changes sex during the course of employment is entirely different. The rule in that case would be, if you change sex we can fire you. Applying that rule to a person of one sex, versus a person of another sex, gives no difference. There are valid reasons for the employer to make such a rule, especially (as in the case) if the employee is "the face" of the company. Advertising and business materials that use gendered pronouns will need to be changed. Customers will need to be informed that the person they built a business relationship has changed sex, which could be undesirable if the job qualifications are to present a static, unchanging personality.

However, saying we're firing you because this position is for men only and you're a woman now, that would be discrimination.

~Max
  #37  
Old 10-10-2019, 02:30 PM
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A person who changes sex during the course of employment is entirely different. The rule in that case would be, if you change sex we can fire you. Applying that rule to a person of one sex, versus a person of another sex, gives no difference. There are valid reasons for the employer to make such a rule, especially (as in the case) if the employee is "the face" of the company. Advertising and business materials that use gendered pronouns will need to be changed. Customers will need to be informed that the person they built a business relationship has changed sex, which could be undesirable if the job qualifications are to present a static, unchanging personality.
Under this standard, would firing someone who changes religions during their employment not be discriminatory based on religion?

I would argue that there's more to discrimination based on a protected category than having rules that can be equally applied. The point is that the rules shouldn't relate to the category at all unless there's a compelling reason.
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Old 10-10-2019, 02:42 PM
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Under this standard, would firing someone who changes religions during their employment not be discriminatory based on religion?
Most likely it would, sometimes it would not. The burden shifts to the employer to prove that it cannot reasonably accommodate the employee without incurring undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 65-66. I propose the same standard be used in cases of sex change.

~Max
  #39  
Old 10-10-2019, 04:09 PM
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My gut reaction is exactly the opposite of yours. Discriminating against people based on sexual orientation violates Title VII, but discriminating against people who change sex during the course of employment does not violate Title VII.

As Left Hand of Dorkness so eloquently explained, employer discrimination based on sexual orientation hinges entirely on the employer's determination of the employee's sex. Applying the exact same no-homosexuality rule to a person of one sex, versus if they were of the other sex, results in discrimination; therefore discrimination with a basis of sexual orientation is a kind of discrimination on the basis of sex.

A person who changes sex during the course of employment is entirely different. The rule in that case would be, if you change sex we can fire you. Applying that rule to a person of one sex, versus a person of another sex, gives no difference. There are valid reasons for the employer to make such a rule, especially (as in the case) if the employee is "the face" of the company. Advertising and business materials that use gendered pronouns will need to be changed. Customers will need to be informed that the person they built a business relationship has changed sex, which could be undesirable if the job qualifications are to present a static, unchanging personality.

However, saying we're firing you because this position is for men only and you're a woman now, that would be discrimination.

~Max
The interesting thing about this argument is that, in making it, the speaker is conceding that it is possible for a person to change their sex - which is a philosophical sticking point for a lot of the people who are opposed to giving trans people legal protections.
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Old 10-10-2019, 04:58 PM
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The interesting thing about this argument is that, in making it, the speaker is conceding that it is possible for a person to change their sex - which is a philosophical sticking point for a lot of the people who are opposed to giving trans people legal protections.
There has to be some basis for firing the person, defendants will have a hard time convincing the courts that they just randomly decided to fire her and that decision had nothing to do with a letter saying she was a woman, not a man. A dress code violation, perhaps.

I personally don't think people should assign their own sexes. At birth, someone else decides what sex you are. It makes sense to me to have some other state-sanctioned authority declare a sex change - the doctor who performs sex reassignment surgery, for example.

I'm unfamiliar with the case but if the employee had the relevant authority certify their change of sex, I don't really care whether the employer thinks sex change is philosophically absurd. Unless the funeral home is a religious institution exempt from anti-discriminatory provisions, they need to show that it would be unreasonably burdensome to accommodate the employee.

If the employee has not had the relevant authority certify a sex change, or such an authority doesn't exist in their jurisdiction (Tennessee or W. Virginia I believe), or they identify as female while still possessing male gonads, then we have a legal-philosophical issue which I am uncomfortable with the courts resolving.

~Max
  #41  
Old 10-10-2019, 05:26 PM
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Most likely it would, sometimes it would not. The burden shifts to the employer to prove that it cannot reasonably accommodate the employee without incurring undue hardship. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 65-66. I propose the same standard be used in cases of sex change.
The linked case (and thanks for that) seems not analogous to me.

At issue wasn't that the teacher had changed religions, it was that his religious practice required unreasonable accommodations.

For a more analogous situation, I'm imagining say, a salesperson who works in a region with a strong religious culture. He's part of the local megachurch community, as are much of his company's executives and some of the representatives of other companies that he does business with. He then converts to another religion. Can they fire him because he doesn't go to church on Sunday any more and they expect his sales to suffer?

He's not asking for any accommodations there. No extra days off. No prayer times. No special cafeteria food.

Would they be justified in firing or not hiring someone who was always the religion that this guy changed to because they assumed they wouldn't be as effective a salesman because he didn't go to the church potlucks?
  #42  
Old 10-10-2019, 05:26 PM
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As Left Hand of Dorkness so eloquently explained, employer discrimination based on sexual orientation hinges entirely on the employer's determination of the employee's sex. Applying the exact same no-homosexuality rule to a person of one sex, versus if they were of the other sex, results in discrimination; therefore discrimination with a basis of sexual orientation is a kind of discrimination on the basis of sex.
I have quoted just this part of your post because both you and Left Hand of Dorkness are simply stating your position without much in the way of supportive argumentation. You assert that discrimination based on sexual orientation is sexual discrimination because a man can't marry a man but a woman can marry a man. I have explained several times why that isn't a persuasive argument, but I haven't seen any actual rebuttal. The position you are stating is the position of the plaintiffs in the case before the Supreme Court but that's all it is, it is not a case. If you were the lawyer for the plaintiff and that's all you had to say to the court, I don't give much odds for your chances of winning.

Your position would change the definition of discrimination based on sex, which is exactly what the case is about. Yours is not a new insight. Have you nothing more persuasive to say in favor of it?
  #43  
Old 10-10-2019, 05:40 PM
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There has to be some basis for firing the person, defendants will have a hard time convincing the courts that they just randomly decided to fire her and that decision had nothing to do with a letter saying she was a woman, not a man. A dress code violation, perhaps.
I think you missed my point. Anti-trans bigots like to declare that it's impossible for someone to change their sex. It would be entertainingly ironic if, in their effort to treat trans people as second-class citizens, they had to argue that they had, indeed, changed their sex. Doubly so if, in making this argument, they end up getting the idea enshrined in constitutional law.

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I personally don't think people should assign their own sexes. At birth, someone else decides what sex you are. It makes sense to me to have some other state-sanctioned authority declare a sex change - the doctor who performs sex reassignment surgery, for example.
That's a faintly absurd requirement. Why would you think that's necessary?

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I'm unfamiliar with the case but if the employee had the relevant authority certify their change of sex, I don't really care whether the employer thinks sex change is philosophically absurd. Unless the funeral home is a religious institution exempt from anti-discriminatory provisions, they need to show that it would be unreasonably burdensome to accommodate the employee.
That seems like something that they should need to show regardless of whether there's any sort of sex-confirming authority involved in the process.

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If the employee has not had the relevant authority certify a sex change, or such an authority doesn't exist in their jurisdiction (Tennessee or W. Virginia I believe), or they identify as female while still possessing male gonads, then we have a legal-philosophical issue which I am uncomfortable with the courts resolving.

~Max
I'm not comfortable with the idea of anyone "resolving" this issue, since this isn't the sort of issue that decent people should need legal guidance about. But given that this country is hip-deep in unethical, immoral scumbags, I'll take whatever protections trans people can get, be it the courts or the legislature.
  #44  
Old 10-10-2019, 06:44 PM
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Usually, traditionally, sex discrimination in employment had strictly to do with the identity of the person's sex, not because of something the person does, especially something they do outside of work.
Historically, one of the more common forms of discrimination against women is pregnancy discrimination. It used to be pretty common that, if a woman got pregnant, she would be out of a job, under the assumption that a woman's "real" job is taking care of their kids, and they wouldn't be able to both work and do that - an assumption, obviously, that did not apply to their male co-workers when they had kids.

This seems pretty obviously a case of discrimination based on something a person did (fuck) outside of work (at least, hopefully.) So, I don't think your assertion here holds.

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Some examples of sex discrimination (one is still legal):

"You can't work on the assembly line, you're a woman."
"We don't promote women to management."
"I'll never vote for a woman for president."
"You can't be a nurse, you're a man." (I don't know if that one was ever a thing, but I wanted to give a little equal time.)
How is, "You can't marry a man; you're a man!" fundamentally different from any of these examples? It seems to fit the pattern you've established here perfectly.

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Imagine a company where there were plenty of people of all races but none with an interracial marriage, and then one employee marries someone of another race and gets fired. That's the kind of case I mean, where simple racial discrimination can't reasonably be alleged. I would be very interested to find such a case, and to study the decision.
Here's an example of a case where a white employee was fired because his boss didn't like the fact he was married to a black woman. The court found found for the plaintiff.

Here's another one where a woman was fired from her job at a church for marrying a black man. Can't find anything about how the case turned out, but it's notable that the defense wasn't, "It's legal to do that," but rather, "She was a bad employee."

Another lawsuit from someone who claims they were fired for interracial dating.

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Yours is not a new insight. Have you nothing more persuasive to say in favor of it?
It's worth noting here that, in Loving v. Virginia, the state argued (unsuccessfully) that their anti-miscegenation laws were constitutionally valid because they equally forbade white people from marrying black people, and black people from marrying white people.

So, maybe hold off on sneering at other people's "unoriginal" arguments until you've got something to say that wasn't thrown out of court more than fifty years ago?
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Old 10-10-2019, 08:08 PM
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It seems a stretch to me. Remember upthread where I said that gender fluid people and trans people probably have a better claim to gender protection than homosexuals? I think this falls under that.
I'm not a legal scholar, but it seems to me that I've cited a case where the court ruled for a plaintiff that was discriminated against not specifically because of her sex but because she didn't behave in a manner her employers felt appropriate for a woman. The court ruled that if gender played any part in the decision to render adverse actions against an employee that it was in fact gender discrimination. It seems logical to me that the only reason to discriminate against homosexuals is because their behaviors are viewed as unfeminine or not masculine. Expected gender roles are at the very heart of discrimination against homosexuals. You call it a stretch. I call it precedent.
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  #46  
Old 10-10-2019, 10:33 PM
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(snips) It's worth noting here that, in Loving v. Virginia, the state argued (unsuccessfully) that their anti-miscegenation laws were constitutionally valid because they equally forbade white people from marrying black people, and black people from marrying white people.

So, maybe hold off on sneering at other people's "unoriginal" arguments until you've got something to say that wasn't thrown out of court more than fifty years ago?
Thank you for the case references. I will study them.

Some other things worth noting:

You have mis-characterized my request for better arguments as "sneering." That sort of thing tends to devolve a debate into name-calling. I think you should know better, of all people. I think I have been fairly patient, but people keep saying the same thing over and over. Read the thread through again and tell me I'm wrong.

I didn't say the positions or the arguments were unoriginal, I said it was not a new insight that "a woman can marry a man but a man can't marry a man" sounds like discrimination on the basis of sex under Title VII. That's the claim in the Supreme Court case, is it not? Is that all they're going to say about it in front of the justices? What will their case be?

I have already argued that marriage is not a good analogy for employment. Legal marriage is bound around with laws from beginning to end, there is no legal marriage without legal permission to do so. The Loving decision and the decision about same-sex marriage were based on due process and equal treatment clauses in the 14th amendment. I suspect, not being a lawyer, that that is useless as a precedent for re-defining "discrimination based on sex" in Title VII. I have made this case earlier in this thread, I haven't seen anyone challenge it.

Let's be clear: of course it is discrimination, but I am not convinced yet that it falls under the proscription against sex discrimination contained in Title VII. That is the topic of the suit, and that is the topic of this thread.
  #47  
Old 10-10-2019, 10:49 PM
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(snip) Here's an example of a case where a white employee was fired because his boss didn't like the fact he was married to a black woman. The court found found for the plaintiff.

Here's another one where a woman was fired from her job at a church for marrying a black man. Can't find anything about how the case turned out, but it's notable that the defense wasn't, "It's legal to do that," but rather, "She was a bad employee."

Another lawsuit from someone who claims they were fired for interracial dating.(snip)
Again, thank you for these references. The first one is exactly what I was looking for, a decision by a Federal circuit court, which stated that firing due to inter-racial marriage was a form of racial discrimination and therefore protected under Title VII. The article refers to "associational discrimination" as the legal concept involved, if I understand that correctly. That seems to me to be an excellent precedent for the case we are discussing, and I only hope there have been more like that, including from other circuits, since 2008, and that the justices find it/them persuasive.

The other two are just news accounts of lawsuits, without any reference to how the cases were decided, and so not much use in this discussion. But the first one provides what I have been requesting and hoping for, some reason to believe that the Supreme Court might be willing to, in effect, expand the legal definition of sex discrimination in employment.
  #48  
Old 10-13-2019, 05:44 PM
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This entire thread is an incredibly good example of why "equality" is such a meaningless goal to the point it's almost absurd to legislate. "Homosexuals are equal, they can marry someone of the opposite gender like everyone else" is a statement that's not even wrong, really. It's damaging, and has some bigoted effects, but it's not on its face more or less wrong than "it's gender discrimination to disallow a man to marry a woman but not a woman." I'm coming around to the idea that Marx and Engels were right about equality just being a non-goal for various reasons, including this. Not ignoring marginalized people, of course, but improving their station without trying to define or enforce some nebulous "equality".

To be honest, while on some level of principle I agree this isn't really the supreme court's business to decide, and I recognize the risks in deciding in favor of this... I also don't care? Queer people need protections and there's a multi-pronged attack on multiple areas of government to try and get these. We got some under Obama via EOs (that Trump largely reversed), some via the SCOTUS in the past, and hopefully eventually some in the legislature. All of these are fragile for various reasons, but because of that I want it enshrined in as many branches as possible, for redundancy if nothing else.

Last edited by Jragon; 10-13-2019 at 05:46 PM.
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Old 10-13-2019, 05:49 PM
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I don't worry about the problem of an "activist court" because that ship has sailed long, long ago. In the present, the court is just another political branch of the government, quite obviously. This is a very bad thing for the country and hopefully it will change (and I think set terms, or some of the other ideas I've seen in which the SCOTUS must agree unanimously on new members, or something like that, might change this), but until it does, Democrats should push for this political branch to aid their goals, just like the Republicans do (and have largely been successful at).
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Old 10-13-2019, 06:01 PM
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I don't worry about the problem of an "activist court" because that ship has sailed long, long ago. In the present, the court is just another political branch of the government, quite obviously. This is a very bad thing for the country and hopefully it will change (and I think set terms, or some of the other ideas I've seen in which the SCOTUS must agree unanimously on new members, or something like that, might change this), but until it does, Democrats should push for this political branch to aid their goals, just like the Republicans do (and have largely been successful at).
Exactly so. Despite all the pedantry in this thread about what is and is not in the Constitution, conservative wingnut Neil Gorsuch has already expressed reservations about ruling in favor of LGBT employment rights because of the alleged "social upheaval" it would cause. Which is of course fundamentally misguided on two different grounds. One, it misses the fact that LGBT rights are now in the mainstream of social values, except only for narrow-minded fringe Bible-thumping zealots like himself. Second, he's unwittingly revealed himself to be thinking like a legislator and not a constitutional judge, because to a constitutional literalist it should never be within the purview of a Justice to think in terms of societal values and outcomes, but only in terms of the law as written. But yes, that ship sailed long ago. Citizens United and Heller were two of the most activist and constitutionally groundless decisions every ruled by the SCOTUS.
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