Big ruling: seventh circuit decides sex discrimination includes sexual orientation discrimination

The key language is this:

Framing the question that way yields a finding a of sex discrimination.

As devil’s advocate, the argument in opposition to this approach is that the court’s counter-factual doesn’t actually keep everything else the same. The counter-factual changes not just the plaintiff’s sex but the plaintiff’s sexual orientation as well – in the hypothetical, “he” is no longer a woman and he is no longer gay. Arguably, the court is assuming away the central question.

Not sure which way the Supreme Court might go with this case, but there is now a split of opinion between two courts of appeals, so it is the sort of dispute that he Supreme Court is especially likely to take up.

I’ve decided it’s helpful sometimes to have an anti-Bricker around, so here it is: I don’t have an opinion on the process, but the outcome is definitely correct.

Maybe in the long run there’s another outcome having to do with overreaching judiciary, but two cliches suffice to answer this:

  1. Justice delayed is justice denied; and
  2. In the long run we’re all dead.

Good work, court!

The woman was fired for being gay but the court found that if she had not been gay she would not have been fired. The reason she was fired was not that the employer found the lover to be objectionable but the employer found the gayness to be objectionable. If the employee had been a gay man instead of a lesbian should have been the proper hypothetical. If the answer was a gay man would have been fired then the case was decided incorrectly.

That sounds like a distinction without a difference – akin to “fired for not being white rather than fired for being black”, or “fired for having skin darker than a paper bag rather than fired for being black”.

I think the court decision is for the best, although I can see the argument that public opinion is not best swayed by government telling private business how to operate. In the case of those bakers, if the government makes them serve gay couples, but they still disapprove of SSM, are you actually effecting social change? It seems more like sweeping it under the rug.

You’re missing the point of the argument.

Person A is a lesbian (woman). This means she has sex with women.

Person B is a “straight” man. This means he has sex with women.

What is the difference between these two people? Hint: it’s not who they are having sex with.

Since the only difference between the two is their gender, firing A for her sexual partner preference and continuing to employ B despite his is clearly discrimination on the basis of the gender. The fact that the reason for this discrimination is a societal viewpoint regarding “proper” sexual preference (as noted by the terms used for those who are “gay” and those who are “straight”) is irrelevant in this legal argument.

Now, I’m not saying that this legal argument is clearly valid, or even the best way of looking at the case. I also am not saying that it has greater (or lesser) validity when discussing Title VII than when addressing constitutional questions under the 14th Amendment. But if one is to attack the argument, one cannot do so simply by asserting that a different distinction should be drawn, as you appear to be doing.

That’s not exactly it; the court held that if she were a heterosexual man, she would not have been fired.

That’s certainly the way the court framed it, but again, there are two differences – their gender and their sexual orientation.

But there are two variables in your example: “your sex” and “who you sex”

So we have four possibilities:

  1. Man who sexes Women
  2. Man who sexes Men
  3. Woman who sexes Women
    4 Woman who sexes Men

At Homophobe Corp., Person 2 and 3 get fired, while Person 1 and 4. I can’t see that as “clearly discrimination on the basis of the gender” of anyone. Or, at the very least, with respect to any particular employee, the relevant factor is not that employee’s sex, but someone else’s sex (i.e., the sex of their partner). There is a parallel to interracial relationships–i.e., if you fire a white employee because they have a black spouse, is that discrimination on the basis of race? Google tells me that there’s a second circuit case from 2008 that says is it. (Which suggests that it’s not a well developed issue, but I honestly don’t know).

Not surprisingly, I think that the dissent has the better of the argument here. But the sex-stereotyping cases create a real tension (for me), so maybe the court’s reading the interpretative tea-leaves correctly. The argument that discrimination against homosexuals is “sex-stereotyping” in violation of Price Waterhouse because a “real” man dates women (and vice versa) makes a great deal of sense to me.

Let’s remix it slightly.

So we have four possibilities:

  1. Man who wears pants.
  2. Man who wears a skirt.
  3. Woman who wears pants.
    4 Woman who wears a skirt.

Would you argue that a company who fired persons #2 and #3 wasn’t engaging in sex discrimination?

I disagree. I don’t see any evidence that segregation was disappearing on its own or was heading in that direction. Segregation had lasted for a hundred years and I think it would have lasted for a hundred more if it had been let alone. It seemed strong right up to the end and plenty of people fought to preserve it at the time.

I do see your point. There is a real cost to government actions like this. People were forced to do things they didn’t want to do and that was a genuine loss of liberty.

But I feel the cost was worth what was gained. The loss of liberty suffered by people who wanted to discriminate was significantly less (and in my opinion less valuable) than the loss of liberty suffered by people who were discriminated against.

As for the philosophy, I’ve always felt that when theory and reality are in conflict, it’s theory that has to give way.

You’re focused on identity. Think of this instead as an issue of behavior.

You have a behavior. One person is fired for engaging in this behavior. Another person is not fired for engaging in this behavior. This is unequal treatment of these two people.

If the behavior has a negative impact on job performance, both should have been fired. If it has no impact on job performance, neither should have been fired.

If it’s not, then how the heck else does a court strike down a ban on interracial marriage? If the legislature tells a white guy he can’t marry a black woman, and he says “Aw, you’d totally let me marry her if I were a black guy,” – why, folks could reply that, “Well, yeah, but you’re a white guy who wants to marry a woman of another race. The relevant comparison would be a black guy who wants to marry a woman of another race, and, hey, rest assured: we’d slap that attempt down too.”

But that reply doesn’t work; bans on interracial marriage get struck down. Why?

Bans on interracial marriage fit into a race-discrimination analysis because they arose from a specifically racial animus – the pernicious view that the white race was superior and that others, particularly black people, were inferior. Fitting sexual orientation discrimination into a sex-discrimination context is trickier because it doesn’t carry with it a similar animus toward one sex or the other. The employers of the gay woman who was the plaintiff in this case weren’t discriminating against her because they’re troglodytes who think women are inferior; they were doing it because they’re troglodytes who hate gay people.

By the way, the court’s reasoning (“The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same…”) also implicitly mandates facilities equality. It would appear, for instance, that a company cannot discipline a female employee for using the men’s restroom or locker room (or vice versa), because under a counterfactual situation that holds everything the same except that the employee is a man, then the employee would not have faced discipline for using the men’s facilities.

Well.

Kudos to Judge Posner for brutal honesty:

This goes directly to the question I always ask: what is the proper role of judges?

I don’t agree with Posner’s sense that this is the proper role of judges in a representative democracy, but I admire the hell out of his willingness to forthrightly declare that this is his philosophy and he’s using it here.

So the answer is: if you agree that the federal judiciary has a role in carrying the burden of updating old statutes, and avoiding statutory obsolescence, then it’s fair to say the Seventh got it right.

I argue that unelected judges don’t have such a role. Updating old statutes and avoiding statutory obsolescence is the proper burden for Congress.

There are two questions. One is, “Are you firing a woman for doing something that another woman doesn’t do?” In general, that’s an okay thing to do. But the other question is, “Are you firing a woman for doing something that you wouldn’t fire a man for doing?” In general, that’s not an okay thing to do.

In this particular case, both things were happening. If an action is allowed under one analysis, and the exact same action is forbidden under another analysis, it’s forbidden.

This is a general truth. In my classroom, I allow students to write creative letters to one another. I forbid students from saying cruel things about one another. A letter that a student writes, calling another student a Filthy Old Swan*, is allowed under the first analysis and forbidden under the second analysis. Therefore it’s forbidden.

  • incidentally what my four-year-old called her teacher yesterday, to follow up on previous shouts of “scoundrel” and “scalawag.” I’ve never been so conflicted in my life.

And what do we do when Congress refuses to do so or is incapable of doing so?

Form does not outweigh substance.

This is like saying someone arrested for bestiality is being arrested for the crime of not being a dog.
If the company fires lesbians and not gay men that is sexual discrimination, if they fire both that is sexual preference discrimination.

If the man wasn’t fired for having sex with a dog, but the woman was, your analogy might work. As it is, not so much.

I don’t see it as updating old statutes. I see it as applying the old statutes to new situations (even if those situation technically existed in the past but were ignored).

It’s no different that saying the First Amendment covers the internet and the Second Amendment covers automatic weapons.