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.
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 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.”
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.
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.
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.
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.”
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.