Federal Appeals Court Rules In Favor Of Job Protections For Gay Workers
April 4, 2017 4:34 PM Subscribe
Today, the Seventh Circuit (en banc) ruled that Title VII of the Civil Rights Act of 1964 covers employees based on their sexual orientation. Both the 11th and 2nd Circuits have recently ruled that Title VII does not cover LGBT rights at work, possibly setting up for an eventual SCOTUS showdown.
The plaintiff in the 7th Circuit, Indiana math teacher Kimberly Hively was fired from her job in 2014, five years after an incident where someone reported seeing Hively kiss her girlfriend goodbye in a car in the campus parking lot.
Previously
The plaintiff in the 7th Circuit, Indiana math teacher Kimberly Hively was fired from her job in 2014, five years after an incident where someone reported seeing Hively kiss her girlfriend goodbye in a car in the campus parking lot.
Previously
Just posted this comment in the current megathread where this come up, but I figure it's worth mentioning here too: Judge Posner's concurring opinion (pp. 24-34) is well worth reading there, for articulating a judicial philosophy that has implications far beyond this particular case. It could almost be its own essay titled "Against Originalism." He mounts a strong defense of what he calls "judicial interpretive updating" (and which tends to be called "judicial activism" by people who disagree with it, although Posner does not mention that phrase himself) and notes that even judges who have a strong reputation for being originalists, such as Justice Scalia, have engaged in judicial interpretive updating.
posted by DevilsAdvocate at 4:52 PM on April 4, 2017 [7 favorites]
posted by DevilsAdvocate at 4:52 PM on April 4, 2017 [7 favorites]
Yeah, I'm not buying much of Posner's "simpler" argument. Particularly this bit:
The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman. That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian. I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.
The problem with this logic is that it either captures far too much or far too little. Suppose that the counterargument is (as it is in this case, naturally,) "oh, but it's not like we're discriminating against women, because we're just discriminating against homosexuals, regardless of their gender." That leaves Posner in a bind. Either he's wrong that this is sex discrimination, or he's just claimed that literally any classification is sex discrimination, so long as it can be separated into a pair of discrete, sexed classifications: that is, it would be sex-based discrimination to refuse to hire women who are "in the subset of women who can't perform their job functions in a manner which does not pose a safety hazard to themselves or others," (to pick a deliberately ludicrous example,) including in cases where the business also refuses to hire men similarly situated. In other words, Posner's logic is completely specious, and fails to capture even the faintest hint of the issues at stake in the case. Contrast with the majority opinion, which hits the nail on the head:
It is critical, in applying the comparative method, to be sure that only the variable of the plaintiff’s sex is allowed to change. The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once. Framing the question that way swaps the critical characteristic (here, sex) for both the complainant and the comparator and thus obscures the key point—whether the complainant’s protected characteristic played a role in the adverse employment decision. The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.
Trust Posner to take an opportunity like this to toot his own horn, though.
posted by fifthrider at 5:11 PM on April 4, 2017
The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman. That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian. I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.
The problem with this logic is that it either captures far too much or far too little. Suppose that the counterargument is (as it is in this case, naturally,) "oh, but it's not like we're discriminating against women, because we're just discriminating against homosexuals, regardless of their gender." That leaves Posner in a bind. Either he's wrong that this is sex discrimination, or he's just claimed that literally any classification is sex discrimination, so long as it can be separated into a pair of discrete, sexed classifications: that is, it would be sex-based discrimination to refuse to hire women who are "in the subset of women who can't perform their job functions in a manner which does not pose a safety hazard to themselves or others," (to pick a deliberately ludicrous example,) including in cases where the business also refuses to hire men similarly situated. In other words, Posner's logic is completely specious, and fails to capture even the faintest hint of the issues at stake in the case. Contrast with the majority opinion, which hits the nail on the head:
It is critical, in applying the comparative method, to be sure that only the variable of the plaintiff’s sex is allowed to change. The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once. Framing the question that way swaps the critical characteristic (here, sex) for both the complainant and the comparator and thus obscures the key point—whether the complainant’s protected characteristic played a role in the adverse employment decision. The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.
Trust Posner to take an opportunity like this to toot his own horn, though.
posted by fifthrider at 5:11 PM on April 4, 2017
I'm not terribly sure I want any LGBT issues being forced before the SCOTUS for the next while, really.
posted by hippybear at 1:25 AM on April 5, 2017 [5 favorites]
posted by hippybear at 1:25 AM on April 5, 2017 [5 favorites]
This ruling is enormous. Correct me if I'm wrong, but isn't this the first time there's been any sort of national-level equal rights protection for LGBTs? I mean we sort of got there with Marriage Equality, but that affirmation of civil rights was very narrowly focused to the institution of marriage. Employment has a much broader impact, and it seems like the argument could be extended to other domains of protection like housing.
posted by Nelson at 8:57 AM on April 5, 2017
posted by Nelson at 8:57 AM on April 5, 2017
The problem with this logic is that it either captures far too much or far too little. Suppose that the counterargument is (as it is in this case, naturally,) "oh, but it's not like we're discriminating against women, because we're just discriminating against homosexuals, regardless of their gender." That leaves Posner in a bind. Either he's wrong that this is sex discrimination, or he's just claimed that literally any classification is sex discrimination, so long as it can be separated into a pair of discrete, sexed classifications: that is, it would be sex-based discrimination to refuse to hire women who are "in the subset of women who can't perform their job functions in a manner which does not pose a safety hazard to themselves or others," (to pick a deliberately ludicrous example,) including in cases where the business also refuses to hire men similarly situated.
I don't think you've got the argument quite right, here. As I read it, the point he's trying to make is that being a lesbian is as much a born, inherent characteristic as being a woman, and worthy of the same protection. And that, further, we have as a society come to recognize that discriminating against women for failing to conform to traditional gender roles is just as much sex discrimination as discriminating against women for being women in the first place, and that being a lesbian absolutely non-conforming to a traditional gender role.
I think the response to "We're discriminating against homosexuals, regardless of their gender" under Posner's model there would be "well you're engaging in multiple different kinds of illegal sex discrimination then".
posted by kafziel at 1:51 PM on April 5, 2017
I don't think you've got the argument quite right, here. As I read it, the point he's trying to make is that being a lesbian is as much a born, inherent characteristic as being a woman, and worthy of the same protection. And that, further, we have as a society come to recognize that discriminating against women for failing to conform to traditional gender roles is just as much sex discrimination as discriminating against women for being women in the first place, and that being a lesbian absolutely non-conforming to a traditional gender role.
I think the response to "We're discriminating against homosexuals, regardless of their gender" under Posner's model there would be "well you're engaging in multiple different kinds of illegal sex discrimination then".
posted by kafziel at 1:51 PM on April 5, 2017
And with Gorsuch getting into the court, and after reading this, I'm REALLY not wanting any LGBT issues to work through the courts for a while.
posted by hippybear at 1:23 PM on April 7, 2017
posted by hippybear at 1:23 PM on April 7, 2017
« Older As well as a CGI kangaroo that sings "Rapper's... | A tweet pretends to be 140 chars, but a toot is... Newer »
This thread has been archived and is closed to new comments
posted by Freedomboy at 4:43 PM on April 4, 2017 [6 favorites]