UPDATE ... this past week I posted about _____’s DOJ getting involved in a case about a gay man being fired for being gay and coming down on the side of the employer ... meaning the _____ Administration is fine with gay folks being fired for being gay.
Well, it looks like the DOJ got smacked down somewhat by the court after EEOC attorney Jeremy D. Horowitz explained why “sexual orientation cannot be separated from sex”:
1. The “but-for” theory ... argues that anti-gay discrimination qualifies as sex discrimination because, but for the gay person’s sex, he would not suffer discrimination.
2. The sex stereotyping theory ... SCOTUS ruled that sex stereotyping—punishing a worker for her failure to conform to gender norms—is a kind of sex discrimination. At first, courts only applied sex stereotyping to masculine women and feminine men, but the Seventh Circuit Court explained that gay people are “the ultimate case of failure to conform” to sex stereotypes, since men and women are typically expected to date only individuals of the opposite sex.
3. The associational sex discrimination theory ... holds that anti-gay bias constitutes sex discrimination much like anti-miscegenation laws constituted race discrimination.
That set up Assistant Attorney General Hashim Mooppan—arguing to legalize discrimination—to make his case ... which did not go well.
Chief Judge Katzmann wanted to know why the DOJ didn’t defer to the EEOC on Title VII, as it almost always does and Mooppan said it was because the DOJ was the nation’s “largest employer” and had an interest in retaining its capacity to fire gay people for being gay. Then as Judge Katzmann began asking more questions about interactions between the EEOC and the DOJ Mooppan declined to answer, basically Pleading the Fifth, which did not sit well with the court.
It was a terrible start for Mooppan, and it only went downhill from there because, as he explained: sex discrimination must always involve a belief that one sex is inferior to the other. Anti-gay discrimination does not rest on such a belief, and so it is not sex discrimination.
That theory is ridiculous for a few reasons, though, as the court pointed out, the most obvious one is that decades of case law disprove it. The Supreme Court has never held that an employer must express animus toward one sex in order to violate Title VII but need only take sex into account in any adverse employment action to run afoul of the law.
Judge Jacobs asked Mooppan whether he can refute the EEOC’s associational discrimination theory and its parallel to interracial and interfaith marriage, and Mooppan responded:
“When you discriminate against interracial marriage, you are promoting racial superiority. When you discriminate against interfaith marriage, you are promoting religious superiority. That makes the comparison to homosexuality moot.”
Except, to the judges it seemed to make the EEOC’s stance true that the DOJ was peddling a “radical reinterpretation of Title VII.”
The arguments concluded, but because of Mooppan’s refusal to answer certain questions, and the fact that his own arguments seemed to support the other side, it looks like the court might rule in favor of the EEOC and disallow the idea that it’s perfectly acceptable to fire someone for being gay.
Fingers crossed; we may have dodged a bullet.
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bless carlos; he has a good attitude!
ReplyDeletescalise & murphy & mooppan & the dump are YUGE asshats!
nikki haley is a YUGE asshat for voting NO on gay murder!
I never got to see tom petty in concert; he was only 3 years older than I am; RIP.
LOVE the last tweet!
"... and the United States of America.
ReplyDeleteYes, we did. We voted not to condemn countries that give gay people death for being gay."
Some leader of the free world we are.
Carlos is da bomb, and apparently so is that microwaved dinner!
ReplyDeleteTim Murphy, ugh! Beauty is only skin deep but ugly goes clear to the bone. He doesn't even have the skin deep part.
I guess a hurricane that wipes out an entire island isn't a real catastrophe according to the almighty Cheeto. Again, ugh!
There's so much to say, but I'm trying to learn to be brief. For me, this is brief.
xoxoxox to Carlos!
ReplyDeleteYou and Carlos together are pure gold!
ReplyDelete@deedless - what self-respecting woman (or man) would WANT to screw tim murphy? thank the dogs and cats this sleazebag is at the western end of PA!
ReplyDeleteCarlos is wise to use that white cane. When I was in university, I had a blind friend who I went Christmas shopping with one December. She held my arm but also had her white cane out. Man, that white cane parted the crowds like Moses and the Red Sea! I've never had such a relaxed and easy Christmas shopping experience in my life, LOL!
ReplyDelete@anne marie, thank you so much for the reappearance of my breakfast (CA here)! I'd screw him, head first, into the ground, with one of those big thingies used for drilling oil.
ReplyDeleteCarlos we love you.
ReplyDeleteJP&G
Carlos still has a sense of humor...he is something.
ReplyDeleteAnd that Tim Murphy is a creepy looking bastard isn't he???
The truth is Tim Murphy is about as attractive as an old dishrag, and what makes him truly disgusting is he was jumping on the abortion train before she'd even known for sure she was pregnant.
ReplyDeleteBob! I know I don't visit as often as I used to, but this is the first I've heard about Carlos! I am so sorry to hear this. I just Googled RP ... This is not good. Please know I am sending you both a ton of love through the ether.
ReplyDeleteLUV TO YOU BOTH
XOXOXO
Deb
All I can do is focus on you and Carlos today... because that makes me happy. He's damn right he cooked for you. That's more than Jerry gets from me lately. Tell Carlos I'm sorry; that's the last time I'll have sex under a black moon.
ReplyDeleteAnd then Scalise went and voted on an anti-LGBT matter despite being saved by a Lesbian officer - perhaps he'd have preferred to die?
ReplyDelete@AM
ReplyDeleteCarlos does have the best attitude.
And Petty was sooooo good live!
@Debbie
Thanks! Carlos has the most remarkable outlook so we're doing just fine. He can still do all the things he loves to do and that's a huge plus.
@Kirk
Right? The US of A!
@Deedles
No need for brevity; clearly I don't follow that rule!
@TDM and Joe
Thanks!
@Debra
I agree; sometimes the cane is for the sighted people coming near you.
@JP
Everybody loves Carlos, that bastard! =)
@MM
Carlos is something, and something else!
@Dave
Murphy is a typical GOP hypocritical tribe member.
@Mitchell
Okay, for the sake of argument we'll call it cooking! And yes, no more Black moon sex for anyone, i guess!
@Helen
Scalise, like Murphy, is a hypocrite.