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.
|