Circuit Split

The U.S. 7th Circuit Court of Appeals in Chicago ruled that anti-gay workplace bias is unlawful under Title VII of the Civil Rights Act of 1964, reversing an earlier decision from a three-judge panel. As the Washington Blade reports, in a 8-3 decision the court found “discrimination based on sexual orientation constitutes discrimination based on one’s perception of gender stereotypes, which the U.S. Supreme Court has determined is unlawful under Title VII.”

As I blogged last month, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled 2-1 that Title VII of the Civil Rights Act, which prohibits workplace discrimination based on a variety of factors including sex, doesn’t protect against workplace discrimination based on sexual orientation.

Unless the full 11th Circuit Court follows the 7th Circuit’s lead and reverses last month’s panel ruling, it Looks like this will be headed to the U.S. Supreme Court, where Justice Kennedy may again be the swing vote.

As I said before, Title VII has already been stretched so far beyond its original intent, to say it can be stretched no further seems arbitrary.

More. An interesting observation from The Volokh Conspiracy site:

The interesting opinion here is not the majority…. It’s Judge Flaum’s. He makes a novel and extremely clever argument (at least to me) to explain why discrimination against homosexuals is sex discrimination using mixed motive theory.

Title VII prohibits me from firing someone for a mix of good and bad reasons (“mixed motives”). So if I fire you because you’re a woman who is bad at your job, but don’t fire men who are equally bad at their jobs, I have violated the law–even though part of the reason for the firing is that you are bad at your job, a lawful (indeed, laudable) reason to fire someone.

Flaum’s innovative observation is to point out that firing someone for homosexuality means that I am firing them based upon TWO facts, not one: the person is 1. a woman who 2. is attracted to women. (Or 1. a man who 2. is attracted to men.) Voila– whether fact number 2 is a prohibited characteristic or not under the law is irrelevant, because firing someone based on fact number 1 is most definitely illegal, and firing someone for a mix of legal and illegal motives is also illegal.

Flaum’s a conservative’s conservative. When he is going out of his way to explain to conservatives the obvious errors of the “sexual-orientation-isn’t-sex” line of argument, it’s time to pack it in.

17 Comments for “Circuit Split”

  1. posted by Tom Scharbach on

    Unless the full 11th Circuit Court follows the 7th Circuit’s lead and reverses last month’s panel ruling, it Looks like this will be headed to the U.S. Supreme Court, where Justice Kennedy may again be the swing vote.

    The issue is likely to be settled by the Court if a split between the Circuits. I caution, however, that it may be two or more terms before the Court decides the case.

    Whether Justice Kennedy will be the swing vote depends on when the case is decided, and who is on the Court when the case is decided.

    If the Court then consists of the current Justices plus Gorsuch, then it is likely that Justice Kennedy will be the swing vote. If, on the other hand, the Court then consists of Chief Justice Roberts, Justices Alito, Gorsuch, Thomas, a Trump/Pence-appointed replacement for one of Justices Breyer or Ginsburg, plus the other current Justices, giving the Court a right-originalist majority, Justice Kennedy will likely find himself in a 5-4 minority.

    Elections have consequences. So do deaths. So do resignations.

    Who knows? Justice Kennedy may be the next Justice replaced. The man is 80 years old. Nobody lives forever.

    Reply
    • posted by Houndentenor on

      I’m not at all superstitious but I try to avoid even thinking about what another right wing appointee will do to the rights of women, gay people, trans people, minorities and employees. Every time I read a sob story about a Trump supporter who is getting screwed now, I think THIS IS WHAT YOU VOTED FOR YOU FUCKING MORON! It’s not that I don’t feel bad for them but there’s not a lot I can do but vote again in 2018. And most of them would vote for him again. You can’t help people too stupid to help themselves. This country is over. We’ll limp along but by the time we end this train wreck we will have fallen behind especially in science. The brain drain has already started and it’s about to escalate. We had a good run but it’s over.

      Reply
      • posted by Jorge on

        And most of them would vote for him again. You can’t help people too stupid to help themselves.

        There is a difference between right and wrong. It does not turn on whether or not something benefits you personally.

        Reply
      • posted by wilberforce on

        Conservatives aren’t the only morons. Liberals have ignored working class issues for 30 years, which is why they lost. And Ginsberg should have retired 10 minutes after Obama was elected, in favor of a 40 year old. And the Senate should have got rid of the filibuster at the same time, to put through Universal coverage. And on and on.

        Reply
  2. posted by Houndentenor on

    Most Americans think this is the law already anyway. And 3/4 of Americans are in favor of it. But because the religious right runs the GOP we can’t actually make this the law so we have to rely on the courts. No, that’s not how that should be but what are we going to do when a minority of voters get to decide for everyone else how things are going to be through Gerrymandering and the electoral college mess. So here we are. I’m happy with this outcome. This isn’t how I would have done it, but it got done. Maybe one day the GOP won’t be run by bigots and this country can finally move forward without the racism, sexism, homophobia and all the rest. I should live so long!

    Reply
  3. posted by TJ on

    The US Supreme Court is free to ignore the issue. Yes, they are more likely to take cases with split decisions, but its anyone’s guess when or if the USSC gets involved.

    In 1998, the USSC did say that workplace sexual harassment laws can apply to cases of same-sex harassment.

    Its hard to say if Congress (in writing the law) thought much about that sort of harassment. However, the decision didn’t generate too much notice – outside of a few employment law groups.

    Again. Liberals in Congress have generally been supportive of protecting gays from unfair discrimination, but moderates wanted to hold hearings and conservatives did

    Reply
    • posted by Tom Scharbach on

      The US Supreme Court is free to ignore the issue. Yes, they are more likely to take cases with split decisions, but its anyone’s guess when or if the USSC gets involved.

      The Court will probably decide the eventually if the Circuits split because the split will lead to differing policies state to state that have a substantive effect on businesses, employers, employees and gays and lesbians.

      Whether or not the Court will take up either the 7th Circuit or 11th Circuit decisions (assuming that the 11th doesn’t hear the case en banc and overrule the three-judge panel, as happened in the 7th), or wait until more circuits have weighed in, is anybody’s guess.

      Whichever happens, it is unlikely that the Court will decide the issue before the 2018-2019 Term at the earliest, and more likely the 2019-2020 Term.

      With Justices Breyer, Kennedy and Ginsburg as old as they are, it is more likely than not that one or more of them will have been replaced on the Court before the matter is decided. The Trump-Heritage Foundation list being what it is, that doesn’t bode well for us.

      Stephen seems to blithely assume that the Court will not have changed ideological composition when the issue is decided. Not likely.

      Reply
  4. posted by Jorge on

    With Justices Breyer, Kennedy and Ginsburg as old as they are, it is more likely than not that one or more of them will have been replaced on the Court before the matter is decided. The Trump-Heritage Foundation list being what it is, that doesn’t bode well for us.

    Naive person that I am, I actually think the Democrats’ filibuster of Gorsuch will end with the 60 vote mark to end debate retained and Gorsuch being confirmed, perhaps after a months-long filibuster.

    Silly me! I forgot that there are other Supreme Court nominations to consider.

    As I said before, Title VII has already been stretched so far beyond its original intent, to say it can be stretched no further seems arbitrary.

    That battle was fought and lost with quotas a long time ago.

    (They won at the Supreme Court.)

    So they did. And O’Connor’s swing vote even went conservative. Obama may have gone John Adams and appointed all these midnight appeals judges by breaking through the filibuster, but it won’t win results in the highest court.

    I think that’s enough for me.

    Reply
  5. posted by Tom Scharbach on

    I forgot that there are other Supreme Court nominations to consider.

    It is almost certain that the four oldest justices (Breyer, Ginsburg, Kennedy, Thomas) will be replaced by 2024, and (assuming that The Greatest President serves both those terms) that the Court will move markedly in a right-originalist direction.

    We are setting ourselves up for a repeat of the 1930’s, when a very conservative Court was at odds with the political direction of the American people.

    Reply
  6. posted by Jorge on

    An interesting observation from The Volokh Conspiracy site:

    Noted.

    And I am still opposed to sweeping penumbras. Keep the 1998 Scalia precedent in place!

    (That *is* the 1998 Scalia precedent! Perhaps we should count how many times Oncale is cited in this decision and that opinion!)

    Now that was fun. I can’t believe how lucky I am!

    Reply
  7. posted by Tom Scharbach on

    Flaum’s a conservative’s conservative. When he is going out of his way to explain to conservatives the obvious errors of the “sexual-orientation-isn’t-sex” line of argument, it’s time to pack it in.

    It might be sensible to wait until a Title VII case involving sexual orientation is heard by the Court before “packing it in”.

    Unless the case moves forward with extraordinary speed, that case is not likely to be decided by the Court until 2019 or 2020, and the composition of the Court at that time could be markedly different than it is at this time.

    Reply
  8. posted by Tom Scharbach on

    I am hesitant to declare (as Gene Volokh does) that “it’s time to pack it in” until the Supreme Court has decided the question because Judge Flaum’s opinion is an outlier, using a legal analysis that differs markedly from the majority opinion. I don’t know whether Judge Flaum’s reasoning has “legs” (that is, will influence other conservative judges), but I’m not sure that Judge Flaum’s opinion is relevant to the decision that will be made by the Supreme Court.

    At the heart of the case (and others like it) is what Congress meant by “sex” when it enacted Title VII, and whether or not the almost-certainly limited understanding of what “sex” meant in that context is relevant to the question of what “sex” means at this time in the context of Title VII.

    The 7th Circuit’s majority opinion, written by Judge Woods, is a direct, full-frontal rejection of originalist interpretation of statutes (that is, judges must read laws only as they were written, and understand the words only as the drafters would have understood them), and Judge Posner’s concurrence discusses this at length.

    Depending on the composition of the Supreme Court when the case is decided, the 7th Circuit’s majority opinion reasoning might be rejected out-of-hand.

    The Supreme Court currently is composed of three relatively strong originalists (Justices Alito, Gorsuch, Thomas), one semi-originalist (Chief Justice Roberts) and five non-originalists (Justices Breyer, Ginsburg, Kagan, Kennedy, Sotomayer).

    If any of the three at-risk non-originalists (Justices Breyer, Ginsburg, or Kennedy) are replaced by an originalist (from President Trump’s public list or otherwise) before the case is decided, Chief Justice Roberts becomes the “swing” vote and the prospects of a successful outcome are materially diminished.

    Reply
    • posted by Jorge on

      At the heart of the case (and others like it) is what Congress meant by “sex” when it enacted Title VII, and whether or not the almost-certainly limited understanding of what “sex” meant in that context is relevant to the question of what “sex” means at this time in the context of Title VII.

      Why is it that legislative intent is so important in Title VII, but wasn’t so important in Obergefell?

      Or did the courts have it that the status quo wasn’t discriminatory because the states didn’t intend to be discriminatory at the time, but a conscious effort to keep a nondiscriminatory status quo was discriminatory because that was based on animus?

      I think Judge Posner’s concurrence (though not even close to “straightforward”) is at least half-right in pointing out that a judge’s job is to interpret what the law says, in plain English, not to limit interpretation to what the law was once held to say by a limited set of eyes. (Where he goes spacey is in trying to explain why that is.)

      Have not read the majority opinion or dissent. Probably won’t.

      Reply
      • posted by JohnInCA on

        “Why is it that legislative intent is so important in Title VII, but wasn’t so important in Obergefell?”
        It isn’t.

        Call me a cynic if you want, but I have never read an “originalist” argument that didn’t coincidentally wind up exactly where the person wanted it to. It’s about as useful as tea leaves or a Rorsach test. It’s only useful insofar as it tells you what the person making it wants to see.

        Reply
    • posted by Jorge on

      Otherwise, how is the law to be useful to the public in our time?

      How can an anti-sodomy law have any use or meaning if it’s written one way, for everyone to follow, but only gays are punished for it? Is only gay sodomy really sodomy? I guess it’s possible to think that, but culture and language did not evolve so far.

      A law is on the books: sex discrimination is illegal. Workplaces hire lawyers to instruct them how to teach it to staff. But at the end of the day it is the employee who has to understand and follow it. “No, discrimination against gays is not protected.” A once straightforward law gradually becomes too confusing to understand and follow, and loses its ability to protect the public. Oh, people can be punished for breaking it, of course. They’ll be punished more often for breaking a law that the English language can no longer explain.

      Reply
  9. posted by Tom Scharbach on

    Tom: At the heart of the case (and others like it) is what Congress meant by “sex” when it enacted Title VII, and whether or not the almost-certainly limited understanding of what “sex” meant in that context is relevant to the question of what “sex” means at this time in the context of Title VII.

    Jorge: Why is it that legislative intent is so important in Title VII, but wasn’t so important in Obergefell?

    The Title VII question, which prohibits employment discrimination on the basis of “because of such individual’s race, color, religion, sex, or national origin”, turns on the question of whether “sex” includes “sexual orientation”.

    Originalists argue that because Congress clearly did not consider the question of sexual orientation when Title VII was enacted (the legislative history was confined to the question of whether to ban employment discrimination against women, and there was no discussion at all about sexual orientation) then the term “sex” cannot be interpreted to include “sexual orientation”.

    Non-originalists argue that the meaning of the term “sex” (in the context of non-discrimination law) from 50+ years ago is not dispositive, and the courts should look at the question of whether “sex” includes “sexual orientation” at this time, considering that changes in society, and the word’s meaning, necessarily means that the law must change. Whether or not the legislative understood or intended the full implications of the word “sex” in 1964 is irrelevant to a non-originalist analysis.

    As you put it: “Otherwise, how is the law to be useful to the public in our time?”

    The marriage equality cases did not involve a similar question.

    The language under consideration in those cases was straightforward (e.g. Wisconsin’s anti-marriage amendment reads: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.”) and the courts did not face the question of what the words “only a marriage between one man and one woman” meant.

    The question in the marriage equality cases was quite different — whether the clear language of the statutes and amendments involved violated the Equal Protection and Due Process clauses of the Constitution.

    Reply
    • posted by Jorge on

      The marriage equality cases did not involve a similar question.

      Yes they did.

      Obergefell involved a question over whether the Equal Protection Clause of the 14th Amendment permitted states not to allow gays recognition of out-of-state marriages in the same way they allowed straights that recognition. How relevant was it that the Equal Protection Clause could not possibly have been envisioned to hold that there is a distinction between straight marriages and gay marriages, and that the law must ignore that distinction?

      Similarly, these cases involved not just the anti-gay marriage laws of the 21th Century, but the legislation of every single state prior to it that did not permit marriage between two persons of the same sex. The correct way to strike down the former, if their anti-gay animus was truly so important, was to leave intact the status quo from the anti-gay marriage laws that were old enough not to suffer that taint. It wasn’t the anti-gay animus that was so important. It was the self-actualization of gays.

      And as I have said many times and I will say many times again, I don’t consider positive feelings to be so constitutionally important.

      Reply

Leave a Comment