Sunday, October 13, 2019

Title VII Applies to Sexual Orientation "Because of Sex"

      Five years before Stonewall, Congress passed a law prohibiting discrimination in the workplace "because of sex," with no thought about barriers facing gay men and lesbians in getting and holding jobs. Thus, the law, Title VII of the Civil Rights Act of 1964, did not explicitly cover discrimination based on sexual orientation or gender identity, phrases not even coined at the time much less in common use.
      As early as the 1970s, however, gay rights advocates began arguing in court that a law prohibiting discrimination because of sex necessarily applies, as a simple matter of statutory construction, to discrimination because of sexual orientation as well. At the Supreme Court last week [Oct. 8], the veteran LGBT rights advocate Pamela Karlan opened with a simple and irrefutable example to prove that point, but conservative justices resisted the necessary implication of their strict textualist approach to statutory construction.
      "When an employer fires a male employee for dating men but does not fire a female employee for dating men, he violates Title VII," Karlan explained. That discrimination is "because of sex," Karlan continued, because the employer's action "is based on the male employee's failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men."
      For most of the past 50 years, courts and the Equal Employment Opportunity Commission (EEOC) have found Title VII inapplicable to anti-gay discrimination on the ground that Congress in 1964 intended nothing beyond "traditional" notions of sex. Over the past 30 years, however, textualists led by the late Justice Antonin Scalia have insisted that words matter, not intentions, in the delicate judicial art of statutory construction.
      Courts stuck with this narrow approach even as the Supreme Court ventured beyond Congress's intent in decisions extending Title VII to issues unthought-of in the 1960s. The 9-0 decision in Meritor Savings Bank v. Vinson (1986) applied Title VII to a male supervisor's sexual harassment of one of the bank's female employees on the ground that the law was intended "to strike at the entire spectrum of disparate treatment of men and women' in employment."
      Three years later, the Court held in a 6-3 decision, Price Waterhouse v. Hopkins (1989), that Title VII also applies to adverse employment decisions based on an employee's failure to conform to gender stereotypes. The ruling allowed Ann Hopkins to sue after the accounting firm's male partners denied her a promotion because she was "too macho."
      A decade later, Scalia himself led a unanimous Court in extending Title VII even further. The ruling in Oncale v. Sundowner Offshore Services, Inc. (1998) applied Title VII to same-sex harassment suffered by the straight male plaintiff from his coworkers on an offshore oil rig. "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," Scalia explained in his opinion for the Court.
      The EEOC extended Title VII to anti-gay discrimination in a ruling in 2015 that favored a Federal Aviation Administration air traffic controller who was passed over for a promotion after mentioning to his supervisor that he and his partner had recently attended Mardi Gras celebrations in New Orleans. "We don't need to hear about that gay stuff," the supervisor reportedly told him.
      "Sexual orientation is inherently a sex-based consideration," the EEOC stated in its 17-page opinion in Baldwin v. Fox. "An allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."
      The gay plaintiffs in the two cases argued before the Court, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, were both fired after they were outed, inadvertently, by circumstances. Gerald Bostock was fired from his job as a child welfare specialist in Clayton County, Georgia, after the local gay paper showed him playing in the gay softball league. Donald Zarda was fired from a New York skydiving company after he tried to reassure a female student by telling her that he was 100 percent gay.
      The federal appeals court in New York ruled in Zarda's favor, but the federal appeals court in Georgia in Bostock's case stuck with the majority view that Title VII permits anti-gay discrimination. The EEOC gave both of the plaintiffs right-to-sue letters, but the agency was unheard from in either of the cases or a third case, Harris Funeral Homes v. EEOC, seeking to apply Title VII to protect transgender employees.
      With no independent litigating authority, the EEOC was sidelined by the Trump administration's decision to support the discriminating employers in the three cases. Representing the administration, Solicitor General Noel Francisco began simply but misleadingly, "Sex means whether you're male or female, not whether you're gay or straight."
      Two of the liberal justices, Sonia Sotomayor and Elena Kagan, hoisted Francisco on his textualist petard. "The text of the statute appears to be pretty firmly in Ms. Karlan's corner," Kagan told him. But Francisco gained ground with two of the conservatives, Samuel A. Alito Jr. and Neil Gorsuch, by warning that it would be "pernicious" for the Court to extend Title VII beyond what Congress intended.
      Alito and Gorsuch worried about "massive social upheaval" from a judicial ruling to extend Title VII to anti-LGBT discrimination. Oddsmakers were hedging their bets after last week's arguments, but take pity on the law clerks in the conservative justices' chambers assigned to show that sexual orientation has nothing to do with sex.

Sunday, October 6, 2019

Trump Off the Rails on Impeachment

      President Trump is now conceding that the House of Representatives is all but certain to impeach him by Thanksgiving for the high crime of soliciting foreign assistance to benefit him in his bid for reelection next year. His inability to control or manipulate events has driven the distractible Trump to new heights of distraction, even to the point of adding to the articles of impeachment by publicly soliciting China's help on Thursday [Oct. 3] in digging up dirt on his political rival, former vice president Joe Biden, and Biden's global business-dealing son Hunter.
      The president's defense strategy appears to turn on how he feels any given day and, recently, he has not been feeling well at all. Trump was "as riled up as any time in his presidency," according to the New York Times's senior White House correspondent Peter Baker, when he called on China as the second foreign country that should investigate Hunter Biden's business dealings for unspecified wrongdoing.
      On Capitol Hill, Florida's Republican senator Marco Rubio, the former Trump rival turned Trump lapdog, had no better answer to Trump's latest high crime than to insist that he was not serious. China, apparently, agreed; Beijing responded to Trump's veiled threat to step up the trade war unless it bowed to his demand by saying that it would not interfere in the U.S. election.
      Meanwhile, the email traffic between administration officials in Washington and embassy personnel in Kyev confirmed what Trump had initially denied until eventually defending as completely proper. The text exchanges, as shown on cable news programs and in the pages of the New York Times and other newspapers, show that the White House was slow-walking President Volodymyr Zelensky's hoped-for White House meeting until he delivered on the asked-for investigation of Hunter Biden's role in the Ukrainian natural gas company Burisma.
      With the former ambassador, Marie Yovonovitch, removed because she would not cooperate, it was left to the embassy's chief of mission, Bill Taylor, to try to make sense of the demands from Washington. "Are we now saying that security assistance and WH meeting are conditioned on investigations?" Taylor asked in a Sept. 1 text message. Eight days later, he put his objections into writing. "As I said on the phone," Taylor wrote in a Sept. 9 text, "I think it's crazy to withhold security assistance for help with a political campaign."
      It bears repeating that the risk of foreign influence on the new government was the very danger that led the Framers in 1789 to give Congress a method for removing the president. Only now, 230 years later, has the fear materialized. "We have never seen the president of the United States using his foreign policy power for his own political advantage," Mieke Eoyang, a former staff director for the House Intelligence Committee, remarked in a briefing sponsored by the progressive American Constitution Society (ACS).
      Trump continues to deny and to dismiss as unimportant Russia's documented interference in the 2016 election benefiting him by publicizing Hillary Clinton's emails and spreading cybersmears about her among targeted population groups and in targeted battleground states. In Moscow, the Russian president Vladimir Putin was pursuing this strategy eagerly, as one of several initiatives aimed at destabilizing Western democracies that he views as obstacles to Russia's rightful place in the world.
      Ukraine, on the other hand, had no interest in U.S. politics except its own sovereignty and transparency, but the emails before Trump's infamous July 25 telephone call with Zelensky make clear the pressure on him to bow to Trump. "I spike [sic] directly to Zelensky and gave him a full briefing," Gordon Sondland, U.S. ambassador to the European Union, wrote six days before the phone call. "He's got it."
      With the phone call concluded, the U.S. diplomats set about drafting the actual statement that Zelensky was to use in announcing the requested investigation. For Trump's lackeys, it was not enough that Ukraine had lost part of its territory to Russia; it also had to be turned into an actual client state for Trump to control.
      Trump's substantive defense to the looming charges against him consists mostly of confusion and deflection, according to Michael Gerhardt, the University of North Carolina law professor and author of Impeachment: What Everyone Needs to Know. Trump and House Republicans are insisting that House committees cannot conduct an impeachment inquiry without a formal House vote first. Not so, Gerhardt remarked in the ACS briefing. "The fact is that all the procedures are being properly followed," he said.
      In the meantime, Trump has hurled denunciations right and left. The still unidentified whistleblower is a spy in Trump's telling and perhaps deserves the punishment once reserved for spies, an apparent reference to execution. Trump is demanding the whistleblower's identity, in contravention of the law guaranteeing whistleblower confidentiality. As the law's main author, Iowa's senior Republican senator Charles Grassley broke GOP ranks over the issue. "We should always protect whistleblowers," Grassley said in a statement on Tuesday [Oct. 1].
      Judging from his conduct so far, Trump is all but certain to go even further off the rails as the House moves toward impeachment and the articles, however many there be, move toward trial in a Senate controlled by Trump-fearful Republicans. Trump is counting on division, just as he did in his campaign. "He's making it clear," MSNBC's Chris Matthews remarked on Hardball last week. "If he's going down, he's taking the country with him."