US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
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27-07-2017, 01:24 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 01:14 PM)abaris Wrote:  
(27-07-2017 11:45 AM)Emma Wrote:  The US Department of Justice has filed a brief arguing that Title VII of the Civil Rights Act does not protect sexual orientation:

I'm not American, but even I know who's presiding over that office and what he's known for. So, what did you expect?

I expected exactly this sort of behavior, and I'm disappointed to see that my expectations are being met.

I'm not surprised by this position by any means. But it's still worth noting that it's happened and that it's really only the beginning. I see this position on the law as setting the standard for how the DOJ intends to treat LGBT people in the coming years.
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27-07-2017, 02:27 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 01:19 PM)morondog Wrote:  Who was that acting DOJ person whom Trump fired for refusing to enforce his bullshit Muslim ban? Sally someone. She was obviously replaced with some groveller with no integrity.
Trump created a swamp and brought along his favourite swamp creatures.
It was a self fulfilling prophecy.
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27-07-2017, 04:19 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
Whether or not statute protects employment, the 14th Amendment guarantees all Americans equal protection under the law, and that includes employment law as well, I would think. CRA 1965 established precedence for the Feds to regulate employment discrimination. For the Feds to thereafter set aside one discriminated class as not being protected would seem to violate 14A.
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27-07-2017, 04:55 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
A friend sent me this and said he was mortified now, ashamed that he didn't vote last Nov. It's one way to learn, I guess.
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27-07-2017, 05:51 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 04:19 PM)Thumpalumpacus Wrote:  Whether or not statute protects employment, the 14th Amendment guarantees all Americans equal protection under the law, and that includes employment law as well, I would think. CRA 1965 established precedence for the Feds to regulate employment discrimination. For the Feds to thereafter set aside one discriminated class as not being protected would seem to violate 14A.

No, that's not right.

The US Constitution and the subsequent Amendments apply only to governments and their actions, not private employers. So, employment discrimination by a federal or state government is, arguably, a violation of the 14A. But, if you're local hardware store says they are not hiring gays, then, absent a state statute, you're shit out of luck.

Btw, I say "arguably" on the government side because SCOTUS had previously ruled that homosexuals are not a protected class under the 14th Amendment. I have not read the opinions that granted nationwide marriage equality so I'm not sure if the Court has since added them as a class. But, given that it took specific actions by Obama to stop discrimination against gays by government contractors (which Trump was either threatening to overturn or did overturn - can't now recall), I'm inclined to think they did not.

The solution to this problem is an act of Congress. Asking the courts to remedy what Congress has not is never a great solution. And, given how polarized Congress is, it's almost better to fight it at state levels.

Anyway, the legality of all this aside, it's fucking unfathomable to me that it's 2017 and we are still debating who has rights in this country and who does not. Everyone does. Everyone should be equal under the law. To me, that is a tautology. I can't believe we are still debating this shit.

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27-07-2017, 06:05 PM (This post was last modified: 27-07-2017 06:10 PM by Thumpalumpacus.)
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 05:51 PM)BnW Wrote:  
(27-07-2017 04:19 PM)Thumpalumpacus Wrote:  Whether or not statute protects employment, the 14th Amendment guarantees all Americans equal protection under the law, and that includes employment law as well, I would think. CRA 1965 established precedence for the Feds to regulate employment discrimination. For the Feds to thereafter set aside one discriminated class as not being protected would seem to violate 14A.

No, that's not right.

The US Constitution and the subsequent Amendments apply only to governments and their actions, not private employers. So, employment discrimination by a federal or state government is, arguably, a violation of the 14A. But, if you're local hardware store says they are not hiring gays, then, absent a state statute, you're shit out of luck.

You missed my point. Of course the Constitution only applies to the Federal government. But CRA 1965 applies to employers; it does indeed regulate hiring practices in private businesses, to wit, they cannot discriminate in that process. It is illegal to discriminate on several different bases per that law when hiring.

My point is that excluding transgendered people from that protective umbrella could well be construed as failing the 14A test of "equal protection under the law" -- the law in this case being 1965 CRA.

Per the CRA 1965, the Federal government has an obligation to protect minorities from discrimination. Transgendered folks could well mount a case that they should be a protected class, too. Extending protection to some classes and refusing it to others suffering equal, or worse, discrimination, could well be seen as an unequal application of the law. I presonally think that in this case it is.

In other words, it's not a direct appeal to the Constitution, but an application of that amendment to a law that already regulates hiring practices. "You have this law that protects blacks, but it doesn't protect us. You have this amendment saying that the law should be applied equally."

ETA: the ruling striking down same-sex marriage bans was based on applying the 14th Amendment, even though marriage is not the province of the federal government. The same principle applies here.
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27-07-2017, 06:46 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
Yes, I did miss your point. Thank you for clarifying.

That argument isn't going to hold up, though. You're trying to basically bootstrap a non-government function (employment) into a constitutional issue because they passed a law on it, and then a regulation was added. Even if you could convince a federal judge that a government action in passing a statute regarding regulations of private enterprise had to pass Constitutional muster (and that is an interesting argument - I'm pretty sure it's a loser but I can't clearly articulate why. I have to noodle that a little bit) the constitutional issue has to pass muster. If homosexuals are not considered a protected class under the 14th Amendment, you lose.

On marriage equality, I know they used the 14th Amendment. What I don't know are the details of how they reached the decision because I didn't read it. Saying "the 14th Amendment" is a bit like asking me where I live and I say "eastern seaboard, within 100 miles of the Atlantic Ocean". Technically correct, but good luck finding me.

And, the same principle does not apply. Recognition of marriage is an inherent government function. Employment is not.

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27-07-2017, 08:33 PM (This post was last modified: 27-07-2017 08:37 PM by Thumpalumpacus.)
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 06:46 PM)BnW Wrote:  Yes, I did miss your point. Thank you for clarifying.

That argument isn't going to hold up, though. You're trying to basically bootstrap a non-government function (employment) into a constitutional issue because they passed a law on it, and then a regulation was added.

I'm not "trying" to do that. The CRA 1965 did that. Once that was made a law, the government, by its own rules, is obliged to apply that law equally. The government, rightfully in my opinion, decided in the early 60s that its intervention was needed to level the playing field and ensure equal access to jobs. The law itself was simply a real-world application of the amendment, and that application must adhere to the standard of the 14th Amendment.

(27-07-2017 06:46 PM)BnW Wrote:  Even if you could convince a federal judge that a government action in passing a statute regarding regulations of private enterprise had to pass Constitutional muster (and that is an interesting argument - I'm pretty sure it's a loser but I can't clearly articulate why. I have to noodle that a little bit) the constitutional issue has to pass muster. If homosexuals are not considered a protected class under the 14th Amendment, you lose.

The fact is that the 14th Amendment was the basis for overturning gay marriage bans.

The Constitutional issues have already been addressed: sexuality, and gender, are neither grounds for discrimination.

(27-07-2017 06:46 PM)BnW Wrote:  On marriage equality, I know they used the 14th Amendment. What I don't know are the details of how they reached the decision because I didn't read it. Saying "the 14th Amendment" is a bit like asking me where I live and I say "eastern seaboard, within 100 miles of the Atlantic Ocean". Technically correct, but good luck finding me.

Some excerpts from the decision:

Quote:Held: The Fourteenth Amendment requires a State to license a marriage
between two people of the same sex and to recognize a marriage
between two people of the same sex when their marriage was lawfully
licensed and performed out-of-State. Pp. 3–28.

[...]

(b) The Fourteenth Amendment requires a State to license a marriage between two people of the same sex. Pp. 10–27.

(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices
central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

[...]

(3) The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause to invalidate laws imposing sex-based inequality on marriage [...]

(27-07-2017 06:46 PM)BnW Wrote:  And, the same principle does not apply. Recognition of marriage is an inherent government function. Employment is not.

It is not an inherent function of the Federal government. But the state laws regulating marriage must pass Constitutional muster, as the quoted decision states. And the Federal government has also deigned to regulate hiring practices, rightly or wrongly. However, when the Federal government passes a law regulating employment practices, that law as well must meet the 14th Amendment's requirement for equal protection.

I'm not getting into the discussion about marriage being inherently a governmental function. That's another debate for another thread.
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28-07-2017, 01:32 AM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 01:10 PM)BnW Wrote:  
(27-07-2017 12:05 PM)Robvalue Wrote:  Shouldn't it just be illegal to discriminate against someone on the basis of anything that is irrelevant to the job? I mean, can I refuse to hire someone because I don't like their favourite movie?

Generally speaking, you can fire someone for not liking their favorite movie. Or their clothes. Or their hair. Most employees in the US are "at will" which means you can be fired for almost any reason. The reasons you can't be fired are set forth by statute. Statutes can be either federal or state. You can also be covered by a Collective Bargaining Agreement which can change your at will status. There are a few ways but, generally, most people are at will employees.

What the DoJ is saying is that the federal statute, Title VII, does not cover gay people. I've not read that law in a long time but, unless they made an amendment, that is technically correct. And, under federal law you are not prohibited from firing someone for being gay. There are a number of states with employment laws that say otherwise.

It's a position based on the law. And, it's probably correct. That's not a moral judgment, just a legal one. Congress cam change it, not the executive branch.

I see, thanks.

The problem here is that I can fire someone for being black, gay, female, or anything else, and just say it's because I don't like their favourite movie or some other "non-protected" thing. It's going to be hard to prove my real motivations if I'm acting legally.

You'd hope most employers wouldn't need to be forced not be bigoted twats, but there you go.

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28-07-2017, 01:51 AM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(28-07-2017 01:32 AM)Robvalue Wrote:  The problem here is that I can fire someone for being black, gay, female, or anything else, and just say it's because I don't like their favourite movie or some other "non-protected" thing. It's going to be hard to prove my real motivations if I'm acting legally.

You'd hope most employers wouldn't need to be forced not be bigoted twats, but there you go.

The stupid thing is, seems to me that often they can't help themselves. Like bakers (why bakers?) who refuse service to gay people, they seem to want the person themselves to *know* that they hate them for being gay/being black/being transsexual. So they make some "moral" stand and turn themselves into a rallying point for all the arseholes. If they would just fire the person and say they didn't like the way they dress they'd be golden, but they always (often at least) seem to make a stink.

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