US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
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29-07-2017, 08:20 AM (This post was last modified: 29-07-2017 08:37 AM by BnW.)
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(27-07-2017 08:33 PM)Thumpalumpacus Wrote:  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.

"Equally" under the 14th Amendment does not mean what you think it means. The jurisprudence over the past 150 years or so has created different "protected classes". So, to even be considered for an Equal Protection argument, you need to be in a protected class. And, not all classes are treated equally, believe it or not.

The way the law works is it gives a certain amount of scrutiny to a government action to decide if it was discriminatory. An action that impacts race received "strict scrutiny". An action that impacts people based on their sex gets, believe it or not, less scrutiny (called "semi-strict scrutiny").

I'm not making this shit up, this is the law and how it works.

When it comes to the rights of gays under the Constitution, it's not so easy as to say "marriage equality was decided under the 14th Amendment so that settles it". It doesn't. The Supreme Court had refused on several prior occasions to create a protected class based on sexuality. Yes, in Obergefell v. Hodges the Court held that marriage was a fundamental liberty that needed to be applied equally by governments. But, that's not nearly the same as Congress passing a law that puts requirements on private employers. It's a totally different thing.

And, just to clarify a point: my comment on marriage and government was stated too broadly. Marriage as a legal concept is fundamentally a government requirement. Things like licensing, joint tenancy rights, tax implications, etc. are all government constructs and to the extent marriage is impacted by them it's a required government function. I wasn't trying to comment on marriage itself.

Anyway, the issue is not nearly as clear as you are making it out to be. The court ruling in favor of marriage equality does not, by any stretch, mean that Title VII is now unconstitutional because it does not include sexuality. But, maybe it's time for someone to take another stab at that. Laws, and our understanding of how people should be protected, evolve. I believe that "equal protection" should mean just that - equal protection. For everyone. Everyone should be in a protected class. But that's not the law today. And, if Trump gets one more Supreme Court appointment, you can be sure it won't be the law any time soon.

Robvalue - yes, an employer can be a bigot and fire people for make believe reasons. We have juries and the Equal Employment Opportunity Commission to try to sort through bullshit and determine facts. Sometimes I'm sure they get it wrong and people who are fired - or, more likely, not hired - for bigoted reasons don't get justice. It's an imperfect world.

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29-07-2017, 01:57 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
(29-07-2017 08:20 AM)BnW Wrote:  
(27-07-2017 08:33 PM)Thumpalumpacus Wrote:  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.

"Equally" under the 14th Amendment does not mean what you think it means. The jurisprudence over the past 150 years or so has created different "protected classes". So, to even be considered for an Equal Protection argument, you need to be in a protected class. And, not all classes are treated equally, believe it or not.

The way the law works is it gives a certain amount of scrutiny to a government action to decide if it was discriminatory. An action that impacts race received "strict scrutiny". An action that impacts people based on their sex gets, believe it or not, less scrutiny (called "semi-strict scrutiny").

I'm not making this shit up, this is the law and how it works.

When it comes to the rights of gays under the Constitution, it's not so easy as to say "marriage equality was decided under the 14th Amendment so that settles it". It doesn't. The Supreme Court had refused on several prior occasions to create a protected class based on sexuality. Yes, in Obergefell v. Hodges the Court held that marriage was a fundamental liberty that needed to be applied equally by governments. But, that's not nearly the same as Congress passing a law that puts requirements on private employers. It's a totally different thing.

And, just to clarify a point: my comment on marriage and government was stated too broadly. Marriage as a legal concept is fundamentally a government requirement. Things like licensing, joint tenancy rights, tax implications, etc. are all government constructs and to the extent marriage is impacted by them it's a required government function. I wasn't trying to comment on marriage itself.

Anyway, the issue is not nearly as clear as you are making it out to be. The court ruling in favor of marriage equality does not, by any stretch, mean that Title VII is now unconstitutional because it does not include sexuality. But, maybe it's time for someone to take another stab at that. Laws, and our understanding of how people should be protected, evolve. I believe that "equal protection" should mean just that - equal protection. For everyone. Everyone should be in a protected class. But that's not the law today. And, if Trump gets one more Supreme Court appointment, you can be sure it won't be the law any time soon.

Robvalue - yes, an employer can be a bigot and fire people for make believe reasons. We have juries and the Equal Employment Opportunity Commission to try to sort through bullshit and determine facts. Sometimes I'm sure they get it wrong and people who are fired - or, more likely, not hired - for bigoted reasons don't get justice. It's an imperfect world.

I see, thanks. So I take it that the existence of these juries and the EEOC imply that firing people for bogus reasons isn't actually legal? If so, why wouldn't sexuality be automatically included as bogus, as it has nothing to do with employment?

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29-07-2017, 02:23 PM (This post was last modified: 29-07-2017 02:41 PM by BnW.)
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
Firing people for bogus reasons is fine. What is illegal is employment discrimination based on the classifications set forth by law. Under federal law, as currently written, sexuality is not included. Should it be? I certainly think so. But, at present, it is not. The Obama administration took the position that discrimination based on sexuality is the same as discrimination based on sex (which is included in federal law). The Trump administration is saying they don't agree with that at all. I think, from a strict legal perspective, the Trump administration has a better argument. From a morality perspective, I think Trump is an immoral scumbag and am not surprised his administration is taking actions that run contrary to specific campaign promises he made to the LGBT community because in addition to being an immoral scumbag, he's also a lying scumbag.

My comment about jury's and the EEOC was based on actions that are taken ostensibly for reasons not having to do with race, sex, religion, national origin, ethnicity but really are. In theory, a jury or the EEOC will see through that and prevent the discrimination. In reality, I have no doubt that it happens regularly and there is not much that can really be done about it.

Now, Thumpalumpacus was trying to argue that because Congress passed a law that did not include sexuality they violated the Equal Protection clause of the 14th Amendment. As of the writing of this post, the Supreme Court of the United States, who is the final arbiter of what the 14th Amendment means, does not agree with him. So, from a legal perspective, I also don't agree with him. But, to quote Jim Morrison, the future's uncertain and the end is always near. Who knows what the future will bring in terms of how the law is viewed when it comes to gay rights. A right of center court recently held that the refusal to issue marriage licenses to gay couples violated fundamental notions of liberty. That's not the same - no matter how much Thump wants to argue otherwise - as saying being gay is a protected class and getting equal protection under the 14th Amendment. But, it's equally not an outrageous leap to get there, either.

I was born 6 months before the Stonewall riots in New York. 48 years ago being gay was a crime, punishable by a jail sentence. Today, we have legalized gay marriage and a conservative senator from Alabama, Richard Shelby, taking public issue with Trump banning transgender people from serving in the military. Neither of these things were remotely conceivable when I was born in January 1969. Nor was a black President. And yet, here we are. Just like the laws that allowed white conservatives to discriminate against blacks, the laws that treat the LBGT community as second class citizens will go away. And, there is nothing the Donald Trumps of the world can do to stop it. It's a matter of time.

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29-07-2017, 11:03 PM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
Thanks very much for explaining Smile I'm shocked things are that bad and that employers have all the power. In England we have strict wrongful dismissal laws, for most forms of employment.

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30-07-2017, 06:40 AM
RE: US DOJ Files Brief Arguing that Title VII Does Not Protect Homosexuals
Here in the US workers have very few rights. The place I'm at now is gearing up to fire hundreds of people because we've not hit artificial targets. The worst part, for me, is I'm part of the planning. There is nothing I can do about it, but it does keep me up at times.

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