Transcripts For CSPAN Zarda V. Altitude Express Oral Argument 20170930

Zarda passed away in 2014. His estate is continuing with his suit. This is one hour 45 minutes. Good afternoon. Each side has been assigned 30 minutes, 10 minutes per person. Exceeded may be depending on how things go during the argument. From mr. Antolino. Good afternoon. Case, we are proud to present the executives of the. Arda estate we ask that you find that Sexual Orientation discrimination is sex discrimination under title vii. Was a male. Complained that he identified as gay, he was fired. Revelation it was a violation of the statute because a male who was attracted to other men was a motivating factor in the adverse action. Case, he identified as gay only because he was accused of being straight. He was proud of being gay. And in the workplace of the skydiving community, jokes were that loosened the tension of the experience, and the jokes were often sexual. Allegation that he was gay, or exposed because he was gay . He was known to be gay, but because he came out as gay to a customer, he was discriminated against because of that. That identification was sex discrimination because it male,iled with his being and being attracted to other men. Of simplest interpretation , i believe, ends in concerts judges concurrence i did not cited it holds that if title vii requires that sex was a motivating factor. Sexual orientation cannot be extricated from sex. One ofre, the two are the same. There are two other evidential theories toeries interpreting Sexual Orientation discrimination. The first and most obvious one would be associational discrimination whereby an if he takes an adverse action against an employee because of the protected class with whom the employee associates has been found to have violated title vii. Precisely,eld this the opposition are you alleging discrimination here . Itself, a man who identifies as gay associates. Ith other men in addition, in this case, we dont want to exclude single people, but in addition to this case, mr. Zarda also told the female skydiver whom he sensed it was uncomfortable because of the sexual joke. I have the exhusband to prove it. It was just a phrase he used. That was the association. The third theory or evidentiary route to reaching a violation of title vii would be sex stereotypes. Isnt that the only when you pleaded . I believe you are right. The Summary Judgment was granted on that, and you didnt appeal it. Is it stereotyping still before us . You didnt challenge that on appeal. I understand your point. Ist that takes into account the traditional effeminacy argument that a male may make. I do not conform to sexual stereotypes and that i am a inate in effem certain ways. We did argue after baldwin came down, and we moved to reopen title vii that Sexual Orientation, or gay so while there were a few little snippets of pink toenails and whatnot, the argument is the ultimate sex stereotype, as opposed to the being the accounting approach of, he wore womanly clothes and his voice sounded gay and whatnot. It is a broader sex stereotype. Are you saying that gay is sex stereotyping . That one way or another, it is sex stereotyping . It is the ultimate sex stereotype in that men are expected to prefer women affectionately and sexually, and women are supposed to enjoy that affection. To that extent, is the stereotype being applied to both sexes . I ask this because the concern we have is whether we have a discrimination that fits within sex discrimination, or something different, that while discriminatory, may not differentiate between men and women. Is the sex stereotyping you are talking about applicable equally to men and women homosexuals . That is the question that comes up again and again, and the answer is that it does apply equally, but both men and women are being discriminated against. But is that what sex discrimination under title vii is meant to prohibit . That is a very broad question. Write a whole article for you about that, the different ways that courts have interpreted sex discrimination under title vii. A comparative example would be what if an employer discriminated against christians who dated christians . Same,ey being treated the or are they being discriminated against because they are christians . The same rationale although it is not exactly, precisely on point was made in loving ver virginia, where courts had held for many years that the races were treated equally, but in fact, each race is being treated being discriminated against. Thein our belief, donrimination is against was a male,e he because it was a motivating factor in his termination. Was ahad he been a woman, thisd not have happened. Let me ask you about that. Had the clients been assigned to a woman skydiver who identified herself as day, as gay, it seems to me that they client probabl would have complained the client would have complained just as much. Am i missing something . That is hard to say. I cannot speculate as to whether it was actually the clients boyfriend who complained. But the reason it came up in this case is that don was accused of having some sexual valiance with this woman and took himself out of the equation by being gay. If he had been a woman, i dont think someone would have made a joke like that, and the events would not have played out as they had. You will have three minutes. Thank you very much. Mr. Horowitz. This is a pure question of law, whether title vii prohibits discrimination on the basis of Sexual Orientation. How do you respond to the criticism of the comparator, hypotheticals in particular, the withcisms that comparator the Sexual Orientation of the employee . The goal in terms of the analysis is to determine the effect of the individuals sex on the way they were treated. To do that, the manhart decision tells us that we look at the individual. If you change the sex of the individual and the outcome would be different, that would be discrimination. One of the criticisms andeled by the department an the client on this test is that using theronically mens locker room would not have been fired had she been a man. But it is pretty clear that an employer could fire her without violating title vii. What is your response to that . Your honor, the bathroom issue, while often relevant to issues of transgender discrimination, it has never been relevant to cases of sexual discrimination or it Sexual Orientation discrimination. That Sexual Orientation discrimination involves an element of sex. Isnt that criticism designed to show a weakness in the comparator test . It is not a perfect test. Would you agree with that . I in the focus of manhart, think it is a very useful test. You dont necessarily need to find an identical comparator. What you are doing is comparing the individual with a hypothetical situation. The same individual, but a different sex. Is the outcome different . Ere, it applies equally in the sex context. To your point about the bathrooms, i concede that sex is irrelevant to the question of Sexual Orientation. Then, bringing up the bathrooms saying lets look at the terms and conditions. But which bathroom one uses is different from ones choice of a partner, and the choice of a partner saying lets look at the terms and conditions. Has been held by the Supreme Court many times to be fundamental. When you say change the sex it seems to me there is still a little ambiguity as to how we do that. To use this case as the example, is it that we change it and say a woman instructor says i am gay, or i think what you are urging us to do is say a woman instructor says i am attracted to men. Could the either one, and we might get different answers. What guidance would you give us . I believe what your question of the, the focus analysis in terms of the case after and here, case has said you focus on the individuals experience. Instructor whole told a female client, i am gay. So why is the comparison not a female instructor saying to the woman client, i am gay . In the case of a female instructor saying the same thing under Price Waterhouse, if her sexuality was determined to the the reason she was fired, that case both in mr. Zardas in the hypothetical case, this person would he fired for not would be fired. That gives us to the matter of whether Sexual Orientation is different from sexual discrimination. In that circumstance, both the man and woman would be fired, and it is sex discrimination. In that situation, both the man and woman would be byard because they are not cavorting with this view of proper gender roles. Which i suggested to cocounsel is now being applied equally to both men and women. There is a presumption, a stereotype, a bias, what ever we want to call it, that people should be attracted to people of sex, and it is applying doubled men and women. I am having trouble understanding how that discrimination differentiates between men and women as opposed to a different scrim and nation that we might well wish different discrimination that we might well wish to discuss. I believe it is discrimination because you are holding both individuals, both the man and woman fired for the sexuality, you are holding them to the same standard of gendered behavior that Price Waterhouse says is not appropriate. To be clear, your response to judge raggis question, it is not the test. You have switched the ground to another argument, which is the argument for sex stereotyping. What her question was going to is why shouldnt we, if a woman says the same thing, it would be different. Rightnt that the way of applying that test . I apologize if i misunderstood your honors point. With these three halves that we have proposed, these three paths we have proposed, some may fit better than others. But the underlying idea with all three is that Sexual Orientation is within discrimination because that is based on how the law has been interpreted. And to cut Sexual Orientation out of the protections in parts of title vii jurisprudence, an exclusion that is not there. Case, it is easier to look at the Price Waterhouse analysis of sexual stereotyping rather than looking at the individual. Although i believe it still works in that context because you are comparing the individual with hypothetical, same individual, same context. If you are using sex and gender interchangeably, is that problematic . Of thishe purposes issue, i am using them interchangeably as the courts have done. The statute does not refer to gender. The statute does not, the Price Waterhouse doesnt use them interchangeably, and that is how the courts have approached that issue. Re you saying that test and the language of the statute is discrimination because of an individuals sex. Are you saying that the test is the best interpretation of that you sayingr are something specific about Sexual Orientation cases . No, i am saying the but for test is the most appropriate. There are additional cases beyond the example of restrooms likedoes seem to follow, the night circuit where the recent case in jurisprudence, the sexes are treated differently. But that is not an adequate basis for finding in title vii because they are not similarly situated. That is correct. In terms of the terms and conditions applied to each sex, this court held in the Mercantile Exchange case, the idea of a manhart test did not apply to a hair length restriction. In that case, something relatively trivial an issue, it did not need to be applied. But with respect to with respect to the meaning of title vii, the interpretation of language of discrimination on sex. Own useful for his way of looking is a useful way of looking at it. Court held that because it was relatively trivial, the difference did not go to something fundamental about terms and conditions, but one could imagine a case in which it really would, in which the standards one sex was held to our different from the standards another sex was held to. Your adversaries say the Civil Rights Act amendment of 1991 should be understood as ratifying the proposition that Sexual Orientation not prohibitedisn o under title vii. Yes, your honor, and that is incorrect for several reasons. First, the case holds. Legislative inaction is a very poor means of determining congressional intent, particularly in this case. It is a poor grounds for many reasons, including that you do not know what the grounds for amending the statute or not imaging the statute might be. It might already be included, it might be they do not think it goes are enough. Isnt there a difference between legislative inaction and legislative reenactment of a statute with the whole set of amendments, in the face of a broad consensus of traditional opinion as to what the statute means . I would disagree with the broad consensus. 1991 whene congress was taking up the issue of amending the Civil Rights Act, there were only a few Circuit Court cases, none have intod into had looked the issue with any sort of rigor. Congress generally amends statutes in response to Supreme Court holdings, not those of Circuit Courts. In this case, one could just as easily argued that because Price Waterhouse was one of the driving cases that led to the amendment and the Price Waterhouse analysis focused on sexual stereotyping, but congress did not cut Sexual Orientation out of the protections of the statute when they could have, and they did that in 1990. When you say that congress erally amends in response are you aware of any congressional action by way of a amendment or reaction in response to a Circuit Court decision . I am not, your honor. Do you think the legislative intent in 1964 is relevant . I do not. It is thealia said words of the statute rather than the concerns of the legislators that drives the interpretation of the statute. Have been legislative acts in response to the Circuit Court decisions, but they have been explicit in indicating their disagreement with those decisions, and changing the law in response to those decisions. In this case, your argument is that there is no mention of any of the relevant Circuit Court decisions to the extent that the Court Decisions are mentioned, they are about different decisions. 1nd the purpose of the 199 amendments was to expand the scope rather than contract them. Tocould you take a moment address the change in position you see over the course of the years . Certainly, your honor. We took a fresh look at the issue, much as the court did, much as the judges concurrence in another case did. We took a new look at that in light in part of the Supreme Courts guidances over the last 17 years. In part, based on our conversation with stakeholders, employers and employees. Away theawept preconceptions and looked at the legal argument, we concluded that based on the way courts had interpreted title vii, Sexual Orientation discrimination is and cannot be separated do you agree these arguments were available well before baldwin . Yes, your honor. They were available, but i think the seventh circuit and perhaps the circuit and the eeoc perhaps did not they were available to the eeoc. They have been aware of these arguments for years. Is that correct . We have been aware of these arguments the same way the courts have, your honor. As to the deference we owe your position now as opposed to the deference he owed your importn in, what is the of the change and what would you say about what difference we do owe to your interpretation of the statute . We are entitled to difference based on the persuasive value of our arguments, but in assessing the persuasive value, it is important to keep in mind the eeocs position in the broader administrative framework. How is that different from deferring to your argument today . It is a question of the strength of the argument, not the fact that you are the eeoc. Writes, it is a reflection of the strength of the argument, it is a an right, reflection of the strength of the argument, but also a reflection of the interpretation, the administration, and the enforcement of title vii. In fact, when we went to revisit our approach to the issue, we solicited input from stakeholders including both employers and employees, and that helped us come and the doj . I am not aware. We would love to hear from the federal government, but it is a little odd or us to have the federal government on both sides of this case. For us to have the federal government on both sides of this case. Indeed, your honor. [laughter] what you are technology is that your argument is not entitled to chevron deference, which is the highest form of deference, that is simply entitled to deference to the extent that the argument is persuasive. That takes into account under doctrines of Administrative Law the changing conceptions that administrative agencies may have overtime as to particular questions. That is exactly right. Does the eeoc have a position about the concurrence in another case . Is that something the doc the eeoc could agree with . The judges approach where he approach the judges where he looks at whether someone has been discriminated based on sex, and he looks at whether a man was in a relationship with another man, if that is what drives the employer, that is discrimination necessarily because of sex. That is fully in line with our position. May i ask you a question on your view of sex stereotyping . In the plurality opinion, it suggests that not all sex stereotyping would support a title vii claim, and i wonder if you could construe that to mean that sex stereotyping that is evident in any particular case has to speak or support a finding of intent to discriminate between men and women . A i think it has to speak finding that it is an intent to hold employees to a standard of behavior in conformance with the employers views of what is proper for men and women. That would imply all sex discrimination is prohibited. He leavesis one where women are put into a catch22. Be too aggressive and you are not considered feminine enough. Dont be aggressive, and you will not succeed the way your male counterparts do. Are too be fired if you aggressive, and fired if you are not aggressive. That is the catch 22 that he says title vii takes women out of. It is the very next paragraph that suggests that not all sex stereotyping will present a title vii violation. So, i am trying to figure out where you think sex stereotyping plays in all this . Many of the arguments presented have suggested to us that sex stereotyping is prohibited sex discrimination, and i am having a little trouble with that, in light of what was said in that part of Price Waterhouse. Perhaps it goes back to the decision where it is the sex stereotype decision on hair length. The court said that is a relatively trivial distinction, so based on that, the court was not prepared to find there was discrimination on the basis of sex. Sexual discrimination is far from trivial. That is a fundamental right. Apply. Uld not why is it different when something is trivial and when something is important is a matter of public policy, but where do you get a rule at of the statute that says trivial secs discriminations sex discriminations are not on the otherof sex, whereas forms of discrimination are . That is the way this court has interpreted the statute and manhart. There is a difference or a distinction between trivial and fundamental discrimination in title vii . Would sex stereotyping apply to both men and women, in that people should be attracted to persons of the same sex. How does that now play in . The sex stereotyping says that if you are a man attracted to men or a woman attracted to women, either way, you do not meet the stereotype that the employer has for how your gender should behave. In that case, you are being put into question, do i keep my job or do i have my choice of partner . But is it putting a disadvantage on one sex, either men or women, or is it putting a disadvantage on homosexuals . And if that is now the distinction, it is not men and women, it is homosexuals versus heterosexuals. It is putting a distinction on an individual basis because of sex. And when an individual is discriminated against because of sex, regardless of other people that might fit in that group, looking at the individual, that is discrimination. Is it sex discrimination in your view if an employer fires cohabiting out of wedlock . Yes, your honor. That would make this a very broad doctrine, wouldnt it . Wedlockohabiting out of the text was not a factor. That would apply to men and women cohabiting . It would apply to men and women, it would apply to men and women who are homosexual or heterosexual. I am asking a really broad question, whether there are any limits to the doctrine that you are proposing . In that case, i do not know if it fits within one of the paths of analysis we have suggested in our breathing. It may not in our briefing. It may not. It would be based on sex, would it not . It would not be based on the individuals sex. No, i dont believe so, if it is cohabiting. That might raise other concerns, but it would not be in that case, i do not believe it would be a distinction. What it if it was a man and a man, for a woman and a woman . If that were the grounds for the distinction. But if a man were to the terminated to be terminated for cohabiting with a woman and a wo in that case, the i dont think other manhart or Price Waterhouse analysis under manhart or Price Waterhouse analysis. Thank you. Of lambda legal. The ban on discrimination based on sex necessarily includes the ban because discrimination to discriminate based on sex discrimination if a hypothetical employee were to be hired despite a romantic involvement with the man, which donald zarda was not, we have sex discrimination. In response to the previous question, i think one of the ways in which the courts have gotten a little off the rails on this is based on the opinion where the court says sex does not mean the sex you have, it means the sex you are. If an employer were to condemn all Extramarital Affairs or all instances of cohabitation equally, no matter who is involved, that would be ok under title vii, because title vii does not mean the sex you have. But to put a scarlet a or a pink slip on a woman who has an affair but not a man who has an affair, that is where you run into the problem. It does have ramifications. It probably does, and i the attitude expressed does not invoke such things. One of the pearls of wisdom that the concern concurrence left us with is when you do not have all the best arguments and do not have all the full arguments in front of you, it may not be the best almond the best moment to opine on statements of what is and is not covered. Your honor, i feel confident there will come another day in which this court will be called upon to address this question, but i do not believe that day is before the court today. Could you address in more heardics what you have about the comparator approach and how we should think about the comparator approach . The court has the benefit of our take on it, which is that your honors take was correct in the christiansen concurrence. That is why i asked the question. [laughter] and i will go back to the analogy. We tried to come up with a nonalcoholic analogy, but i believe if you have fought to and youf you have vodka change or juice to grapefruit juice, you have only changed one thing. They are trying to play a parlor trick i think youre changing two things. By saying you are changing a screwdriver to a greyhound. How do you change it in this case . This scenario, tell me how you do it. I appreciate your questions earlier, because i think we need to look at the significance of what it means to say, i am am gay. If you say you are a woman attracted to women, we cannot divorce the reality of what is going on. If it would not be problematic for a woman to say they are attracted to men that is not what they said. I understand that, but for 100 yearsay i am gay ago, it would mean you are a happy person. Today the likelihood a woman would have said it in this case would have been suspect because the reason the instructor said it here was to put aside her concerns that she would be sexually andwe are applying a text you are saying do not change anything except the sex of the plaintiff. Ok, but you dont want to do that. You want to interpret what the plaintiff said. Im not sure why that is not playing with it as much as what some of the things your adversaries have urged us to do. Why should we do anything more than say if a woman had told his client she was gay, she would have what . And you are saying do not change anything except the sex of the i think the male companion may have been more upset and criticism would have been even greater. What am i missing . My friends have to go back with any favorable rulings this court would issue and prove it was a sexually motivating factor. If altitude express demonstrated any statement by any instructor that involved sexual interest was grapher termination is a different case. Here the allegation is what he said is i am a man attracted to men and that is a problem. They have to show that would not have been the case if a woman had said Something Like that. They are very capable of doing that. I think the reason why this court if he can make that showing, does he have to title vii claim . Lets take a next step of generality. Lets say there is a situation in which an employer would equally fire male and female homosexuals. Is that sex discrimination under title vii . An employer said i have seen the statistics about the failure of interfaith marriages by the medical i gave you fire. Ployer wenould it is discrimination of a samesex relationship is the same as discrimination against interfaith relationships and interracial relationships. Is theroblem with that factor religion, race is itself deemed. Here, that is not quite what is going on. I would respectfully disagree. Why . All i am saying is no interfaith relationship. As my eoc colleague said earlier, title vii applies to the individual. In order to enforce that, you have to know what my religion is and what my spouses religion is. The difference between those prompts me to be fired, that is this termination based on my religion. The same way you could say, to mask it in neutral terms, does a samesex relationship. In order to apply that, you have to know it is not patrick in accounts receivable. For an individual to be discriminated against, you have to know what their religion and sex is. Therefore, the same rules should apply. In that sense, i want to touch on an argument that was offered by the other side. If there is one radical offeredtation title vii before the court, it is not by me and the gentleman who preceded me. The idea first offered before the court, it is not by off, discrimination against people in interracial discrimination relationships is often and almost always because of racist andves and ideology, because someone deems one race to be inferior or superior. Do not believe that is a necessary condition to define discrimination against the someone in interracial relationship, or not as necessary to find that in an interfaith marriage. One is not exonerated. Application or scientific fact underscoring the nation of the differential treatment. None of that matters. That does not release the court from an icon of inquiry. It condemns all discrimination from all traits the same way. Heard ank we just argument that condemns nontrivial discrimination. Most i join most of what my colleagues said. This court has been a little bit the 1970sback in and back in the 1990s exactly what rationale it was using to find that the hair length was acceptable. What has happened in many of the other circuits, especially in itr length cases, they go clearly says you cannot have one policy for men and one policy for women. Saying you cannot have shoulderlength hair for a man and you can for a woman would seem problematic. They got around that with getting with various tests. In the Supreme Court has never signed onto any of these differential treatment rationales. For this court does not have to do more work than it needs to by overturning it if it does not want to the michigan rest on the rationale that my colleague mentioned. All that is being asked in that case is the court deems something fairly trivial whereas asking a man to give up his relationship with a man or marriage to a man is something we did not know 20 years ago in the courts and the quartet not recognized the actual constitutional right. Those cases to draw into question whether it can be the best construction of the languages, or we have to say the cases are wrongly decided. They are not covered. Should probably revisit the case. It is pretty glaring it does not mention water housing but if youre asking me do we have to overrule this . I agree 100 there is something there is a differential between what the Supreme Court has said and what the Circuit Court has said as far as tolerating genderbased differentials. If you dont want to do any more work than you have to, it would be sufficient to rest it on the differential which does not involve the constitutional right and the differential here with mr. Zarda does. Creating people exercising their constitutional rights. A private employer, as we have read a lot and newspapers the last couple of days, can fire someone for expressing physical his political opinions. Absolutely. It would be only on the differential on the sex. Is not just gay and lesbian two of a fundamental right to marry, everyone does. It would only be problematic nonlawyer could prohibit marital sexual relationship among employees or marriages. Something like that. Whatever problems would be, i dont think it would fall under title vii. Just to be sure i understand where you would take it from this if we had an employer whose entire workforce was male and he undoubtedly fired a male because he was homosexual, no question about it, and replaced him with a heterosexual male, we have an employer engaged in sex discrimination . we do and i think that tracks the pattern nicely. Another problem with the department of justice tell me why because usually we think of these as advantage in men over winning or vice versa, for disadvantaging one sex or over another, but not disadvantaging with insects unless it is the benefit the other sex. Im not sure how it would work in that type of hypothetical. Just understanding the offshore Sundown Services was an allmale Work Environment and joseph, we dont know exactly why he was singled out for the Sexual Harassment that none of the other men and only man on was it because he was more available, weaker . Was he actually gay himself we dont know what that was but it didnt matter. His bidding mail made him bei ng male mayhem attracted to the supervisor and it didnt matter. Differential treatment. Manharts careful. It is not say treatment of one sex that would be better if the sex was different and that is important. It was brief says it warranted and that is not the law is. Thank you. Appreciate the privilege of addressing the court. May please the court. I fee like we are here on false pretenses. The facts to the extent they have been argued today,i and it has only been up small part of the resemble what is being argued. Donald zarda was not the question before us. Question ofe this law without taking into account the facts, you are doing the law a disservice and were exceeding the judicial mandate. Let me ask you along those lines. You argue that mr. Zarda did not raise his current claim to the eeoc. Im not being underlined making this charge on the grounds that i was discriminated on the grounds of my Sexual Orientation. That is special appendix 3, paragraph 2. That is a sworn affidavit. How would he do that at the time . baldwin was not issued and the eeoc was a week after it was issued. Reconsideration to reconsider the Summary Judgment on exactly that basis. How could he have done anything else . I am making this claim because i was discriminated argument, do notagainst becausl orientation. If they want to assert the claim and if they want to change the law, they have to plead facts. How about the eeoc charge. He says in addition to being discriminated against because of Sexual Orientation, i was also fired, the screen it against because gender. Right. Isnt that he goes on to say he was fired because the levity used honestly referred to Sexual Orientation and did not conform to straight male macho stereotype. Isnt that the kind of claim that zarda is urging us to say is included within title vii . If you look at his eeoc charge, the file of complaint and look at his federal complaints, one, two, three complaints failed to allege discrimination based onconform l orientation under title vii. It was not under title vii. They just go with the sexual stereotypes which were addressed by judge bianco and dismissed. You raise this before the District Court and the reconsideration motion or before the panel in this court . it was raised before the District Court. You said he did not this awesome he did not exhaust this. I do not find it in the District Court record. It was absolutely argued in the District Court. You say he didnt raise complaints before the District Court . That complaint he raised was a sexual stereotype complaint that was raised before that District Court which the judge addressed and the first panel acknowledged. The memorandum of law in supporting motion for Summary Judgment one complaint ins theories was he was terminated because of his Sexual Orientation. You responded by arguing that the plaintiff cannot advance the for Sexual Orientation because of this courts decision. Arent you conceding that these claims were in fact properly before the court . I am not conceding that. There are alternate arguments. If he for Sexual Orientation because of this courts does noe of being discriminated against because of his Sexual Orientation in his eeoc charge, he does not get the opportunity now seven years after filing the eeoc charge after all the facts are out in this case to now somehow amend his pleading and amend his eeoc charge to say no, because the court might be willing to change its interpretation of the application of title vii, i want to now change my eeoc charge to make it fit with the court might consider. Exactly what he alleged the eeoc. I was waiting for this court to say to me why shouldnt we rule kindly and my response is because they actually alleged discrimination based on Sexual Orientation. Here, the only claims we need to investigate from an eeoc charge and brought forward with federal complaint, we looked at the allegations. Those allegations were investigated by the eeoc. We will put on fair notice and decided by judge bianco. Can you point to where you argue the exhaustion point before here . Where did you make the exhaustion argument . That i did not other than arguing in the reconsideration that it was not raised, that was the only place it was argued. Argued thattiffs you wait for the waiver by not raising it anytime before today. Jurisdiction is not waived and that is part of argument. O if the plaintiff has no right to be before this court because there is no jurisdiction, or he is asking this court to make a decision that is going to send his gaze back to judge bianco to decide his Sexual Orientation case that was not played under the eeoc, that he is sending this court on a fulls errand. The District Court granted Summary Judgment for lying on simonsen, right . In part. But that issue is before us now because the District Court made a ruling. The District Court also made a ruling that all of the allegations, and now i am taking from the decision of the first panel, all of the allegations regarding sexrole stereotypes were not analyzed by judge beyond go and denied. Whetherion of discrimination based on sexual violates title vii was ruled on by the District Court. Why is it before us now . It should not be. It obviously is. It cannot be because if you look at his eeoc charge, he disavows that this is a claim about his Sexual Orientation. That this is a claim about his Sexual Orientation. I am confused about the eeoc charge. The way i have it here from special appendix three, he starts by saying i am not making this charge so that i was discriminated against the grounds my Sexual Orientation. I am making this charge because in addition to being discriminated against because of my Sexual Orientation, i was is against because of my gender. That is poorly written. Special appendix three, he starts by saying i am not making the first sentence contradicts the first. Why am i wrong in reading it that way . Reading it in that vacuum it does contradict it, but reading it where he is also asserting a claim of Sexual Orientation under the states human rights law where it is permissible, it makes sense. I am not claiming Sexual Orientation discrimination under title vii because when you look at the , he talks about specifically what he is alleging and that specifically is what he is alleging is mirrored in three of his 2 and federal lawsuit and that is what is analyzed by judge beyond go. Three of his federal he goes on to say becaui did not conform my appearance, i suffered employment action and that is the legal question. I am sorry, no. It is not my place to say no but it is the judges decision that sexual sits there and fail way a juryre is no can conclude that what he specifically alleges could support a claim for his termination for Sexual Orientation. The new york labor law is a different standard of proof paired proof. The fact that were alleged when coupled with testimony that could come out at trial could support a claim. The problem is we have a closed record. The fact that came out at court came out. We had people coming in testifying. The young lady who was jumping with him said he made the joke and yall it is close to me his Sexual Orientation when he felt i was going comfortable because he was hitting on me. If anything, he was terminated heterosexual activity and try to cover that by saying dont worry about me, im gay. I just broke up with my boyfriend. Falling to them sky strapped to this guy while saying it. If council said he said im gay, that is out of context. It is do not feel uncomfortable that i am nuzzling you and try to speak with you in an affectionate way which is what she testified. Speaking of nuzzling, that reminds me of horses. Why is in this caught way before the horse . Isare trying to allege what in the complaint fitting within title vii. We are not at the point where we are analyzing or able to analyze the facts unless you is let made an argument which i dont see. You are sort of argument today and the facts do not support the claim. Because those facts regarding the thin been before a jury and the jury already concluded under the state stated that he was not discriminated against based on Sexual Orientation. We look at judge katzmanns decision, it seems to be moving to a let standard as to whetherr not Sexual Orientation discrimination occurred. If that is the case, if we take that standard, you have to decide that the jury verdict under the state law which was a but for standard also has to apply here. Again, you are being sent on a fulls errand on facts that do not reflect what came out at trial. Federal standard is a motivating factor, not the but for standard under which you are client prevailed. I understand that. When i read a judge katzmanns recurrence i am not sure youre reading it as fully as one might. When i read everybody argue part of the argument is you look for it and make a but for decision. If you are taking that but for decision, you cannot divorce that from the verdict we already have. I see i am at a time unless there are other questions. Thank you. Thank you for the honor. Judicialht of the contestants that existed over 50 years that title viis prohibition on sex discrimination does not meet Sexual Orientation discrimination, there are three reasons why congress has ratified that position. Here . I ask why you are does doj ordinarily defer to eeoc on title vii questions . the eeoc has control over private Party Litigation but doj has control over public litigation and doj is that the nations largest employer. I dont understand the distinction. It would apply equally whether it is a public party or private party so the government has interest both in regulatory capacity. Who is the representative from the civil rights . The acting head of the Civil Rights Division at the time the brief was filed. The eeoc filed an amicus brief but it doj did not. Is there some reason why one would not filed then and not now . I am not sure. Has there been a discussion about that . Sorry . Is that the reason . It was before my time at the department. What is the process within the government where you have got i know it varies with respect to which agencies you are talking about, whether they have independent Litigation Authority, with respect to the eeoc and department of justice, what is the process that is entered into in terms of filing a brief . I am not exactly sure what you are getting at, but im also get the eeoc file its own brief without consultation with the department of justice . That goes back to judge poolers question. That is fairly complicated. This of the eeoc has the authority to file a brief it filed for this case and the department of justice has the authority to file the brief it has filed. Is the section that was consulted. I dont think it is appropriate for me to disclose deliberative process. I will note that as the question noted, the acting head of the division was on that brief as well as the active head of the civil division. On a brief sign off that eeoc intends to file . I dont think it is appropriate for me to speak of internal processes. I am just asking for procedure, not deliberations. I dont think it is appropriate for me to comment on whether we signed off on the briefs or in general. Offrdinarily, when doj sign on a brief filed by an agency of government . Your honor, i am sorry. Doesnt the have its own Litigation Authority and its cases brought in the name of the eeoc . , without doj approval right . We are not disproving that the eeoc has the right to file, and beyond that i dont think it is appropriate for me to comment to the degree the department was files. D. I am agreeing with the subject that you are here. Thank you. Let me ask you this since you cant the why associational analysis be performed, understanding the meaning for the word sense as denoting men and women. Hort, just on the analysis with race. Women,e men and you have the a person of a certain cohabiting with a person of another race is this permitted against. There is a fun and mental against. There is a fun and mental difference between race and discrimination. If you see a someone discriminates in racial marriage, everyone would call that person a racist. But if you say you discriminate on the basis of sexual but the one thing you would not call them is they are a sexist. You might call them a homophobe. You might put you would not call them a sexist. The reason you would not call them a sexist, even though you would call a person who discriminates against racial marriages it racist because when you discriminate between marriages, it is treating black and white people differently and you are doing so based on views of racial superiority. Widely any racial security . The same thing would apply to races widely any racial even s is not white and one of the races is not black. Even in that circumstance, two different minority groups differently which are otherwise similarly situated and that is not true when you are dealing with a man and woman in the context of sexual relationships. These arguments are not new. The associational argument can you point me to cases that support this proposition . The associational argument was made in the ninth circuit in 1979 and was rejected. There will several other circuits that rejected in general the argument that Sexual Orientation was into it with sex discrimination. In 1991, congress engaged in the Civil Rights Act and overturned several other areas where it disagreed with the judiciary and not overturn these cases. When you say disagree with the just very judiciary, with that include Supreme Court decisions . 1991, there were Supreme Court decisions but the Supreme Court has found ratification and circumstances congress rejected lower Court Decisions. The Supreme Court did two things that are critical. Reject expressly the arguments made by the eeoc today. Wha i understand your argument but would you have a more powerful argument if Sexual Orientation discrimination cases were cases that in 1991 in the context of that specific act congress specifically dealt with. Congress knew how to deal with specific acts. 1991 decisionhe specific Court Decisions but it didnt do so with Sexual Orientation discrimination. Why are you saying we 1991 can e that leap to say even though they didnt talk about it, they really did, which is what you are saying . I have three points about that. The first is that is exactly wherehe Supreme Court did the question in the case was whether the ada had a jury trial. The Supreme Court said congress is is trying to support the flsa context. Lower courts, not the supreme onet, and only a handful, circuit in a couple of District Courts found of jury trial. If i could just finish i will let you finish and ask you a question. And the 88 will return to other aspects. What they point to . Lower Court Opinions. Not the question of the jury trial. Other context and they said because congress overturned other parts of the fsla, we will assume they ratified the parts they did not touch. That is also exactly what the Supreme Court did. What the Supreme Court said was the 1991 civil rights amendment, when congress overturned a variety of other Supreme Court decisions in other areas but did not touch the scope of supervisory liability for employers, they ratified that. You are right, it would be stronger if the 1991 congress and the civil rights bill specifically talked about Sexual Orientation and said we like all of those decisions but the Supreme Court never said that was the test for ratification. They said if you have a comprehensive amendment for the standing a judicial consensus on one issue and overturned areas in another area. I will also note that the 1991 congress did address Sexual Orientation specifically because in 1991, just like in every Congress Going back to 1974 today, there was a bill put forward to congress to actually add Sexual Orientation and the bill sponsor said at that was necessary because federal law did not cover it. Congress is never enacted that bill and that is what fundamentally changed that is different. Was that they had. Aken a certain position the spring said we dont know if they didnt pass that bill today or whether they disagree. That is distinguishable from a context like this where every hasuit court for 50 years said this is not covered. Every year from 1974, congress had bill before it to overturn that. Can i go back to the associational argument . I am super that it to your point that laws are refunded mental aspect of white supremacy. This. Not say that about homosexuals against is somehow about hostility to men or women as such. If you had an employer who was an orthodox jew who had a workforce of mixed religion people, but then one of his jewish employees married a christian and he fired that , isnt that an example of religious discrimination that does not have to do with the special role of misogyny nation laws or some aspects of racial superiority . I am not sure if it would be based on religious superiority but setting that aside, the more fundamentalfundamental point hit you are treating similarly situated jews and christians. The christian can marry another christian and in the christian can marry another muslim or jew. He does not want to see jews marrying nonjews. That is why that is the argument that mr. Nevins made. Unlike jewsrences and nonjews, there is no factual differences and the law does not recognize differences between jews and nonjews. There are no real differences between men and women and the law recognizes that. This is basically illustrated by the situations in the bathroom where everybody recognizes title vii does not prohibit having singlesex bathrooms. The eeoc says the reason why that is ok is because it is trivial and that is frankly an astonishing position for them to take it if the argument is bathrooms are not a controlled position that matters for discrimination, you cap black bathrooms and white bathrooms. The same exact condition. The handle argument they have no argument to have racially segregated bathrooms today. That is obviously wrong. Discrimination is sort of ok because there are real distinctions between men and women and racial and religious discrimination is not . Absolutely. Sexual discrimination is permitted by title vii i thought. That is true but the difference is absolutely. Discrimination means treating people that are situated differently. Unlike race where black people and white people are relatively similar, to men and women are not similarly situated in all respects. The law recognizes there are real physical differences between men and women. And that has to do with this marriage issue . Yes, the same physiological differences relevant to bathrooms are the same physiological differences in employer can take account of when they are regulating their employees based on their off the work sexual relationships. There are several questions and the c agrees they are about to do that. They are allowed to say if you cheat on your spouse, you are fired. None of that is covered by title vii. Title vii only covers race, sex and other creeds. You do agree ethnicity is covered by title vii . Ethnicity can be viewed as a subset of race. Why is that . I think it is a matter of ordinary english. And look at the dictionary youuality is a subset cannot establish that from sex. Have the same analysis you just applied in the of ethnicity which you agree is covered by title vii, but ethnicity is not in title vii. I am not disputing it as a logical matter. You can view it as a subtext, but you can ethnicity which you agree is covered by title vii, a distinct category. The question is whether the this. S passed by congress it has done so saying in addition are passed in the contemporaneous commerce congress, they have a different impact than when laws are passed separately from contemporaneous and its, would you agree . In this context it is backwards. Think about what would happen today if Congress Passed a statute that says no sex discrimination. Thatuld be indisputable that that did cover sexual discrimination. If that covered sex if you just said sex this termination, i think of the industry beatable indisputable. He would have both an unbroken set of law that says you were distinct and have several prior acts. If that is the case today, surely what Congress Passed the same exact word compared to what we have today. It just makes no sense. Sometimes, the statute can be read to prohibit a comparable evil. That is absolutelyacts. True, but not applicable here. Was it is under plain english. The only question is does that prohibition encompass samesex. A clearly does by plaintext. You said by the plaintext and cover Sexual Harassment, but that is not written in the statute. It just says discrimination because of sex. Its a quite a series of cases to construe that to include Sexual Harassment. I am not sure exactly how long it took but it seems to me when you have statutes that say you cannot discriminate, that readily supports the proposition that it covers sexualharassment. Let me refer you to the 1970s then went to an extensive review of the history of the Civil Rights Act. They labored over this because the initial inclusion of women at all was the subject to question. I would suggest you that the statute has grown more in line with Justice Scalias description and with what judge katzmann refer to. Even if you think there is a debate as to how clear it was that Sexual Harassment was helded, once merits were that it was covered there was covered there is no dispute that there is any difference based on whether samesex or opposite sex. There is nothing in the language of the statute. That was Justice Scalias point. Congress may not have been thinking about that fact pattern but it is covered by the text. In this context, sexual discrimination and Sexual Orientation this crimination has always been understood in terms of ordinary english as confirmed by the fact that every court for 50 years tells it, the eeoc held it for 50 years. The eeoc mentioning 50 years what the landscape changes in terms of the laws. 20 years, after Price Waterhouse. Why get the same be said about Sexual Orientation . The landscape has changed. Even after Price Waterhouse, and 1996, every court in the country for another 20 years had that including the eeoc. The eeoc had cases explaining that it did not change their position. I would urge the court to read them. The eeoc opinions are not any different reason than the Court Opinions from 1979 that were cited that congress ratified. There is a fairly common sense difference between sexual sex discrimination and Sexual Orientation discrimination. It inhought you could say as a logical matter that Sexual Orientation could be a subset of sex. As a logical matter. There is a difference between theoretical matter and hypothetical construct. The governments position that the plaintext of the statute clearly excludes Sexual Orientation. I think it is clearly the better reading so yes but i think this court does not have to get into whether it is ambiguous. Can you point me to what language in the provision of title vii clearly excludes Sexual Orientation . Ordinary definition of discriminate with sex, treating men and women differently. That is not any differently than bathrooms. It is no less ambiguous than whether title vii band the c a band singlesex bathrooms. I dont think any court has or ever will hold it. The only argument for why it is different is an argument that would blow a massive hole in the statute which Current Conditions do not cover bathrooms we could have public bathrooms again. I think it is clearly the better interpretation. Even if you dont think it is unambiguous, it is at least a Strong Enough interpretation that the fact congress has ratified it repeatedly in various ways should count. If i can make one last point on ratification they point to the opinion. I am having trouble with your term ratification. When i hear the word ratification, i understand that to me in explicit statement as congress has done in many cases. Were at the explicit ratification. That is not the way the Supreme Court uses the term gratification in cases like inclusive communities. Ity im using the term is the principle i am focusing on when there is additional consensus on an issue and Congress Amends the statute and leaves that consensus undisturbed, that is a ratification of that position. That is what the court held that the inclusive community. Didnt you have nine courts ruling in the cases you are mentioning with respect to the 1991 act . Three quarts acted in that area. Two points. Technically, i think it is four, r gigli five. More important arguably five. More importantly, ratification citing 1 5 circuit opinion and one Circuit Court opinion and two more. Date on ratification. Four is a lot more than one but i wanted to make one other point about congressional acquiescence which is technically a different argument that ratification. Ratification is what actually amends the statute. Acquiescence is the point that since 1991, year in and year out, congress is presented with a bill to undo the consensus and has not acted. E thee the case unlik case, i would point to the klein decision where the court found based on two Circuit Courts and a handful of District Courts that the fact congress did not disturb that was strong evidence ofave was the strong the eeoc for over 20 years in waterhouse,price and then you have Congress Passing statutes, using the term Sexual Orientation specifically and separately, and waterhouse, and then you have moreover, doing it by saying sex and Sexual Orientation. Not saying as the argument suggests sex including Sexual Orientation which is what they did in the dissemination act of 1978. When congress overturned gilbert , they said sex including pregnancy which showed they thought pregnancy was thank you for your argument. May it please the court. Youhe court appreciates except in the courts invitation to brief the argument he is about to make. Thank you. Whoever it is applied, it is not categorically defined Sexual Orientation. We had ample discussion about why that is true today particularly with regard to sex segregated bathrooms but also the bauer case with the fbi literally having different numerical standards for numbers of pushups between men and women and for a man in which mr. Bauers life dream was to be a special agent in the fbi missed the push of cap ifu. Been made ae special agent if he was a woman and yet that was not sex determination. The but for test as applied by the appellants here gives you false positives. It cannot and does not define what is sex discrimination. I really have much of a strong position of how the but for should be applied because it is not an interpretive device. It is an evidentiary standard. It can provide clues as to reason was sexl discrimination but it does not provide the answer. A few other examples we talked about trivial in terms of conditions. I agree with my friend from the Justice Department. Requires sex segregated bathrooms. Actually requires a multitoilet situation where bathrooms be sex segregated. Would you have a term to use instead that is more accurate . I start at the top which is the true reason it has to be discriminatory. The true reason has to be because you are a man. That is the top. I think to fill that out and get to that answer, i think the but for test is helpful and there has to be an unequal burden applied from one sex to another. That is with the ninth circuit does which starts out with united in Continental Airlines having different weight requirements for flight attendants and i think one had a requirement for flight attendants to be unmarried. That was determined to put an illegal burden on the sexes. Women have to have makeup and men are not allowed to wear makeup and women can color their nails and then cannot. While the but for test fails, it was not an unequal burden. Why truthful response about an employer fired a game in would be because he was gay, not because he was a man. Arguably incomplete answer . Gay is theone is shorthand for saying that a person is attracted to other men. That is the real reason if you pursue it more. Case, ifice waterhouse that waterhouse had argued they discriminate against and hopkins, not because she refused to wear makeup but because it she was a gender nonconforming person, could that have been a defense . No, and the reason it strongly depends on the fact of Price Waterhouse and the catch22 alluded to earlier. The problem with Price Waterhouse is the catch22. She was aggressive but you had to be aggressive to get the promotion. Price waterhouse would have fired a passive man presumably under the catch22 in the facts that were given. No, it is not true that merely gender nonconformant bites of gives you a sex discrimination claim. It has to also be true that there is something additional, evidence of misogyny, evidence of highly traditional sexual abuse of women and children. That is the back case of this court. It is not true that sex stereotyping standing alone could give rise to a sexual discrimination charge. It is not truegoing back to the, the issue of wearing makeup was so important to her, she quit her job she had for a very long tough because of it. I dont think talking about dress codes and bathrooms as if they are nothing to people they can be extremely important as they were to miss jefferson. Why is it to you that title vii was directed at there were these impact cases under title vii that have nothing to do with animus. It interpret me to say that title vii is only about animus, i should clarify. The different treatment of title vii is not only about animus but is about what motivated the decision. Animus is the smoking gun evidence that the subject category motivated the decision. Youe i misunderstood viewed animus as some sort of helpful interpretive tool. I think animus is not just a helpful interpretive tool. It is the whole thing. If you find animus against the subject category group, end of story. It does call to mind some of the hypotheticals about interfaith marriages and interracial marriages i would like to briefly address. On the interfaith hypothetical about the jewish employer marrying outofstate, that absolutely be discrimination on the basis of religion almost without question because the jewish employer he does not need to be jewish he would have an idea of how jewish persons were supposed to behave and impose that notion on the jewish employee. Would beruthful answer because you are a jew and jews are not supposed to do that. What is the difference . I dont see why you couldnt say the same words you just said substituting man for two. The words can be used but there actually is no word first of many who is opposed to interracial relationships. The word we used to say someone is opposed would you say there is no word for someone who was opposed to interracial relationships . Exactly my point. A racist. On interracial discrimination cases, that is a statement that there is no study to neutral opposition of interracial relationships. When someone says i oppose interracial relationships, they are effectively saying in this country i am a white supremacist. There is no room where somebody who says i oppose intersects homosexual relationships, there is a name for that person. Are you saying it is implausible that the members of every race would view it it with the dismay or discussed someone like themselves marrying someone who is not . I am not saying it is not possible. You are assuming that only based on the idea of white supremacist who object to someone, a white person marrying someone of another race. Based on the idea of whitei think it is just as pe that another member of the race would view it with dismay. That is exactly right. What i mean there is those study of neutral opposition of interracial relationships, there is not race neutral. It is a situation where say in asian person objects, a chinese person objects to marrying a nonchinese person. That will be the same as the jewishchristian marriage hypothetical. A chinese person about an idea of a chinese person behaving firing someone because they are chinese. Animus is saying the not against whatever sex it is the person is marrying. The animus in the bias against gays case is specifically against gays. It does not have anything to do with facility to men. Correct. Someone against a man it has lovely against men. Someone who was opposed to someone his race marrying someone of another race does have something against the other race. That is very close to what i am saying. I dont like the associational line of cases for a lot of reasons. I think it is a lot more about racial stereotyping about the race of the employee in the instance of a white marrying a black person. I would take issue with that. I would qualify what you say only in the following sentence it is perhaps more possible that a gay man can be fired because there were an issue of gay men as opposed to gay women. The Justice Department and i both concede that would be sex discrimination and that is where juries will have to get into the evidence enters will have to get into why the person was fired. How do we sidestep the associational piece which you are not comfortable with the as it seems to me we have that lurking out there and it can be used as a guidepost. I would give you some ways to sidestep it. Number one, a lot of the instances of the failure of the but for text could be Classes Association discrimination as well. I prefer to go to the bathroom with other men, for example, therefore i associate with other men in the toilet. If you discriminate against me , because i prefer to be with other men in the locker room we have had discussions about locker room talk. Maybe it is not all great and much of it is not, but of the same time there is an associational element. Associational discrimination does i get you much more about the but for test. When the but for test is known to have false positives insects, is not adding much. Is ase, the but for test perfect as a test could possibly that my friend from the Justice Department alluded to. That way i would discuss the organizational discrimination cases is to make that point, that there are differences between race and that my friend from the Justice Department alluded to. Sex and we need to look no further than again, bathrooms. After the 1964 act was passed, everybody understood race segregated bathrooms have to go. Yet, osha to this date requires sex segregated bathrooms and no one has distinguished the issue between sex ed rated bathrooms. Court inot appear the any way had in their minds this issue of the but for test and sex segregated bathrooms. It does not appear to have been discussed. Then be interrupt for one second. I have not thought this all the way through but title vii really focuses on economic opportunities. Sex or created bathrooms has very little to do with Economic Opportunity, but employer firing an employee making that does mr. Zarda lost his job because of the actions taken against him. Could you explain what might not be a useful distinction . If you go to to osha regulations on bathrooms, affecting bathrooms are very important. They have regulations about the numbers you are having. A manetical really is wants to use the womens toilet for whatever reason. A biological male that was a transgender woman wanted to use the womens toilet and it was a very important to them. And yet at the same time, that is not sex discrimination. Why is using the bathroom important to an Economic Opportunity . Because your Comfort Level has to do with whether you can perform your work functions during the day. If you deprive somebody of the opportunity i dont understand how bathrooms are that critical, as a matter of they may be critical as osha, but not as a matter of title vii. Id say that would be news to all the people who woke up to racially segregated toilets that could not be used under this exact provision. Res absolutely adverse employment action, when she was fired because she wanted to use the womens toilet. She was fired. Bathrooms,egregated to round out the associational discrimination point, i own a tennis club set, and i say to my tennis pros, one of them comes to me, i would like to injure a regular doubles tennis tournament. The answer is no. The butfor test is satisfied. I tell him he cant play. The butfor test is satisfied, its an associational discrimination test, i am discriminating against him based on the basis of who he wants to play tennis with3. What i will here is that is trivial. There is no hierarchy of values in title vii. Thank you. Thank you. You only have three minutes in rebuttal. Thank you, your honor. Id agree with my friend from chicago that there is no hierarchy in title vii. All five of the effected categories are treated the same, and you see that in footnote nine of price v. Waterhouse. There is no difference. And i had hoped we would get through this argument without an extended discussion on bathrooms, but i knew it would my question to you at the beginning was about this bathroom example, and which you just heard, your adversary has used that in a somewhat effective way to say, we would we wouldntng consider allowing a racial difference. Can you answer their argument . Well, what if men and women have different equipment, and theres different equipment in the mens room than the womens room. Its a custom. It is such a small bathroomsion that for to swallow the entire question is really too focused on a matter that doesnt matter to economic opportunities, which is what title vii is about. With respect to the charge, i contend that when we get into this case, we wanted to bring this theory to the District Court, and we wrote the charge as best we could, to preserve both our state claim and our federal claim. And we believe we did it well, as best we could, as poorly written as it was. But when it came down, within weeks we asked to reopen the question, and our request was denied. C also suggest that the eo with respect to the legislative intent, i dont think that there has been an answer to the pension benefit for the ltv corp decision, which holds the subsequent legislative history as a hazardous workplace for inference intent. I did in earlye, opinion from 1962, which itself cited cases from the 1940s. Caseshave not 50 years of that hold against us, but we have an unbroken line of cases that hold negative legislative history is not a basis to make a decision. Will befor question something that necessarily is going to depend on the context and the facts. We cannot guarantee that it will they in every context, but held that we see no basis in the formal andbe unduly say that it doesnt apply to male on male harassment, and Sexual Harassment, as your honor has pointed out, was not an established theory until 1979. For years, courts have held that this is just sexual attraction between men and women, and this is not what title vii was intended to protect. Eventually, courts begin to get it right, and there is no question now. As best to interpret the statute, your honor, you wrote a book on this. I have the title ruling in my brief, and i did read it. [laughter] at least you read it. [laughter] and one thing that you pointed out is that agencies are generally the first of the primary interpreters of statute, and thus that gives weight to the eeocs interpretation, where the doj in this case does not govern exclusively employment discrimination. And i believe that is all i have to say, unless there are any further questions. Thank you. Thank you. Thank you all for your preparation and good arguments. The court will reserve decision. The clerk will adjourn court. [gavel] cspans washington journal, live every day with news and policy issues that impact you. Coming up this morning, cofounder and cochair of the march for Racial Justice talks about the state of Race Relations in the u. S. Then, a look at the cost of the illegal immigration on taxpayers, with daniel stein on the federation for American Immigration reform. And, in her recent article about the shutdown of a Nuclear Plant in massachusetts, boston globe magazine can jupiter catherine miles writes about safety concerns surrounding the closing. The sure to watch cspans washington journal, live at 7 00 a. M. Eastern this morning. Join the discussion. Chester a arthur ranks among the less known president s. What most people remember about him is is one chop sideburns. Sunday night on q a, scott queen berger on his book the unexpected president , about the life and political career of chester a. Arthur. I think he realized that he wasnt qualified for the job. He ended up on the ticket by accident, he was surprised to be there, never imagined he would be president , and all of a sudden he is on the threshold of office. Sunday night at 8 00 eastern on cspans q a. Next, treasury secretary Steven Mnuchin discussing the administrations tax reform a panel, followed by discussion with white house correspondents in the 2016 president ial campaign and the first few months of the trump presidency. This is cohosted by atlantic magazine and the aspen institute. Is just over an hour. [applause] we are going to get to tax reform, because that is a very big issue set in motion by the president yesterday, but i want to talk about a couple issues also related to the treasury department, because theyre an important part of what you doing with the country is trying to achieve, specifically with north korea. David trias was just on the stage a few moments ago, saying he and others are discouraged by the recent trade numbers, that china is still trading with north korea. New sanctions were applied last week. What is your level of confidence those sanctions will change, materially, the chinese behavior . And can you