Transcripts For CSPAN Zarda V. Altitude Express Oral Argument 20171010

Each side has been assigned 30 minutes, 10 minutes per person. Well hear from mr. Antolito. Good amp, your hor nor. Id like to introduce my cocounsel who worked with me on this case. Were proud to represent Melissa Zarda and bill moore, the executors of they have zarda estate. We ask the court to construe title 7 with life as we live it and under the plain language in its interpretations. We ask that you find that Sexual Orientation discrimination is sex discrimination under title 7 00. Don zarda was a male. He was known as gay though he was not traditionally feminine. He was a great sky diver. When a customer complained that he identified himself as gay, he was fired. And for that revelation, a violation of statute because his sex, a male who is attracted to other men, was a motivating factor in the adverse action. And in this case, he identified as gay only because he was accused of being straight. And he was proud of being gay and in the male workplace of the sky diving community, jokes were loosen the at tension of the experience and jokes were often sexual. Is he alleging he was fired because he was gay or because he disclosed he was gay . Its all part of the puzzle. He was known to be gay but because he came out as gay to a customer, he was discriminated against because of that. And that identification was a sex discrimination because it dove tailed with his being male and being attracted to other men. The simplest interpretation of i believe is in jouge flouns concurrence in the highland case, though i didnt recite it in my brief. Judge flouns concurrence is really quite to the text and holds that if title 7 00 requires that a plaintiff need only identify that sex was a tivating factor and that xual orientation cannot be extricated from sex. Therefore, the two are one and the same. There are also two other evidentiary theories, i dont know what you want to call them, routes, to interpreting Sexual Orientation discrimination, sex discrimination and the first and most obvious one would be associational discrimination. Whereby an employer, if he makes a or 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. Judge eggington held this precisely in rotulier, the opposition alleges that are you alleging associational discrimination here, and what are the facts that support that claim . Mr. Antollino i think that in and of itself, a man who identifies a gay associates with other men, is seen to associate with other men. In addition in this case, we dont want to exclude single people but in addition in this case, mr. Zarda also told the female sky diver whom he sensed was uncomfortable because of his sexual joke that im gay and i have the exhusband to prove it. And his exhusband was not his husband, it was just a phrase he used, he was the executor of his estate and is in court today. And so that was the association. That could be a specific association but also a general association. The third theory or evidentiary route to reaching a violation of tle vii would be sex stereotypes. Isnt that the only one, at least in what i have here, the only one you actually pleaded was sex stereotypes . Youre llino i believe right. The Summary Judgment was granted on that, you didnt appeal that, how is stereotyping still before us . Mr. Antollino i dont understand the Panel Opinion saying stereotyping. The pnl opinion said the Panel Opinion that rule is unavailable. The District Court found zarda ils to establish requisite connection between termination between his termination and failure to conform to traditional gender stereotypes. That takes into account the traditional effimancy argument that a male may make, i do not conform to social stereotypes in that im effeminate in certain ways. We did argue that after baldwin came down and we moved to reopen title vii, that sexual ultimate, or the gay orientation in this case stherks ultimate sex stereotype. While there were a few little snippets of pink toenails and what not, the argument is the ultimate sex stereotype, as opposed to the bean counting approach of, well, he wore womanly clothes and the spoke, his voice sounded gay and what not. It is a broader sex stereotype. Are you saying gay is sex stereotyping . Are you saying gay or 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 extend, is it a 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. So is sex the sex stereotyping youre 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 bolt men and women are being discriminated against. But is that what sex discrimination under title vii is meant to prohibit . Thats a very broad question. I could go i could write a whole article for you about that, the different ways courts have interpreted sex discrimination under title vii. And the a comparative example would be what if an employer disfavored or discriminated against christians who dated christians . Are they being tweeted treated the same . Or are they being discriminated against because theyre christians . The same rationale, although it is not exactly, precisely on point was made in loving against virginia, where considerates had held for many years that the races were treated equally but in fact each race is being treated being discriminated in our in our belief the discrimination is against don zarda because he was male, because it was a motivating factor in his termination. Had he been a woman this wouldnt have happened. Let me ask you about that. If the client had been assigned to a woman sky diver who identified herself as gay, it seems to me from the facts we have before us that the client probably would have p complained just as much and would have complained just as much and the female instructor would have been fired too. Am i missing something . Thats hard to say. I cannot speculate as to whether his it was actually the clients boyfriend who complained. The reason it came up in this case was that don was accused of having some sexual dalliance with this woman and he took himself out of the equation by announcing he was gay. If he had been a woman, i dont Heteronormative Society someone would have made joke like that and the teleology of events would not have played out as they have. Youll have three minutes. Thank you very much. Mr. Horowitz. Question from the court, does title vii how do you respond to the criticism that compare tores change the sex and hypothetical orientation of the employee . The goal in terms of analysis is to determine the effect of the individuals sex on the way theyre treated. And so to do that, the manhart decision tells us what we do is to look at the individual. If you change the sex of the individual and the outcome would be different, thats discrimination because of sex. So one of the criticisms leveled by the department and by compare toref this is a this comparator test woman who was fired for using the mens room would not have been fired if shed been a man o its clear they could have fired her. While the bathroom question is relevant to transgender, its not relevant to a case of Sexual Orientation discrimination and to bring it up concedes that sex is an element that Sexual Orientation discrimination involves an element of sex. Isnt that criticism designed o show a weakness in the comparator test. The test is not a perfect test, would you agree with that . I wouldnt say in the focus of manhart i think its a useful test. Its not that you try to, necessarily need to find an identical comparator who works at the location, youre comparing the individual in the hypothetical individual with the same individual of a different sex is treated equally. Thats what loving tells us to do in the race context. If i may get to your point about the bathrooms, by conceding that sex is relevant to the question of Sexual Orientation, bringing up the bathrooms is essentially saying lets look at the terms and conditions. But which bathroom one uses is very different from ones choice of a partner. And the choice of a partner has been held by the Supreme Court numerous times to be fundamental. Very different. When you say change the sex, thats the manford test, that seems to me theres still a little ambiguity as to how we do this, to use the case as the example. Is it that we change it and say woman instructor says, im gay . Or i think what youre urging us to do is say, a woman instructor says, im attracted to men, and that those the comparison could be either one and we might get different answers. How what guidance would you give us . I believe what youre what your question gets at is the focus of the analysis in terms of the individual. And here, case after case has said you focus on the individuals experience. And so we have a male instructor who told the female client, im gay. So why is the comparison not a female instructor saying to the woman client, im gay . In the case of a female instructor saying the same thing, under pricewaterhouse if her sexuality was determined to be the reason she was fired, zardas in both mr. Case and the hypothetical case, they would have bhn fired for not comporting with proper gender roles. But that gets us to, is that a matter of Sexual Orientation thats different from sex discrimination. It seems curious to say in that circumstance, both a man and a woman would be fired. And its intelligence discrimination. So how do we reach that conclusion . In that situation both the man and woman would be fired because they are not comporting with this view of proper gender roles. Which im i juggest suggested to cocounsel is now being applied equally to both men and women. Theres a presumption, a stereotype a bias, whatever we want to call it, that people should be attracted to people of their same sex and ast aplay applied both to men and women. Im having trouble how understanding how thats discrimination that differentiates between men and women as opposed to a different kind of discrimination that we might well wish to, you know, prohibit, but thats not sex discrimination. I believe its still sex discrimination because what youre doing is holding both individuals in that case, both the man and the woman who were fired for their sexuality, youre holding them to the same standard of gender behavior. That pricewaterhouse says is not appropriate. To be clear, mr. Horwiths, in your response to the question, it seems like its not the manhart test, youve witched ground to another argument, which is the argument for sex stereotyping. What her questions were going to was, why shouldnt we if the test is just, a woman said the same thing it would be different, why isnt that the right way of applying that test . I apologize if i misunderstood your honors point. Thats exactly right. With these three ways of looking, these paths that weve proposed, some may fit more comfortably in a given situation than another but the underlying, the ultimate underlying idea with all three is that Sexual Orientation is within discrimination because of sex and that in fact thats they are thats based on how the law has been interpreted and to try to cut them out, sorry, to cut Sexual Orientation out of protections, in parts, into title vii jurisprudence, an excuse thats not there, not based on the statute. Youre right that in that case it is perhaps easier to look at pricewaterhouse analysis of sexual stereotyping rather than looking at the individual although i believe it still works in that context because youre comparing the individual with, hypothetical, same individual, same conduct, but different sex. Youre using sex and gender interchangeably. Is that problem mat snick much like with the highlighty decision and like the Supreme Court has done, for the purpose of this issue im using them interchangeably as the courts have done. The statute doesnt refer to gender. Thats true but ricewaterhouse uses sex and gender interchangeably. Are you saying that that test, the language of the statute is discrimination because of an individuals sex. Are you saying that thats the best interpretation of that language . Or are you saying something specific about Sexual Orientation cases . No, your honor im saying the butfor test is the most appropriate. There are additional cases beyond the example of restrooms like ont seem to follow, jesperson in the ninth circuit or the further circuit, the sexes are treated differently but theres a determination that thats not an adequate basis for finding a violation of title vii because theyre not similarly situated. Thats correct, your honor. In term os they have terms and conditions aplied to each sex, v. S court held in the tabora Mercantile Exchange act, the idea of a manhart test didnt apply to a hair length restriction. The court held in that case, where something relatively trivial at shmb, it didnt need to be apply. But with respect to the question is can the butfor test be the meaning of title vii interpretation of the language because of an individuals sex. The butfor test is one useful path. It may not cover every fact pattern. In the tabora case, for example, there was that hair length restriction, the court held because it was relatively trivial, the difference in treatment didnt go to something fundamental about terms and conditions but one could imagine a case in which it really would, in the standards that one sex is held to are very different than those another sex is held to. Your adversaries say the Civil Rights Acts amendments of 1991 should be understood as ratifying the proposition that Sexual Orientation discrimination is not prohibited under title vii. Yes, your honor. Thats incorrect for several reasons. First the pension benefit guarantee case holds, legislative inaction is a very poor means of determining congressional intent. Particularly in this case. Its a poor grounds for a number of reason, including that you dont know what the grounds for amending the statute or not amending the statute might be. It might be already included. It might be that they think it doesnt go far enough. There might be Something Else about the bill. Isnt there a difference between legislative inaction and legislative reenactment with the whole set of amendments in the face of a broad consensus of traditional opinions as to what the statute means . Your honor, i would disagree with the broad consensus. At the time that, of 1991, when congress was taking up the issue of amending the Civil Rights Act, there were only a few Circuit Court cases, none had looked into the issue with any sort of rigor. And this the congress generally amends statutes in response to Supreme Court holdings, not those of Circuit Courts. In fact, in this case, one could just as easily argument that argue that because Price Waterhouse was one of the driving cases that led to the amendment and the pricewaterhouse analysis focused on sexual stereotyping but congress didnt cut Sexual Orientation out of the protections of the statute when they could have, theyd done that in 1990 with respect to a. D. A. And in 1939 with respect to the rehabilitation act. When you say congress generally aa mends in response to Supreme Court decisions are you aware of any congressional inaction congressional action thats in response to a Circuit Court decision . Im not. Do you think the legislative intent in 1964 is relevant . No, your honor, i dont. Why is that . In the decision, Justice Scalia said its the words of the statute rather than the concerns of the legislators that drive the interpretation of the statute. There have been legislative acts in response to Circuit Court decisions but theyve been explicit. In indicating their disagreement with those decisions. And changing a law in response to those decisions. I take it in this case your argument is that theres no mention of any of the relevant Circuit Court decisions. To the extent court of appeals are mentioned, theyre about different issues and that the purpose of the 1991 amendments was to expand the scope of protections rather than contract them. In fact, thats language, isnt it . Thats correct, your honor. Could you take a moment to address the chaining position of eeoc over the course of years . Certainly, your honor. We took a fresh look at the issue much as the court did, much as chief judge castmans concurrence in the christianson case did. We took a new look at that in light, in part, of the Supreme Courts guidance over the past 15 years. Now 17 years. And in part based on our conversation with stake holders, both employers and employees. When we swept away the preconceptions and just look at legal arguments we ultimately concluded that based on the way courts have interpreted title vii, Sexual Orientation discrimination is and cannot be separated from do you agree that these arguments were available well before baldwin . Yes. Your honor. Hey were available but i think seventh circuit and perhaps this circuit and the eeoc just perhaps did not they were available to the eeoc. So the eeoc has been aware of the arguments for years, is that correct . Weve been aware of these arguments the same way the courts have, your honor. As for the deference we owe your position now as opposed to the deference we owed your position then, what is the import of the change and what would you say about what deference we do owe to your interpretation of the statute . Well, your honor, under skidmore, were entitled to deference base thond epersuasive value of our arguments but in assessing the persuasive value its important to keep in mind the eeocs position in the broader administrative framework. How is that different from defering to your argument today . Its a question of the strength of the argument, not the fact that youre the eeoc. Its a reflection of the strength of the argument but its also an argument that has een informed by our experience as the saget that is taxed by congress with the interpretation, the administration and the enforcement of title vii. And in fact when we went to revisit our approach to the issue, we solicitted input from stake holders, including beth employers and employees, and that helped us come to our include d. O. J. . Im not in the opinion . Im not aware of we love to hear from the federal government but its a little awkward for us to have the federal government on both sides of this case. Indeed, your honor. [laughter] your point on the deference point, which youre acknowledging is your argument is not entitled to chevron deference, the highest form of deference. Correct. But its entitled to deference to the extent that the argument is persuasive. And that takes into account under doctrine of Administrative Law changing conceptions that administrative agencies may have over time as to particular legal questions. Thats exactly right. Does eeoc have a position flouns concurrence in the hiley case . Ises something the eeoc could agree or with or agrees with . The judges approach where he looks at whether somebody is being discriminated against because of sex and looks at it in termses of, they are a man who has a relationship with another man and so if that is what drives the employers animus, thats discrimination, necessarily because of sex. And that is fully in line with our position. May i ask you a question about your view on sex stereotyping. Pricewaterhouse, Justin Brennans plurality opinion suggests not all sex stereotyping will support a title vii claim. I wonder if you construe that to men that the sex stereotype evident in any particular case has to bespeak or support a finding of the intent to discriminate between men and women. Ic it has to bespeak a finding that its an intent to keep, to sort of hold employees to a standard of behavior in conformance with the employers views of what behavior is proper for men and women. That suggests that all sex stereotyping is prohibited. The particular example Justin Brennan gives is one where he thinks women are put into a catch22. Be too aggressive, youre not considered feminine enough. Dont be agreesive aggressive and you wont succeed the way your male counterparts do, so youre going to be fired if youre too aggressive and fired if youre not aggressive. Thats the catch22 that he says title vii takes women out of. And then its the very next paragraph that suggests that not all sex stereotyping will present a title vii vilings. Im trying to figure out where you think sex stereotyping plays in all of this. Many of the arguments that have been presented have suggested to us that sex stereotyping is prohibited sex discrimination. Im having a little trouble with that in light of what is said in that part of pricewaterhouse. Perhaps it goes back to the tavora decision where if the sexster y type issue is hair length this court said thats a relatively trivial distinction and so based on that, the court was not prepared to find that there was discrimination because of sex. But in terms of whether Sexual Orientation is involved, thats far from trivial. Thats a fundamental right. So even if there is an exception at the level of hair length that would not apply. Taking why theres a difference when something is trivial and something is important, of course as a matter of public policy. But where do you get a rule out of the statute that says that trivial sex discriminations arent discrimination on the basis of sex. Or trivial sex stereotyping issues are not discrimination on the basis of sex. But bigtimester y typing is . Your honor thats the way this court has interpreted the statute and interpreted manhart. Theres a difference between, a distinction between trivial and fundamental discrimination . Yes. And a sex stereotype that applies to both men and women, as in people should be attracted to persons of the same sex, how does that now play in . Sex stereotyping, that says that if you are a man attracted to men or a woman attracted to women, either way, you dont meet the stereotype that the employer that the employer has for how your gender should behave. In that case youre being put to a question, do i keep my job or do i have my choice of partner . Is it putting a disadvantage on one sex, either men or women, or sit putting a disadvantage on homosexuals and thats now the distinction, its not men and women, its homosexuals versus heterosexuals . Its 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. Sit sex discrimination in your view if an employer fires an employee for cohabiting out of wedlock . Yes, your honor. Well. That would make this a very broad doctrine, wouldnt it . For cohabiting out of wedlock but sex was not a factor, that would be applied to men and women cohabiting. It would apply to men and women and apply to men and women who are homosexual, heterosexual, im just asking a broad question, whether there are limits to the doctrine you are proposing. In that case i dont know if paths within one of the of analysis we have suggested in our briefing. It may not but thats why im asking the question. Right. In this this in that case it would be based on sex would it not . Would not be based on the individuals sex. No. Your honor. I dont believe so. If its cohabiting. That might raise other concerns. But it wouldnt be, in that case, i dont believe it would be a distinction. Would it if were a man and a man or a woman and a woman. If that were the grounds for the distinction. But if a man would be terminated for cohabiting with a woman but a woman would also or a man. And a woman would be in that case, the manhart test, it doesnt seem like that would result in i dont think either under manhart or the pricewaterhouse analysis. Thank you. Thank you, your honors. Im it please the court, gregory nevens. Sexties inate on sex rimination if a hypothetical male employee would be retained despite i think one of the ways in which the courts have got an little off the rails on this is based on the opinion, the court says sex does not mean the sex you have, it means the sex that you are. In other words if an employer were to condemn all extra Marital Affairs or all instances of cohabitation equally no matter who was involved that would be ok under title vii because title vii does not mean the sex you have. But to affix a scarlet a and pink slip on the woman who has an affair but not the man who has an affair thats where you run into the problem under title vii. This does have religious freedom ramifications. It probably does, your honor. I believe that theyve in the invoked any such things. That would be a weighty consideration. But i think one of the pearls of wisdom that the christianson con turns left us with, when you dont have all of both arguments, dont have all the full arguments in front of you it may not be the best moment to opine on broad statement os what is covered and what is not covered. I believe that, your honor, i feel confident there will come another day in which this court will be called upon to address that question but that is not before the court today. Could you address more, in more specific, what youve heard about the comparator approach . The court has the benefit of our take on it, which is that your honors take was correct in the christianson occurrence. Thats why i asked the question. [laughter] you know, ill go back to the analogy. We tried to come up with a nonalcoholic analogy. I do believe if you have vodka and you change orange juice to grapefruit juste youve only played changed one thing. Theyre trying to play a parlor trick on this court by saying youre changing two things. Youve changed a screwdriver to a greyhound. How do you change it in this case . In this scenario, tell me how you do it. Absolutely. I appreciate your questions earlier. I think we have to look at the significance of whate means to say i am gay. Because lets be honest, youre saying im a man attracted to men or im a woman attracted to woman. We cannot divorce that. If that would not be problematic for a woman to say im atrabbed to men thats not what he said. I understand that your honor. But words in order for just to say im gay obviously 100 years ago that meant you were a very happy person. Today the significance the likelihood that a woman would have said it in this case may be suspect because the reason that the instructor said it here was to put aside her concerns that she would be sexually molested in the course of this close contact. But now were applying a test and youre saying, dont change anything except the sex of the plaintiff. Ok. But you dont want to do that. You want to interpret what the plaintiff said. And im not sure why thats not playing with it as much as what some of the things that youre that your adversaries have urged us to do is. Why do we do anything more than say if a woman had told this client she was gay, she would have what . I think the male companion might have been even more upset, would have the criticism would have been greater. What am i missing . My my very capable friends do have to go back with any ruling, favorable ruling this court would issue and prove it was sex was a motivating factor. In other words if altitude express demonstrated any statement by any instructor that involved sexual interest was grounds for termination thats a different case. But here what the allegation is is that what he said was im a man attracted to men. That was the problem. And they have to show that it would not, that would not have been the case if a woman had said Something Like that. And they are very capable of doing that on appeal. I believe the reason this court is convened is to answer the question, if he can make that chilling, as he stated in the title vii. Lets say you have a situation which an employer would equally fire male and female homosexuals. Is that sex discrimination under title vii . If i could, if an employer said ive seen the statistics about the failure of interfaith marriages use the hypothetical i gave you. An employer would fire a male homosexual or a female homosexual. Its discrimination against someone in a same sex relationship is the same as discrimination in an interfaith relationship. The trouble with that is that the factor, religion, race, is itself one that is deemed invidious. Here thats not quite whats going on. I respectfully disagree. Tell me why. All im saying is no interfaith relations and as my eeoc colleague said earlier, title vii applies to the individual. So in order to enforce that, you have to know what my religion is what my spouses religion is. The difference between those is what prorpts me to be fired thats is discrimination based on my religion. The same way you can say, try to mask it and say its discrimination against everyone a same sex relationship but in order to apply that and have a problem when pat marries robert you have to know that pat is patricia in accounting and not patrick in accounts r. V. Able. For an individual to be discriminated is, you have to know what their religion and their sex is. Therefore the same rules should apply. In that sense, i do want to touch on an argument that was offered which, by the other side which i if theres one radical reinterpretation of title vii thats being offered before this court today its not by me and the two gentlemen who preceded me to the microphone. The idea that, first off, discrimination against people in interracial relationships is, as they often say, as they say, often and almost always because of race and ideology and because someone deems one race to be inferior or superior. Please do not believe thats a necessary condition to define discrimination against interracial relationships or the same way in my hypothetical its not necessary to discriminate against someone in an interfaith arriage. Theres benign motives or even scientific fact around the differential treatment none of that matters. Title vii releases the court from that kind of inquiry. It condemns all discrimination on any of the trait the same way and you you it doesnt condemn all discrimination it condemns nontrivial discrim nation. I join with moist of what my eeoc colleague said there. The court has been a little cryptic in why it, in longo, back in the 1970s, and then again in the tavora case in the 1990s, what rationale it was using to find the hair length was acceptable. What has happened in many other circuits is they, especially in hair length case they go, well, this case says you cant have one policy for men and one for women. Saying you cant have shoulder length hair if youre a man but you can if youre a woman would seem problematic. The way they got around that is to come up with various tests. The Supreme Court has never signed on to any of these differential treatment rationales but this court zrunt to do any more work than it needs to in overturning simonson and dawson by overturning longo and tabora because it can rest of the rationale my colleague mentioned, all that is being asked in that case is what the court deems fairly trivial. Asking a man to give up his relationship with a man or a marriage to a man is now something that we didnt know 20 years ago, the courts hadnt recognized, was an actual constitutional right, and now we do. Dont those cases again draw into question whether the butfor test can be the best construction of the language and statute . Or we have to say those cases are wrongly decided or theres exceptions. Theyre not covered by the manheart test. This court may well need to, should probably revisit tabora and longo. Its pretty glaring that tabora doesnt mention pricewaterhouse even though it was decided six years after pricewaterhouse. If youre asking do we have to overrule those . Theres something theres a differential between what the Supreme Court has said and what the Circuit Courts have said as far as tolerating gender based differentials. Few but if you dont want to do any more work than you have to overruling simonson and dawson it would be sufficient to rest it on the differential there that did not involve Constitutional Rights and differential here with mr. Zard ab absolutely does. Theres no prohibition on discriminating against people were exercising their Constitutional Rights. A private employer can, as we read a lot in the newspaper the last couple of days, can fire someone for expressing his political opinions. Absolutely, your honor. We certainly have. It would only be the difference with sex, its not just gay men and lesbians who have a fundamental right to marry. Everyone has a fundamental right to marry. And it would only be an employer could, as judge jacobs question, prohibit nonmarital sexual relationships mong employees or marriages. Have all single employers Something Like that. Whatever problems would be with that, i dont think theyd fall under title vii. To be sure i understand where youd take us on this, if we had an employer whose entire work force was male and he undoubtedly fired a male because he was homosexual, no question about it, and replaced him with a heterosexual male, do we have an employer engaged in sex discrimination. We do and i think that tracks the fact pattern very nicely. Another problem with the tell me why. Usually we think of these as advantaging men over women or vice versa. Or disadvantaging one sex over another. But not disadvantaging within sex unless its to benefit the other sex. So im not sure i as to how it would work in that hypothetical i gave you. Just understanding that the offshore sundowner was an all male work environment. Joseph oncal, we dont know why he was singled out for the Sexual Harassment that none of the other men and it was only men on that trawler who were we dont know why, was it because he was cuter . Was it because he was more available . Because he was weak her because he was actually gay himself and therefore we dont know what that was. But it didnt matter. Is being male was made him attractive to his supervisor and therefore sex discrimination occurred. That was a harassment case, right . It was. But differential it doesnt say treatment of one sex is better. It says important. Thats important. The treatment must be worth. Thats not what manhart says and thats no what the law is. Thank you for the privilege of ddressing the court. Your, honor, may it please the court. I feel like we are here on false pretense. The facts to the extent they have been argued here today and its only been a very small part of the argument dont resemble whats being argued. Donald zarda its a pure question of law. I understand that. But if you decide this pure question of law without taking into account the facts, then youre doing the law a disservice and were exceeding the judicial man day let me ask you along those lines. You argue that mr. Zarda didnt raise his current claim to eeoc. I quote, i am not, not being underlined, making this charge on the grounds that i was discriminated on the grounds of my Sexual Orientation. Thats special appendix 3, paragraph 2. Thats his southern aft to the ee sworn affidavit to the eeoc. The eeoc took a contrary position. A week after he files a reconsideration for reconsideration before the District Court to reconsider the Summary Judgment on exactly that basis. How could he have done anything else to tee up that issue . She came out and said i am making this claim because i was discriminated against because my Sexual Orientation. If they want to assert the claim and if they want to change the law, they have to plead facts that support that. How about the eeoc charge . He says, and i quote, in addition to being discriminated against because of Sexual Orientation, also fired against discriminated against because of gender, right . Right. Sorry. Ok. Isnt that precisely and then he goes on to say, i quote, the used referred to Sexual Orientation and did not male to the straight macho stereotype. Isnt that the kind of claim that zarda is urging us to say is included within title 7 . If you look at his eeoc charge as his ticket to file a complaint in federal court and you look at his federal courts. One, two, three complaints failed to have alleged under title 7. They allege it under the human rights law but not under title 7. They just go with the sexual stereotypes which were addressed by judge bianco and dismissed. You raise this before the District Court or the panel here . Sorry. Did you raise this argument before the District Court in the reconsideration motion or before the panel in this court . It was raised before the District Court in the reconsideration. You said he didnt exhaust this, your honor. I didnt find that in the District Courts record. That was absolutely argued before the District Court. You say that he didnt raise the Sexual Orientation claim commt complaints before the District Court, correct . The Sexual Orientation claim that he claimed is the sexual stereotype complaints that he addressed before the District Court. The first panel acknowledged. Your memorandum of law, right, in support of the motion for Summary Judgment and im quoting, says, one of the plaintiffs theories is that he was terminated because of his Sexual Orientation. And you responded, didnt you, by arguing that plaintiff cannot advance a title 7 argument for Sexual Orientation because of this courts decision in simonton. So arent you conceding these claims were in fact properly before the court . I am not conceding that. They are alternate arguments. So if he does not raise the issue of being discriminated against because of his Sexual Orientation in his eeoc charge, then he doesnt 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 pleadings and amend his eeoc charge to say, oh, no, no, no, because the court might be willing to change its interpretation of the application of title 7 to Sexual Orientation, i want to now change my eeoc charge to make what the court might consider. That is exactly what he alleged to eeoc. I was waiting for this court to say to me, why shouldnt we rule like hydely . Because in hydely they actually alleged discrimination based upon Sexual Orientation. Here when we have the only claims that we need to investigate from an eeoc charge and then printed in part forward to his federal complaint, we looked at the allegations. Those allegations were investigated by the eeoc, were put on fair notice and they were decided by judge bionco. Would you point where you argued 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. To the plaintiffs argue that you waived the waiver by not raising it any time before today . And jurisdiction is not waived and thats part of our argument. If he has no the plaintiff has no right to be before this court because there is no jurisdiction or hes asking this court to make a decision thats going to send this case back to judge bianco to decide a Sexual Orientation case that was not pled under the eeoc, then hes sending this court on a fools errand. The Court Granted Summary Judgment relying on simonton, right . In part. Well, in part. But that issue is before us now because the District Court made a ruling based on simonton. And the District Court also made a ruling that all of the allegations and now im taking from the decision of the first panel. All of the allegations regarding sex role stereotype werent analyzed by judge bianco and denied. Separate and independent. Question of whether discrimination based on Sexual Orientation violates title 7 was ruled on by the District Court. Correct . Yes. All right. So why isnt that issue before us now . Its not it shouldnt be before you. It obviously is. It shouldnt be because if you look at his eeoc charge, he specifically disavows that this is a claim about his Sexual Orientation. Im still confused about the eeoc charge. The way i have it from the special appendix 3, he does start by saying, i am not making this charge on the grounds i was discriminated against on the grounds of my Sexual Orientation. Rather, im making this charge because in addition to being discriminated against because of my Sexual Orientation, i was also discriminated against because of my gender. Thats poorly written, the second sentence seems to contradict the first. But it clearly raises the issue of Sexual Orientation. Why am i reading it that way . Reading it in that vacuum it does contradict it. Reading it where hes also asserting a claim of Sexual Orientation under the state human rights law where its permissible, it makes sense. You can read it. I am not claiming Sexual Orientation discrimination under title 7 because when you look at the next paragraph, paragraph 3, he talks about specifically what hes alleging. And that specifically what he was alleging is mirrored in complaints one, two and three of his federal lawsuit and thats what was analyzed by judge bianco. He goes on to say, my claim is because i did not conform my appearance and behavior to sex stereotypes i suffered adverse employment action. Thats what the legal question before us is. No. Im sorry. Go ahead. Its not my place to say no. But it is judge biancos determination that his sexual stereotype claims failed because there was no way a jury could conclude that what he specifically alleged could support a claim for his termination for Sexual Orientation. And that part yet, the judge let it go forward under the new york labor law, correct . Yeah. Under a different standard of proof, causeation potentially, right . Yes and no. Yes, the judge let it go. In the judges decision he said the fact that were alleged when coupled with testimony that could come out at trial could support a claim. The problem is now, we have a closed record. The facts that came out of court came out. We had people come and testify, and it wasnt what the plaintiff said. The young lady who was jumping with him said, hey, he made the joke about being straped to me and he only disclosed to me his Sexual Orientation when he felt that i was uncomfortable because he was hitting on me. So if anything, he was terminated for heterosexual activity and he tried to cover that by saying to her, dont worry about me. Im gay. I just broke up with my boyfriend. Oh, by the way, im falling from the sky strapped to this guy while hes saying it. So where his counsel says, well, he said to her hes gay, thats out of context. Its dont feel uncomfortable that im nuzzling you and trying to speak to you in an affectionate way which is what she testified. Speaking of nuzzling, that sort of reminds me of horses which i live with on occasion. Why isnt this cart way before the horse . Were here trying to decide whats alleged in the complaint fits within title 7. Were not at the point where were analyzing where were age to analyze the facts of the were able to analyze the facts of the case. I didnt make an icbalintambli argument. They dont support the claim. Because those facts have already been before a jury and the jury already concluded under the state standard that he was not discriminated against based upon Sexual Orientation and the extent we look at the judges extension, his concurrence in christensen, it seems to be moving to a buck 4 standard as to whether or not Sexual Orientation discrimination occurred. If thats the case, if we take that buck 4 standard, then 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 fools errand on facts that dont reflect came out of trial. The standards are different. Federal standard is a motivating factor. Not the but for standard under which your client prevailed. I understand that. But when i read judge katzmans concurrence i am not sure youre reading it as fully as one might. When i read the i hear everybody argue. Part of the argument is, yeah, you make the argument and make a but for decision. And if youre taking that but for decision, you cannot divorce that from the verdict hat we already have. I see i am out of time. Thank you. Thank you. Thank you for the honor. In light of the judicial consensus that was over 50 years that title 7s prohibition on sex discrimination does not read Sexual Orientation. There are three Reasons Congress ratified that decision. Can i ask why youre here . Does do they defer to eeoc . No, your honor. It has control over private party litigation. D. O. J. Has primary control over put litigation and d. O. J. Is of course the nations largest employer. Private party. I dont understand. The statute which would apply equally if its a private party or public party so the government has an interest on the Public Sector side. Who is the representative, mr. Wheeler . Yeah. He was acting director when the brief was filed. The eeoc filed an amicus brief but the d. O. J. Did not. Is there a reason why was not filed then and one was filed now . I am not sure, your honor. Has there been a discussion about that . Im sorry. In november of 2016 [laughter] i thought that might be your answer. Is that the reason . Its before my time at the department, yurn, so i honestly couldnt your honor, so i honestly couldnt tell you. What is the process within the government where you got i know it varies with respect to which agencys youre talking about, whether they have independent Litigation Authority. With respect to the eeoc and the department of justice, what that is entered into in terms of filing a brief . Im not exactly sure what youre getting at your honor. Can the eeoc file its own brief without consultation with the department of justice . Goes back to judge poolers question. Thats a fairly complicated question. What i will say is this. The eeoc had the authority to file the brief that they filed in this case and the department of justice, of course, has the authority to file the brief that it has filed in this case. You know the employment section was consulted in connection with file this brief . Your honor, i dont think its appropriate for me to disclose the deliberative process within the department as to it. I will note as the questions noted, the acting head was on that brief as well as the acting head of the civil division. As part of this complicated process, does d. O. J. Sign off on a brief that eeoc intends to file . Again, i dont think its appropriate for me to speak to internal deliberations and internal process. I ask if its procedure, not internal deliberations. Your honor, i dont think its appropriate for me to comment as to whether we signed off on the briefs they filed. Not this brief. Or in general. Ordinarily, would d. O. J. Sign off on a brief filed by an agency of government . Your honor, im sorry. Doesnt the eeoc like the s. E. C. Have its own Litigation Authority . There are cases brought in the name of the eeoc and this court of course every circuit every place in the country without d. O. J. Approval, right . We are not disputing that eeoc had not i think i shouldnt comment on the degree which the department was involved in that. I am prepared to proceed on the assumption that youre here. Thank you, your honor. [laughter] let me ask you this. Since you are here. Why cant the associational analysis be performed, notwithstanding a stable meaning of the word sex for the last 50 years as denoting men and women . In short, if just on the analysis with race . So theres a fundamental you have men and you have person of a certain race cohabitting with a person of another race is discriminated against. So theres a fundamental difference, your honor, between race and sex when it comes to associational discrimination. If you say that someone discriminates on the basis of interracial marriage, everyone would call that person is a racist. If you discriminate it on Sexual Orientation, you would not call them is they are a sexist and the reason you might call them a homophob. You would not call them a sexist and the reason you would not call them a sexist even though the person that discriminates against interracial marriage a racist because when you discriminate against interracial marriages you are treated similarly black and white people differently and you are doing it based on racial superiority. Why do you need racial superiority . The same thing would apply to people of two races even if one of the races is not white and one of the races is not black. Even though in that circumstance, your honor, youre still treating individual of two different minority groups differently who are otherwise similarly situated and thats simply not true when youre dealing with a man and woman in the context of sexual relationships. But and these arguments are not new. The associational argument was can you point me to some cases that make this proposition . Support this proposition . Well, so i was about to say. Associational argument was made in the ninth circuit in desantis in 1979 and it was rejected. There are several other circuits that rejected in general the argument that Sexual Orientation was within sex discrimination. Then in 1991, congress engaged in a comprehensive amendment to the Civil Rights Act and it overturned several other areas where it disagreed with the judiciary and it did not overturn these cases. And under cases like when you say disagree with the judiciary, one of my colleagues pointed out before, would that include Circuit Court decisions or only Supreme Court decisions . So in the 1991 amendment it was a Supreme Court decisions but importantly the Supreme Court has found ratification in circumstances where congress has rejected lower Court Decisions. Laurel lard v. Ponds. Both of which reject expressly the arguments made by the eeoc here today. I understand your argument but wouldnt 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. Did so in the 1991 decision specific Court Decisions but it didnt do so with Sexual Orientation decisions. Why are you saying we can make that leap to say even though they didnt talk about it they really did . Which is what youre saying. So i have three points about that, your honor. The first is thats exactly what the Supreme Court did in laurel lard v. Ponds where the case in the case was whether the a. D. A. Had a jury trial. And what the Supreme Court said was congress was trying to incorporate the flsa and within the flsa context, lower courts not the Supreme Court lower courts and only a handful of lower courts, one Circuit Court and a couple District Courts had found a jury trial. The Congress Found ratification on that. Moreover and directly in response to your question if i could just finish. Ill let you finish and ill ask you a question. To further their point they said congress in a. D. A. Overturned other aspects of flsa injuries prudence and what did they jurisprudence and what did they say . Not the question of the jury trial right. Other context and they said because congress overturned other parts of the flsa, we will assume that they ratified the part they didnt touch. That is also exactly what the upreme court did in the fa rager decision. The 1991 civil rights amendment, the very law thats at issue here, the Supreme Court said when congress overturned a variety of other Supreme Court decisions in other areas, but didnt touch the scope of supervisory liability for employers, they ratified that. So youre right, your honor. It would be stronger if the court if the 1991 congress in the civil rights bill had specifically talked about Sexual Orientation said we like all those decisions, but the Supreme Court has never said thats the touch for ratification. What the Supreme Court has said is that if you have a comprehensive amendment to the statute, leave standing judicial consensus on one issue and overturn areas in another area, even when its lower court, thats ratification. That said, 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 bills sponsor said that was necessary because federal law did not cover it. And despite that, congress did not enact that bill and has never enacted that bill. And thats what fundamentally is different from the ppgc opinion that the eeoc relies on. In ppgc the situation was that the ppgc had taken a certain position. There was a bill in front of congress to ratify it. They didnt end up passing the bill, and what the Supreme Court said, we dont know if they didnt pass that bill because they already agreed with the ppgc or disagreed. Thats totally distinguishable from a context like this whether every Circuit Court for 50 years has said this is not covered. Every year from 1974, congress has had a bill before it to overturn it and every time they dont do it can i go back to the associational argument for a minute . Im sympathetic to your point that any sodge nation laws are a fundamental aspect of White Supremacy and thats not we nt say that about this, but bigotry against homosexuals is somehow about hostility to men or hostility to women as such. What about in the case of religion . If you had an employer who has an orthodox jew who had a work force of mixed religion people but then one of his jewish employees married a christian and he fired that person, isnt that an compasm of religious discrimination example of religious discrimination, that doesnt have anything to do with misogination laws or region liss superiority . I dont know if it would be paced on religious superiority. Setting that aside, the more fundamental point, your honor, in that circumstance youre treating similarly situated jews and christians and no. The christian can marry another christian and the christian can marry a muslim or jew. He doesnt care about that. He doesnt want to see jews marrying nonjews. So the jewish person is being treated differently than otherwise similarly situated nonjewish people and that is why that why is that not the same as thats the argument that mr. Nevins has made. Thats the argument and the difference is unlike jews and nonjews who are no factual difference and the law does not recognize differences. There are differences between men and women and the law recognizes the difference between men and women. Its vividly illustrated in the situation of bathrooms where everyone recognizes that title 7 does not prohibit having single sex bathrooms. Now, the eeoc comes here today and says the reason thats ok is because its trivial and that is frankly an astonishing proposition for the eeoc to take. If the argument is that terms in bathrooms is not a condition that matters with a discrimination statute then you can have black bathrooms and white bathrooms. The same exact term and country kn. They have no argument why because of term and condition you cant have segregated racially segregated bathrooms today. Thats obviously wrong and what it demonstrates is sex discrimination is sort of ok because there are real distinctions between men and women but a Racial Discrimination and religious discrimination is not . Thats obviously the case. Sexual prohibition is the critical difference, your honor, discrimination requires treating people who are similarly situated differently. And unlike with race where black people and white people are similarly situated under both law and fact, men and women are not similarly situated in all respects. The law recognizes there are real physical differences between men and women and something to do with this marriage issue . Yes, your honor. The same exact physiological differences that are relative to bathrooms are the same exact physiological differences that an employer is allowed to take account of when they are regulating their employees based on their offthework sexual relationships. There are several questions about this and the eeoc agrees that employers under title 7 are allowed to do that. Employees under title 7 are allowed to regulate their employees offthejob sexual behavior. They are allowed to say if you cheat on your wife youre fired, promiscuous youre fired. That is not covered under title 7 because it only covers race and sex and other protected traits. Ethnicity is covered under title 7 . Yeah. Ethnicity can be viewed as a subset of race. Why is that . I just think as a matter of ordinary english you can parce and ethnicity. Its a matter of ordinary english, i look at the dictionary and homosexuality is a subset you cant distinguish that from sex. Why isnt that the same analysis that you would allow that you just applied in the context of ethnicity we we found and you agree is covered by title 7 but the word ethnicity is not in title 7 . Im not disputing as a logical matter, your honor. You could view Sexual Orientation as a subset of sex but you could also as a matter view it as a disttinket category and the question sunday this statute thats passed by congress which one of those two it is and we know very well which one it is because several Times Congress has actually prohibited Sexual Orientation discrimination. It has done so saying in addition not in a contemporary when laws are passed in a contemporaneous congress, then they have a different impact and when laws are passed separately from contemporaneous enactments, would you agree . I think youre right, your honor. In this context it gets it exactly backwards. Think what happened today if congress were to pass a statute that said no sex discrimination, it would be indisputable that didnt cover did or did snot if it said sex did or did not . If it said discrimination it would cover Sexual Orientation. Would you have a broken set of case law saying the two acts are distinct. And you have an act of congress saying its distinct. If thats the case today, then in 1964 when Congress Passed the same exact word, they didnt have some broader notion of sex discrimination compared to what we have today. It just makes no sense, your honor, were suggestion that sometimes have atute can be read to a comparable i dont dispute the proposition, your honor. Thats absolutely true, your honor. Its not applicable here. The point is the statute covers Sexual Harassment under plain english and questions does that prohibition encompass Sexual Harassment . By plain text it clearly does and the Congress Excuse me. You said by the plain text covers Sexual Harassment. Thats not written in the statute. Just cisdiscrimination because of sex and it took quite a series of cases to construe that to include Sexual Harassment. Just remembering. I am not sure exactly how long it took but it seems to me when you have a statute that says you cant discriminate baced on the terms and conditions of sex that fairly readily supports it covers Sexual Harassment. Barnes and costel from the 1970 eafments it went through an extensive review of the history of the Civil Rights Act and that labored over this because the initial inclusion of women at all was subject to question. So i would suggest to you the statutes that grown more in line with Justice Scalias description and the judge referred to youre ack knowledging let me qualify what i said. Even if you say how clear it is Sexual Harassment period was covered, wund they held it was covered, there is no dispute that theres any deference before its same sex or opposite sex harassment. Theres nothing in the language that will get threw and that was Justice Scalias point. Congress may not have been thinking about that fact pattern but its covered by the text. But in this context on the other hand, sex discrimination and Sexual Orientation discrimination have always been understood not just in terms of the subject of the intent of congress but in terms of ordinary english as confirmed pi the fact that every court for 50 years tells held it, the eeoc held it for 50 years. And the eeoc, by the way the landscape changes in terms of the law, right . Marriage is different now. 20 years, your honor. After Price Waterhouse why cant the same be said about Sexual Orientation . The landscape has changed. Even after Price Waterhouse and even after oncali in 1996, every court in the country for another 20 years said that including the eeoc. The eeoc had cases explaining that oncali didnt change their position. I would urge you to read that. Those eeoc opinions are not any differently reasoned than the Court Opinions from 179 that we cited that we say congress ratified. These are there is a fairly commonsense intuitive difference between Sexual Orientation and discrimination. I thought you would see it a logical matter that Sexual Orientation could be a subset of sex . As a logical matter there is a as a theoretical matter come up with a hypothetical but for construct is it the governments decision that the plain text of the statute clearly excludes Sexual Orientation . I think it is clearly the better reading and so, yes. But i dont think this court after guse or to not can you tell me where it clearly excludes Sexual Orientation . Ordinary definition of discriminate on the basis of sex is. It is treating men and women differently and thats not happening here any differently than it is for bathrooms. So i guess i will say this. Its no less ambiguous than whether title 7 bans single sex bathrooms. And since i dont think anyone thinks it does and i dont think any court has ever held it and will hold it and their only argument for why its different is an argument that would blow a massive hole in the statute by saying terms and conditions dont cover bathrooms such we could have the clerk will designate bathrooms again i think its a better interpretation. Even if you dont think its unambiguous its certainly at least a Strong Enough interpretation that the fact that congress has ratified it repeatedly in various ways should count. If i could make one last point on ratification, your honor. Which i said before, they point to the ppgc opinion having trouble with your term ratification. When i hear the word ratification, i understand that to mean an explicit statement as they have Done Congress has done in many, many cases. Where is the explicit ratification . Thats not the way i am using the term ratification. Thats not the way the Supreme Court has used ratification in terms of communities and laurel lard v. Ponds. The way i am using the term its the principle i am focusing on is when there is a judicial consensus on an issue and Congress Amends the statute and leaves that consensus undisturbed, thats a ratification of that position. Thats what the court held in laurel lard and thats what they held in inclusive communities. There is a difference in inclusive community, didnt you have nine courts rulings and in the cases youre mentioning with respect to the 1991 act, congressional act, you have three courts that have acted in that area at that time. No. Well, two points. First of all, i think technically its four and arguably five which we cited in our brief but more importantly, laurel lard had more than that. They cited 1 5 circuit opinion and one District Court opinion and two that cited a handful of other District Court opinions. Four is more than one, your honor. Want to make the point about congressional acquiescence. Ratification as we discussed is when Congress Amends the statute. Congressional acquiescence is since 1991 year in and year out congress has been presented a bill to undo this consensus and it has not acted. Unlike the ppgc case i would point the court to the kline decision which we cite in our brief where the court found based on two Circuit Courts and a handful of District Courts that the fact that the congress having disturbed that was strong evidence that was the correct interpretation of staff ufmente here we have every federal Circuit Court, the eeoc frr over 20 years in the face of Price Waterhouse, in the face of oncali and you have Congress Passing statutes, using the term Sexual Orientation specifically and separately and moreover, doing it by saying, sex or Sexual Orientation, not saying as their argument would suggest, sex, including Sexual Orientation which is what they did in the pregnancy discrimination act in 1978. When congress overturned gilbert in 1978 when congress overturned gilbert in the pregnancy discrimination act of in 1978, they said sex including pregnancy which they thought pregnancy was thank you for your argument. May it please the court. Adam. I would like to say the court appreciates mr. Mortara accepting the invitation to make the arguments. The but for test, however it applied, does not categorically define Sexual Orientation. Particularly with regard to sex segregated bathroom and the bauer case where the f. B. I. Having different pushups between a woman and a man and he wanted to become a special agent missed the pushup count by a few and if he had been a woman he would have been made a special agent. It was not disputed and yet that was not sex discrimination. The but for test as applied by i guess the aplate here but by the way the government puts it gives you false positives. So it cannot and does not define what is sex discrimination. I dont really have much strong position about how the but for test should be applied for because its not an interpretive device. Its not a device interpreting title 7. Its in evidentiary standard it can provide clues as to whether the real reason with sex discrimination but doesnt provide the answer. A few other answers. We talk about trivial in terms of terms and condition. I agree bathrooms are not trivial. Osha requires sex segregated bathrooms. Actually requires a multitoilet situation that bathrooms be sex segregated. You say but for doesnt apply here. Would you have a term that would be more accurate and helpful . I think i start at the top which is the true reason has to be discriminatory. The true reason has to be because you are a man, so thats the top. I think to full to sort of fill that out and get to that answer, id say the but for test is helpful. And then id say there has to be an unequal burden applied from one sex to another. Thats what the ninth circuit does in their dress code line cases which starts out with united and Continental Airlines having different weight requirements and one Flight Attendant unmarried and that imposes an unequal burden on the sexes but then ends up in jembings esperson where women men to wear makeup and cant and women can color their nails and men cannot. You say as i understand it about ruthful response why an employer fired a gay man uld be because he was gay, not because he was a man. An snt that arguably incomplete answer . Saying someone is gay is the shorthand for saying that the person is attracted to other men so that is the real reason. If you pursue it more. So in the Price Waterhouse case, for example, if price aterhouse had argued that they discriminated against ann hopkins, not because she refused to wear makeup, but because she was a gender nonconforming person, would that have been a defense . No. And the strongly depends on Price Waterhouse and the catch 2020 eluded to earlier. The thing in Price Waterhouse, s a catch 22, you have to be aggressive. Price waterhouse would have fired a docile or passive man given the facts given. Its not true merely being nonconforming gender by itself gives you a sex discrimination claim. It has to also be true theres something additional. Evidence of misogyny. Evidence of highly traditional, for instance, sexist views about women and children. Thats kind of the back case from this court. There has to be something more. It is not true that sex stereotyping standard alone can give rise to a sex discrimination charge or ms. Jesperson would have her job at harrahs casino. She quit her job that she had for a very long time because of it. So i really do not understand talking about dress codes and talking about bathrooms as if heyre nothing to person, people, it can be extremely important. Why do you seem to say title 7 was directed as animus as opposed to Something Else . There were these adverse impact cases under title 7 that has nothing to do . Thats a different provision of the statute. Your honor, if you interpreted me to say title 7 is only about animus then i should clarify. Its only about animus. The treatment in title 7 is only about animus but what motivated the decision. And animus is the smoking gun evidence that the subject category motivated the decision. Youre asking us, i thought, aybe i misunderstood, view animus as some helpful interpretive tool. Its not i think animus is not just a helpful interpretive tool. Its the whole thing. If you find animus against the subject category group, end of story. Its disparity treatment. Interfaith marriages and interracial relationships id like to briefly address. On the hypothetical, it was positive about the jewish employer marrying out of the faith, that absolutely would be discrimination on the basis of religion almost without question as a hypothetical was stated because the jewish employer he doesnt need to be jewish would have an idea, a notion of how jewish persons were supposed to behave and he would have sbosed that notion on the jewish employee and the truthful answer on the Price Waterhouse question would have been i fired you because you are a jew and jews are not supposed to do that. So that whats the difference . I dont see why you couldnt say exactly the same words you just said substituting man for jew. The words could be used but there actually is no word for somebody who is for instance opposed to interracial relationships. There the word we use to say somebody is opposed to gay relationship is would you say there is a word for someone thats opposed to an interracial relationship you just made exactly my point. On the interRacial Discrimination cases, all that is is a statement there is no studied neutral opposition to sper racial relationships. It does not exist. When somebody says i oppose interracial relationships, they are effectively saying in this country i am a white supremacist and theres just no room where somebody who says i oppose intersex homosexual relationships, rather, theres a name for that person. It can be are you saying its implausible that the members of may race would view view dismay or disgust someone like themselves marrying someone who is not . Im not saying thats not impossible. Impossible. Youre assuming that it is only white people based on an idea of White Supremacy who would object to someone a white person marrying someone of another race and i think just is implausible and i dont know why that person of the other race would look at the marriage or liaison with dismay. Theres one thats not race neutral. In other words, youre saying a situation say an asian person a chinese person objects to a chinese person marrying a nonchinese person. That would be exactly the same as the jewishchristian hypothetical, be a chinese person an idea with how Chinese People should behave firing somebody. The judges question you are saying the animus is not against whatever sex it is that the person is marrying. The animus in the bias against gays case is specifically against gays. It doesnt have anything to do with hostility to men . Thats correct. Someone who is bigoted against a man has nothing to against men. Someone who is opposed to someone of his race marrying someone of another race does have something against the other race, is that the point . Thats very close to what im saying. I dont like the associational line of cases for a lot of reasons and i think its much more about racial stereotyping of the race of the employee. The instance of a white marrying a black person, its about how whites should behave, i would take issue with that a little bit and i would qualify what you said only in the following sense. It is perhaps more possible that a gay man could be fired because there were an issue with gay men as opposed to gay women. And the Justice Department and i both concede that would be sex discrimination and thats why your where juries are going to have to get into the evidence and look at why the person was fired. I qualify it in that way. How do we sidestep the associational piece which youre not comfortable with because it seems to me we have that lurking out there and it can be used as a guidepost . I would say ill give you a couple ways to sidestep it. Number one, a lot of the instances of the failures of the but for text could be classed as associational discrimination as well. I prefer to go to the bathroom with other men, for example. And therefore i associate with other men in the toilet. And so if you discriminate against me or discriminate against me because i prefer to associate with men in the locker room, we had discussion about locker room talk. Maybe its not all great. Much of it is not. But at the same time theres answeran associational element there as well. But also beyond that what i would say is, associational discrimination doesnt get you much more than the but for test. And when the but for test is known to have false positives in sex its really not adding much for us. On race, the but for test is as perfect as a test could possibly be. For reasons that my friend from the Justice Department really alluded to. The way i would discuss the associational discrimination cases is to make exactly that point. That there are differences between race and sex and we need to look no further again i bring back to the bathrooms. After the 1964 act was passed, everyone understood that race segregated bathrooms had to go. Ish osha sex segregated bathrooms. No one distinguished it from the issue of sex segregated bathrooms and talking about arguments courts did and didnt have. It doesnt appear that the hyley had the issue of the but for test and sex segregated bathrooms. It doesnt appear to have been discussed whereas let me interrupt for one second. Again, i have not thought this all the way through but, you know, title 7 really focuses on Economic Opportunities. Sex segregated bathrooms has very little to do with Economic Opportunity but employment discrimination, firing an employee, making other adverse moves, does. Mr. Zarda here lost his job because of the actions taken against him. So could you explain why that might not be an active distinction . To be clear, if you go to the osha regulations on bathrooms, they think bathrooms are very important. They have regulations about the numbers youre going to have and all this kind of thing. But also the hypothetical really is a man wants to use the womens toilet for whatever reason. That was the issue in cassel. A biological male who was a transgender woman wanted to use the womans toilet and it was very important to them and very important to their Economic Opportunity. And ms. Jespeson and her desire not to wear makeup. Why is using the bathroom important to Economic Opportunity . Your Comfort Level whether you can relieve yourself has a lot to whether you can perform work functions during the day. If you deprive somebody of the under to followup on judge carneys question. I dont understand how bathrooms are that critical as a matter of title 7. Matter of osha but not title 7. That would be news to all the people who woke up racially segregated toilets could not be used after the Civil Rights Act that were talking about today under this exact provision we are talking about today. But also they are it is an adverse employment action. Ms. Cassel was fired because she wanted to use the womens toilet. She was fired. So sex segregated bathrooms exist and its a rule employees have to follow just like dress codes. I own t the soig to a tennis club. I say you can only enter into mixed doubles tournaments. He said he would like to enter a regular doubles tournament and the question is no. The but for test is satisfied. Now i tell you its a man and he wants to play tennis with other men but i tell him he cant. But if he was a woman i say she can play with other men. Its an associational discrimination case. Based on who i want them to play tennis with. What i am going to hear back, well, thats trivial. There is no hierarchy of values in title 7. The text doesnt support is it. Thank you. Thank you. Mr. Antollino, you will have three minutes in rebuttal. Thank you, your honor. I would agree with my friend from chicago there is no hierarchy in title 7. All five of the protective categories are treated the same and you see in footnote 9 of Price Waterhouse. There is no difference. And i had hoped that we would get through this argument without an extended discussion on bathrooms but i knew that it my question to you at the beginning was about this bathroom example. And you just heard your adversaries used that i think in a somewhat effective way to say, well, we wouldnt consider llowing racial difference in terms of use of bathrooms. Can you answer their argument . Well, what if men and women have different equipment and theres different equipment in the mens room than there is in the womens room . It is a custom. It is such a small consideration that for bathrooms to swallow the entire question is really to focus on a matter that doesnt matter to Economic Opportunities which is what eeo which is what title 7 is about. With respect to the charge, i contend that when we came 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 baldwin came down we asked to reopen the question and our request was decide. I would also suggest that the eeoc oh, i also with respect to the legislative intent, i dont think there has been an answer to the pension Court Decision which holds the legislative history is a hazardous basis for infering intent. And in that case, it cited an early opinion from 1962 which itself cited cases from the 1940s. We have not 50 years of cases that hold against us but e have an unbroken 80 years of cases that hold negative legislative history. Its not basis to make a decision. The but for question will be something that necessarily is going to depend on the context and the facts. We cannot guarantee that it ill work in every context, but oncali held we see no basis in be unduly formal and say it doesnt apply that maleon male harassment does not apply and Sexual Harassment as your honor has pointed out was not an established theory until 1979 in the District Court case and for years courts have held while this is just sexual attraction between men and women, and this is not what title 7 was intended to protect. Eventually courts began to get it right and there is no question now. The urt has to interpret statute. Your honor, you know how this is made. You wrote a book on it. I got the title wrong in my brief but i did read it. [laughter] at least you read it. And one thing you pointed out is that agencies are generally the first, often the primary interpreters of statutes and thus that gives way to the eeocs interpretation where the d. O. J. In this case, does not govern exclusively employment discrimination. I believe thats 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 clerk. Court stands adjourned. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] thursday, were live in nashville, tennessee, for the next stop on the cspan bus 50 capitals tour. Former governor will be our guest on the bus on washington journal starting at 9 30 a. M. Eastern. And join us thursday for the entire washington journal starting at 7 00 a. M. Eastern on cspan. Californias wildfires can be seen from outer space. Noaa has satellite video of the california wildfires. You can see the active hot spots in red. Lets take a look whats left after the fire swept through santa rosas Hidden Valley neighborhood. Authorities say wildfires in both southern and Northern California remain active and the number of People Killed now stands at 13. An estimated 1,500 homes and businesses have been destroyed in Orange County since the fire began monday. In the north, wildfires have been going through wine country. Vice president mike pence un