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Author Topic: Place your bets: how will SCOTUS rule on LGBTQ job discrimination?  (Read 336 times)
MillCreek
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« on: October 08, 2019, 03:05:00 PM »

https://www.nbcnews.com/politics/supreme-court/supreme-court-appears-divided-over-lgbtq-job-discrimination-n1063886

What SCOTUS rules will be irrelevant in many states that already forbid job discrimination on the basis of LGTBQ, but I am betting that the ruling will be that the Civil Rights Act also covers this basis for discrimination.

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RocketMan
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« Reply #1 on: October 08, 2019, 04:50:51 PM »

You're probably right, the CRA likely covers the alphabet soup stuff already.
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MechAg94
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« Reply #2 on: October 08, 2019, 05:00:47 PM »

You are probably right, but I really don't think the whole trans thing is the same as the rest of it.  The example of the funeral home is appropriate in a way.  Whether the person is gay or not doesn't matter much in how they represent the funeral home to customers.  Cross dressing could be entirely different.  It likely could be done appropriately, but also completely inappropriately.  They have to conform to the expectations of their customers not the whims of the employee.  I think it is difficult and unnecessary to put a one-size-fits-all govt mandate on this.  We would be better off if Congress just dumped the law.
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BTR
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« Reply #3 on: October 09, 2019, 05:56:13 AM »

As far as the funeral home case- The federal gov doesn't have the right to tell any private individual who they are allowed to refuse to hire for any reason under freedom of association.

Case closed.

No clue about the one involving the county gov though.   Huh?
« Last Edit: October 09, 2019, 12:02:04 PM by BTR » Report to moderator   Logged
dogmush
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« Reply #4 on: October 09, 2019, 07:36:38 AM »

You are probably right, but I really don't think the whole trans thing is the same as the rest of it.  The example of the funeral home is appropriate in a way.  Whether the person is gay or not doesn't matter much in how they represent the funeral home to customers.  Cross dressing could be entirely different.  It likely could be done appropriately, but also completely inappropriately.  They have to conform to the expectations of their customers not the whims of the employee.  I think it is difficult and unnecessary to put a one-size-fits-all govt mandate on this.  We would be better off if Congress just dumped the law.

I was actually thinking they'll decide the other way.  The law prevents discrimination based on "sex".  The transgender thing is tied to biological sex. ("Mine is wrong" and whatnot) whereas the LGB part of it is not tied to sex.  Or rather "homosexuality" is sex nonspecific.

It kinda depends on how close to the law, and the idea's of "sex" 50 some years ago the judges stick.  I wouldn't bet a huge sum either way.

Quote from: BTR
The federal gov doesn't have the right to tell any private individual who they are allowed to refuse to hire for any reason under freedom of association.

Case closed.

Well, yeah.  They sure as *expletive deleted*it have the ability though, and use it.  So unless we're getting frisky over this, it's worth paying attention to how they decide.
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Chris
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« Reply #5 on: October 09, 2019, 07:48:08 AM »

This could be as complicated or as simple as the court wants it to apply afterwards.  By that, I mean that the case involves a government employee (county government) who appears to have been fired for joining a gay softball team.  They could make this a simple freedom of association case, and completely dodge the gay issue.  They could say that Title VII prohibits .gov from discriminating on the basis of sexual orientation, and dodge the general application (which could become an inevitable case if they did).  They could says sexual orientation is protected, but avoid the trans issue.  They could say "sex" as used in the law written in 1964 clearly means gender, and throw it back on Congress to amend the law if they want it to include sexual orientation.

My guess?  Total guess which could be wrong... 5-4 vote that extends Title VII protection to sexual orientation.  
\
If it was me on the court, vote that it is a 1st Amendment freedom of association issue.  Absent some clear demonstration that his membership on the softball team impacted his work, his membership on a gay softball team is protected by 1A, so his termination by .gov from his work is unconstitutional.
« Last Edit: October 09, 2019, 10:24:48 AM by Chris » Report to moderator   Logged

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MechAg94
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« Reply #6 on: October 09, 2019, 08:19:47 AM »

I didn't even notice the actual case before the court.  Skimmed through that I guess.  I would agree with Chris.  Getting fired for participating in a legal and acceptable extracurricular activity does not sound like a sex discrimination issue. 

https://www.nbcnews.com/feature/nbc-out/georgia-man-fights-gay-rights-u-s-supreme-court-hotlanta-n1054156
This was the linked article about the case.  He was an advocate for minors in the juvenile court system.  He was fired months after joining the team.  I am pretty sure Atlanta has a sizeable gay population, but I could be wrong. 

Looking at this quote, I would imagine the County has something tangible they used as a reason to fire the guy.  The article is non-specific, but I wasn't sure if the lower courts even heard the case, but just dismissed it.  The case may only hinge on the reasons why the lower courts dismissed the case. 
Quote
Bostock worked for Clayton County for a decade - managing a program to recruit volunteers to help represent the interests of children in the criminal justice system - until being fired after he started participating in the recreational softball league for fun. The league was formed in 1981 as a ôsafe inclusive environmentö for LGBT people to play softball.

Soon after joining the Hotlanta league, Bostock said, he heard at least one senior staff member in his office make negative comments about his sexual orientation.

Three months later, the county launched an audit of the program he managed. Bostock said the audit looked in part at his expenditures to take prospective volunteers out for dinner, including other participants in the Hotlanta league.

'Non-discriminatory reasons'
A spokesman for Clayton County declined to comment on the firing, citing the ongoing litigation. But lawyers for the county said in court papers he was dismissed for ôlegitimate, non-discriminatory reasonsö based on the audit.

ôThe county denies that Bostockĺs sexual orientation was a motivating factor in its decision to conduct an audit of the program he managed or its decision to terminate his employment after the audit was completed,ö the lawyers added.

The article also points out the Supreme Court is hearing 3 different cases all centered around LGBT..etc  rights so we will see. 
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Chris
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« Reply #7 on: October 09, 2019, 10:58:07 AM »

I'd like to hedge my bet...

1.  I just had a chance to read up on this a bit, and see that the Bostock case (gay softball league) was joined with two other cases.  One is a trans funeral director.  The funeral home has conceded that it fired the now her because of the trans issue.
2.  In reading up more on Bostock, he was an award winning director of CASA in Atlanta, with very good performance reviews. He joined the softball league in 2013.  Not long afterwards, his county supervisor initiated an internal audit of the program's finances.  A meeting with the board for his CASA program was held, with Bostock present.  It is alleged that at that meeting, the softball league and Bostock's orientation were questioned and disparaged.  He was fired after the meeting for  ôconduct unbecoming of a county employee.ö
3.  https://www.scotusblog.com/2019/10/argument-analysis-justices-divided-on-federal-protections-for-lgbt-employees/  This is a page that gives summaries of arguments and questions/comments from the bench.  In appears that Gorsuch is leaning in favor of granting Title VII protection to sexual orientation, but may hold off on trans issue.

So, with all of this in mind, I'm now saying 5-4 on allowing Title VII protections to sexual orientation discrimination.  I predict 5-4 decision denying the trans extension, saying that needs to be done by Congress, not the court.  I then predict that a lot of the congress critters that threatened the court on the gun issue with shout about the trans issue, and why we need to change how the court works, and either add another 2-4 justices/shorten the appointments/etc.  (I would suggest that these congress critters take a government class and see that it would take an amendment to the Constitution to make these changes, but that's me.)
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MechAg94
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« Reply #8 on: October 09, 2019, 12:22:03 PM »

Thanks.  On #2, that is pretty different than what the article said.  It actually sounds like it was pretty stupid of the county to fire him for that reason without finding something else to include.  If they are not stupid, it makes me wonder if there was some particular behavior on his part that was connected to his job with the county. 
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grampster
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« Reply #9 on: October 09, 2019, 02:42:10 PM »

I would think that the SCOTUS would pass on the trans issue.  My understanding is that the dude started dressing up as a woman.  His employer fired him for not wearing the appropriate attire for the business.  I do believe an employer certainly can impose a rule about how to dress, especially if  you are an undertaker.  You have a mental illness that makes you want to wear women's clothes and you are a man is tough bananas...do it on your own time, not my company's.
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MechAg94
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« Reply #10 on: October 09, 2019, 06:02:47 PM »

That is a point that is missing from a lot of the trans discussions.  I don't think anyone is telling these people they can't be trans.  They want to dress and act as strangely as they wish and force everyone else to not only tolerate it but accept it.  I have worked with homosexual people before and it was really no big deal.  They dressed and acted professionally just like everyone else.  It seems to me that is a point the activists slide by when they argue for "rights". 
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ssteven1
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« Reply #11 on: October 11, 2019, 05:42:31 AM »

I wonder if the reason they fired the first case guy is because he was taking possible volunteers out to dinner on the company dine including other member of the league.  So if the audit showed he was just basically taking his buddies out to dinner on the company dime I can see how that got him fired.  Then during the exit interview it got a little heated and somebody said something they should not have about him and his buddies.  Sounds to me like the most likely possibility about that case.
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Chris
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« Reply #12 on: October 11, 2019, 10:56:48 AM »

I wonder if the reason they fired the first case guy is because he was taking possible volunteers out to dinner on the company dine including other member of the league.  So if the audit showed he was just basically taking his buddies out to dinner on the company dime I can see how that got him fired.  Then during the exit interview it got a little heated and somebody said something they should not have about him and his buddies.  Sounds to me like the most likely possibility about that case.

Everything I've read indicates that he was fired for "conduct unbecoming a county employee."  I would hope that if he was terminated for cause, such as misuse of a county credit card, it would be documented in a much better manner than "conduct unbecoming."
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