The American Civil Liberties Union (ACLU) filed a blistering response to the Trump Administration’s recent claim that private companies can lawfully fire individuals on the basis of their sexual orientation.
In a 31-page filing submitted Tuesday with the United States Supreme Court, attorneys for the ACLU continue their advocacy on behalf of Donald Zarda, a man who claims that he was fired by Altitude Express, Inc. because of his attraction to other men and for failing to conform to the “straight male macho stereotype.”
Ray Maynard, the owner of Altitude, and the Trump Administration’s attorneys arguing on Maynard’s behalf don’t dispute Zarda’s claim. Rather, they both claim it’s well within Maynard’s rights under federal law to discriminate against sexual orientation in the workplace.
The law at issue here is Title VII of the Civil Rights Act of 1964. Title VII does not explicitly protect against discrimination on the basis of sexual orientation, however, courts have increasingly used the storied anti-sex discrimination statute to protect LGBTQ rights.
And, as of 2012, the official position of the Equal Employment Opportunity Commission (EEOC) is that “allegations of [workplace] discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex.”
Essentially, Altitude’s position presents a test case for the Supreme Court to determine, once and for all, whether Title VII protections are a viable mechanism to bar sexual orientation discrimination.
So, what exactly does Altitude and the Trump administration argue in service of their search for legal reasons to allow anti-gay discrimination? Their actual argument, as noted by the ACLU attorney Ria Tabacco Mar, rests on the idea that two wrongs make a right.
In a recent filing, the Trump Administration acknowledged that an employer who “fires a man for being attracted to men and [who] would not fire other employees for their sexual orientation violates Title VII.” The solution here? Discriminate against lesbians, too.
From the ACLU’s response [emphasis in original]:
[The Trump administration and Altitude] then conjure an employer that fires all men attracted to men and all women attracted to women. This employer, they argue, complies with Title VII because its “sexual-orientation discrimination” policy treats men and women equally.
In other words, the Trump Administration is defending a real workplace policy opposed to hiring gay men with an imagined workplace policy opposed to hiring both gay men and lesbians.
Such a staffing decision, the Trump Administration argues, would be allowable because said policy would discriminate against men and women equally. This doubly discriminatory policy would also be legally sound because, they claim, the real discrimination present in such a policy is actually sourced from sexual orientation discrimination–and is not pure or genuine sex discrimination.
“Altitude and the Government argue that when an employer engages in wholesale ‘sexual-orientation discrimination,’ the ‘[u]nfavorable treatment of a gay or lesbian employee’ is ‘not the consequence of that individual’s sex, but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect,'” the ACLU filing notes.
“That is incorrect,” the filing argues. “The ability to craft an abstract label to describe two sex-specific policies does not determine their lawfulness. Instead, the question is whether, when the employer’s criterion is applied [emphasis in original], an individual’s sex determines whether he or she suffers an adverse employment consequence.”
This line of argument, the ACLU says, is simply the Trump Administration trying to re-label Altitude’s conduct so that it does not run afoul of federal law.
“The deeper flaw in Altitude’s argument is the mistaken belief that if an employer’s act can be labeled as ‘sexual-orientation discrimination,’ it cannot also be sex discrimination,” the ACLU explains at one point.
And, the civil liberties advocates note, the above point isn’t even seriously disputed by the parties.
“Altitude admits that Zarda can be described as having either an ‘attraction to men’ or ‘attraction to the same sex,’” the filing continues.
The ACLU’s argument also provides an explanatory hypothetical:
To see why labeling something an “orientation” policy cannot avoid liability for a pair of actions that each depend on an employee’s sex, imagine a company that fired men for loving romance novels, but continued to employ women who loved the same books. A man could clearly state a claim under Title VII that he was fired “because of sex.”If the company also fired women (but not men) who love automotive repair manuals, this would double the employer’s liability, because it would then have two sex-discriminatory rules, not one. The fact that the employer’s acts could be described as “literary-orientation discrimination” would not defeat the conclusion that they are also “sex discrimination” under Title VII: men are discriminated against for loving one set of books and women for loving another set. Substituting “men” for “romance novels” and “women” for “automotive repair manuals” does not erase the unlawfulness of the practice.
The Supreme Court is slated to hear oral arguments on the case stylized as Zarda v. Altitude Express in October of this year.
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