Sessions Becoming Trump's Worse Self to Impress The Boss Again i.e.: Gays, Leaks, Putting more people n jail for minor drug offenses, reversing what the previous justice dept was trying to do and finally may be have our jails become the fourth or fifth in the world instead of the first of having it's citizens in jail, many for minor drug offenses.
In a court filing on Wednesday, the Justice Department told the federal court of appeals in New York that employers should be free to fire lesbian, gay and bisexual people under federal law.
To be clear, the Justice Department isn’t a party to the case, which was brought by the survivors of a deceased sky diving instructor who says he was fired because he was gay. Nor did the Second Circuit Court of Appeals in New York invite it to weigh in, as it did the Equal Employment Opportunity Commission.
No, the filing was just a vicious and gratuitous attack on L.G.B.T. Americans.
This latest blow to civil rights by the Trump administration comes at a moment of tremendous promise: The Second Circuit appears poised to expand protections for lesbian and gay workers under Title VII of the 1964 Civil Rights Act, the federal law that bars on-the-job discrimination on the basis of sex, race, color, national origin and religion.
Earlier this year, it agreed to reconsider a pair of its decisions from the 2000s that wrongly concluded that discriminating against people based on their sexual orientation isn’t covered by the statute’s ban on sex discrimination.
Coming on the heels of a landmark decision in April from the federal appeals court in Chicago that overruled similar precedent, the news that the Second Circuit would revisit its old conclusions was applauded by the L.G.B.T. community as heralding the end of another barrier to equality.
Yet the Justice Department, led by Attorney General Jeff Sessions, insists on being an obstacle to such progress.
And its filing puts the Justice Department at odds with the Equal Employment Opportunity Commission, the federal agency that enforces employment discrimination laws. The commission’s friend-of-the-court brief rightly argues that Title VII does prohibit discrimination based on sexual orientation.
That’s because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’ ” as the Chicago court put it.
Consider the example of a gay man who’s fired for displaying a photograph of his husband on his desk. Would the employer fire a woman who featured a picture of her husband? The only difference between the two situations is the sex of the employees.
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What’s more, laws that prohibit sex discrimination protect more than just the fact of being a man or a woman. Take the case of Ann Hopkins, denied promotion to partner at Price Waterhouse in the 1980s because she was considered “macho.”
The Supreme Court decided that the accounting firm couldn’t take into account Ms. Hopkins’s gender expression, that she wore short hair and no makeup or jewelry, when it evaluated her candidacy.
In other words, employers can’t penalize employees for not fitting traditional notions about men and women. And what could be more traditional than the stereotype that men should be attracted to only women, or that women should be attracted to just men.
Workers who are lesbian, gay or bisexual shouldn’t be fired because they are romantically attracted to people of the same sex. That follows from a series of Title VII court decisions involving what’s called associational discrimination. Courts have long recognized that, for example, a white employee can’t be fired because he is married to a black woman. That would be discrimination based on interracial association.
So, too, should same-sex association be an impermissible basis for adverse decisions about hiring, firing or other work-related conditions. Title VII treats each of the protected characteristics exactly the same.
It’s true that the words “sexual orientation” do not appear in Title VII. But neither do the words “sexual harassment,” a form of sex discrimination long recognized to be as unlawful as it is odious.
Presumably, more preparation went into the Justice Department’s 23-page filing on Wednesday afternoon targeting lesbian, gay and bisexual workers than went into President Trump’s tweets on Wednesday morning announcing his plan to bar transgender men and women from military service. But both actions amount to little more (or less) than cowardly strikes against the L.G.B.T. community.
The good news is the Justice Department can’t decide who’s protected under Title VII: that’s a task for the judiciary. The bad news is, as the filing pointed out, the federal government is the nation’s largest employer.
The Justice Department could have taken this opportunity to speak up on behalf of our country’s lesbian and gay workers, including those who serve it most directly. It could even have chosen to stay quiet and let the courts reach their own conclusions, a process already underway.
Instead, it chose to throw its weight not just on the wrong side of the law, but on the wrong side of history.
by Ría Tabacco Mar who is is a staff lawyer for the A.C.L.U.’s Lesbian, Gay, Bisexual, Transgender and H.I.V. Project.