>> next week on landmark cases we will explore the civil rights cases of 1883 that struck down the previous civil rights act of 1875 that granted people regardless of race access to public accommodations like trains in theaters. join the conversation. follow us at c-span. there are lots of resources for you for background in each case and the series. go go to our website@c-span.org/landmark cases and order the companion book and visit the national constitution center is interactive constitution. >> in the case zarda v. altitude express, the second circuit court of appeals in new york city ruled that sexual orientation discrimination is illegal. the case centers around donald zarda, a skydiver instructor who alleged he was fired by altitude express because of his sexual orientation after revealed to a client that he was gay.

mr. zarda passed away in 2014 and his estate continued the suit. here's the oral argument from september of 2017. >> good afternoon. each side has been assigned 30 minutes, divided ten minutes per person. and that time may be exceeded depending on how things go during the argument. we will hear from mr. antollino. >> good afternoon, your honor and all your honors. my cocounsel who works with me. we are proud to represent melissa zarda and bill moore, executors of the zarda estate and asked the court to construe

and unite title vii with life as we live it and under the plain language and its interpretations. we ask that you find that sexual orientation discrimination a sex discrimination under title vii. donald zarda was a male. he was known as gay though he was not traditionally feminist when he was a great skydiver. when a customer complained that he identified himself as gay, he was fired. and for the revelation it was a violation of the statute because his sex, a male, who was attracted to other men, was a motivating factor in the adverse action. he identified as gay the only because he was accused of being

straight. he was proud of being gay, and in the mail workplace of the skydiving community, jokes were often made that loosen the attention and jokes were often preferential. >> is he alleging he was fired because as gay or because he disclosed that he was gay? >> the precise nature -- it's 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 dovetailed with his being male and being attracted to other men. the simplest interpretation of

the statute i believe is in the judges concurrence, although i didn't state it in my brief, or didn't recited in my brief. the judge concurrence is quite to the text, and holds that title vii requires that a plaintiff need only identify the sex was a motivating factor, and that sexual orientation cannot be extricated from sex. therefore, that you are one and the same. there are also two other

evidentiary theories, i don't know what you want to call them, to interpreting sexual orientation discrimination and sex discrimination. the first and most obvious one with the associational discrimination whereby an employer, if he makes, 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. the judge held this precisely, in the opposition alleges -- >> are you alleging associational discrimination here, and what are the facts that support that claim?

>> well, i think that in and of itself, a man who identifies as gay associates with other men, and is seen soc associate withr men. in addition in this case we don't want to exclude single people, but in addition to this case, mr. zarda also told the female skydiver whom he sensed was uncomfortable because of his sexual joke, that i'm gay and had the ex-husband to prove it,, and his ex-husband was not his husband. it was just a phrase he used who is the executor of his estate and is in court today. and so that was the association. that could be a specific association but it is a general association. the third theory or evidentiary route to reaching a violation of title vii would be sexist stereotypes. >> is and that the only one at least what i have here, the only

one you actually played was sex stereotypes? >> i believe you're right. >> the summary judgment was granted on that, and you didn't appeal it in the field and said it's not before then. how is stereotyping still before a? >> i don't understand the panel opinion of saying stereotypings -- well, the panel said that -- >> the district court found zarda failed to establish proximity between his termination and is due to conform the gender stereotypes and he didn't challenge that on appeal. >> i understand your point now, and what that takes into account is the traditional effeminacy argument that a male may make. i do not conform to sexual stereotypes in that i am

effeminate in certain ways, but we did argue that after baldwin came down and we moved to reopen title vii, that sexual orientation, is the ultimate or gay orientation in this case, is the ultimate sex stereotype. so while there were a few little snippets of pink toenails and whatnot, the argument is the ultimate sex stereotype, as opposed to the bean counting approach, he wore womanly close and his voice sounded gay and whatnot. it is a broader sex turducken. >> are you saying that gate is sex stereotyping? >> gay orientation speed as you can imagine one way or another is sexto typing?

>> it is the ultimate sex stereotype and that men are expected to prefer women affectionately and sexually, and women are supposed to enjoy that affection. >> to that extent is the stereotype that is being applied to both sexes? i ask this because the certainly 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 the sex stereotyping you were talking about applicable equally to men and women homosexuals? >> that is the question that comes up again and again. and the answer is that it does

apply equally but both men and women are being discriminated against. >> but is that what sex discrimination under title vii is meant to prohibit? >> well, that's a very broad question, and i could go, i mean, i could write a whole article for you about that. the different ways that courts have interpreted sex discrimination under title vii. and see, a comparative example would be what if an employer disfavored or discriminate against christians who dated christians? are they being treated the same or are they being discriminated against because they are christians? the same rationale, although it is not exactly precisely on point, was made in loving against virginia, where in

courts had held for many years that the races were treated equally but, in fact, each race is being treated, being discriminated against. in our belief, the discrimination is against don zarda because he was a male, because it was a motivating factor in his termination. had he been a woman this would not have happened. >> let me ask you about that. if the client had been assigned to a woman skydiver who identified herself as gay, it seems to me from the facts we have before us that the client probably would have complained just as much and the female instructor would have been fired.

am i missing something? >> that's hard to say. i cannot speculate as to whether it was actually the clients boyfriend who complained, but the reason it came up in this case 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 don't think that in a heteronormative society someone would've made a joke like that, and the events would not have played out as they had. >> you will have three minutes. >> thank you very much. >> mr. horowitz.

>> question before the court is a pure question of law, whether title vii prohibits discrimination on the basis of sexual orientation. howdy respond to respond to the criticism of the comparator hypotheticals, in particular the criticism that competitors changed both the section and sexual orientation of hypothetical employee? >> well, your honor, the goal in terms of the analysis is to determine the effect of the individuals sex on the way they are treated. answer to do that the man heart decision tells us that what we do is to look at the individual or if you change the sex of the individual, then the outcome would be different, that's discrimination because of -- >> so one of the criticisms leveled by the department and by

mr. mortara all of this comparative test, they point out that a woman who is chronically using the means addressing real or like rick would have been fired had she been a man. but it's pretty clear that employer could fire her without violating title vii. what's your response to? >> well, your honor, the bathroom issue while it's often both in to issues of transgender discrimination, it'd have been relevant or at least not as far as i know not relevant to cases of sexual orientation discrimination. in fact, to bring it up, concedes that sex is an element, i'm sorry, that the sexual orientation discrimination involves the other sex and -- >> isn't that criticism designed to show a a weakness in the comparator test? the comparator test aesthetic or vitesse, would you agree? >> i wouldn't say -- and a focus of manhart i think it's a useful test where it's not that you try, necessary need to find andt identical compared to the works

of the location. what you're doing is comparing the individual with the hypothetical situation which same individual but a different sex is outcome different and that's exactly what loving tells us what to do in the race context. here it applies equally in the sex context. but if i make it to your point about the bathrooms. by conceding that sex is relevant to the question of sexual orientation, then bringing up the bathrooms is essentially saying let's look at the terms and conditions. but which bathroom one uses it different from one's choice of a partner, and the choice of a partner has been held by the supreme court numerous times to be fundamental. >> when you say you change the sex, that's the manhart test, it seems to be there's still a little ambiguity asked how we do that, to use this case as the example. is it that we change it and say

a woman instructor says i'm gay, or, i think what you are urging us to do is say, a woman instructor says i'm attracted to men, and the comparison could be either want and we might get different answers. what guidance would you give it? >> i believe what your question gets at is the focus of the analysis in terms of the individual. here, case after case has said you focus on the individuals experience, and so -- >> we have a male instructor who told a female client i'm gay. so why is the comparison not a female instructor saying to the one client, i'm gay? >> in the case of the female instructor saying the same thing under price waterhouse, that would be, if her sexuality was

determined to be the reason that she was fired, that would, both this case and this hypothetical case, in both cases the person would be fired for not come porting with the employers or in this case the customers view of proper gender roles. >> i understand the argument but that didn't gets as to whether that is a matter of sexual orientation that's different from sextus termination. some of seems curious to say that in that circumstance both a man and a woman would be fired and its sex discrimination. so how do we reach that conclusion? >> in that situation both of man and the woman would be fired because they're not come porting with this view of proper gender roles. >> which i suggested to cocounsel is dubbing applied equally to both men and women. there is a presumption, a stereotype, a biased him whatever we want to call it that people should be attracted to

people of their same-sex, and it is applying both ten minute women. i'm having trouble understanding how that's discrimination that differentiates between men and women, as opposed to a different kind of discrimination that we might well wish to prohibit, but that's not sextus termination. >> i i believe it is still sex discrimination because what you're doing is you're holding both individuals in that case, both the men and women who are fight for the sexuality, you were holding them to the same standard of gender behavior, the price waterhouse says is not appropriate. >> to be clear then, mr. horowitz, your response to the question sounds like it isn't really a manhart test. you have now switched the ground to another argument which is the argument for sex stereotyping i think what her questions were going to was, why shouldn't we, if the test is just if a woman says the same thing it would be

different? why isn't that the right way of applying that test? >> and i apologize if i misunderstood your point. that's exactly right. with these three ways of looking at, these three paths that we are proposed, so make it more comfortably in a given situation that another. but the underlying, the ultimate underlying idea with all three is a sexual orientation is within discrimination because of sex, and, in fact, that is based on how the law has been interpreted. and you try to cut them out, sorry, to cut sexual orientation out of protections in parts come into title vii jurisprudence, and exclusion that is just up there, that is just a based on the statute. you are right, in that case it is easy to look at the price waterhouse analysis of sexual stereotyping rather than look at the individual. although i believe it still

works in the context because you are comparing the individual with, i have hypothetical come same individual, same content but different sex. >> are you using sex and gender interchangeably? is that problematic? >> i much like with the supreme court has done, for the purposes of this issue, i'm using them interchangeably as the course of them. i don't believe that's -- >> the statute does refer to gender. >> that's true, but price waterhouse does use gender and sex interchangeably. so that's how the course have approached that issue. >> are you saying that that test, the language in the statute is this commission because of an individual sex. are you saying that but for test is the best interpretation of the language, or you think something specific about sexual orientation cases?

>> i'm saying that but for test is the most appropriate. >> there are additional cases beyond the example of restrooms that does seem to follow within other, like the ninth circuit with the recent case in the fourth circuit, the sexes are treated differently but there's a determination that that's not an adequate basis for finding a violation of title vii because they are not similarly situated. >> that's correct, your honor. and terms of the terms and conditions apply to each sex, this court held in the mercantile exchange case that in that case the idea of a manhart test didn't apply to a hair length restriction. the court held in that case it was something relatively trivial issue it did not need to be applied. but with respect -- >> the but for test can be very meaning of title vii, the

interpretation of the language of discrimination because of an individual sex. am i misunderstand? >> your honor, the but for test in the case is one useful patch a look at it. it might not cover every fact pattern. in the case, the court held because is relatively trivial, the difference in treatment didn't go to something fundamental about terms and conditions, but one could imagine a case in which it but it would in which the standards that when sex was held two are very different from the stand is another sex was help too. >> your adversaries say that the civil rights act amendments of 1991 should be understood as ratifying the proposition that sexual orientation discrimination is not prohibited under title vii. >> yes, your honor. that's incorrect for several reasons. first, the pension case holds.

legislative inaction is a very poor means of determining congressional intent, particularly in this case it's a poor grounds for a number of reasons, including that you don't know what the grounds for amending the statute or not limiting the statute might be. it might be that it is already included. it might be that they think it doesn't go far enough. there might be something else about the bill. >> is there a difference between legislative inaction and legislative reenactment of the statute with a whole set of amendments, in the face of a broad consensus of traditional opinion, as to what the statute means? >> your honor, i would disagree with the broad consensus. at the time that, 1991 when congress was taking at the issue of the many the civil rights act there were only a few circuit

court cases, none had looked into the issue with any sort of rigor. congress general and men's statutes in response to supreme court holdings, not those of circuit courts. in fact, in this case one could just as easily argue that because price waterhouse was one of the driving cases that led to the amendment and the price waterhouse analysis focus on sexual stereotyping, but congress didn't cut sexual orientation out of the protections of the statute when they could have. they had done that in 1990 with respect to the ada and agenda in 1973 with respect to the rehabilitation act. >> and you say congress amends in response to supreme court decisions, are you aware of any congressional action by way of amendment or reenactment that is a response to a circuit court decision? >> i am not, , you're on it. i'm not. >> do you think the legislative intent in 1964 is relevant?

>> no, i don't. in the on-call decision justice scalia said that it's the words of the statute rather than the concerns of the legislators that drives the interpretation of the statute. >> there have been legislative acts in response to the circuit court decisions, but they have been explicit in indicating their disagreement with those decisions. and changing the law in response to those decisions. i think in this case your argument is that there is no mention of any of the relevant circuit court decisions to the extent that the court decisions are mentioned, our supreme court decisions are mentioned, they are about different decisions and the purpose of the 1991 amendment was to expand the scope of protections rather than to contract event. that's the language, is an?

>> yes, your honor. >> could you take a minute to address the change of position you see over the course of the years? >> certainly, your honor. we took a fresh look at the issue much as the court did, much as the christian season case did there we took a look, a new look at that in light in part of the supreme court's guidance over the last 15 years, now 17 years. and in part based on our conversation with stakeholders, both employers and employees. and when we swept away the preconceptions and just looked at the legal argument, 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.

i do agree. there were available, but i think seventh circuit and perhaps the circuit and the eeoc just perhaps did not speedy they were available to the eeoc, so they have been aware these arguments for years, is that correct? >> we've been aware of these argument the same with the courts have, your honor. >> thanks. .. >> in assessing the value it's looking at eeoc's position. that was different from

referring to your argument today eeoc. >> right, it's a reflection of the strength of the argument, but it's also an argument informed by our experience as the agency that's tasked by congress with the interpretation, the administration and enforcement of title vii. when w when we went to revisit our approach to the issue we solicited opinions from-- >> this is from doj, the opinion? >> i'm not aware. >> we love to hear from the federal government, but it's a little awkward for us to have the federal government on both sides of this case. >> indeed, your honor. [laughte

[laughter]. >> your point is-- your argument is not entitled to chevron deference, which would be the highest form of deference. >> correct. >> but it's simply entitled the deference that the argument is persuasive under doctrines of administrative law, changing conceptions that administrative agencies may have over time as to particular legal questions. >> that's exactly right. >> does eeoc have a position about the judge's concurrence in the case? is it something that eeoc could agree or or agrees with. >> certainly, the judge's approach where he looks at where somebody is discriminate against because of sex or a man's relationship with another man, so if that is what drives

the employer's animus, then that's discreme nation necessanation-- discriminati discrimination because of sex. >> may i ask yours on waterhouse's opinion suggests that not all stereo type will support a title vii claim, the sex stereotyping has to bespeak or support a finding of intent to discrimination between men and women? >> i think it has to bespeak a finding it's an intent to sort of hold employees to a standard of behavior in conformance with the employer's view of what behavior is proper for men and women. >> that would suggest all sex ster

stereotyping is prohibited. and that women are put into a catch 22. be too aggressive, you're not considered feminine enough. don't be aggressive and you won't succeed the way your male counterparts do so you're going to be fired if you're too aggressive and fired with you're not aggressive. that's the catch 22 that he says title vii takes women out of. and then it's the very next paragraph that suggests that not all sex stereotyping will present a title vii violation. so, i'm trying to figure out where you think sex ster stereotyping plays in all of this. many of the arguments presented have suggested to us that sex stereotyping is prohibited sex discrimination and i'm having a little trouble with that in light of what is said in price waterhouse.

>> perhaps it goes back to the tabora decision if the sex stereotyping is hair length and based on that the court was not prepared to find there was discrimination because of sex, but in terms where sexual orientation is involved that's far from trivial, that's a fundamental right and so, even if there is an exception at the level of hair length, that would not apply. >> it applies it's different 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 trivial sex discriminations aren't discrimination on the basis of sex or trivial sex stereotyping issues are not on the basis of sex, but big time stereotyping

is. >> your honor, that's the way this court has interpreted the statute and interpreted manhart. >> so there's a difference or a distinction between trivial and-- >> and a sex stereotyping that applies to men and women in that people should be attracted to persons of the same sex, how does that now play in. >> sex stereotyping, if you're a man attracted to men, or a woman attracted to women, either way, you don't meet the stereotype that the employer-- that the employer has for how your gender should behave so in that case you're being put to a question. do i keep my job or do i have my choice of partner? >> but is it putting a disadvantage on one sex, either men or women, or is it putting a disadvantage on homosexuals

and that that's now the distinction, it's not men and women, it's homosexuals, versus hetero sexuals? >> your honor, it's 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 sit in that group, looking at the individual, that is discrimination. >> is it sex discrimination in your view if an employer fires an employee for cohabiting out of wedlock? >> yes, your honor-- . that would make this a very broad doctrine, wouldn't it? >> for cohabiting out of wedlock, but sex was not a factor, the cohabiting, that

would apply to men and women, men who are heterosexuals. whether there are limits to the doctrine you are proposing? >> in that case i don't know if it fits within one of the paths of analysis that we've suggested in our briefing. >> it may not, but that's why i'm asking the question. >> right, right. so in that case, i think if you-- >> it would be based on sex, would it not? >> it would not be based on the individual's sex, no, your honor. i don't believe so. if it's cohabiting. i mean, that might raise other concerns, but it wouldn't be-- in that case i don't believe it would be a distinction. >> what if it were a man and a man and a woman or a woman. >> if that were the ground 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-- then in that case the manhart test, it doesn't seem that that would did $. i don't ng under manhart or the price waterhouse analysis. >> thank you. >> thank you, your honors. >> thank you. may it please the court. my name is greg nevins. title vii's ban on sex discrimination of sex, discrimination based on sexual orientation based on whether the employee is a male or female. whether denise zar did.

a and he was not. the way that the court has gotten off the rails on this, the court says sex does not mean the sex you have. sex means the sex you are. in other words, if an employer were to condemn all extramarital affairs or all instances of co-habitation equally no matter who was involved, that would be okay under title vii because title vii does not mean the sex you have. but to affix a scarlet a and a personing pink slip on the woman who has an affair and not the man. that's when you run into title vii. >> does the freedom ramifications-- >> i believe that it's not invoked in these things, and that would be a weighty consideration, but i think one of the pearls of wisdom that

the christianson concurrence left us with is that when you don't have all the best arguments and don't have all the full arguments in front of you, it may not be the best moment for you to opine on broad statements of what is covered and what is not covered. so, i believe that, your honor, i feel confident that there will come another day in which this court will be called upon to address that question, but that day is, i do not believe is before the court today. and-- >> could you address more, in more specifics what you've heard about the comparator approach and what we should think about the comparator approach. the court has the benefit of our take on it which is that your honor's take was correct in the christianson concurrence. >> that's why i asked the question. [laughter] >> and i'll go back to the analogy. we tried to come up with a nonalcoholic analogy, but i believe if you have vodka and

you change, and change grapefruit to juice or orange juice to grapefruit juice you've only changed one thing ang they're trying to play a parlor trick on this court by saying you're changing two thing. you're changing a screwdriver to a greyhound. >> how do you change it in this case? how do you change it in this case, if you're a woman in this scenario, tell me how you do it? >> absolutely, your honor, and i appreciated your questions earlier and he think we have to look at what the significance of what it means to say i am gay. let's be honest, you're saying many' a man attracted to men, or in the case of women, a woman attracted to women. if that would not be a problem for a woman to say i'm attracted to men-- that's not what he said. >> i understand, your honor. those just to say i'm gay, obviously 100 years ago, that meant you were a very happy person, today the significance

is-- >> the likelihood a woman would have said it in in case was the reason that the instructor said it hear was to put aside her concerns that she would be sexually molested in the course of this close contact. now, we're applying a test and you're saying, don't change anything except the sex of the plaintiff. okay. but you don't want to do that. you want to-- you want to interpret what the plaintiff said and i'm not sure why that's not playing with it as much as what some of the things that your adversaries urged us to do is. why do we do more than say, okay, if a woman told this client she was gay, she would have what? i mean, i think the male companion might have been even more upset and she-- the criticism would have been greater. what am i missing? >> well, your honor, maybe-- my very capable friends do have

to go back with any favorable ruling issued and prove that sex was a motivating factor. and if the altitude express stayed any statement involving with sexual interest is a grounds for termination, that's a different case. here the allegation was, i'm a man attracted to men and that was the problem and they have to so that would not have been the case if a woman said something like that and they're very capable of doing that on appeal, but i believe that's the reason that this court is-- if he could make that showing, does he, as he stated, have a title vii claim. >> let's take it to the next step in generality. let's say you have a situation where an employer would equally fire male and female

homosexuals, is that sexual discrimination under title vii. >> if an employer said i've seen the statistics of interfaith marriages and-- >> go with the hypothetical i gave you, an employer would fire a male homosexual or a female homosexual, discrimination is the same as same-sex relationship and race relationship. >> and the factor one involving race is invidious. here, that's not what's going on. >> i would respectfully disagree. >> tell me why. >> all i'm saying no interfaith relationships and as the-- if my eoc colleague said earlier. title vii applies to the individual so in order to actually enforce that, you have to know what my religion is and what my spouse's religion is

and if the difference between those is what prompts me to be fire then that's discrimination based on religion in the same way you can say and try to mask is in neutral terms and say it's discrimination of everyone in a same sex relationship, but to have a problem with pat marries robert you have to know that pat is patricia in accounting and not pat in accounts receivable. you have to know what their religion is and their sex is in my hypothetical and therefore, the same rules should apply. and in that sense, i do want to touch on an argument that was offered by the other side, which i want to say, if there's one radical reinterpretation of title vii that's offered before this court today it's not by me and the two gentlemen who preceded me to this microphone. the idea that-- first off, discrimination of people in interracial relationships is-- is as they often say, as they

say, often and almost always because of racist motives and ideology and because someone deems one race to be inferior-superior. please do not believe that that's a necessary condition to define against somebody in an interracial relationship. or the same for my hypothetical, it's not for interfaith marriage. we know this from manhart by equal and benign motives or scientific facts underscoring the treatment. would have to-- none of that matters. title vii actually releases the court from that kind of inquiry. it condemns all discrimination on any of the i am-- enumerated the-- >> and i think we heard, condemn all discreme nation,

nontrivial discrimination. >> i think i heard what my colleague said. this court has been a little cryptic in longo and back in the '70s and then again in the tabora cases in the '90s, what it used to find the hair length was acceptable. and what has happened in many of the other circuits is they, and especially in hair length cases they go, well, martin marietta clearly says you can't have one policy for men and one for women. saying you can't have shoulder length hair if you're a man or you can if you're a woman seems problematic. and the way they got around that coming up with various tests. the supreme court has never signed onto any of these differential treatment rationals, but i don't-- but this court doesn't have to do any more work than it needs to in overturning simonton and dawson, overturning longo, it

can rest on the rationale that my colleague mentioned. all that's asked in that case is the court deemed fairly trivial. where they ask for a man who give up a relationship with a man or a marriage with a man, the court 20 years ago isn't recognize as a constitutional right, now we do. >> don't those cases -- determine the language in the statute or we have to say the cases are wrongly decided or exceptions, but they're not covered by the-- >> and this court would be -- this court may very well, should probably revisit tavora and longo it's pretty glaring, that it doesn't mention price waterhouse even though it's six years after price waterhouse. >> you're asking me do we have to overrule this? i agree with your honor 1

is00%, there's a differential between what the supreme court said and circuit courts have said as well as rating gender based differentials. if you do ent -- don't want to do any more work then dawson, the differential there did not involve a constitution a-right and the differential here with mr. zarda absolutely does. >> there's no prohibition on discriminating on people for exercising their constitutional rights. a private employer as we've read a lot in the newspapers the last couple of days can fire someone for expressing his political opinions. >> absolutely. your honor. we certainly have and it would be only because of the differential sex, it's not just, it's not just gay men and lesbians who have a fundamental right to marry it's everyone has a fundamental right to marry and so, and the-- it would only be problematic. >> an employer could, as judge

jacobs questioned, prohibit nonmarital sexual relationships among employees or marriages, and all single employees or something like that. >> and whatever problems they would be with that, i don't think they would call under title vii, your honor. >> to be sure i understand where you would 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 doubt about it and replaced him with a heterosexual male, do we have an employer engaged in discrimination? >> we do and i think that fact tracked nicely and-- >> tell me why because usually we think of these as advance r advantaging men over women or vice versa, or disadvantaging one sex over another. but not, not disadvantaging

within sex unless it's to benefit the other sex. so, i'm not sure to how it would work in that hypothetical i gave you. >> just understanding that the off shore sundowner off shore services was an all-male work environment and joseph oncall, we don't know exactly why he was singled out for sexual harassment and only men on that trawler, we don't know why, was it because he was cuter, more available, because he was weaker? he was gay himself therefore we don't know what that was, but it didn't matter. his being male was a-- made them attracted to his supervisor and that's all that matter and so therefore sex discrimination occurredments that was a harassment case. >> it was, and also, manhart's very careful. it doesn't say treatment of one sex that would be better if you

were the other sex, it says different and that's important. the doj brief says the treatment must be worse, that's not what andhart says and that's not what the law is. >> thank you. >> thank you, i appreciate the privilege of addressing the court. >> your honors, may it please the court, i feel like we're here on false pretense. the facts to the extent that they've been argued here today and it's only been a very small part of the argument, don't resemble what's being argued. donald zarda-- >> the question before us is a pure question of law. >> i understand that, but if you decide the pure question of law without taking into account the facts then you're doing the law a disservice and we're exceeding the judicial mandate. >> now, let me ask you along those lines, you argue that

mr. zarda didn't raise his current claim to the eeoc? >> i quote, i am not, not being underlined, making this charge on the grounds that i was discriminated on the ground of my sexual orientation. that's special appendix 3, paragraph 2, that's his sworn affidavit to the eeoc. >> how was he going to do that at the time though? baldwin hadn't been issued and eeoc had taken a contrary position a week after baldwin is issued, he files a motion 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? >> same way-- she came out and said i am making this claim because i was discriminated against because of 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 eeoc charge,

right? his 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. >> i'm sorry, i didn't-- >> yeah. >> okay. so-- >> isn't that precisely-- then he goes on to say he was fired because of levity referred to his sexual orientation and did not conform to the straight, male macho stereotype. isn't that the kind of claim that zarda is urging us to say is included within title vii? >> if you look at his eeoc charge as his ticket to file a complaint in federal court, you look at his federal complaints, one, two, three complaints failed to allege discrimination based upon sexual orientation under title vii. they allege is under the state human rights law, but not under title vii. they just go with the sexual

stereotypes which were addressed by judge bianco and dismissed as brought up earlier. >> raised this before the district court or the panel. >> i'm sorry? >> did you raise this argument before the district court in the reconsideration motion or before this court? >> it was raised before the district court-- >> you said he didn't exhaust this, your honor. i didn't find that in the district court's record. >> that was absolutely argued before the district court. >> you say that he didn't raise his sexual orientation claim in the complaint before the district court, correct. >> sexual orientation claim is what he was before the district court which judge bianco addressed and the first panel acknowledged. >> your memorandum of law, right, in support of your motion for summary judgment, and i'm quoting says, one of the plaintiff's theories was he was terminated because of his

sexual orientation and you responded, didn't you, by arguing that plaintiff cannot advance a title vii argument for sexual orientation because of this court's decision in simonton. so, aren't you conceding that these claims were, in fact, properly before the court? >> i am not conceding that. they're 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 doesn't 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 vii to sexual orientation, i want to now channing my eeoc charge to make it fit what the court

might consider. that is exactly what he alleged to the eeoc i was waiting for this court so say to me why shouldn't we rule like hidely? my response was, they actually alleged discrimination based on sexual orientation. here we have the only claims we need to investigate from an eeoc charge and brought forward to federal complaint. we looked at allegations. those allegations investigated by the eeoc and we were put on fair notice and decided by judge bianco. >> can you point where you are, 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. >> so the plaintiffs argue that you waived the waiver, but not raising it anytime before today.

>> and jurisdiction is not waived and that's part of our argument. if he has no-- the plaintiff has no right to be before this court because there is no jurisdiction or he's asking this court to make a decision that's going to send this case back to judge bianco to decide a sexual orientation case that wasn't pled under the eeoc then he's sending this court on a fool's errand. the district court granted summary judgment relying on simonton, right? >> in part. >> well, but-- 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 i'm taking from the decision of the first panel, all of the allegations regarding sex role stereo type were analyzed by judge bianco and denied.

>> the discussion whether sexual orientation was ruled on by the district court. >> yes. >> why isn't that before us now. >> it shouldn't-- it obviously is here before you, it shouldn't be because if you look at his eeoc charge, he specifically disavows that this is a claim about his sexual orientation. >> so i'm confused about the eeoc charge. the way i have it here from the special appendix three, he stays i'm not making this charge by grounds i was discriminated against on grounds of my sexual orientation, rather i'm making this charge in addition to being discriminated against because of my sexual orientation i was also discriminated against because of my gender. that's poorly written, the second sentence seems to contradict the first, but it clearly raises the issue of sexual orientation, why am i wrong in reading it that way. >> reading in that vacuum it

does contradict it, but reading it where he's also asserting a claim of sexual orientation under the state human rights law where it's permissible, it makes sense. you can read it, i am not claiming sexual orientation discrimination under title vii because when you look at the next paragraph, paragraph three, he talks about specifically what he's alleging. and that's specifically what he was alleging is mirrored in complaints one, two and three of his federal lawsuit and that's what was analyzed by judge bianco. >> my claim is because i did not conform my appearance to sex stereotypes i suffered adverse employment actions. that's what the legal question before us is. >> no. >> go ahead. not my place to say no, but it is judge bianco's, that his sexual orientation complaint

failed because there's no way a jury could conclude that what he specifically alleged could support his termnation for sexual orientation. >> the judge let it go forward onto the new york labor law, correct, under a different standard of proof, causation? >> yes and no. the judge's decision he said the facts 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 at court came out. we had people come in and testify. and it wasn't what the plaintiff said. the young lady who was jumping with him said, a, he made the joke about being strapped 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, don't worry about me, i'm gay. i just broke up with my

boyfriend. oh, by the way, i'm falling from the sky strapped to this guy while he's saying it. so, where his counsel will say, heel with-- well, he said to her, he is gay. that's out of context. don't feel uncomfortable because i'm nuzzling you and speaking to you in an affectionate way. >> speaking of nuzzling that reminds me of horses, and why is the cart before the horse. why are we looking at analyzing title vii. analyzing the facts in the case unless you make the argument-- >> you're sort of arguing today the facts therein, they don't support the claim. >> because the facts have been before a jury and a jury concluded under the state's

standard, that he was not discriminated against based upon sexual orientation and to the exit ent that we look at judge cashman's decision, his concurrence in christianson, it seems to be moving to a but-for standard whether or not sexual orientation discrimination occurred. if we take that but-for standard you have to decide that the jury verdict under the state law, which was a but-for standard also has to apply fear. again, ayou're being sent on a fool's errand on facts that don't reflect what came out at trial. >> the standards are different. the federal standard is a motivating factor, not the but-for standard under which your client prevailed. >> i understand that, but when i read judge catsman's concurrence-- >> i'm not sure you're reading it as fully as one might. >> when i read--

en i hear everybody argue, part of the argument is, you look for it, you make a but-for decision and if you're taking that but-for decision, you cannot divorce that from the verdict that we already have. >> i see i'm out of time unless there are other questions. >> thank you. thank you. >> thank you. >> and thank you for the honor. >> in light of the judicial concensus that existed over 50 years title vii does not read sexual orientation discrimination, there are three reasons why congress has ratified that position. >> can i interrupt and ask why you're hear, does the doj defer to the eeoc. >> eeoc over private litigation

and doj over public litigation and doj is the largest employer. >> and private parties-- i don't understand the distinction. >> the statute would apply equally whether it's a private party or a public party so the government has an interest both in the regulatory capacity on-- >> who is the representative for the civil rights on this piece, mr. beeler? >> the acting head of civil rights decision at the time the brief was filed. >> on hively, ee 0 c filed amicus brief and doj did not. any reason-- any discussion about that. >> i'm sorry? >> in november of 2016-- >> your honor-- >> that might be your answer, is that the reason? >> it's before my time at the department, your honor so i honest i will couldn't tell you. >> (inaudible) >> what is the process within the government where you've got-- and i know it varies with

respect to which agencies you're talking about, whether they have independent litigation authority, with respect to the eeoc and the department of justice, what is the process that is entered into in terms of filing a brief? >> i'm not exactly sure what you're getting at, your honor, but i'm-- >> and can the eeoc file its own brief without consultation with the department of justice? >> that-- >> that goes back to judge pooler's question. >> that's a fairly complicated question and-- >> we can understand. >> what i say is this, the eeoc has the authority to file the brief they have filed in this case and the department of justice, of course, has the authority to file the brief filed in this case. >> do you know if the litigation section of civil rights division was consulted. >> your honor, i don't think it's appropriate for me to disclose the deliberatie--

>> as part of this complicated process, does doj sign off on a brief that eeoc intends to file? >> again, i don't think it's appropriate for me to speak, to interpret deliberations. >> i'm asking if it's a procedure not internal deliberations. >> your honor, i don't think it's appropriate for me to comment as to whether we signed off on the briefs that we filed, or in general. >> ordinarily would doj sign off on a brief filed by an agency of government? >> your honor, i'm sorry, but i-- >> doesn't the eeoc, like the sec, have its own litigation authority and are cases brought in the name of eeoc in this court and circuit and every place else in the country without doj approval. >> we're not disputing that

eeoc had the authority to file the brief they filed here and beyond that i don't think it's to comment on the-- >> i for one am willing to proceed on the assumption that you're here. >> thank you, your honor. [laughter] >> let me ask you this, since you are here, why can't the associational analysis be performed, notwithstanding a stable meaning of the word sex the last 50 years as denoting men and women? in short, if-- just on the analysis with race? >> there's a fundamental-- >> you have men and you have women, but the -- a person of a certain race cohabiting with a person of another race is discriminated against? >> there's a fundamental difference 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 a racist. if you say you discriminate on sexual orientation, and you might call them a lot of things, one thing you would not call them a sexist. >> you might call them a hemo fobe. >> the reason you would not call them a sexist, as you call interracial marriages, a racist. when you discriminate against interracial marriages, you're viewing black and white marriages differently-- >> and racial superiority, the same thing would apply to two races even if one of the races is not white and one of the races is not black. >> even in that circumstance, your honor, you're treating

individual of two different minority groups differently who are otherwise similarly situated and that's simply not true when you're dealing with a man and woman in the context of sexual relationships and these arguments are not new. the associational argument, for example-- >> can you point me to some cases that make this proposition? support this proposition? >> well, so, i was about to say, so associational argument was made in the 9th circuit in desantis in 1979 and rejected. there were several other circuits that rejected in general the argument that sexual orientation was subsumed within sex discrimination. 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 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? >> in 91 amendment was supreme court decisions, supreme court has found ratifications in circumstances where congress rejected lower court decisions, i'd point the court to the case cited. and both were expressly rejected by -- [inaudible] . >>. >> wouldn't 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 who you to deal with specific acts. it did so in the 1991 decision, specific court decision, but it didn't do so with sexual orientation discrimination. why are you saying that we can

make that leap to say even though they didn't talk about it, they really did. which is what you're saying. >> so, i have three points about that, your honor. the first is that's exactly what the supreme court did in laurel versus ponds. the question in the case is whether the ada had a jury trial right. and what the supreme court said congress was trying to incorporate the mlsa and in the flsa context, lower courts, not the supreme court, lower courts and only a handful of lower courts, one circuit court and a couple of district courts found a jury trial, right, the supreme court found ratification based on that and moreover, direct had i in response to your question. >> that's not-- >> if i could finish. >> i'll let you finish and then i'll ask you a question, thank you. >> right. to further their point they said congress and ada, turned over other aspects. what did they point to? lower court opinions on scope

of flsa rights 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 parts they didn't touch. that's also exactly what the supreme court did in the far gher decisions. they said the civil rights amendment the very issue here, when congress overturned a variety of supreme court decisions in other areas, but didn't touch meritor the scope of ability for employers, they radfied that. it would be stronger if the '91 congress in the civil rights bill specifically talked about sexual orientation and said we like all of those decision, but the supreme court never said that that's the test for ratification. what the supreme court has said if you have a comprehensive amendment to the statute, leave standing a judicial concensus on one issue and overturn areas in another area, even when it's

lower courts, that's ratification. that said, i will also note that the '91 congress did address sexual orientation specifically because in 1991, just like in every congress going to 1974 to today, there was a bill put forward to congress to add sexual orientation and the bill 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 that's what's fundamentally changed, is different from the pbgs opinion that the eeoc relies on and in that situation, that they had taken a certain position, there was a bill in front of congress to ratify it, they didn't end up passing the bill and what the supreme court said we don't know if they didn't pass the bill because they already agreed or whether they disagreed. that's totally distinguishable from a context like this where every circuit court for 50 years has said that this is not

covered, every year from 1974, congress has had a bill before it, to overturn that and every time they don't do it. >> can i go back to the associational argument for a minute? i'm sympathetic to your point that the laws are fundamental aspect of white supremacy, and that is not-- we can't say that about this, that these did $that bigotry against homosexuals is somehow about hostility to men or hostility to women as such. but what about in the case of religion? if you had an employer who was an orthodox jew who had work force of mixed religion people, but then one of his jewish employees married a christian, and he fired that person, isn't that an example of religious discrimination that doesn't have to do with the special

role of the laws or some aspect of racial superior? >> i'm not sure in that hypo whether that's religion superiority. but setting aside, the fundamental point in that circumstance you're treating similarly situated jews and christians-- no, the christian can marry another christian and the christian can marry a muslim or a jew, he doesn't care about that, he doesn't want to see jews marrying non-jews. >> so the jewish person is being treated differently than otherwise similarly situated non-jewish people. >> why is that not the same, that's the argument that mr. nevins made. >> unlike jews and non-jews, the law does not recognize differences between jews and non-jews. and the law recognizes differences between men and women and that's vividly

demonstrated by the situation of the bathroom, title vii does not prohibit having single sex bathrooms. eoc says he is the reason that's okay, because it's trivial and that's astonishing for the eoc to take, because if the argument is bathrooms are not a condition that matters with the discrimination statutes. you could have black bathrooms and white bathrooms, the same condition. they have no argument why, because of conditions, you could have racially segregated bathrooms today, that is obviously wrong. and what it demonstrates-- >> does sex discrimination is sort of okay because there are real differences between men and women, but racial discrimination-- >> sexual discrimination is prohibited by title vii last time i looked. >> that's true, but discrimination requires

treating people similarly situated differently. unlike with race where black people and white people are similarly situated in all relative respects under law and fact, men are women are not similarly situated in all respects and the law recognizes there are real physical differences between men and women. >> something to do with this marriage issue? >> yes, your honor. the same exact physiological differences that are relevant to bathrooms are the same exact physiological differences that an employer is allowed to take account of when they're regulating their employees based on their off the work sexual relationships. and there are several questions about this in the eeoc agrees that employers under title vii are allowed to do that. employers upped title vii are allowed to regulate their employees off the job sexual behavior. they're allowed to say if you cheat on your spouse, you're fired. allowed to say if you're promiscuous, you're fired. none of that is covered by title vii, title vii only covers race, religion and other

traits. >> do you agree ethnicity is covered by title vii? >> ethnicity could be viewed as a subset of race? >> i think as a matter of ordinary english you can-- >> and a matter of oriented english, homosexuality you can't distinguish that from sex. why isn't that the same analysis that you would apply, that you just applied in context of ethnicity we found and agreed is covered by title vii, but the word ethnicity is not in title vii. >> i'm not disputing as a logical matter, your honor, you could view sexual orientation as a subset v facts, but the request he is under this statute 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 and done so in addition-- >> it's not in a contemporary-- when laws are passed in a contemporaneous congress, then they have a different impact ap when laws are passed separately from contemporaneous enactmen enactments, would you agree. >> host:. >> i think that's right, your honor, but it's backwards. think what would happen today if congress passed no discrimination. and cover sexual disorientation. if it just said sex discrimination, i think would be indisputable it did not cover sexual orientation. you'd have until this year, an unbroken set of case law saying the two were distinct and several acts of congress that they're distinct. so, if that's the case today,

then surely in 1964 when congress passed the same act word they didn't have some broader notion of sex discrimination as compared to today. it makes mow sense-- >> and a suggestion that sometimes the statute can be read to prohibit a comparable evil. >> i don't dispute the pop significance, your honor-- >> the statement-- >> that's true, your honor, that's not the point here. the point was the statute covers sexual harassment under merit and plain english. did that encompass same sex-- >> excuse me, you said by the plain text covers sexual harassment, but there were-- that's not written in the statute. it just says discrimination because of sex and took quite a series of cases to construe

that to include sexual harassment, i'm just remembering. >> i'm not sure exactly how long it took, but seems to me when it says you can't discrimination based on terms and conditions of sex that rarely readily reports that-- >> a d.c. circuit opinion barns, that went through quite 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 that the statute has grown more in line with justice scalia's description and what the judge just referred to than you're acknowledging. >> let me qualify what i said. even if you think there was a debate how clear it was that sexual harassment period was covered, once meritor held that it was covered, there's no dispute that there's any difference based on whether it's same sex or opposite sex harassment. there's nothing in the language

of the statute that can get you there. that was justice's scalia's point, congress might not have been thinking about that fact pattern, but it's covered by the text, but in this context, on the other hand, sex discrimination and sexual orientation discrimination have been understood not just in terms of congress, but in ordinary english as confirmed by the fact that every court for 50 years held this, the eeoc held it for 50 years and the eeoc, by the way-- >> you keep mentioning the 50 years, but the landscape changes in terms of the law, right? marriage is different now. >> up to 20 years, after price waterhouse, after-- >> why can't the same be said about sexual orientation? the landscape has changed. >> because even after price waterhouse and even after oncally in 1996, every court in the country for another 20 years said that, including the eeoc the eeoc had cases explaining that oncally didn't

change their position and i would urge the this court to read them. those eeoc opinions are not any differently reasoned than the court opinions from 1979 that we cited to, that we say congress ratified. these are-- there is had a fairly common sense intuitive difference between sexual-- sex discrimination and sexual orientation discrimination. >> i thought you just said you could see as a logical matter that sexual orientation could be a subset of sex. >> as a logical matter, there's a difference between whether you can as a theoretical matter come up with a hypothetical but-for construct. >> is it the government's position that the plain text of the statute clearly excludes sexual orientation? >> i think it's clearly the better reading so yes, but i think this court doesn't need to get into whether it's ambiguous or not because any-- >> can you point me to what language in the provision of title vii clearly excludes

sexual orientation. >> just what the ordinary definition is sex discrimination, treating men and women differently. that's not happening here differently than for bathrooms so i will say it's not less ambiguous than whether title vii bans single sex pa bathrooms. since i don't think it does and any court has held it, the only argument why it's different is an argument that would blow a massive hole in the statute saying terms and conditions doesn't cover bathrooms-- -- even if you don't think it's inambiguous, it's certainly a strong enough interpretation that the fact that congress ratified it repeatedly in various ways. if i can make one last point on ratification-- >> i'm having trouble with your determine 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 rat if -- ratification. >> that's not the way i'm using ratification, in community, laurel versus ponds. i'm not wedded to the term, it's the principle i'm focused on. when there's a judicial concensus on an issue and congress amends the statute and leaves that concensus undisturbed, that's a ratification. and that's what the court held-- >> and there are inclusive in the communities, didn't you have nine courts ruling and in the cases that you're mentioning with respect to the 1991 act, congressional act, you have three courts that have acted in that area at that time. >> now, well, two points, first

of all, i think technically it's four and arguably five which we cite in our brief. more importantly, laura lard cited one 5th circuit opinion and a handful of or court opinions and found ratification, four is a whole lot more than one, your honor. i did want to make one more point about congressional acquiescence. which is technically different argument than ratification. ratification is when the congress modifies undisturbed. since 1991, year in and year out, congress had been presented with a bill to undo this concensus and it has not acted. unlike this case, i would point the court to the klein decision which we cite in our brief where again the court found based on two circuit courts and a handful of district courts that the fact that the congress hadn't disturbed that was strong evidence that that was the correct interpretation of

the statute. here we have every federal circuit court. the eeoc in the face of price waterhouse and oncally and then you have congress passing statute using the term sexual or why entation more overdoing it by saying, sex or sexual orientati orientation, not saying as the argument would suggest, sex including sexual orientation, which they did in the privacy discrimination act in 1978 when congress overturned gilbert in 1978-- >> your point. >> yes, when congress overturned gilbert in the pregnancy discrimination act of 1978 they said sex including pregnancy. which shows that-- >> thank you for your argument. >> may it please the court. >> i'd like to say at the

outset, the court appreciates mr. mortara appreciates accepting making the argument that he's about to make. >> thank you. the but-for as defined h.... give you false positives. it cannot and does not define

what is sex discrimination. i don't really have much strong position about how the test should be applied here largely because it's not an interpretive device, not a device for interpreting title vii is an evidentiary standard. it can provide clues as to whether the real reason why sex discrimination but it doesn't provide the answer. a few other examples. we talked about trivial in terms of condition. i agree with my friend from the justice department. bathrooms are not trivial. osha requires segregated bathrooms. actually requires any multi-toilet situation that bathrooms the sex segregated. >> it doesn't apply here. would you have a term to use instead that would be more accurate? >> i 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 that's the top. i think to fulfill, to fill it

out and get to the answer i would say that but for test is helpful and then i would say the rest be unequal burden applied to one sex from the other. that's what the ninth circuit does in their dress code cases which starts at with united and continental airlines have different weight requirements for flight attendants or is it one had recorded flight attendants be unmarried. those were determined to put an an equal burden on the sexes. in jefferson women have to wear makeup and men are not allowed to wear makeup, and women can color the nails and men cannot. what about for test fails there, it was not an unequal burden. >> you say as i understand it, that a truthful response about why an employer fired a gay man would be because he was gay, not because he was a man. but isn't that arguably an

incomplete answer? saying someone is gay is the shorthand for saying that a person is attracted to other men. so that that is the real reason if you pursue it more. in the price waterhouse case, for example, if price waterhouse had argued that they discriminated against hopkins, not because you refuse to wear makeup, but because she was a gender nonconforming person, without event of the fence? >> no. and the reason, it strongly depends on the facts of price waterhouse and the catch-22 that was a little too earlier. the problem in price waterhouse is the catch 22. she was aggressive but then you had to be aggressive to get the promotion.

price waterhouse would have fired a style or passive man presumably under the catch-22 in the facts are given. but it is not true that merely being a nonconforming gender by itself tedious sex discrimination claim. it has to also be true that there's something additional, evidence of misogyny, evidence of highly traditional, for instance, sexes use that women and children. that's the back case from this court. there has to be something more. it is not truth that sex stereotyping standing alone can give rise to sex discrimination charge or miss jefferson would have still had her job. by the way going back to the trivia point, the issue of remake was so important to her she quit her job that she had for a very long time because of it. i really do not understand talking about dress codes and afternoons as if they are nothing to people. they can be extremely important as they were to ms. jefferson. >> why is it that you seem to posit title vii was directed

with animus? there are these adverse impact cases that are under title vii that have nothing to do with animus? >> if you interpret me to say title vii is only about animus, then i should clarify. it's not only about animus. the disparate treatment section of title vii is not only about animus. it is about what motivated the decision. animus is the smoking gun evidence that the subject category motivated the decision. >> you're asking us as i thoug, maybe i misunderstood, animus is some helpful interpretive tool. >> it's not, i think animus is not not just a helpful interpretive tool. animus is the whole thing. if you find animus against the subject category group, in the story. it's disparate treatment. that is called might some of the hypotheticals about interfaith marriages and interracial

relationships. and like to briefly address. on the interfaith hypothetical that was positive by the jewish employer in marrying out-of-state, absolutely would absolutely would be discrimination basis of religion almost without question asked hypotheticals data because the jewish employer, he doesn't need to be jewish, would have an idea, a notion about jewish persons were supposed to behave and he would impose that notion of the jewish employee and the truthful answer in the price waterhouse question would have been i fired you because you are a jew and jews are not supposed to do that. >> what's the difference? >> i i don't 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 instant just opposed to interracial relationships. the word to use someone is supposed to -- >> but would you say there is no word for someone who is supposed

to interracial relationship? >> you made exact my . >> a racist. >> you just made exact my point. on the interracial discrimination cases, that is a stigma there is the study to neutral opposition of interracial relationships. it does not exist. when somebody says i oppose interracial relationships they are effectively saying in this country i am a white supremacist. there's just no room or somebody who says i oppose intersects relations, homosexual relationships, rather, there is a name for the person, it can be -- >> are you positing it is implausible that the members of every race may deal with dismay or discussed someone like themselves marrying someone who is not? >> are not positing that's impossible. i'm saying it's racist. >> you were 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. i think it is plausible and i don't know what would be that a member of that other race would you the same marriage or liaison with dismay. >> that's exactly what you're what i mean of study of neutral opposition to the interracial relationships, is there's one that is not race-neutral. in other words, your positing a situation where say an asian person objects, a chinese person objects to a chinese person marrying a nine chinese person. that would be exactly the same as the jewish christian marriage hypothetical, a chinese person about how chinese people should behave firing somebody because they are chinese. in this -- >> you were saying the animus is not against whatever sex it is the person is marrying. the animus, the bias against

gays case the specific against gays. and everything to do with hostility to men. >> that's correct. >> someone who is against, bigoted against the man who is gay, as nothing against man. someone who is opposed to someone of his race marrying someone of another race does have something against the other race, is that the -- >> that's very close to what i'm saying. i don't like the associational line of cases for a lot of reasons. i think it's much more about racial stereotyping of the race of the employee. the instance of a white male wearing a black person. it's about how whites should behave. i would take issue with that little bit. i would qualify what you would say only in the following sense. it is perhaps more possible that a gay man could be fired because there were an issue with the game in as opposed to gay women. the justice department and i both concede that would be sex

discrimination. and that's where juries want to get into the evidence and juries will have to look at why the person was fired. >> how do we sidestep the associational piece which you do not, you're not comfortable with because it seems to me we had that working out there and it can be used as a guidepost? >> i would say, did a couple of ways to sidestep it. number one, a lot of the instances of the failures of the but for text could be classes association to his commission as well. i prefer to go to the bathroom with other men, for example, and, therefore, i associate with other men in the toilet. if you discriminate against me or against because of prefer to be of me in the locker room which is similar to the locker room spirit with a discussions about locker room talk. maybe it's not all great and much of it is not. at the same time there's an associational element as well. but also beyond that what i would say is associational

discrimination doesn't get you much more than the but for test. when the but for test is no doubt false-positive, it's not adding much for us. andres the but for test is as perfect as a test could possibly be. for reasons that my friend from the justice department other two. the way i would discuss the associational discrimination case is to make exactly that point, that there are differences between race and sex when you do don't look no furtr than again bring back to the bathrooms, after the 64 act was passed, edwin understood race segregated bathrooms had to go. and yet osha still to this day requires sex segregated bathrooms. and no one has persuasively distinguished it from the issue of sex segregated bathrooms. talk about arguments courts did and did not come it this all the

way through but title vii focus on economic opportunities. segregated bathrooms has very little to do with economic opportunity, but employment discrimination, firing an employee, making other matters does. mr. zarda lost his job because of the actions taken against him. so could you explain why that might not be an active, a useful -- >> if you go to the osha regulations on bathrooms, they think bathrooms are very important. they have regulations but the numbers you have an all this kind of thing, but also the hypothetical really is a man wants to use the women's toilet for whatever reason. that was the issue, a biological male who was a transgender wanted to use the women's toilet. toilet. it was important to them. presumably important to the economic opportunity just like

ms. jefferson in her desire to not wear makeup. at the same time that is not sex discrimination. >> light is using the bathroom important economic opportunity? >> because your comfort level has to do with what you can perform your work functions during the day. >> is there an employment action? >> easy if you deprive somebodyf the opportunity -- >> i don't understand actually have bathrooms are that critical as a matter of title vii. they may be critical as a matter of osha or some of the law but not as a matter of title vii. >> i would say to would be news to all the people who woke up to racially segregated toys could not be used after the civil rights act we're talking about today under this exact provision were talking about. it's absolutely an adverse employment action when ms. castle was fired because she wanted to use the women's toilet. she was fired. sex segregated bathrooms exist

an interval of voice had to fold just like dress codes. to round out the associational discrimination point, just one more, i own a tennis club, say, and i have tennis pros nsa to my tennis pros you may only enter mixed doubles tennis tournaments. one says i would like to enter a regular doubles tennis tournament. the answer is no. the but for test is satisfied. now i tell you it's many a mine likens with other men. i tell him he can't but if he was whimsically tense with other men. with men. the but for test is satisfied. it's been a social just commission case. i discriminate against them against who wants to play tennis with. it's all the thinks in this case. what i'm going to hear back is that is true. there is no hierarchy of values in title vii. the text doesn't support 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 that there is no hierarchy in title vii. all five of the protected categories are treated the same, and you see that in footnote nine of price waterhouse. there is no difference. and i had hoped that we would get to this argument without an extended discussion on bathrooms, but i knew that it would happen. >> my question to you at the beginning was about this bathroom example, which you just heard your adversaries use that, i think in somewhat effective way, to say well, we wouldn't consider allowing a racial difference in terms of use bathrooms. can you answer their argument? >> well, what if men and women have different equipment and there's different equipment in the men's room and is in the women's room?

it is a custom. it is, it is such a small consideration that for bathrooms to swallow the entire question is really too focused on a matter that doesn't matter to economic opportunities, which is what title vii 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 from within weeks we asked to reopen the question and our request was denied. i would also suggest that the eeoc, oh, with respect to the legislative intent, i don't think there's been an answer to the pension benefit, the ltd court decision, which holds the subsequent legislative history is a hazardous workplace for inferring intent. and in the case it cited and earl warren opinion from 1962 which itself cited cases from the 1940s. so we have not 50 years of cases that told against us, but we have an unbroken line of 80 years of cases that hold that negative legislative history is not a 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 will work in every context, but it was held that we see no basis in the statute to be unduly formal and say that it doesn't apply that male on male harassment does not apply, and sexual harassment, as your honor has pointed out, was not an established theory until 1979.

and four years courts have held while this is just sexual attraction between men and women, and this is not what title vii was intended to protect, eventually courts began to get it right. and there's no question now. the court has to interpret the statute. your honor, you know how the sausage is made. you wrote a book on it. i got the title wrong on my brief but i did read it. [laughing] >> at least you read it. [laughing] >> and one thing that you pointed out is that agencies are generally the first, often the primary interpreters of statute, and thus that gives weight to the eeoc these interpretation where the doj in this case does

not govern exclusively employment discrimination. and i believe that's all he had to say, let's start any further questions. >> thank you. >> thank you. >> thank you all for your preparation and good arguments. the court will reserve decision. the clerk will adjourn court. >> here's what's live tuesday on the c-span networks.

>> senate minority leader chuck schumer spoke on the senate floor on the parkland, florida, school shooting that killed 17 7 people and the need for gun control. his remarks are about ten minutes. mr. president. now, mr.je president, in the wae of the horrific shootings at stoneman douglas high school, the deadliest school shooting since sandy hook, there has been a broad national conversation about the epidemic of gun violence in this country. it ised being led by a group of brave high school students, friends, , classmates of the

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