Quote:
Originally Posted by
fred41
I’m a little lost here. It could be that we are interpreting his statements differently.I simply see using the female as explanatory reasoning. Theoretically you can still fire any sexual orientation as long as you can prove that it was for reasons other than sex. That’s why laws like this generally work better in a larger environment (such as a corporation) where, at the very least, it’s easier to prove a pattern...I believe.
For years judges maintained that Title VII protected against biological sex discrimination but not against sexual orientation discrimination per se. Some cases would argue that sexual orientation discrimination could be sex discrimination if gay men were discriminated against but not gay women. I'm posting the reasoning quoted in the article which seems textbook for what Judges use to establish disparate treatment between the discriminated against group and the comparator group.
"It is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex," the justice wrote. He gave the example of two employees attracted to men — one male, the other female. "If the employer fires the male employee for no reason other than the fact that he is attracted to men," but not the woman who is attracted to men, that is clearly a firing based on sex, he said.
This looks to me like he's saying that if you fire a man who is attracted to men but don't fire women who are attracted to men you are discriminating against men because the exact same attraction is not punished for women. That sounds like disparate treatment language to me rather than just saying that gender identity and sexual orientation are intimately related to "sex" as it's used in the statute. I would prefer this last interpretation, which would basically say that enforcing sex-based norms, about gender expression or who one is attracted to, is illegal.
The reason I interpreted it this way is because all of the old cases on the subject interpret sex to mean biological sex and then try to find ways that gender identity discrimination or sexual orientation discrimination could have disparate effects on men and women. He kind of seems to be doing that but then says that discriminating on these grounds is ALWAYS discrimination without considering all permutations. BTW, I'm not suggesting that he should, just that the disparate treatment paradigm between male and female is not that helpful in the case of sexual orientation or gender identity discrimination.