Antonin Scalia

EEOC Attempts to Administratively Implement Protections Against Anti-Gay Discrimination

Wants to treat a law passed in 1964 as though it also covers sexual orientation

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"Get out there and file those reports, son!"
Credit: Andreypopov | Dreamstime.com

"Gender expression and sexual orientation are not the same thing." "Gender expression and sexual orientation are not the same thing." "Gender expression and sexual orientation are not the same thing." This concept-theory-belief has been beaten into the heads of anybody who approaches discussion about gender identity, particularly in connection with transgender issues or anything genderbending. It has been a frequent corrective refrain, especially when people get confused about what it means to be transgender. Whether Caitlyn Jenner was still attracted to women or to men was brought up in her first interview after announcing her transition, and the catechism was repeated: "Gender expression and sexual orientation are not the same thing."

But never mind. If the government treats gender and sexual orientation as the same thing in a way that benefits the interests of LGBT activists, then go for it! The U.S. Equal Opportunity Commission (EEOC) has decided that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of sex (as well as race, color, religion, and national origin), also covers sexual orientation.

Here is how sex is handled in the definitions section of the law:

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-­related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

It is very clearly talking about discriminatory practices that occur on the basis of one's gender. There is nothing here to indicate that sexual orientation was any sort of consideration at the time, because it was 1964 and the federal government saw gay people as deviant threats to be driven out of society.

But now the EEOC wants to just decide that this law should apply to anti-gay and anti-transgender discrimination and apply it to cases beyond the legislation's initial intent. In a post on EEOC's site, they note:

Consistent with case law from the Supreme Court and other courts, the Commission takes the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment.  Therefore, the EEOC's district, field, area and local offices will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition). 

The Commission also takes the position, consistent with case law from the Supreme Court and other courts referenced at the previous link, that lesbian, gay, and bisexual individuals  may bring valid Title VII sex discrimination claims.  The Commission accepts and investigates charges alleging sexual-orientation discrimination, such as claims of sexual harassment or allegations that an adverse action was taken because of a person's failure to conform to sex-stereotypes.

Emphasis added. The EEOC lists a page of these court decisions that it believes bolsters its position that it can intervene in cases of anti-gay discrimination. But when you read through the cases, what they're often really about is what's in the bold text: harassment or discrimination on the basis of whether somebody properly conforms to perceived gender expressions and roles, not sexual orientation. Under such parameters, a heterosexual man could face harassment for being too feminine, and a heterosexual woman could face harassment for having masculine traits. This has nothing to do with actual sexual orientation. Gender expression and sexual orientation are separate things.

The EEOC also notes the 1998 Supreme Court decision Oncale v. Sundowner Offshore Services, in which the justices ruled unanimously that Title VII's sexual harassment protections included protection against same-sex harassment as well. But, paradoxically, such a ruling is neutral to the sexual orientation of those involved. The justices (and the decision was written by Antonin Scalia) ruled that "sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements." In other words, neither gender nor sexual orientation of the participants actually matter—just that sexual harassment is taking place. (As a fun aside, Scalia also authorizes football coaches to smack their players on the butts when they're heading to the field.)

You'd think people might be concerned that a government organization like the EEOC just shoved gender and sexual orientation in a blender together and hit puree, but it doesn't appear to be the case. The Human Rights Campaign put out a release hailing the announcement:

"Discrimination has no place in America, plain and simple," said HRC President Chad Griffin. "This historic ruling by the EEOC makes clear they agree workplace discrimination on the basis of sexual orientation, much like gender identity, is illegal. While an important step, it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life. Such a law would send a clear and permanent signal that discrimination against LGBT people will not be tolerated under any circumstances in this country, and we remain fully committed to making that happen."

But there can be unintended consequences of letting the government's definitions drift that can come back to haunt. For example, there was a case in Colorado last year where a gay bar was cited for discriminating against a gay man and refusing him entry because he was dressed up in drag.

The EEOC's ruling is not binding and courts can overrule them. The HRC declares the ruling "persuasive," but the fact is, previous efforts by the EEOC to administratively expand its own authority have been struck down in recent years. And, frankly, the courts have not always been polite about it. Walter Olson, a Cato fellow and contributing editor to Reason, has documented the agency's history of getting its decisions overruled by judges appointed by both Republican and Democratic administrations. Read more about the judicial smackdowns when EEOC attempts to abuse its authority here. Olson also weighs in on this new announcement here.

NEXT: Dave Chappelle's Comeback Tour Takes Aim at "New Intolerance"

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  1. But now the EEOC wants to just decide that this law should apply to anti-gay and anti-transgender discrimination and apply it to cases beyond the legislation’s initial intent.

    So in the span of weeks we have branches of government re-interpreting not just the text from the legislature but also intent. Congress, you’re no longer needed. You can go home and collect your paycheck from there.

    1. Seriously the Executive Branch and the Courts have usurped Congress’s role to nearly nothing. Can’t really blame anybody but Congress. The only role Congress has at this point is passing a budget. No new legislation is even necessary due to all the mission creep of the individual agencies.

      1. We are ruled by unelected/unaccountable bureaucrats and politically appointed judges. I don’t like to be all doomy and gloomy but things are not looking good.

        1. If Top Men announced after market close today that the country was officially a fascist police state greased by corruption, it would be an improvement. At least it would be honest. Obama wants to be remembered for his transparency, so he should think about it.

        2. I think if everyone agrees that we aren’t really a democracy (and not because money buys elections, but because our elected offices are basically irrelevant), that could be a good thing.

      2. The agencies haven’t usurped the legislative function so much as legislators have voluntarily given it up. Just about every law is a mini Erm?chtigungsgesetz which just tells one or another executive department to go off do pretty much what it feels like, with no limits or oversight.

        After the gay marriage Supreme court decision, is anybody here really surprised at this?

        1. I for one welcome our not at all new regulatory overlords.

          1. meet the new boss as accountable as the old boss?

          2. I’m quire aware of the ongoing problem. I merely point out that, given the decision in Obergefell v. Hodges, this expansion was entirely predictable.

      3. Congress is still needed to maintain the illusion of democracy and to keep the proles occupied with filling in placebo ballots and pulling disconnected levers in voting booths.

      4. Fear the legacy machine. Congress made itself irrelevant when Republicans decided their idea of governing was opposing everything, especially if Democrats favor it, but mostly just everything. Every system has its breaking point. Ours is Republicans and their idiocy. Can’t wait for the next generation! What’s it gonna be? Let’s call this hearing to order. Now, everyone depants and explosively shit on this semicircular table. Thank you. Hearing adjourned.

    2. That was the result of Burwell. The legislative functiion resides in executive interpretation. Congress’s purpose is merly to provide cover for the imperator.

  2. “Failure to conform to sex stereotypes”?

    Yeah, that statement ought to go over like a brick balloon with the LGBTQWERTYBBQ community.

  3. This decision is contrary to every circuit court that has addressed the issue. And it is nothing less than amendment of Title VII by “interpretation.”

    But it is not a surprise. Obama told us about his pen and his phone, and this is just the latest of countless examples of his administrative agencies rewriting law in ways that favor Team Blue constituencies. I see it happening in employment and labor law on an almost daily basis. And with an election coming up in 2016, expect a lot more of this.

  4. Sex and Gender aren’t the same thing. If gender is a protected class for the purpose of discrimination law, then it seems pretty clear that you can’t discriminate against someone for being light in the loafers or too butch or wearing a skirt to cover their johnson.

    SLD that anti-discrimination laws are a pox upon the land.

    1. Anti-discrimination laws are carving away rights to association, speech, etc. And the laws are primarily used to force private actors to behave a certain way, not to protect actual rights. Lawyers will get richer, though, so thanks.

      1. That’s why with the standard libertarian disclaimer.

        1. I know, but the disclaimer eats up the rest of it. The net change in liberty here will be negative, not positive. But we should be getting used to that by now.

      2. Lawyers will get richer

        That should be on the law sensibility rubric

        “Will this chum the waters for lawyers?”

        Maybe we need something like a carbon offset. If you sequester 1,000 kilos of lawyer you can pass a law marked “yes” for that question.

        1. I’m not sure it’s ever a good idea to enrich plaintiffs’ attorneys more than we already have.

          1. So you’re saying I shouldn’t have dug a trench, thrown the entire staff at Cellino & Barnes in, filled it in, and then gone over it repeatedly with a steam roller?

            I’m gonna need a redo on this one.

            1. This, of course, requires a disclaimer that I have no ill will towards the staff of Cellino & Barnes, but find their jingle annoyingly memorable. My above statement is in no way an implication of real world violence. Thank you for not suing me staff of Cellino & Barnes injury attorneys call 800 8-8-8–8-8-8-8…

              DAMN IT.

              1. I even remember the jingle with their previous phone #: eight hundred, three, two, one, twenty, twenty.

            2. “Hey, it’s a lawyer!”

              “Nope, Chuck Testa.”

        2. Way to go, Jesse, I love it!

          However, lawyers are SOOOO highly toxic, that merely sequestering them will not suffice. Some have proposed shrink-wrapping them in alternating layers of plastic, steel, and concrete, and dumping them in the ocean-bottom muds at the edges of the continental shelves, where they will be sub-ducted into the Earth’s interior. That is NOT good enough!!! In a few tens of millions of years, they can come up as ejected magma from subduction-zone volcanoes!!!

          The only long-term solution is expensive, but more effective: Launch them into solar orbit, give them a HUGE retro-blast to kill their orbital velocity, and drop them into the sun!

          1. You realize, of course, that SKYNET isn’t AI. It’s a law firm.

          2. I think Scientology has a solution for our problem. Where is galactic warlord Xenu when you need him?

      3. Nobody had a right to discriminate. Only in the wake of 14th Amendment protections for gays has it become necessary to note that gays have been unprotected from the same rights you all get.

    2. “Gender” is simply any arbitrary form of exhaustive classif’n, usu. in language. Gender can be the same thing as…anything, sex included. But it’s stupid, inviting equivocation, to use “gender” in cases where any more definitive term can be used. In this case, it’s a stupid term for “sex”.

      Saying “gender” is to be a protected class is saying “kind” or “type” or “class” is to be a protected class. The people who are saying sex & gender aren’t the same thing are using them to mean the same thing in almost all cases.

      In these discussions, “gender” should not be a term used at all. A transvestite is still either male or female; they’re not exclusive classes. They’re different dimensions.

  5. “Gender expression and sexual orientation are not the same thing.”

    Except when it suits us. We reserve the right to reverse track and believe the opposite tomorrow.

  6. Making gays another legally protected class was always the holy grail right from the start. And many people here said so a while ago, and of course got pooh-poohed by the Botards of the world.

    This is how Alinskyism and the Overton Window work. And it works like a champ.

    1. Equality means special favors, doesn’t it?

    2. Nobody “pooh-poohed” that that is what the progs want. We just rightly pointed out that it is a separate issue from gay marriage.

      1. We just rightly pointed out that it is a separate issue from gay marriage.

        Yup. Rightly pointed that the middle of the slope is a completely separate issue than the top of the slope.

        1. I’m pretty sure the top of the slope was the CRA.

          1. Agreed.

        2. And then when you get to the bottom of the slope, it’s always like “Ahh well, those progs, what are you going to do?”

        3. They aren’t on the same slope at all. Discrimination laws protecting gays are in the middle of the slope leading down from the CRA as Nikki said.

          Gay marriage is an issue of equal protection under the law, ie discrimination by the government, not private parties.

          1. Oh, bollocks, gay marriage is, and always has been, about the government affixing its Good Housekeeping seal of approval on same-sex relationships, certifying those relationships as equivalent in all relevant respects to opposite-sex marriages.

            This was *never* a secret. It was screamed from the rooftops.

            *Of course* there will be consequences if the government officially decrees that same-sex and opposite -sex relationships are equivalent.

            And you can’t accuse the progs and the activists of keeping their agenda secret, which they have from time to time been known to do. No, this time they were open and up-front about it.

          2. They aren’t on the same slope at all. Discrimination laws protecting gays are in the middle of the slope leading down from the CRA as Nikki said.

            Holy Fuck. The meta-absurdity is becoming irritatingly stupid. It’s a goddamned anti-anti-slippery slope of slippery slopes fallacy.

            Keep trying to convince me that A bunch of little slopes crammed together != one big slope. Maybe if you continue to make fine distinctions, you’ll be able to stop the juggernaut! Moron.

            1. If there had never been a CRA or other antidiscrimination laws applying to private individuals and businesses, do you think we would be talking about this at all?

              1. Do I think we would? No. See above, I agreed with you above. Do we have a CRA? Yes.

                Given that we have a CRA. His cognitive disconnect is pretty blatant. He doesn’t refute that there is a slope and even agrees that the CRA is at the top. It’s pretty obvious that he couldn’t deny this was the ends and he provided them with and/or agreed with the means anyway. His rationalizations are the same (or worse given the obviousness of history) than those that bring/brought us the CRA legislation in the first place. If we pass the laws selectively enough and make the distinctions fine enough, we’ll craft a masterpiece of a government/society.

                Any means so long as we deem the ends to be good.

                1. I’m not disagreeing with you that expanding the CRA to apply to gays is the logical endpoint.

                  I’m just disagreeing with you that it has anything to do with gay marriage. They are completely separate issues, completely separate laws, and you can support one and not the other.

      2. When the SSM decided to go through thr courts on an equal protrction argument, they tied it to protected class status.

        The.logic of the argument made determines whether it is separate, not the wishful thinking of yhe arguer.

        1. Discrimination statutes existed and were enforced before gay marriage was legalized in many states/localities. Now today, there are states where gay marriage is legal but there are no discrimination statutes.

          They are separate issues and legal arguments.

          1. Right, and the fact of these two “separate issues” coming up at the same time is simply an unfortunate coincidence. No, they’re unconnected because we can sometimes find a state which didn’t adopt both of these policies at the very exact same time. Proving that there’s no connection at all.

            1. I think doing it by vote, vs claiming equal protection is the difference. By vote and it just becomes one of many laws that applies to some but not others. By equal protection and we must decide what category is “equal”- in this case gays, not polygamists, or bald people, or another random category. The CRA then enforces that equality on those government designated groups.

            2. Yup. I spent all day picking cherries from few trees in an otherwise well-maintained orchard, so there can’t be a forest around here. I would’ve seen it.

            3. Right, and the fact of these two “separate issues” coming up at the same time is simply an unfortunate coincidence.

              But they are NOT coming up at the same time, people were getting sued over gay cakes and flowers before gay marriage was government approved like the Oregon and New Mexico ones.

              Also these discrimination statues are being passed by either legislatures/city counsels or by the voters themselves.

  7. So now it’s the job of the executive branch to write AND interpret legislation?

    Folks, we are nearing the end.

    1. Efficiency!

      *beams*

      1. That’s very German of you, sir.

        1. Oh, aye….I mean, “Ja!”

    2. Folks, we are nearing the end.

      …of the libertarian moment, right?

      +1 gay marriage, +1 legal marijuana so… victory, right?

      We have a bash and bow out of the spotlight ? la Freedom To Marry. Evil social conservatives thwarted. Libertarian mission accomplished!

      1. +1 gay marriage, +1 legal marijuana so… victory, right?

        Someone’s fogetting “open borders for especially Messicans”…..

        THEN victory!

        1. Isn’t that what Obama’s super-special-not-at-all-amnesty thing was?

          God damn, libertarian moment was staring us right in the face, and we just couldn’t see it!

      2. Our mistake is in letting government decide what rights we have. The Constitution, the state constitutions, and the common law to some extent represent a very limited agreement that citizens give up some freedoms in order to have some greater security. So, for instance, we aren’t free to kill each other without limit, or to steal each other’s stuff. But we retain whatever freedoms we didn’t expressly give up.

        In a free society, gays could marry and otherwise contract with one another. And people could say and do things that offend others, people would be free not to associate with other people, government couldn’t interfere with the market, etc., etc., etc.

        We’re light years from being a free society. The only reason I think we even get away with it anymore, aside from the physical comfort of relative affluence (which is decreasing, thanks to the government’s obscene spending and market intervention), is that the rest of the world is getting more oppressive, too.

      3. You are a fucking idiot.

        Yes…the end will arrive in one of three ways. A libertarian moment, economic collapse or revolution.

        You pick!

        1. So long as it’s merciful and quick. Because it ain’t going to be libertarian.

          1. Because it ain’t going to be libertarian.

            What will it be?

            In the case of economic collapse, it was non-libertarian policy that caused it. The aftermath will be unregulated free trade OR a dictatorship, which will prolong the economic collapse. There IS ONLY one correct choice. We can do the iteration as many times as you like, but liberty will win. It may not be in our lifetimes, but it is the only option that doesn’t bring destitution.

            In the case of a revolution, who will be fighting whom and who do you think is going to win? The side with the guns or the side without the guns? Do you think the winners are going to invite the losing side to sit down and draft a constitution with them? AND, if the wrong side wins, see economic collapse above.

            1. There’s always the possibility that, as an non-viable species incapable of acting in its’ own interests, we become extinct.

            2. Your optimism is great, but economic collapses don’t seem to result in good political outcomes. Whether greater liberty is in our future, I don’t know. I know that it should be and that the correct moral result is a freer humanity, but we’re having a hard time maintaining even a single truly free country on the entire planet.

        2. You’re a towel!

  8. The EEOC and NLRB have become more dangerous than usual under this administration. I say this as an employer who has the “privilege” to “Work with” both organizations on occasion (usually, but not always, in an adversarial role).

    Fortunately, like most things in life, it kind of depends on “Top Men”, so who you’re dealing with matters. I’ve been fortunate that the Cleveland and Detroit Fed agencies have been staffed with people who almost seem human, and can tell when they’re dealing with a “frequent flier” problem child versus “an actual case of discrimination or violation of law or rights”.

    But I don’t want to depend on that, cause the incumbents could be gone tomorrow and replaced by Jezebel writers and Modern Labor Union contributors.

    So, in summary, fuck the government with a woodchipper, sideways.

    1. It’s such a fucking scam. God forbid an employer fire or not hire someone in a protected class. Even with well-documented cause, you can drop some serious change fighting the claims.

    2. “The EEOC and NLRB have become more dangerous than usual under this administration”

      What’s the EPA, P?t? de foie gras?

  9. Well if the IRS can interpret “exchanges established by a State” to really mean “exchanges established by a State or the Federal Government” and have SCOTUS go along with it, then hey, why not expand Title VII of the CRA to include LGBT people as well? It’s not like words have established meanings or anything.

    1. Neither IRS nor the courts interpreted “exchanges established by a State” to mean “exchanges established by a State or the Federal Government”. What they each did was interpret the portion of the statute that said that fedgov would establish “such exchanges” would mean that those exchanges would operate the same as the ones established by the state. Seems a reasonable interpret’n to me.

      It’s like the way people say the courts ruled that pro baseball was “not a business”, so the anti-trust law wouldn’t apply to it. The courts said no such thing. All they said was that Congress must not have meant to include baseball among businesses covered by the legislation, because it was well known how baseball clubs openly operated at the time the legislation was passed, and that there was no indication Congress meant to upset that arrangement.

      Or like the way whether tobacco products fit the statutory definitions of drugs or medical devices is irrelevant because Congress in its various acts acted in a way that demonstrated they did not mean to treat them as such.

  10. It is very clearly talking about discriminatory practices that occur on the basis of one’s gender.

    Ahem. Plenty of women can’t get pregnant, and some men can. Gender != sex.

    Oh, and also: fuck protections for pregnant women.

    1. Why do you deny Bruce Jenner’s right to have a baby, Nikki?

      1. Stan: It’s every man’s right to have babies if he wants them.
        Reg: But you can’t have babies.
        Stan: Don’t you oppress me.
        Reg: Where’s the fetus going to gestate? You going to keep it in a box?

        1. Heh, heh, this is the scene which will finally convince progressives that *Life of Brian* is blasphemous.

          Don’t expect it to show at your nearest Campus Film Festival.

    2. Oh, and also: fuck protections for pregnant women.

      Isn’t that a bit late? If they used fuck protections they wouldn’t have gotten pregnant.

      1. “Fuck” now refers to sexual activity not consented to in writing.

        1. So ALL of my sexual activity.

          I’m right fucked….

    3. Men can get pregnant?

      1. Trans men can. (The line I used is a thing.)

        1. Burt Reynolds can get pregnant?

        2. Trans men can. (The line I used is a thing.)

          Biologically, incorrectly lumping post-op trans men in with pre-op trans men… *smoke from ears*… accurately portraying ideal equality… *head jerks repeatedly at odd angle*… falsely equating gender, identity, sex, orientation, and fertility…

          Illogic! *Head explodes*

    4. That is premised on the idea the words “men”and “women” are referring to different genders and not different sexes. At best, they refer to both, so insisting that they do not refer to sex is begging the question.

      1. Actually in English, nouns, such as “men” & “women”, don’t even have gender.

  11. it also highlights the need for a comprehensive federal law permanently and clearly banning LGBT discrimination beyond employment to all areas of American life.

    Everyone has to have gay friends or else you are in violation of the law.

    Gays do not want to be “tolerated” they want to coerce you to associate with them.

    1. “Did you see that! Did you see him coercing me! NOW we see the coercion in the system!”

      1. “Help, help, I’m being repressed!”

    2. Especially with the ass sex, amirite?

    3. Hahaha, that’s cute.

      While I’m sure you’re delightful (this is sarcasm since you seem very simple minded), but why would anyone want to inflict your company on themselves, Rebel Scum?

      1. He’ll give them a shiny nickel.

      2. Stop othering masochists, jesse!

      3. What else is it called when someone thinks they have a right to, say, your labor in the form of baking a cake or photographing a wedding? I think you missed the point of my post.

        1. Everyone has to have gay friends or else you are in violation of the law.

          For the time being, I even get to choose my friends.

          What else is it called when someone thinks they have a right to, say, your labor in the form of baking a cake or photographing a wedding?

          I dunno. I don’t consider my dry cleaner a “friend”. I get that you’re trying to be hyperbolic but your posts have this delightful pearl-clutching stupidity to them that I’m going to enjoy poking at you for a few minutes before I get bored.

          1. I think you lack a sense of humor.

            I don’t consider my dry cleaner a “friend”.

            Do you think that your dry cleaner should have to serve you, or else?

            1. I think you’re just not very funny.

              Do you think that your dry cleaner should have to serve you, or else?

              Is my dry cleaner being paid by taxes forcibly extracted from me by the state? Then no, I don’t think I have a right to her labor.

      4. I don’t like how people are lumping psycho lefty politics and their current favorite protected class, homosexuals, into one boat. We see a good number of gay libertarians here, who oppose a great deal of this nonsense. And there are a great many gays who aren’t leftists or SJWs, except perhaps to the extent that they personally want equal rights.

        Sure, some are guilty of the bullshit, but I bet it’s not even a majority. Like with most identity politics, the loudest voices and the numbers are not with the group that’s the topic of the conversation.

      5. discrimination against LGBT people will not be tolerated under any circumstances in this country

        Also, I was making what I thought was joke about the broad language used in this statement. That said, I see very damning implications if I take this persons words at face value.

  12. Discrimination has no place in America, plain and simple

    Sure it does. I discriminate in who I fornicate with, who I work for, what products I buy and from what company. For the time being, I even get to choose my friends.

  13. We’ve seen what the courts did with the 14th Amendment, do you think they’ll blink at a little fiddling with a mere statute like the Civil Rights Act?

    1. We’ve seen what the courts did with the 14th Amendment

      You mean they followed it?

      1. Well I can’t marry my mom, so it looks like a clear case of mommaphobia. Why are mothers denied equal protection?

        1. You say that like motherfucker is a slur and people make offensive “Your mom/Yo mama… ” jokes out of hand.

          1. I mean, it’s not like there’s ever been an accepted and enforced psychological dogma about actual fear of your mother or that it has been construed to be or cause a laundry list of inappropriate behavior or anything.

  14. Blue eyed people are another minority defined by arbitrary and superficial characteristics, they can be denied service. I demand equality.

  15. Foreseeable consequences are not unintended.

    1. I’m curious: at what point were you replaced by a random sarcasmicism generator?

      1. *shakeshakeshake* Principals, not principles. *shakeshakeshake* Foreseeable consequences are not unintended. *shakeshakeshake* Lemme tell you about this one time I knew a gay man…

        1. Funny how when I point out the obvious, the responses are always shrill personal attacks.

          1. It’s only because we’re too impossibly plebeian to value your brilliance. One of these days, you’ll show us all.

          2. I’m not sure you know what shrill means. Pointing out you’re an unimaginative bore with a small, predictable stable of comments isn’t shrill by any definition and particularly not by H&R standards.

            Do you need a hug box?

    2. I foresee you dishonestly and intentionally conflating unrelated issues.

      1. Sorry, but once SSM was sold as a civil right, the issues became, well, married.

        1. Only in the heads of those who don’t understand how laws work.

          1. *Looks at how the laws are working*

            Um, yeah. Sure. Whatever you say.

            1. It’s been meticulously spelled out for you in the past.

              If you don’t understand, just say so. We won’t judge, much.

              1. Yet the foreseeable consequences keep happening.

                1. It’s amazingly easy to foresee something, when it was already happening.

                  You must be some kind of psycho, or something.

            2. As was pointed out to you repeatedly, the Oregon law making sexual orientation a protected class has been in effect since Jan 08. The baker would have been sued regardless of whether the issue of SSM existed or not. You r argument that SSM CAUSED any of this is beyond absurd.

              1. The baker was not, and has never, refused to simply serve gay people. They refused to bake a cake for a gay wedding.

                SSM is intrinsic. Without SSM they would never have been sued–and HAD never been sued in all the years they operated under that statute.

                Or did you not notice that?

                1. Point taken.

                  But SSM didn’t cause it, the immoral public accommodation law did. Fight the right fight.

          2. don’t understand how laws work.

            You think there is still “law” in this country? SCOTUS recently ruled on what it thought the ‘intent’ of legislation was rather than what the actual words said. There is no law.

            1. Do not mistake “law” with “order”. Calvinball also has rules, just as we have laws. Thousands of them.

  16. Scott is really underselling the full effects of this. This is not some run of the mill expansion of CRA protection to a new group. This represents a transformation of the CRA from protecting people from discrimination for non behavioral things like disability, sex or race or religious belief and into it protecting from discrimination for your behavior. That is a big deal.

    Remember, the CRA isn’t just about overt discrimination. You can prove discrimination also by showing a disparate impact on your group or a hostile work environment. Both of these things are going to have hugely negative consequences.

    Under the disparate impact test, a plaintiff can win if they show their employer follows paractices that have a disparite impact on their group. In practice that means affirmative action. If the protected group is say 10% of the qualified and interested people in the local community, the employer better make sure 10% of their hires are that group or they will be lose in court. This was bad enough for race cases but at least there you can tell who is who. How do you do that with discrimination against gays? Employers are going to have to start figuring out who of their employees are gay and making sure they have the right percentage. That means you will now be expected to tell your employer the details of your sex life. So much for privacy and keeping the government out of the bedroom.

    1. Wait, there is more. Once the gays get in on the affirmative action gravy train, how do we know the employees are not lying? How do we know an evil employer hasn’t just colluded and called a bunch of straight employees gay to avoid losing a lawsuit? We will have to ask people. So when a gay sues an employer for discrimination, the employees are going to be called in to testify and will be asked about their sex life and be expected to provide proof of their sexual orientation. Won’t that be fun?

      Then of course there is hostile work environment. In the context of race, it has effectively outlawed any expression that can be perceived as racism or sexism in the workplace. How would this work with gays. Well, it would mean you could no longer expression any reservation about homosexuality in the workplace. If you did and your employer didn’t discipline you, that employer is setting himself up to lose a big judgement from any gay employee who hears about it. And since homosexuality is a sexual behavior, that means when Tony comes in and tells you how his boyfriend shoved his fist up his ass last night, you better smile and like it lest you create a hostile work environment and Tony sues your ass.

      1. And since homosexuality is a sexual behavior, that means when Tony comes in and tells you how his boyfriend shoved his fist up his ass last night, you better smile and like it lest you create a hostile work environment and Tony sues your ass.

        Yeah, because no one would consider that sexual harassment. Come on, John. You know they would call that a hostile work environment.

        1. Of course they could Nikki. You could totally sue the employer for not disciplining Tony and Tony could sue them as well if they didn’t discipline you for objecting.

          Since when do these laws not put employers in a sued if you do and sued if you don’t position? That is the game for God’s sake.

        2. There will be no sexual harassment suits anymore:

          Boss: You copped a feel of Ms Smith’s booty.

          Me: Yes Sir, I did.

          Boss: That is a firing offense.

          Me: No Sir, it isn’t. You see….I self identify as a slut. Are you a…a…slut shamer?

          Boss: Of course, I’m not. Why didn’t you say you were a slut earlier! Back to work.

      2. I’m not especially litigious, but I might come jack your face have words over your incessant obsessive fixation on what I do with my body. If you want to play, and you’re as old as I assume you are, my price is a good meal with a digestif of Louis Xiii, though to be honest Remy XO does it for me just fine.

    2. I didn’t think about the disparate impact piece, but that’s a problem, too.

      1. Its a huge problem. I don’t know how an employer avoids it without prying very deeply into their employees’ lives. And even if they don’t, the attorneys fighting out the litigation will.

        Plaintiffs’ complaint, “none of the defendants top executives are gay despite 5% of the interested and qualified members of the local population being gay.”

        Defendants’ answer, “we deny the plaintiffs assertion and assert to the contrary that two of the defendants’ six senior VPs are homosexual.

        How exactly are we going to litigate that question of fact without digging into the employees’ sex lives?

    3. In the context of sex discrimination things like bikini calenders have been found to create a hostile work environment. It is difficult to see how, given the bible’s condemnation of homosexuality, an employee having a bible on their desk or reading one at lunch or wearing a cross won’t be considered the same. And even if it is not, litigation adverse employers are likely to consider it such.

      And it gets even better. When the transvestite shows up applying to be your kids’ nanny, you can expect to have the EEOC drag you into court if you don’t hire him. And hiring him won’t be enough thanks to hostile work environment. Religious schools won’t be able to get away with just hiring the mandated percentage of gays. They will also be prohibited from telling gays they can’t advocate for the morality homosexuality. Under the doctrine of hostile work environment, you can’t hire a protected person and then tell them they can’t openly be who they are. Telling a gay teacher at a Christian middle school they can’t tell children homosexuality is moral and their parents are evil for telling them otherwise is no different than telling a Mexican teacher he can’t tell kids Mexico is a great country.

    4. As you can read in the blockquote above, the CRA already protected people from discrimination based on behavior, i.e., pregnancy.

      1. Different kind of behavior. You can tell who is pregnant without prying into their lives. And pregnancy really is a variation of sex discrimination. I know you don’t think such discrimination could affect you but it can.

        Employers don’t just fire pregnant women. It is too late by that point. What they do is don’t hire women who are of child bearing age and in a relationship. Law firms are notorious for doing this. Women law graduates have long been told to lose their wedding rings when they go to interviews because law firms don’t hire women they think might get pregnant.

        1. Yeah, and why is that? Because they can’t fire them when they do get pregnant, and have to keep a job open for them. That’s how it affects me. Because other people make a different choice that they aren’t allowed to pay for, all women have to pay for it preemptively.

          1. No. It is because they take long maternity leaves and cost a ton on their health insurance. Women cost more money to hire and employers don’t want to hire them.

            I am down with free association. I agree with the law firms. I wouldn’t hire you either Nikki, I don’t care how much you swore you were not a breeder. Come back and talk to me after you ovaries shrivel up.

            How is my attitude not just a variation of sex discrimination?

            1. It is, because you aren’t discriminating against me because I am pregnant. But the regulation also makes that illegal, which is what I am complaining about.

              1. I am discriminating against you because I think you might get pregnant. That is the same thing and also something I won’t do to men. So it is nothing but an expansion of sex discrimination protection.

                1. It’s not the same thing at all. Discriminating against someone because they might get pregnant is not the same as doing it because they are actually having a kid. The former is actually sex-based, whereas the latter is only based on choices made.

                  1. Okay Niki. Split all of the hairs you like. But the fact is the prohibition against discrimination against pregnant women was done to protect all women of child bearing age not just pregnant ones.

                    Again, I agree with you. I would never hire you either. I can’t trust that you won’t get pregnant until you are too old to do so.

                    1. Split all of the hairs you like.

                      Insert beaver joke here.

                    2. And yet it doesn’t protect all women. It harms those who don’t have children. Just as you fucking demonstrate.

                    3. It harms those who don’t have children. Just as you fucking demonstrate.

                      No it doesn’t. it keeps me from doing that. I have to hire you even though you might have kids. Without the protection, I don’ hire you. If you want to lose it, fine. But understand that is what getting rid of it means.

                      Again, I agree with you that it is none of the government’s business. But you seem to not understand you benefit from the rule even though you claim to never plan to get pregnant.

                    4. In a free market for labor, women who were committed to not having children would have mechanisms available that allowed them to take advantage of their inherently higher value in labor markets over women who did plan to have children. E.g., contracts that specified this, wages held in escrow that could be clawed back if they reneged, etc.

                    5. In a free market for labor, women who were committed to not having children would have mechanisms available that allowed them to take advantage of their inherently higher value in labor markets over women who did plan to have children. E.g., contracts that specified this,

                      That would help but I still wouldn’t hire you. Being able to fire you when you get pregnant is great and all but I still am stuck with hiring another employee. Better to hire a man who I don’t have to worry about ever firing for being pregant.

                      Sorry but your “you can fire me if I ever get pregnant” contract isn’t worth very much or isn’t worth much to any employer who values employee retention.

                      Face it Nikki, hiring women of your age is an expensive proposition.

                    6. I guess you missed the part where you also got back to claw back a bunch of cash when that happened.

                    7. Don’t you mean “demonstrate fucking” rather than “fucking demonstrate”?

        2. Women law graduates have long been told to lose their wedding rings when they go to interviews because law firms don’t hire women they think might get pregnant.

          Wait, if a woman isn’t wearing a ring, she won’t get pregnant? This is an amazing medical discovery. Thank god for lawyers!

          1. Women lawyers tend not to get knocked up when they are not married. So hiring an unmarried 20 something lawyer is much less of a risk than hiring a married one.

            It is a simple concept even for you Old man. Not sure why you can’t grasp it.

            1. A law degree is some expensive birth control. I guess that’s why Sandra Fluke needed help.

              1. No. Poor people are on average who become single mothers. Upper middle class people like lawyers tend not to do so. Why is that so hard for you to grasp? Did you get knocked up or something?

                1. You seem to insanely equate having children with getting pregnant.

            2. Perhaps because I actually am aware of the CDC stats.

              http://www.cdc.gov/nchs/fastat…..earing.htm

              1. No old man, they just understand them. Go look at your data and check the correlations between income, education and unmarried births.

                1. Correlation is a tough concept. You might consider that job applicants tend to be, you know, unemployed, and thus have low incomes.

      2. It’s too bad it took a direct threat to his religion to get John fired up over the CRA. Just think, if him and those like him gave a shit about all liberty as much as they give a shit about their religious liberty 40+ years ago, this wouldn’t be an issue today.

        But repression is good when it represses the right people, I guess?

        Until they come for you!

        1. Could you do me a favor and argue with me and not the voices in your head. I have always objected to the CRA. Why do you think I don’t?

          And yeah I get it you don’t give a shit because the GAYZ!!

          1. Why do you think I don’t?

            Because you have said in the past that it was necessary to deal with discrimination against blacks?

            1. Nope. I have I understand why the did it in the 1960s given Jim Crow. I have always said it has long outlived its usefulness. And to the extent that I ever said it was necessary, I never defended disparate impact or hostile work environments. Those are a complete abomination.

              It is going to be funny watching people like Frank have the distasteful task of defending religious people. I can just feel the butt hurt coming from Frank. All he can do is change the subject to how I must hold positions I don’t. Lets talk about some post I made five years ago. Whatever we do lets not talk about having to stand up and say the gays don’t get what they want. Never that.

              1. Frank have the distasteful task of defending religious people.

                You are a fucking moron.

                Your religious rights are JUST as important as any other right and I’m outraged that anyone, gay, black, pink or muslim would attempt to infringe upon them. And I’ll fight side by side with you when push comes to shove, provided you are fighting the correct opponent. Which, in this case, are the public accommodation laws.

                If you are going to turn your loss of liberty into an excuse to bash a group you disapprove of, yes, you can count me out.

                1. Your religious rights are JUST as important as any other right and I’m outraged that anyone

                  That had to hurt to type. You are so much fun to troll on this.

                  1. Didn’t hurt at all, and I honestly believe it. I don’t have to agree with your mysticism to believe you have a right to it.

                    But I guess you simply cannot comprehend having principles and living by them, being a Republican and all.

          2. I don’t give a shit about gays any more or less than any other human being being given unequal protection under the law.

            AND I don’t condone ANYONE being a protected class. Let’s all write our congressmen, John, and demand they repeal the parts of the CRA that apply to the private sector.

            OR, you can whine about SSM some more, which has nothing to do with you losing your 1A rights to the CRA.

            Step 1 in problem solving…do a root cause analysis to identify the problem…

            1. I don’t give a shit about gays any more or less than any other human being being given unequal protection under the law.

              Then why do you get so passionate defending them but not here?

              Since the CRA is not going anywhere for the moment, how about we at least stop its expansion and keep it from being made worse? How about that?

              Or do we have to demand all or nothing? Do you support stopping this or not? Or do you only support stopping it in the context of killing all of the CRA?

              1. Then why do you get so passionate defending them but not here?

                I don’t know what that means. I’m assuming its a typo.

                Since the CRA is not going anywhere for the moment, how about we at least stop its expansion and keep it from being made worse? How about that?

                1. As I pointed out, above, to sarcasmic, Oregon’s public accommodation law listing sexual orientation as a protected class has been on the books since January of 08. That bakery was getting fined, REGARDLESS of the status of SSM. You railing against SSM will have absolutely zero effect upon stopping the expansion of PA laws for gays.

                2. NOW, while people are good and pissed off about adding people to the CRA at the expense of the liberty of others (just like before), is the PERFECT time to engage in an attack on the abomination that is the CRA. Unfortunately, you and the rest of your yokels are pissing away the opportunity by blaming a group you dislike (scapegoating) instead of addressing the root cause.

            2. Step 0 in problem solving… Quit making the problem bigger.

              1. Agreed. Let’s stop adding groups to the CRA. Couldn’t agree more.

                1. Fuck that noise. Let’s add every group to the CRA, especially political ones. No firing bronies, or libertarians, or homophobes, or wafer thin mints.

      3. Pregnancy is not a ‘behavior’.

      4. Pregnancy isn’t behavior. You can’t choose to be pregnant or not pregnant.

    5. I don’t know how to get Libertarians outraged about this. It affects people they hate and benefits a group that they love above all others. I will just say that this is going to affect more than just the hated theists. Yes, it benefits some gays and we all know that is the most important thing in the entire world these days. But it also will likely hurt gays too. By making your sex life subject to discovery by your employer and in employment discrimination suits, gays will lose their privacy and have to self identify in a very public way. If things ever do change and some element of society decides to do a bit of gay bashing, that won’t be a good thing.

      So this can hurt gays. Maybe that will get you outraged.

      1. I’m as outraged as I was when it was illegal to fire someone for being a Christian.

        1. Okay, good for you. This law is expands that even further in really nasty and insidious ways. But, again, gays are great and anything that benefits them can’t be all bad.

          1. No, John, it is all bad. All bad. All equally bad.

            1. Of course Nikki, it is not like free exercise is specifically protected by the BOR or anything. I have to keep such silly thoughts out of my head. Religion is no different than being a Jim Crow racist.

              1. Free exercise in the BoR means what, exactly, with respect to private parties?

                1. It means the government can’t punish you for exercise of that by subjecting you to liability for doing so.

                  It means more than just “the government can’t throw you in jail”. It also means they can’t make you doing so subject you to civil liability. And that is what this rule is going to do.

                  1. Oh I see what you are arguing. I’ve never said that religion is no different than being a Jim Crow racist. I’ve said that everyone should be able to discriminate, and I think it’s shitty that you don’t care about defending other people’s rights to do so. Why should I be so angry about your cause, when you aren’t angry about mine?

                    1. Stay with me. I argue that certain regulations, taxes, and redistributions make capitalism function at a more sophisticated level than it would without them. So consider the matter at hand. Simply prevent discrimination in the form we’re talking about (public accommodations), and buck-toothed hillbilly fuckfaces don’t have to worry their inbred little heads about whether they can make the fags leave their waffle house. Life is easier when the rules are clear.

  17. It is very clearly talking about discriminatory practices that occur on the basis of one’s gender.

    No, pregnancy, childbirth, abortion, and related medical conditions are concerns based on sex, not gender, at least as people today use the term.

    At any rate, at the risk of repeating myself, everyone but asexuals and unbiased bisexuals engages in systematic sexual discrimination, so fuck all those bigots.

    1. It’s always nothing or everything with you….

  18. We are going to need more lawyers.

  19. One day perhaps US law will recognize gays as people inherently deserving of equal rights, but clever approaches like this are welcome anyway.

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