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Nasir and Matt discuss the EEOC decision that may prohibit gender discrimination before Congress passes its own law.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: What’s going on, Matt?

MATT: Uh, doing pretty well. We’re in the weird phase of San Diego weather where it’s either gloomy or humid or both so it’s unenjoyable… I mean, it’s probably way worse for you.

NASIR: I know it rained last week and the only reason I knew it rained is because I got all these pictures as if it was some kind of miracle in San Diego which it practically was, I suppose.

MATT: I mean, the rain, that’s pretty rare bit there was lightning and thunder which is extremely rare for San Diego.

NASIR: Pretty commonplace here in Houston except I don’t think we’ve had rain in the last thirty days which is… I don’t know if it’s unusual for the time but unusual in general.

MATT: Well, I’d still probably take this weather over yours.

NASIR: Yeah, I think so. I think that’s established as far as weather – Houston versus San Diego. That’s a good court case.

MATT: Houston versus San Diego. They’re suing over…

NASIR: Better weather.

MATT: All right. Enough of lame legal jokes. We’ve got a pretty interesting topic.

NASIR: No, let’s talk about the weather some more, that’s usually a good topic.

MATT: Yeah, also a good podcast subject. So, this is a topic that I think is obviously going to get a lot more mention here in the upcoming probably years. Actually, I could see this even being… maybe not this specifically or at least a little bit – this could be a big issue even in like the presidential election coming up – possibly. I don’t know. Maybe it will, maybe it won’t.

NASIR: Absolutely, I think so.

MATT: We’re going to talk about it I guess the employee-employer context. We’re dealing with employment discrimination on the basis of sexual orientation or gender identity. What that community and other advocates are trying to do is lift this federal prohibition on employment discrimination against the – like I said – based on sexual orientation or gender identity. But there was a recent EEOC – Equal Employment Opportunity Commission – decision that possibly could have already made this a non-issue – or at least some people are saying. Basically it’s saying that this is already illegal on the grounds of Title 7. What this ruling was I think there was a three to two I believe panel decision. It kind of all centers around “the sex” in Title 7. And so, what does that really mean? I think they had mentioned it’s included transgender in the past but that’s kind of what we’re getting to and it’s not interchangeable with sex and gender necessarily but there was a decision that outlaws discrimination on the basis of sex and the panel ruled that the job discrimination against gays violate this against this Title 7 under the Civil Rights Act. I don’t think that made any sense.

NASIR: We’ll get it out by automatic translator here.
I think, first, to really understand the EEOC’s reasoning, I think you have to kind of take a look at what Title 7 was and Title 7 is a part of the Civil Rights Act of 1964 and basically it specifically provides that employers cannot discriminate based upon gender but also religion, color, race, national origin. But what’s interesting is that there’s been previous rulings held that even the association thereof of an employee – for example, if the employee is associated with a person of a certain race or color or religion, then you can’t discriminate on that basis. The EEOC takes that same kind of logic and they say, “Well, if the Title 7 does that, then it also applies to gender as well.” So, if you’re associating yourself through your spouse or your partner as a same-sex partner or spouse, then discriminating based upon that same reason is also prohibited. The logic may or may not be accepted by other courts and so, I think, Matt, you’ve already alluded to, that people are split as to what’s the impact of this but the reality is EEOC’s decision is not binding federal laws because the court can always overturn this. Most likely, a court will hear it and, in the event that you have two federal courts that have split decisions, then the Supreme Court will resolve it. And it’s important to note that already currently – I mean, this is a hot topic and I’m sure everyone who’s listening, I don’t know if Matt mentioned it but everyone’s aware of the Supreme Court ruling that basically provided that same-sex marriage is legal nationwide. But there is already some statutory language that has been drafted within the Congress, the legislature, to pass but it’s still pretty early that addresses this particular issues. You know, who knows if this will actually pass or not? So, the question is, is it going to happen in the courts or is it going to happen in the legislation? It’s hard to tell at this point.

MATT: You’re exactly right. There is a proposed law that would ban sexual orientation discrimination in the workplace. That would still obviously need to be passed by Congress and everything but I guess that’s what people are kind of discussing – this EEOC. What is the impact? Like you were saying, we still don’t have an official law in place. This is just a three to two ruling that will undoubtedly be appealed, I would think. Stuff like this just needs to go straight up the Supreme Court, I say.

NASIR: I think a lot of people are saying that because criticisms of the administration are saying that, well, this is a little bit of an executive oversight because EEOC is not in the judicial branch – believe it or not. They’re in-charge of actually executing the laws under the executive branch. And so, this has a direct impact on employers in Texas – actually, Illinois has sexual orientation but definitely Texas. Even New York has some protections for sexual orientation but not gender identity. But California, for example, it has had protections for sexual orientation and gender identity for quite some time. And so, it’s not going to affect them directly in that sense. And so, this is quite interesting. I’m interested to see how this plays out because, in a way, if you’re looking at trends, most likely, sexual orientation and gender identity will become a protected class but it’s a matter of when and how – whether the Supreme Court is going to rule it or is a federal law going to come down? It’s really hard to tell at this point.

MATT: That’s why some people are saying, “Well, this EEOC decision, this means that we don’t even need to create a law for it.” It’s like, “Well, you know, that’s really obviously not the case,” but now I guess this is a step in that direction. It’s just not official.
Here’s the thing though… Let’s say that you are the employer and, you know, well, you shouldn’t discriminate against anyone because it’s going to come back. It’s not like employers right now are going to be able to get away of discriminating on the basis of sexual orientation or gender identity.

NASIR: Even if it’s uncertain. If you’re in Texas and you’re an employer right now, I wouldn’t be making decisions like that because the EEOC may take on a case like that where they’re going to consider on the side of the employee if they’re discriminated based upon those reasons. So, whether a state court is going to interpret it that way or a federal court is going to interpret it that way, you’re kind of gambling, you know, in that respect. So, from a legal perspective, it’s a no-brainer.

MATT: I think we even talked about this maybe a few weeks ago but kind of the next thing down the pipeline here and, obviously, the law is just evolving constantly and adding new things. This is just the next thing. I don’t know. It’s not really surprising to me by any means.

NASIR: I’m actually surprised but it’s not too surprising after the fact in the sense that the timing is a little surprising because it begs the question of the kind of political motivation. Would they have done this three weeks ago or a month ago? What was the decision? Two or three weeks ago it seems like but probably more than that. Let’s say six months ago, would they have felt comfortable making the decision six months ago before the Supreme Court decision or is this something in response to it? And then, the EEOC, again, they tend to be very employee-friendly in all their decisions, almost controversially, especially in this last decade.

MATT: I was trying to find when this EEOC, there was the decision, do you know when this actually occurred?

NASIR: That’s a good question. I mean, I think it’s somewhere around July 21st so I think it was this week. The ruling was only announced this week. I don’t have the exact date in front of me though, I think.

MATT: Yeah, I was just seeing the connection to the Supreme Court decision like you had mentioned.

NASIR: July 16th so it’s been a week.

MATT: I like the analysis of this. Lawyers call this approach the belt and suspenders approach because EEOC has provided the belt and now Congress needs to add the suspenders.

NASIR: Yeah, lawyers say that all the time. In fact, it’s one of my biggest pet peeves of phrases – belt and suspenders approaches – because they’ll say it in context of contracts and the concept is that, okay, well, if this provision doesn’t work then we’ll put this other provision. You know, it’s a belt and suspenders approach. But, often, it creates redundancy and I hate redundancy, especially in a contract. If you’re not confident about the provision, Provision A, you know, you should probably strengthen Provision A instead of adding Provision B. But, anyway, that’s contracts.

MATT: What is your favorite legal term of art?

NASIR: That’s a good question. I do have…

MATT: You said that twice this episode now, by the way.

NASIR: What?

MATT: This isn’t an interview.

NASIR: That’s a good question? That’s a good question, Matt. Let’s see. Gosh, I think by the next episode, I’ll think of it, because I definitely have some favorites but, for some reason, I’m running a blank right now.

MATT: That’s fine. Maybe like, ”fruit of the poisonous tree.”

NASIR: No, I don’t like that, definitely don’t.

MATT: All right. Well, you have to come up with something for Wednesday’s episode now.

NASIR: Yeah, I know, I’ll do that. I’ll figure it out.
Well, thanks for joining us and don’t forget… Just the quick take-home is that, as an employer, I would just assume that this is where it’s headed and to make decisions based upon that – whether you’re in a state that already prohibits it or not.

MATT: Yeah. I mean, that’s the takeaway – sometimes there are things that aren’t official laws yet that you know are going to be laws or most likely in some sense or another so act accordingly.

NASIR: Very good.

MATT: That’s me? Okay. Keep it sound and keep it smart.

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A podcast covering business in the news with a legal twist by Pasha Law PC
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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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