4 ms·

It would seem that this argument (as summarised here) would make it illegal to discriminate based on any behavior or characteristics that would not be problemat

It would seem that this argument (as summarised here) would make it illegal to discriminate based on any behavior or characteristics that would not be problematic were the parameters to be changed. So speaking with an offensive caricature of an Italian accent or wearing makeup intended for individuals with a different skin tone could potentially be acceptable under this standard. Or we would have to see a strong reversal in tolerance for in-group people using terms that would be interpreted as slurs were someone not in that group to use them. I hope that the Congress will move to pass legislation explicitly adding protections for sexual orientation and gender identity so that we don't have to suffer through any slippery slope related to this.

rrrrrrrrrrrryan 6y ago
Fortunately, our written law isn't treated like computer code, and our judges are human interpreters and not bots. I don't know if anyone is fighting for the right to speak in offensive accents or to wear blackface, but if someone did these things, got fired, and took it to court, I'd be surprised if the judges were unable to articulate the nuance between how these scenarios differ from firing a person for being gay.
- andrewla 6y ago
  I mean, obviously, yes, I agree -- the conditions are not even remotely parallel, and this decision is clearly just a case of the Supreme Court expanding a law in a direction that is _clearly_ the correct direction. They are acting here as legislators, fixing a bad law to be better, and the "logic" they use to justify it is clearly incorrect and not internally consistent, and is just a patina of justification around the decision to legislate from the bench. We should be way more angry at our representatives in Congress who have refused to incorporate this language into the law than at the justices who oppose this opinion on what seem to me to be much more well-reasoned grounds that are unrelated to their opinions on the treatment of these classes of people. Still, expediency here counts for something, and in the end this is a positive move with tangible gains in the near term.
  - rrrrrrrrrrrryan 6y ago
    I actually agree with all of this, though it probably doesn't frustrate me as much. The courts are supposed to be a check on the legislature after all. Democracy can be two wolves and a sheep deciding what to eat for dinner. The courts are supposed to prevent this tyranny of the majority, and protect the rights of individuals. This decision, to me, is a perfect example of that process working exactly as the founders intended when they set up the three branches of government. I'm reminded a bit of the gay marriage debacle in the late aughts. At the time, people were arguing that we should just strike the word "marriage" from all our laws, and replace it with "domestic partnership". Let "marriage" be a purely religious term, a process that happens in whatever church someone happens to attend, then everyone would be happy (theoretically). In actuality, the legislators arguing against gay marriage weren't really arguing in good faith, and they very much wanted "marriage" defined, in law, as a relationship between a man and a woman. This stubbornness forced gay marriage advocates to go through the courts, which worked for a bit, until it didn't (Prop 8), until it did (Obergefell v. Hodges). It's not ideal, but as long as the courts are on the side of protecting people from having their rights legislated away, I'm not tremendously bothered by these examples of legislating from the bench.
    - andrewla 6y ago
      I think there's a solid point in this regard because when they rule on legislative issues (as opposed to constitutional) there is a remedy for the legislature to override if the interpreted behavior was not what the legislature wants (rather than just intended). At this point, to reverse this, Republican (presumably) congressmen would have to actively introduce legislation excluding the protections for LGBT individuals, which would make it much more unpalatable than the current strategy of "dragging their feet" (as with gay marriage) to prevent the law from moving forward. My only fear, probably unjustified, is that the logic and precedent used here can be used to generalize the protections in unexpected and undesirable ways.
andromeduck 6y ago
ROFL I'd love to see Rachel Dolezal try to push that angle to SCOTUS. Strange though that the court has never applied title vii to immigration law/status despite it being one of the most obvious areas of systematic discrimination based on national origin.
- andrewla 6y ago
  The Civil Rights Act is not the supreme law of the land -- Congress is free to pass bills that do not respect the conditions of title vii, or even to amend or revoke title vii. Having contradictory language in another law in a different domain is totally acceptable, especially as national origin in immigration is pretty essential (that is, in the sense of someone from the US vs. someone not from the US).
pseudalopex 6y ago
Offensive caricature and slurs are textbook examples of harassment.[1] [1] https://www.eeoc.gov/harassment https://www.eeoc.gov/harassment
- andrewla 6y ago
  They _were_ textbook examples. But now, because of this decision, they are protected! [1] [1] Okay, not really, because judges are not automata and everyone will recognize that this decision should not be taken as a precedent in terms of its arguments. Chances are everyone will just take the precautionary approach and say that any offensive speech, even directed by an in-group member at another in-group member (e.g. one Jewish person saying to another something that would be considered offensive were a non-Jew to say it, or take your other religion/ethnicity as you like it) is ground for termination in order to avoid having to make the distinction.
  - pseudalopex 6y ago
    Unwelcome conduct from someone in the same group was already harassment. Welcome conduct from someone outside it still isn't.

rrrrrrrrrrrryan 6y ago

Fortunately, our written law isn't treated like computer code, and our judges are human interpreters and not bots. I don't know if anyone is fighting for the right to speak in offensive accents or to wear blackface, but if someone did these things, got fired, and took it to court, I'd be surprised if the judges were unable to articulate the nuance between how these scenarios differ from firing a person for being gay.

andrewla 6y ago
I mean, obviously, yes, I agree -- the conditions are not even remotely parallel, and this decision is clearly just a case of the Supreme Court expanding a law in a direction that is _clearly_ the correct direction. They are acting here as legislators, fixing a bad law to be better, and the "logic" they use to justify it is clearly incorrect and not internally consistent, and is just a patina of justification around the decision to legislate from the bench. We should be way more angry at our representatives in Congress who have refused to incorporate this language into the law than at the justices who oppose this opinion on what seem to me to be much more well-reasoned grounds that are unrelated to their opinions on the treatment of these classes of people. Still, expediency here counts for something, and in the end this is a positive move with tangible gains in the near term.
- rrrrrrrrrrrryan 6y ago
  I actually agree with all of this, though it probably doesn't frustrate me as much. The courts are supposed to be a check on the legislature after all. Democracy can be two wolves and a sheep deciding what to eat for dinner. The courts are supposed to prevent this tyranny of the majority, and protect the rights of individuals. This decision, to me, is a perfect example of that process working exactly as the founders intended when they set up the three branches of government. I'm reminded a bit of the gay marriage debacle in the late aughts. At the time, people were arguing that we should just strike the word "marriage" from all our laws, and replace it with "domestic partnership". Let "marriage" be a purely religious term, a process that happens in whatever church someone happens to attend, then everyone would be happy (theoretically). In actuality, the legislators arguing against gay marriage weren't really arguing in good faith, and they very much wanted "marriage" defined, in law, as a relationship between a man and a woman. This stubbornness forced gay marriage advocates to go through the courts, which worked for a bit, until it didn't (Prop 8), until it did (Obergefell v. Hodges). It's not ideal, but as long as the courts are on the side of protecting people from having their rights legislated away, I'm not tremendously bothered by these examples of legislating from the bench.
  - andrewla 6y ago
    I think there's a solid point in this regard because when they rule on legislative issues (as opposed to constitutional) there is a remedy for the legislature to override if the interpreted behavior was not what the legislature wants (rather than just intended). At this point, to reverse this, Republican (presumably) congressmen would have to actively introduce legislation excluding the protections for LGBT individuals, which would make it much more unpalatable than the current strategy of "dragging their feet" (as with gay marriage) to prevent the law from moving forward. My only fear, probably unjustified, is that the logic and precedent used here can be used to generalize the protections in unexpected and undesirable ways.

andromeduck 6y ago

ROFL I'd love to see Rachel Dolezal try to push that angle to SCOTUS. Strange though that the court has never applied title vii to immigration law/status despite it being one of the most obvious areas of systematic discrimination based on national origin.

andrewla 6y ago
The Civil Rights Act is not the supreme law of the land -- Congress is free to pass bills that do not respect the conditions of title vii, or even to amend or revoke title vii. Having contradictory language in another law in a different domain is totally acceptable, especially as national origin in immigration is pretty essential (that is, in the sense of someone from the US vs. someone not from the US).

pseudalopex 6y ago

Offensive caricature and slurs are textbook examples of harassment.[1] [1] https://www.eeoc.gov/harassment https://www.eeoc.gov/harassment

andrewla 6y ago
They _were_ textbook examples. But now, because of this decision, they are protected! [1] [1] Okay, not really, because judges are not automata and everyone will recognize that this decision should not be taken as a precedent in terms of its arguments. Chances are everyone will just take the precautionary approach and say that any offensive speech, even directed by an in-group member at another in-group member (e.g. one Jewish person saying to another something that would be considered offensive were a non-Jew to say it, or take your other religion/ethnicity as you like it) is ground for termination in order to avoid having to make the distinction.
- pseudalopex 6y ago
  Unwelcome conduct from someone in the same group was already harassment. Welcome conduct from someone outside it still isn't.