Is Sexual Orientation Protected by Civil Rights Laws?

Man: It’s Quinn and Cantara on PYX 106.

Interviewer 1: Ah, good morning capital land. Yeah. Quinn and Cantara.

Interviewer 2: What is it like…? It’s like national-be-spontaneous day, and one of the suggestions was like go knock on your neighbor’s door and say hello.

Interviewer 1: No. I think it was go sit next to a stranger on a park bench and…

Interviewer 2: Go sit next to a strange… But…

Interviewer 1: …and start talking crazy.

Interviewer 2: This is great. Our next-door neighbor just came in.

Interviewer 1: I know. Look at this.

Interviewer 2: Attorney Paul Harding joins us. He normally joins us on the phone, but he’s in-studio this morning.

Paul: Hi. Yeah.

Interviewer 2: Thanks for coming in.

Paul: Good to be here and…

Interviewer 1: There you go.

Paul: Yeah. I mean, I drive by it everyday. I literally could have walked, didn’t.

Interviewer 1: He got a hug, and we had a hug out there in the…

Interviewer 2: Oh, did you have to hug him?

Paul: We hugged [inaudible 00:00:33]

Interviewer 1: …the front room.

Interviewer 2: I’m sorry I didn’t get the door…

Interviewer 1: Oh, yeah, I was nervous, so just, you know…

Interviewer 2: …the door and I wouldn’t have hugged you.

Paul: I’m a hugger.

Interviewer 2: I’m glad you didn’t walk, by the way. That’s a dangerous intersection.

Paul: It’s tricky.

Interviewer 2: Isn’t it?

Paul: Yeah. Yeah. It is.

Interviewer 2: So I am, seriously. It is a dangerous… And I go that way sometimes.

Interviewer 1: It’s no more dangerous than any intersection. Let’s be honest.

Interviewer 2: It’s Route 7, right?

Interviewer 1: If you just look both ways and then don’t forget to look back to the…

Interviewer 2: I know.

Interviewer 1: …left again, you’ll be fine.

Interviewer 2: That’s it. That’s it and who said you’d be a bad parent?

Interviewer 1: So, look, I mean, here’s a title. Here’s the headline of this story, Paul. “Gay workers not covered by civil rights law, Trump admin tells Supreme Court.” So I go, and I’m reading this, I’m reading this and then, you know, the age, that’s a thing, sex is a thing. I thought sex would include sexual orientation, but it doesn’t. Is that the crux of what the Trump admin is trying to tell the Supreme Court here…?

Paul: Yes. So we’re…

Interviewer 1: …as far as civil rights go with…?

Paul: So we’re going back to Title VII of the Civil Rights Law that was passed in 1964, so we’re just kind of heading back to something that was landmarked back in the day. And here’s what we have, you know, you can’t discriminate for employment based on color or race, sex, religion, or national origin. So we all sort of take that as a given, if somebody discriminates against you based on those big four, you have a claim. They can’t do it. But what happened here is this, they sort of…we’ve got this gender identity, we’ve got sexual orientation and the Trump administration, I hate to pin it on them, but that is what’s happening. They’re saying, “Yes, we do…you can’t discriminate based on sex. But sex is male and female. We’re talking biology here. When we start talking about gender identity, we oppose it. Supreme Court is gonna hear this case after the October session.”

Interviewer 2: So if the case just stays the way it is… I mean, in New York we have this law already in effect, right?

Paul: New York would not look at this any differently than what maybe we perceive before we read the story, that your sexual identity and your sexual orientation would be protected. Yes, but…

Interviewer 2: But this isn’t gonna encourage someone to go discriminate, is it?

Paul: Well, you know, you hate to think that that would be open but they…

Interviewer 1: Yeah. I feel like it does.

Paul: …it could open up the door, and I think probably it has. So we got lower court decisions. So, again, when you think of this, you’ve got state court, and you have federal court. Not to get too technical here but there’s two separate tracks. This is tracking to the federal court, that’s the Supreme Court of the United States. If they come down and say that sexual orientation, sexual identity is not protected under the civil rights, then our law here in New York is not gonna be valid.

Interviewer 2: It will trump our law?

Paul: It does. Yeah.

Interviewer 1: Why on earth? I mean, you must be so, so hell-bent on your beliefs to throw this into the kettle, you know?

Interviewer 2: So the story starts out with a brief was filed. That’s just… What’s a brief? Just the idea of it, right?

Paul: So a brief is filed where somebody was wronged. They brought a claim, and now you’re gonna have both sides of the aisle kind of trying to support their argument. So a brief, in this case, was filed by the Department of Justice, Federal Government in opposition to this law. Now, we’ve got EEOC, which, again, is a federal agency, which is supporting this. So the showdown as, you know, I like to think of the Supreme Court, the showdown is gonna take place there, you know, some time later this year or early next year.

Interviewer 2: It was, like, a gay skydiver or something, right?

Interviewer 1: Something like that.

Paul: Yeah.

Interviewer 2: I saw you left [inaudible 00:03:51]. Somehow you left age out of that, those big, for…

Paul: Yeah. So…

Interviewer 2: …discrimination.

Paul: Well, age is there. It didn’t come about in the Title VII of 1964. Back then, they just knew old people.

Interviewer 2: But you can’t discriminate based on age?

Interviewer 1: Wouldn’t you?

Paul: You can’t do it based on age.

Interviewer 1: Slip that in there, and he pulls the date of it. Oh, my…

Interviewer 2: But I do wonder, like, if I’m hiring, like, cheerleaders and you have a really good resume, and you’re really good at it, but you’re 70, I still have to hire you?

Paul: Yeah. Well, you know, this because we’ve got the…that whole…

Interviewer 2: Not that I’m hiring cheerleaders.

Paul: No. You’re not, but it came down…

Interviewer 1: Depends on what you’re cheering for.

Paul: Southwest had that issue and a few of the airlines, you know, because you always look at airlines support people and you think, well, they should be young, you know, and male or female. But they found out that’s not the case. You know, that if you can…

Interviewer 2: No. If you can do the job…

Paul: …you do the job as long as you can do it.

Interviewer 1: Cheering for that Bluelight Special at Denny’s.

Interviewer 2: I mean…

Interviewer 1: Rah, rah, rah.

Interviewer 2: Well, that’s two different places…

Interviewer 1: Or whatever. Yeah.

Interviewer 2: But, yeah, one’s Kmart and one’s… Yeah.

Interviewer 1: Okay. Oh, is that all solely Kmart’s?

Interviewer 2: Bluelight Specials. Yeah.

Paul: I used to work at Kmart, and I used to do Bluelight Specials.

Interviewer 2: See.

Paul: It was my first microphone work.

Interviewer 1: Oh, my God, and they actually had the blue lights, right?

Interviewer 2: But you had to wheel the blue lights from wherever the sale was.

Paul: I would wheel it. It was in the paint department, and we’d wheel it in. We’d saw stuff that we wanted to get rid of…

Interviewer 2: They made you wheel the blue light?

Paul: They did.

Interviewer 2: You were always a big shot attorney even as a kid.

Paul: I worked at Kmart for two-and-a-half years. Yeah. It was awesome.

Interviewer 1: That’s awesome. Oh, we all get there at some point, right?

Interviewer 2: It’s incredible. All right. So we’ll watch this case, and you say, what, end of the year?

Interviewer 1: The question I have is why is this a thing? I mean, it’s because people want the bids. It’s because people don’t want gay people to have civil rights.

Paul: You know…

Interviewer 1: That’s what it’s saying. That’s what it’s saying to me, and that seems…

Interviewer 2: Is that’s what it’s saying?

Interviewer 1: …crazy.

Interviewer 2: That’s not what it’s saying, is it?

Paul: Well, you know, it’s not really saying that but what it’s saying is, is it covered under that one title, right? Is it covered in the 1964 Civil Rights Title VII? And so they’re looking at it, and they’re saying, of course, we don’t think like that, but we wanna be true to the law. We wanna be true to the spirit of what the statute is. Statute does not cover that. Therefore, as much as we may personally believe that we should be able to protect sexual identity and sexual orientation, we don’t wanna be outside the law. That’s what the Federal Government is saying.

Interviewer 1: Some one better write a law form then. Then…

Interviewer 2: So that then you have to amend the current law or add a new one.

Paul: And good luck at that. Exactly what it is.

Interviewer 2: Oh, now I see what you’re talking about now.

Paul: And under these, you know, under current set of facts, that would be a tricky thing to do, but that’s what they’re saying. Exactly.

Interviewer 1: Wild.

Interviewer 2: So I think they win then. We’ll wait and see.

Paul: So, mainly, at least until…

Interviewer 2: We’ll wait and see. We’ll see.

Paul: …you know, voting time.

Interviewer 2: Hey, thanks for coming in.

Interviewer 1: Thanks for coming in, man. It’s very cool to have you in here in person.

Paul: All right. It was lots of fun always, too.

Interviewer 1: That’s two days in a row, Paul.

Paul: I know. We’re starting to get stomping. Yeah.

Interviewer 1: I don’t even have a ticket…

Paul: The hug.

Interviewer 1: …to talk to you about. Thanks, buddy.

Interviewer 2: I’ve got tickets.

Paul: [inaudible 00:06:18]. Thanks, guys.

Interviewer 1: Paul Harding.

Interviewer 2: I’ve got some tickets for you.

Interviewer 1: Martin, Harding, and Mazzotti and, of course, 1-800-LAW-1010, Go see him. He’s right across the street.