run some sort of blog that was a very racist rant against black people and was then fired by a private employer with that being a firing based on race or hiring based on rac circumstances like we have like situations where employees are again from a private companies and i'm putting aside the issue of the louisiana free speech and stomach thomas and i read a lot of cases where people have gone off and done something racist and they've been fired by the company and you know the public was in an outrage and at various well known entities they were in the press was fired you're saying those people now the total seven x i don't want to go that broadly i don't know i issue i agree that's a complicated issue but to me i'm just pushing back against the notion that a company has to keep people in this day and age of you know sort of twitter shaming and so on companies and people not doing business at companies that they feel are racist sexist anti p t et cetera that somebody has to keep on their payroll a person who's espousing those kinds of you know if if you think you're doing a good job and i don't think you're doing a good job i'm just part right it's only that i can't fire you because you're a man and i think that the it's plausible from the the complaint in this case that bonnie and they followed very closely after the not only the facebook post but the three instances of overt opposition sex discrimination issues not a case where you could take the facebook post and take it in being mistreated ms huber her her complaint was not investigated but no reason was given for that that's a monster ms huber's complaint was investigated worse ms huber was the president what is the business of this company i'm not sure but i just wondered industrial service salut plant and power i couldn't tell whether it was landscaping or employment or what characterizing the complaint the court says while plaintiff attempts to couch her retaliate claim in terms of sex discrimination she is in fact proposing to allege a claim for retaliation on the basis she reasonably believed that she could not she could not be discriminated against based upon her sexual orientation so ok so maybe the court is distinguishing between this discrimination against her is a female no discrimination against her is a heterosexual it isn't reasonable for a plaintiff to believe that discrimination based on her status as a married heterosexual consistently held that sexual orientation is not covered by title seven for that proposition of course it cites bloom but then it goes on to cite brandon and stewart versus brown three of which definitely were not holdings to that effect i understand why you want to advocate the position that sexual orientation falls under sex or title seven and i respect that i'm just a little troubled by the notion that all of these companies that have been firing people who have been making racist  sexist and other types of similar rants on facebook etc and then the public gets up in arms and all of that and they solve the problem if you will by firing the person and your argument is that subjects subjects the low hanging fruit here i thought we were coming after the easy issue but the district of it but i believe that the district court said clearly the end i thought we needed to address this issue the district court said it was unreasonable for an employee to believe that discrimination is covered by title seven that's what spurred us into action that's what made us come here and say you're in to this court please do not affirm that ruling you made you may rule for if the employer and any number of other issues including the book the belief the district court statement that it was unreasonable to believe for an employee a late employee either believe this or that such orientations commissions covered by title seven was unreasonable that you should not affirm that really on that's why i'm here to do well and that's a very modest position and why why is that of such significance to the a c l u that you're promoting that here because your honor as i go across the country and i do  arguing to courts to actually take the further step to say that it actually is it would be unhelpful to have this court opined that it is that i'm arguing an unreasonable position and i don't think this court especially should do that while we're  accept that but you know you know that's really trying to use us too to say something that we may have no grounding in the law and it's very difficult for some of us to repeatedly exercise excellent judicial restraint on this issue there been times there been times in the especially the past few years in both published decisions and unpublished decisions where this court has been asked to do to reach this issue and in the we talk about branding something is unreasonable i think that that's a that's a bad take and of course it eventually my coverage position might be upheld by the supreme court and even if it's not i don't think it's unreasonable for the all the judges that insert it in high glee that didn't rule that way to break  issue of whether or not bloom is still good law and we obviously think it still is until an on block decisions rendered in this court the district court based its decision in dismissing the retaliation claim really in two bases one that she could not have formed a reasonable belief that sexual orientation is commission was covered by title seven and the second one was the alternative holding which was under the facts as alleged in the first and second the complaint a reasonable person would not believe that they were being subjected to sexual orientation in those circumstances and that goes to the point of we're really not talking about discrimination based upon miss oh daniel sexual orientation we're talking about discrimination that may have been raised or implicated by the facebook post that she chose to put there not all heterosexuals are anti homosexual exact not all why people are anti black not all black people are anti white so it is not a central trait of one race or gender or sexual orientation to be anti the other or others it's not a fair statement so we correct the the posting that issue could be found to be equally as offensive to a heterosexual in a non heterosexual they might not be it might also not be offensive to a large mean number of the american people and it may not be and that's sort of goes back to the original issue that we're really not going to get to but which is when this law changes it needs to change in congress that's the that's those are our founding principles and when a heterosexual could be offended by anti our homophobic statements by somebody and so could a homosexual right up to being correct the offended even if you don't fall in the class of people being mistreated or called out or whatever the term is correctly the statement that the complaints or are basically stereotyping the decision maker in this case is saying that well because she is of a different sexual orientation to me that she must have been offended by this post and had she been saying that she clearly was offended and she clearly wanted to play in a fire i mean there's just no you know the allegations are unequivocal they may not be accurate but their own equivocal my sexual retention i don't understand him to be focusing on that today correct today it's not and so so so the other basis that the court made its ruling on was that it would not be reasonable you could not have a reasonable belief when the law says what the law says in this fifth circuit and so you know when you look at the cases that it's the the right way decision that this court issued in one thousand in two thousand and sixteen that recognize that there are going to be situations where what actual an actual violation is might be different that what somebody might reason we perceive to be a violation of the law the court goes on to talk about the gray area in typically the gray or exists in a harassment claim where you're trying to establish the degree of conduct necessary to meet the severe pervasive standard or what types of things constant discrimination a retaliation claim is is is different than that because a retaliation claim has to be based on activity or conduct that's been made on lawful under the statute the right way was a retaliation case it was a retaliation case but the substantive allegations of of the substan discrimination was and i believe it was sex in a case it was specifically prescribed by the law well what it was was a woman who talked complained to a supervisor if i recall correctly because she saw one fellow act inappropriately toward another employee and she thought about was harris meant correct and it probably wasn't frankly under title seven but that's why right away says well you can have a mistaken but reasonable belief about what constitutes sex tears exactly in the point i'm trying to make is sex harassment is is unlawful under  seven are you saying you can't have a reasonable belief grounded in a mishap region and apprehension of the law because that's that's what i'm saying the in the best the best description of the courts have been in the fifth and eleventh circuit of shared that m yeah i haven't found a single case that suggested that you could have a reasonable leave that that the law was something other than it was the seventh circuit before the highly decision if you look at the hammer case which is actually cited by   legal that provides the best description as to why it's different when you're talking about the degree of conduct necessary to trigger this reasonable belief as opposed to the cause hikari yes and maybe a close c that's different from where the law is established and you just don't know about it correct so we're not talking about what did she said jack tiddly think we're talking what's a reasonable person would think knowing the law i mean reasonable basis part of that phrase is being objective has to be objective leave the legal part of that is even though you know ninety nine percent of the population doesn't sit around to reading cases all day long  they're out there and if they're out there than the person knows about it's just as reasonable for us to if we're going to impute knowledge of the entire universe of cases going on with sexual orientation she may she why can't we just impute what's going on in the fifth circuit so i think the issue is it comes down to the type of conduct and whether the conduct is well let me ask you this so i'm still really debating whether we have to get into any of these kind of interesting issues because i think the law is that she could be far bing pile this post period but mr smith points out that she wasn't fired like the day after the post there was all this other of it and then it's and what is your response to well these other events show that because you can't use that as a cover i can't wait around for employee to be late use that as a cover to fire somebody that i have some discriminatory attentive which i don't but this with mr x can't do that  so he's saying these other events show that this was really a cover for firing her for being a heterosexual woman although i imagine there are other had respect for women at the company that had been fired but that's another question so tell me about that why did these three subsequent events not change this from just being fired for the post where it goes back to the issue of the if she's she's not she's claiming you're heterosexual she was fired because she was heterosexual though obviously the twenty six motion we have to accept is true all the allegations so obviously there's a there's a other side of the story to be told maybe maybe not but it's far as what's in the record those that those complaints that hooks that really cut calls out an issue that is important to her boss and her boss then is mad at her and doesn't treat her very well you're saying that is not a have a reasonable misapprehension based upon the trend of the world suppose you had a black a black employee who post characterizing somebody without focus as a as a klansman the white boss takes some bridge the white boss allegedly goes around complaining that guy asked be fired we're going to have reasons to fire him the other one says no you can't file a discrimination claim and the white boss makes a files a complaint about the black guy that gets investigated internally but the blacks doesn't the black turns around and file suit i'm retaliated against and i think the distinction there your honor is that race discrimination is clearly covered by title seven that actually did he reasonably have believed that he you're you're you're begging the question could he reasonably have believed that he was being fired not because simply because of his they don't like and bad behavior in facebook but because he's a black he's fired by a white boss and i agree i think what distinguishes the military well i think what distinguishes that decision from this decision is this is that is the fact that the protected class you still have to show obviously that it was because of the race except if that in that particular scenario if if they could show that i wasn't i didn't do this i wasn't fired because of my race and some other reason i stepped back from what i said i'm not saying that that would necessarily be an accurate claim but i do think that it would survive a twelve b six that in and get i think it's the classifications i think zat issue may be a bigger issue than the one you all think is the big issue because of the world that we live in where i mean i recall i don't remember the company but a very rich employee was sitting on a train and she made some really offensive remarks to a black lady sitting next to her and this became somehow public as i think somebody filmed it or something like that  en was fired from her hundred thousand dollar job does she have a claim i mean she was white the person she was being offensive to was black but the problem wasn't that they were white and black the problem was what she was saying and so how is that the same thing as discrimination based on race it's discrimination based on your conduct conduct if somebody is late to work they can be fired ok friend so that is discrimination based on conduct you were late to work so i'm concerned about this notion that oh my gosh if you know if if the person of a certain race makes a make a racist remark that is discrimination based on race not racism i  disagree with that and i agree completely in the at the at will employment doctrine allows a company to fire somebody for a good reason better is no reason provided that it doesn't violate a statute in that situation companies we see every day in the news they're being they're being hit by special interest groups that are that are putting pressure on their relationships with their customers for the police with a specific desire to convince the employer to fire the person is there a basis to  affirm what the district court with out saying that there's no legal basis for reasonable belief yes yes you're well no not in the context of the right way reasonably i think you could turn around and you can you can apparently just say she can be fired for posting on facebook and and rude remark period isn't that the end of it that's what the judge said at the end why isn't that a basis to affirm that doesn't require us to get into reasonable beliefs in sexual orientation covered or else she filed a post that was very inappropriate her employer don't want her around anymore why isn't that the end of the matter i'm just i feel like i'm missing something because i am going on making this point and and it makes me and the district court made the point too and i don't see why that doesn't end the matter and i agree with the army i think the facts of this case are such that she post the problem is that the woman who had previously been her friend is no longer her friend and the woman takes the thing as an affront against all members of the bt community and then they go you know again according to her allegations she says lay off me i'm a good employee and they don't lay off or they try to make a change are working conditions significantly supports weapon so we're talking about twelve b six we're not talking about summary judgment the minors understood understand it but i'm just getting to that so the question i think the fact that they have a good relationship shows that she didn't harbor any  towards heterosexual it was a true could have been heterosexual but have a lot of friends that are in the community or a child who is or whatever and be offended anyway i mean you do not have to be a member of the l g b t community to be offended by people who make snide remarks about the oh to be you do not have to be black to be offended by people making you know you know nasty comments about black people so i'm not buying the notion that this is based on your sexual orientation your race your gender i'm saying when you make these kinds of comments you put yourself out there that a now will employer can say i don't like that and this is obviously putting aside the wheezy in a priest speech argument which talked frankly i don't think has a lot of merit that would be a different question because obviously was speech but i don't think title seven protects you from being a jerk but again that's yeah i respect that others may disagree with how i'm framing th call i this is how i'm seeing it and i may be missing something or not my colleagues may correct me and show me that i'm wrong but that's how i'm saying it i guess what i guess i would respond to that was i think i agree with your ultimate feeling on a gut feeling on it i think you do have to have reeling it's based on the volcano but i do think we have to go through the reasonable basis retaliated deeper television analysis as set forth in title seven of the opposition clause it's the link we have to go through that we get to the same exact point that it was not reasonable for her to assume that this triggered and i think this is a point that mr nevers was making was attending circumstances she shouldn't have felt that she was being singled out because of her sexual orientation  and i do think we are saying the same thing there what does your company do they are they they do construction company working petrochemical they provide staffing to all sorts of jobs as they specialize in aluminum construction so it's a it's when it was planned power think they had fewer than two hundred employees they were absorbed by a larger company i assess which i think they have over five employees to much bigger companies ok so i hear you saying two different things on the one hand you're saying we we ought to go through the exercise of saying whether you can have a reasonable belief and on the other hand you're greening with you're also agreeing with judge advocating for that condom to do so restrain to say the matter either way the law is she still loses you can do that as a court you don't have to reach the big ticket items although i think that's a big ticket item the notion that you can't fire people who are making inappropriate remarks on facebook is a little bit concerning to me because i'm that is a big ticket item one time and again private employers in the ordinary course of you know at will and all of that i think they can happens frequently deal with it all the time you know on the constitutional question i don't know if you are seven questions about that we we've there's not a case in louisiana that allows that we've seen that allows that to be brought by against a private employer that the  case that they references is our opinion pretty much straight up dicta but even if even if somehow that that apply that that the constitution provision does say you are bound by the results of your you're exercising your free speech rights and i would argue that that's consistent with the position we're taking in that if that means you're going to terminate that means you can get terminated doesn't mean you can't say what you want to say on facebook it just means that there may be ramifications that you don't like because  quote was not used indicating that the protection goes beyond limiting state action that's the reason supreme court struggle in article one section five it is the same proposition that i'm asserting that article one section seven of the second sentence of it is not required to be state action since that is a race no issue when asking the court to consider anything that illusion supreme court i don't think i think don't just disagree with here about the degree of ascension of the post i'm not going to defend the post totally but it did it can start a very legitimate issue that concerns a lot of people in way this wasn't written as maybe we need to have bathrooms for women in bathrooms or men in the way it was written was quite offensive i'm given a sort of an argument or the reasonable people can disagree on bathrooms try to say this was in any way written that i think it's offensive it matters whether the finding that this is offensive means that this was discrimination based on sex sexual orientation whatever and that's the problem and so when you write stuff like that i mean if it if somebody writes something about all democrats are great or all republicans are great or whatever you can still offend people with that without it having the do with race sexual orientation gender whatever and if it's an at w employment and if the louisiana free speech doesn't apply you know that's why pot let me say this is well for the the overt acts of objecting to sexual orientation discrimination i mean i don't know that you can decide causation on the face of a paper you have a very close temporal proximity minute complaint insofar as the reasonable reliance says too much support out there for the position about sexual orientation discrimination to say as a matter of law for her aunt's was on regional you've got a you are see in  that retaliation i mean that is going to nation of basis sexual orientation was illegal i don't think the court can can say any other fact it's not not reasonable and i think that's legal where on and it should be