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You’ve Got to Act the Part

April 3, 2017

You’ve Got to Act the Part

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

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Mind-bender of the week: Remember, I just report this stuff — I don’t make it up. The Second Circuit, in Christiansen v. Omnicom Group, has ruled that you can’t sue under the federal Civil Rights Act if you’ve been discriminated against for being gay. But you can sue for being discriminated against for acting stereotypically gay.

Apparently, the Civil Rights Act – at least in the Second Circuit – is discriminatory. You don’t qualify for protection unless you live up to a biased image.

To be fair, it didn’t seem as if this court wanted to rule this way. There’s a circuit precedent that says the Act doesn’t cover sexual orientation, so instead of overruling the precedent, the judges got around it with this stereotyping thing.

The plaintiff wasn’t harassed just because he was gay – he was harassed because of “his perceived effeminacy and flouting of gender stereotypes.”

If a gay person fits in, he or she gets no protection.

The court: “being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.”

If you want the law on your side, you’ve got to act the part.

It’s not just Russia: We can be spied on by just about any foreign power.

The D.C. Circuit last week ruled that an unidentified man (at least unidentified to the people who weren’t spying on him) couldn’t sue Ethiopia for hacking into his computer.

Yes, Ethiopia.

And, disturbingly, the court pointed out that pretty much any country could have done this with a program called FinSpy, which is “sold exclusively to government agencies.”

There’s no explanation of this statement, so I’m assuming the court got this from the FinSpy sales catalog. My guess is that they figure they’ll get to stay in business if they keep governments happy and not sell anything to someone who might hack a government.

At least as far as we know ...

The court ruled that Ethiopia gets sovereign immunity for this sort of thing, which might also explain why the spy program isn’t sold to the rest of us.

It’s harder to sell stuff to customers in jail.

More First Amendment: Those of you who unwisely thought I wasn’t serious last week about the First Amendment right to text while driving may want to think again.

The U.S. Supreme Court last week unanimously ruled that merchants have a First Amendment right to tell you that you’ll be charged more for using a credit card: Expressions Hair Design v. Schneiderman.

This is from Justice Breyer’s concurrence: “(V)irtually all government regulation affects speech.”

It may be that you can do whatever you want under the First Amendment protection of speech.

Other First Amendment rights don’t seem to work quite as well.

As you’ve probably heard, the Second Circuit last week ruled that the First Amendment’s freedom of association and right to petition protections don’t apply to non-lawyer investments in law firms.

You need to pass a bar exam before you can invest in a law firm.

Side note: There may not be enough jobs for lawyers, but that doesn’t mean lawyers can’t invest in law firms that do have clients. We may be seeing the beginning of a new investment market here.

Clearly, the plaintiff here — Jacoby & Meyers — made the wrong First Amendment argument. Freedom of speech is always the way to go.

After all, spending money is a form of speech.

Stay tuned for the next chapter in law firm investment litigation.

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