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Symposium: Textualism’s moment of truth

William N. Eskridge, Jr., is the John A. Garver Professor of Jurisprudence at Yale Law School.

Title VII makes it unlawful for an employer “to discriminate against any individual … because of such individual’s … sex.” In one of the Title VII cases now before the Supreme Court, Gerald Lynn Bostock claims that his employer, Clayton County, Georgia, fired him because he identifies as a man who is sexually attracted to men. The employer would, allegedly, not have discriminated against Bostock if he had been a woman who was sexually attracted to men. Interpreting Title VII, the Supreme Court has repeatedly held that “treatment of a person in a manner which but for that person’s sex would be different” is sufficient proof of sex discrimination under Title VII. See Los Angeles Dept. of Water & Power v. Manhart. But for Bostock’s male sex, Clayton County would not have objected to his attraction to men and would not have fired him.

Clayton County claims it does not discriminate on account of sex, because it excludes neither men nor women as a class; its policy applies equally to both lesbians and gay men. But the statute turns on classification, not class. It does not regulate by class (men, women); it regulates by classification (the individual’s sex). The Supreme Court has repeatedly rejected Clayton County’s class-based argument in the race context. Decided the same year Title VII was enacted, McLaughlin v. Florida struck down as race discrimination a law making it illegal for a white person to cohabit sexually with someone of a different race. Focusing on the state’s race-based classification, the court rejected its class-based defense that it was treating whites and blacks the same. Loving v. Virginia applied the same reasoning to laws barring different-race marriages. But for Mildred Loving’s black race, Virginia would not have criminalized her marriage to a white man. Every federal court of appeals to have ruled on the issue has applied the McLaughlin-Loving reasoning to hold that employers violate Title VII if they penalize an employee for dating or marrying a person of a different race.

Clayton County seeks to recharacterize its exclusion as “discrimination because of sexual orientation,” not because of “sex.” This is simply a word game and does not answer the plain-meaning argument. An employer can play the same word game with race: He can fire a black man who is attracted to white women and claim he is discriminating because of sexual orientation (the man is an “interracial-sexual”) and not because of race. The point is that categories of discrimination overlap: Sexual orientation can overlap with both sex (the “homosexual”) and race (the “interracial-sexual”).

Clayton County also wants to oversimplify history, claiming that the “original public meaning” of Title VII in 1964 could not have protected “homosexual” employees. The issue was not presented in 1964, because employees attracted to persons of the same sex were closeted and because prejudice against such people was grounded upon (inaccurate) beliefs that they were sexual psychopaths. In its 1972 amendments, Congress expanded Title VII to bar governmental discrimination because of sex. The same Congress had passed the Equal Rights Amendment, which would have barred any government discrimination “on account of sex.” Harvard Professor Paul Freund told Congress that the ERA’s plain meaning would bar state discrimination against “homosexuals,” who were coming out of their closets. That concern was a central plank in the successful STOP ERA campaign.

As the 1972 amendments suggest, “original” public meaning cannot be limited to 1964. Indeed, Title VII was further amended in 1991 to provide that an employer is culpable of an “impermissible consideration of … sex” when sex is “a motivating factor for any employment practice,” notwithstanding the employer’s motivation by “other factors.” So even if Clayton County can convince judges that a same-sex attraction is something more than sex-based, Bostock has a Title VII claim if his identity as a man played some role in the employer’s discrimination. You can’t say “gay” without identifying or assuming someone’s sex.

Coverage under the statutory text is clear, because there is no reasonable way to disentangle “sex” from same-sex attraction. If there were ambiguity, the Supreme Court has said that it would consider the statutory plan or purpose. Based on its text, Title VII’s purpose is to purge the workplace of criteria that Congress found unrelated to an employee’s “ability or inability to work.” From the very first case in 1971, the court has ruled that the congressional plan was to outlaw job decisions based upon “stereotyped conceptions of the sexes,” including “prescriptive” sex-stereotypes, through which the employer dictates appropriate gender roles for its female or male employees.

In Price Waterhouse v. Hopkins, the employer claimed that it did not discriminate against women as a class, but the court (a plurality of four plus the reasoning of Justice Sandra Day O’Connor’s concurring opinion) ruled that failing to promote a woman who did not fit the employer’s stereotype of “feminine” behavior would violate Title VII. The same result would have followed had the employer failed to promote a man who did not fit the stereotype of “masculine” behavior. As in Bostock’s case, employer discrimination based upon sex-based stereotypes of sex-appropriate dating behavior is discrimination because of an individual’s sex and is normally unrelated to the employee’s “ability or inability to work.”

A number of faith-based amici curiae supporting Clayton County are urging the court to give Title VII its narrowest possible reading, in order to protect the interests of employers who would, for religious reasons, prefer not to have employees with “same-sex attraction” (the term traditionally used by The Church of Jesus Christ of the Latter-day Saints, whose outside counsel drafted the leading brief). This argument is a lavender herring. Based on the Constitution, the court has already ruled that religious organizations can discriminate because of sex or race for “ministerial” employees, a term some justices understand very broadly. Title VII itself allows a “religious corporation, association, educational institution, or society” to choose “individuals of a particular religion.” In 1972, Congress amended Title VII to define religion to include “all aspects of religious observance or practice, as well as belief.”

The faith-based amici worry that a “literal” reading of Title VII will force employees with same-sex attraction on religious employers who do not fall within the foregoing exemptions. But Title VII also allows all employers to discriminate because of sex if sex (including same-sex attraction) is “a bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of that particular business or enterprise.” Because the baseline remains ability to do the job, the BFOQ allowance is a narrow one — but it is the mechanism Congress chose for employers who claim that a limited workforce is needed because of the nature of their businesses.

The Supreme Court’s legitimacy rests upon a perception that its members are applying existing law in a neutral manner. The chief justice says that he and his colleagues are umpires who do nothing but call balls and strikes; the strike zone is fixed by the statutory text, structure and precedent. But critical academics charge that the Roberts Court’s decisions tend to gerrymander statutory text and interpret precedents in a manner that reflects partisan tilt more than umpireal neutrality. Will judges appointed by presidents who ran on anti-LGBTQ platforms struggle to find a way to avoid the obvious reading of Title VII’s text, structure and precedents? The credibility of textualism as a neutral methodology depends on the court’s deciding cases like Bostock’s without regard to partisan biases.

The late Justice Antonin Scalia provided a good example of hard-hitting textualism in his 1997 opinion for a unanimous court in Oncale v. Sundowner Offshore Servs., Inc. Oncale claimed that Sundowner, the employer, ignored his complaints that he was sexually harassed by other male employees. Sundowner argued that Title VII should not be read “literally” to protect against male-on-male sexual harassment, because same-sex/homosexual assault or hazing was too far afield of Congress’ “paradigm case” of a qualified woman not hired “because she is female.” Rejecting that argument, Scalia’s opinion held that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”

Gerald Lynn Bostock’s and companion cases are a moment of reckoning for the Roberts Court. Will the justices who say they apply a scrupulously neutral commitment to statutory text, structure and precedent have the courage of their methodological convictions? Or will they confirm the critics’ belief that conservative umpires will adjust the strike zone to accommodate pitches made by players on teams they like?

Recommended Citation: William Eskridge, Symposium: Textualism’s moment of truth, SCOTUSblog (Sep. 4, 2019, 2:30 PM),