For 40 years Congress has declined to pass the Employment Non‐Discrimination Act , which in recent versions would prohibit private employment discrimination on the basis of sexual orientation and gender identity (I’ve discussed its merits before, noting that “as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed.”) Now, as predicted, the Supreme Court has agreed to resolve a split in the circuit courts over the theory that Title VII of the 1964 Civil Rights Act banned these forms of discrimination all along, and that courts simply didn’t figure that out until recently.
The strongest case for this reading rests on an ambitious, yet not frivolous, plain meaning approach to Title VII’s text. The law bans any discrimination against an employee “because of… sex.” Now suppose that the employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so. It has (the argument goes) treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.
Ranged against this line of argument is precedent as well as, should one choose to give it weight, likely legislative intent. In the years after 1964 courts considered but rejected arguments that the law by its terms covered sexual orientation, presumably inadvertently (since almost no one thinks the lawmakers of that era intended such a result). Much later, when it endorsed the new interpretation, the federal Equal Employment Opportunity Commission called the old precedents “dated.” “Dated” might seem like a pejorative term for “well‐established,” yet it is true that the Supreme Court in its decision in Price Waterhouse v. Hopkins (1989) did mix things up somewhat by accepting a theory that Title VII covered not just sex but gender “stereotyping.” That might open the door to further evolution in what had not shown itself to be an entirely fixed standard.
The proposed new and broader reading of Title VII has met with mixed success in the circuit courts, creating the split that the high court yesterday agreed to resolve (The three cases are Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes v. EEOC). When the Seventh Circuit by an 8–3 en banc vote accepted the broader reading in the case of Hively v. Ivy Tech, its multiple opinions included a memorable contrast between those by Judge Richard Posner, concurring with the majority view, and Judge Diane Sykes for the dissenters. Ken White at Popehat tells the tale:
With rather remarkable frankness, Posner rejects the majority’s attempt to premise the decision on Supreme Court precedent and forthrightly accepts a mantle of what might be called “judicial activism”:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half‐century‐old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963– 1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
That’s an extraordinarily blunt statement of the judicial philosophy that conservatives attack as “legislating from the bench.”
It falls to Judge Sykes in dissent to articulate the case for judicial conservatism and a limited role for courts:
This brings me back to where I started. The court’s new liability rule is entirely judge‐made; it does not derive from the text of Title VII in any meaningful sense. The court has arrogated to itself the power to create a new protected category under Title VII. Common‐law liability rules may judicially evolve in this way, but statutory law is fundamentally different. Our constitutional structure requires us to respect the difference.
It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination. Because Title VII does not by its terms prohibit sexual orientation discrimination, Hively’s case was properly dismissed. I respectfully dissent.
These philosophical divides on statutory interpretation — which of course play out every term in lower‐profile cases — are likely to be on the Court’s mind next fall.