Textualism, Title VII, and “Discrimination . . . Because of Such Individual’s Sex”
At the beginning of the term, the Supreme Court heard oral argument in a trio of cases considering whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or transgender status. We are still waiting for the opinions in these cases.
Much commentary on these cases noted that the interpretive method generally favored by the court’s conservatives (textualism) would seem to produce a “liberal” outcome (such discrimination is prohibited by Title VII), whereas consideration of purpose, legislative intent and legislative history would produce the more “conservative” outcome (such discrimination is not prohibited).
The textualist argument was made well by Professor Pamela Karlan at oral argument:
When a employer fires a male employee for dating men but does not fire female
employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how
men should behave; namely, that men should be attracted only to women and not to men.
Consideration of Congressional purpose and intent, however, shows that sex discrimination and sexual orientation discrimination were understood as different things. Moreover, some would argue it is implausible that Congress sought to prohibit sexual orientation discrimination at a time when homosexual activity was illegal in much of the United States and was a basis for expulsion from the military.
Contrary to the conventional way these cases are often presented, James Phillips, a fellow at the Stanford Constitutional Law Center, argues that there is textual evidence supporting the employers’ position that the prohibition of “discrimination . . . because of such individual’s se
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