Justice Brennan rejected the “literal” meaning of Title VII in United Steel Workers v. Weber
Randy Barnett and I recently published a commentary of Bostock v. Clayton County. We criticized Justice Gorsuch from building a textualist framework on top of precedents that did not take text seriously. In particular, Justice Gorsuch relied indirectly on Justice Brennan’s plurality decision in Price Waterhouse v. Hopkins. We wrote:
Justice Gorsuch committed errors of both source and time. He determined the ordinary public meaning of a 1964 statute by relying on case law from decades later.
Consider another significant Title VII case, also authored by Justice Brennan: United Steel Workers v. Weber (1979). This case held that race-conscious affirmative action plans were consistent with Title VII. The majority expressly rejected the “literal” meaning of the phrase “discriminate against . . . because of . . . race.” Justice Brennan explained:
In this context, respondent’s reliance upon a literal construction of §§ 703(a) and (d) and upon McDonald is misplaced. See McDonald v. Santa Fe Trail Transp. Co., supra at 427 U. S. 281 n. 8. It is a “familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U. S. 457, 143 U. S. 459 (1892). The prohibition against racial discrimination in §§ 703(a) and(d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from
Article from Latest – Reason.com