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Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

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Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections WILLIAM N. ESKRIDGE JR. Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections AB 5 TRAC T. The Equal Employment Opportunity Commission (EEOC) and the Seventh Cir- cuit have taken the position that Title VII's bar to employment discrimination "because of ... sex" applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) per- sons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted "because of" her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is difficult to deny that "sex" is not at least one "motivating factor" in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII ac- cords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person's job opportunities. Treating antigay discrimination as a form of sex discrimination is not a new idea, but for several decades most federal judges have rejected it, and most members of Congress have ig- nored it. This, however, is an idea that has ripened over time. New circumstances have rendered the argument not only plausible but also compelling. The most significant new development has been evolving social facts and assumptions about sex minorities: in 1964, employees thought to be "homosexuals" were outside the scope of the merit-based workplace, because Americans be- lieved them to be mentally ill, psychopathic, and predatory. Today, those views have been dis- credited. This shift in thought connects with a second new circumstance: a radically different constitutional baseline. As late as 2003, "homosexuals" could constitutionally be considered pre- sumptive criminals, but the Supreme Court has for twenty years been developing a constitution- al norm that gay people cannot be singled out for special legal exclusions without a rational pub- lic justification. Indeed, the Court has ruled that the constitutional right to marry applies to same-sex (i.e., "homosexual") couples. It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. 322 A third new development has been the formal evolution of Title VII itself. Judges as well as commentators have largely ignored the "statutory history" of Title VII-its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court. The Trump Administration and other skeptics of a broad reading of sex discrimination maintain that Title VII divides the world into males and females, and does nothing more than require employers to apply the same rules to both sexes. According to this view, antihomosexual workplace exclusions or harassment operates equally on both sexes (i.e., both lesbians and gay men are harmed). But the Supreme Court has authoritatively interpreted Title VII to bar gender stereotyping, which also operates to protect both male and female employees alike. Congress rat- ified and expanded upon that interpretation in its 1991 Amendments to Title VII, which also re- affirmed its statutory mission to ensure a merit-based workplace free from sex-based decision making, even when sex is but one "motivating factor" in the discrimination. Because LGBT per- sons are gender minorities and because anti-LGBT discrimination is rooted in rigid gender roles, Tide VII today bars discrimination because of the sex of the employee's partner/spouse, just as it bars discrimination because of the race or religion of his or her partner/spouse. A UT H 0 R. John A. Garver Professor of Jurisprudence, Yale Law School. I deeply appreciate excellent research assistance and editorial guidance from Eric Baudry, Yena Lee, Charlotte Schwartz, Daniel Strunk, and Todd Venook (all Yale Law School Class of 2019). I am also grate- ful for valuable comments from Martha Ertman, Steve Calabresi, Guido Calabresi, Sharra Greer, Heather Gerken, Abbe Gluck, Pat McGlone, John Davis Malloy, Judith Sandalow, Vicki Schultz, Amanda Shanor, Reva Siegel, Susan Silber, and John Witt, as well as participants at a Yale Law School faculty workshop. 323 FEATURE CONTENTS INTRODUCTION 325 I. THE MERIT-BASED WORKPLACE AND THE MEANING OF TITLE VII 334 A. The Merit-Based Workplace 334 B. Original Meaning of Title VII 337 C. Dynamic Title VII 341 II. THE THREE FACES OF DISCRIMINATION "BECAUSE OF SEX": ENSURING A MERIT-BASED WORKPLACE 342 A. Sex as Biology: Relational Discrimination 343 1. The Early History of Title VII and the 1972 Amendments 347 2. The Pregnancy Discrimination Act of 1978 353 3. Constitutional Challenges to Same-Sex Sodomy Laws and Same-Sex Marriage Bars 357 B. Sex as Gender: Homophobia as Prescriptive Sex Stereotyping 362 1. The 1964 Act and the 1972 Amendments 363 2. The Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act of 1993 365 3. Hopkins and the 1991 Amendments 368 C. Sex as Sexuality: Sexual Harassment and the Merit-Based Workplace 381 III. TITLE VII'S MERIT-BASED WORKPLACE UNDER A TEXTUALIST COURT AND A GRIDLOCKED CONGRESS 393 324 THE SEX DISCRIMINATION ARGUMENT FOR LGBT WORKPLACE PROTECTIONS INTRODUCTION Title VII of the Civil Rights Act of 1964 bars employment discrimination "because of. sex."' A successful part-time teacher at Ivy Tech Community College, Kimberly Hively, complained that the college refused to consider her for a permanent job because she is a lesbian. If true, does that refusal constitute discrimination because of sex? Because Title VII does not bar discrimination "because of .. sexual orientation," federal appeals courts have uniformly said "no" to this question-until the Seventh Circuit, sitting en banc, reconsidered the issue.2 Writing for the en banc, eight-judge majority in Hively v. Ivy Tech Commu- nity College of Indiana,' Chief Judge Diane Wood offered two interconnected arguments to support the holding that an employer's refusal to hire a lesbian constitutes discrimination because of sex. Reading the statute literally, judges in sex discrimination cases often ask whether the plaintiff has shown that the employer would have treated a similarly situated "comparator" (a person of the opposite sex) more favorably. If Hively had been a man, sexually cohabiting with or married to a woman, the college would have considered him for per- manent employment on his merits. Ivy Tech allegedly rejected Hively out of hand because she was a woman partnered with another woman. Hence, she was allegedly denied the job "because of . .. [her] sex" as a woman rather than a man. This line of reasoning is often called the "comparator argument."' In the alternative, Chief Judge Wood reasoned that Hively was discriminat- ed against because of the sex of her intimate associate (her partner).' A prece- dential basis for this "associational discrimination argument" is Loving v. Vir- ginia,6 where the Supreme Court ruled that state discrimination against 1. Civil Rights Act of 1964,42 U.S.C. §§ 200oe-2(a) to (d) (2012). 2. In an agency adjudication, where the EEOC has lawmaking authority, the agency has inter- preted Title VII to bar discrimination because of sexual orientation - a development that has helped trigger the circuit courts' focus on this issue. See Baldwin v. Foxx, No. 0120133080, 2015 WE 4397641 (E.E.O.C. July 15, 2015). 3. 853 F.3d 339 ( 7 th Cir. 2017) (en banc) (vacating a thoughtful panel opinion by Judge Ilana Rovner, who followed but suggested revisiting circuit precedent on this issue and who later joined the en banc majority), vacating 830 F.3 d 698 ( 7 thCir. 2016). 4. Hively, 853 F.3d at 345-47; accord. id. at 357-59 (Flaum, J., concurring). On the comparator argument, see Suzanne Goldberg, Discrimination by Comparison, 120 YALE L.J. 728, 752 (2011). 5. Hively, 853 F.3 d. at 347-49 (majority opinion); accord id. at 357-59 (Flaum, J., concurring). 6. 388 U.S. 1 (1967). For early elaborations of the associational discrimination argument, see Matthew Clark, Comment, Stating a Title VII Claim for Sexual OrientationDiscrimination in the Workplace: The Legal Theories Available After Rene v. MGM Grand Hotel, 51 UCLA L. 325 THE YALE LAW JOURNAL 127._322 2017 interracial couples constitutes discrimination because of race. For the same rea- son that state discrimination against a black woman cohabiting with or married to a white man is race discrimination, Ivy Tech's discrimination against a wom- an cohabiting with or married to another woman is sex discrimination. In the first case, the regulatory variable - the factor that changes the legal treatment - is the race of the associated person; in the second case, the regulatory variable is the sex of the associated person. Writing for three dissenting judges, Judge Diane Sykes criticized these formal arguments as an excessively dynamic, "judge-empowering" interpreta- tion of the statutory language.' Focusing on the original meaning of the statu- tory text, Judge Sykes argued that "sex" in 1964 only meant one thing-the two biological sexes (male and female) - and could not have meant "sexual orienta- tion," a term not widely used in 1964.8 In contrast, Congress has in subsequent statutes, such as the Matthew Shepard and James Byrd, Jr. Hate Crimes Pre- vention Act of 2oo9,9 specifically prohibited discrimination because of "sexual orientation" as well as because of "sex," indicating that the two terms have different meanings.o In ordinary parlance today, Judge Sykes argued, no one would say that workplace gay-bashing constitutes "discrimination because of sex"; almost everyone would say that it is "discrimination because of sexual orientation."" Not only does "sexual-orientation discrimination spring[] from a wholly different kind of bias than sex discrimination,"12 but the only legiti- mate means to update the statute in this way is through the legislative pro- 13 cess.
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