VOLUME 125 APRIL 2012 NUMBER 6 © 2012 by The Harvard Law Review Association ARTICLE INVENTING THE “TRADITIONAL CONCEPT” OF SEX DISCRIMINATION Cary Franklin CONTENTS INTRODUCTION .......................................................................................................................... 1309 I. RECOVERING THE LEGISLATIVE HISTORY OF TITLE VII’S SEX PROVISION .... 1317 A. The Case Against Adding “Sex” to Title VII ............................................................... 1320 B. Support for the Sex Amendment ................................................................................... 1326 C. Uncertainty Regarding the Applications of Title VII’s Sex Provision ..................... 1329 II. DETERMINING WHAT COUNTS AS DISCRIMINATION “BECAUSE OF SEX” ......... 1333 A. “The Sex Provision of Title VII Is Mysterious and Difficult to Understand and Control” .................................................................................................................... 1334 B. A Women’s Movement Enters the Debate .................................................................... 1340 C. The Emergence of a More Effective Strategy for Limiting the Law’s Reach .......... 1348 D. Antistereotyping Conceptions of Title VII ................................................................... 1354 III. THE INVENTION OF A TRADITION ............................................................................... 1358 A. Pregnancy and the “Traditional” Understanding of Sex Discrimination ............... 1360 B. The Persistent Demand for Opposite-Sex Comparators ............................................. 1366 C. The Malleability of the “Traditional Concept” of Sex Discrimination ................... 1373 CONCLUSION ............................................................................................................................... 1378 1307 INVENTING THE “TRADITIONAL CONCEPT” OF SEX DISCRIMINATION Cary Franklin∗ It is a commonplace in employment discrimination law that Title VII’s prohibition of sex discrimination has no legislative history. Courts have therefore argued that this prohibition must be restricted to the “traditional concept” of sex discrimination. Traditionally, courts suggest, discrimination “because of sex” referred only to practices that divided men and women into two perfectly sex-differentiated groups. Although Title VII doctrine has evolved over time, this “traditional concept” of sex discrimination continues to exert a powerful regulative influence over the law. It excludes certain claims — such as those by sexual minorities — from coverage and elevates the evidentiary burdens plaintiffs must satisfy in order to prove discrimination “because of sex.” This Article argues that the “traditional concept” of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Recovering the largely forgotten legislative history of Title VII’s sex provision, this Article shows that there was little consensus and much debate in the 1960s about what qualified as sex discrimination. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny. In the 1970s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly. This Article shows that history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate “because of sex.” The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Assistant Professor, University of Texas School of Law. Many thanks to Oren Bracha, Ariela Dubler, Karen Engle, Joseph Fishkin, Willy Forbath, Katherine Franke, Risa Goluboff, Serena Mayeri, Melissa Murray, Reva Siegel, Deborah Weiss, and Deborah Widiss, and to the participants in the Legal Theory Workshop at Columbia Law School, the Legal History and Law & Humanities Workshops at the University of Virginia School of Law, and the Faculty Workshop at the University of Texas School of Law for their helpful comments on this project. Thanks are also due to the excellent research librarians at the EEOC Library, the Schlesinger Library at the Radcliffe Institute for Advanced Study, and the Lyndon Baines Johnson Library and Tarlton Law Library at the University of Texas. 1308 2012] THE “TRADITIONAL CONCEPT” OF SEX DISCRIMINATION 1309 INTRODUCTION n 1976, in General Electric Co. v. Gilbert,1 the Supreme Court con- Ifronted the question of whether pregnancy discrimination qualified as discrimination “because of . sex”2 under Title VII of the 1964 Civil Rights Act.3 The Court concluded in Gilbert that “[t]he legisla- tive history of Title VII’s prohibition of sex discrimination [was] nota- ble primarily for its brevity,”4 and shed little light on this question. In place of legislative history, the Court turned to “tradition” for guidance in interpreting the statute. “Traditionally,”5 the Court asserted, dis- crimination was defined as the division of individuals into two groups on the basis of a protected trait — as when Jim Crow laws reserved some water fountains for whites and others for blacks.6 Thus, the Court reasoned that, circa 1964, an employment practice would not have qualified as discrimination “because of sex” unless it divided men and women into two groups, perfectly differentiated along biological sex lines. The Court suggested that to interpret Title VII’s sex provi- sion in any other way would be “to depart from the longstanding meaning of ‘discrimination,’”7 which must have guided Congress when it passed the Civil Rights Act.8 Pledging deference to the legislature and fidelity to tradition, the Court held in Gilbert that pregnancy dis- crimination did not constitute discrimination “because of sex” because it did not fall within the long-standing parameters of that term.9 This narrow, anticlassificationist understanding of Title VII’s pro- hibition of sex discrimination was not cabined in the 1970s to cases involving pregnancy. Courts rejected some of the earliest sexual har- assment claims on the ground that the harassment at issue targeted some but not all members of the relevant class and thus did not quali- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 429 U.S. 125 (1976). 2 Civil Rights Act of 1964 § 703(a), 42 U.S.C. § 2000e-2(a) (2006). 3 Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253–66 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17). 4 Gilbert, 429 U.S. at 143. 5 Id. at 145. 6 See id. (“The concept of ‘discrimination,’ of course, was well known at the time of the en- actment of Title VII, having been associated with the Fourteenth Amendment for nearly a centu- ry, and carrying with it a long history of judicial construction.”). 7 Id. at 140 n.18. 8 Id. at 145 (“When Congress makes it unlawful for an employer to ‘discriminate . because of . sex . ,’ without further explanation of its meaning, we should not readily infer that it meant something different from what the concept of discrimination has traditionally meant. There is surely no reason for any such inference here.” (alterations in original) (citations omitted)). 9 Id. at 134–35 (explaining that pregnancy discrimination does not constitute discrimination “because of sex” because it divides workers “into two groups — pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes,” id. at 135 (quoting Geduldig v. Aiello, 417 U.S. 484, 496–97 (1974)) (internal quotation mark omitted)). 1310 HARVARD LAW REVIEW [Vol. 125:1307 fy as discrimination “because of sex.”10 Here too, courts commonly cited the lack of legislative history attending Title VII’s sex provision as a reason for interpreting the statute narrowly.11 Sex-based Title VII claims by sexual minorities triggered a similar response. Courts uni- formly rejected such claims on the ground that “Congress has not shown any intent other than to restrict the term ‘sex’ to its traditional meaning.”12 “Congress had a narrow view of sex in mind when it passed the Civil Rights Act,”13 courts asserted, and that narrow view did not encompass discrimination against gay and transgender work- ers.14 Rejecting one of the first sex-based claims by a transgender plaintiff, the Seventh Circuit stated: “The total lack of legislative histo- ry surrounding the sex amendment coupled with the circumstances of the amendment’s adoption clearly indicates that Congress never con- sidered nor intended that this