On October 8th, the Supreme Court heard oral arguments for three cases, Bockstock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, each of which asks whether Title VII of the Civil Rights Act of 1964, which forbids employement discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation or gender identity. All three cases pit the text of Title VII against the intentions of its drafters, who all parties agree, did not specifically intend to protect LGBT individuals. The Court has already recognized applications of Title VII which would be inconsistent with original Congressional intent. Therefore, a decision based purely on Congressional intent, rather than upon the text of Title VII, would be inconsistent with the Court’s Title VII jurisprudence.
Gerald Bockstock worked as a child-welfare service coordinator for Clayton County, Georgia for over a decade and received good performance reviews. Donald Zarda (who passed away in 2014 and is represented in the Supreme Court by the executors of his estate) worked as a skydiving instructor and sometimes revealed to female clients that he was gay to make them feel more comfortable. Both were fired from their jobs. Both allege that they were fired because of their sexual orientation. Aimee Stephens, the employee fired in Harris Funeral Homes, worked at a funeral home, where for most of her employment, she lived and presented as a man. Stephens was terminated just after she informed the owner and operator of the funeral home that she intended to transition from male to female. The Court’s decisions will determine whether each of these employees’ discrimination claims are actionable under Title VII.
These cases are significant because as it stands, fewer than one-half of the states explicitly bar discrimination on the basis of sexual orientation or gender identity. Thus, rulings in favor of Bockstock, Zarda, and the Equal Employment Opportunity Commission (hereinafter, EEOC) could substantially expand the the number of employees protected against these forms of discrimination.
Bockstock, Zarda, and the EEOC argue that, according to the plain meaning of Title VII, discrimination against gay or transgender individuals constitutes discrimination “because of . . . sex.” Pamela Karlan, who represented Bockstock and Zarda in the consolidated case contended at oral argument that “[w]hen an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII” because “he treats that man worse than women who want to do the same thing.” “[T]hat discrimination is because of sex,” she reasons, “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 men.” Similarly, David Cole, who represented the EEOC, contended that when an employer fires an employee “for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives,” he fires her “because of” her “sex.”
Alternatively, Altitude Express argues that Title VII does not “reach . . . employment actions based on sexual orientation, because those actions do not disadvantage employees of a particular sex” so long as both men and women who are gay are treated the same. Likewise, John Bursch, attorney for Harris Funeral Homes, asserted at oral argument that “because sex and transgender status are independent concepts,” “[t]reating women and men equally does not mean employers have to treat men as women.” Justice Steven Breyer’s questions suggest that this logic might be flawed because there is no question that discrimination against a employee who intermarries would constitute discrimination “based on . . . race” even though all races would be equally prohibited from intermarrying.
Justice Neil Gorsuch, who some predict might be the cases’ swing vote, was potentially more persuaded by Bockstock, Zarda, and the EEOC’s textual reading. Nonetheless, he appeared reluctant to find that Title VII could cover forms of discrimination that all parties agree the 1964 Congress did not envision. Gorsuch asked David Cole, attorney for Aimee Stephens, “when a case is really close, really close, on textual evidence and I — assume for the moment I’m with you on the textual evidence . . . [a]t the end of the day should [a judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that . . . Congress didn’t think about it — that is more effective — more appropriate [as] a legislative rather than a judicial function?” Other, conservative Justices likely share Gorsuch’s concern regarding judicial role. According to this logic, extending Title VII protections to LGBT individuals would be a dramatic, political change and, as such, it should be decided by the democratically accountable legislature, rather than the Court.
This might be a compelling, additional argument if the Court finds that the text of Title VII does protect against discrimination based on sexual orientation or gender identity. However, if the Court finds the alternative textual argument superior, this argument would be problematic because the Supreme Court has already read Title VII to include categories of discrimination the 1964 Congress did not consider. In a unanimous decision in Oncale v. Sundowner Offshore Services, the Court found that “male-on-male sexual harassment” was prohibited under Title VII even though such harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” “It is ultimately the provisions of our laws,” the Court explained, “rather than the principal concerns of our legislators by which we are governed.” Thus, Supreme Court jurisprudence tells us that when the text of Title VII conflicts with legislative intent, the text should win.
The issue, then, with a decision based on Congressional intent rather than upon the language of the statute, is that such a decision would create an unprincipled and unreliable arc in the Supreme Court’s Title VII jurisprudence. How is the Court to determine which departures from legislative intent are acceptable and which are not? Justice Gorsuch suggests that leaving such controversial policy questions to the legislature could be an exercise of “judicial modesty,” but because the Court has already recognized applications of Title VII that its drafters would have neither imagined nor supported, a decision to now hold back and deny the applicability of Title VII despite textual evidence to the contrary could instead be an arbitrary enforcement of the Justices’ political preferences.
In fact, any decision based on legislative intent, after the Supreme Court has explicitly acknowledged that Title VII can address forms of discrimination not considered by the legislature, risks seeming political. The Court, it might appear, would be willing to extend Title VII protections to those forms of discrimination it sees as legitimate (e.g. sexual harassment), but not to those it sees as illegitimate (e.g. sexual orientation and gender identity), irrespective of whether those forms discrimination fall within the text of Title VII.
As long as the text itself is clear, the better option for the Court will be to decide based off textual meaning. If Title VII really does prohibit discrimination based on sexual orientation or gender identity, the Court will not be making a policy judgement, but instead enforcing the law. If that judgement is inconsistent with political will, the legislature — at least theoretically — has the power to overturn it.