Title VII Applies to Sexual Orientation "Because of Sex"

      Five years before Stonewall, Congress passed a law prohibiting discrimination in the workplace "because of sex," with no thought about barriers facing gay men and lesbians in getting and holding jobs. Thus, the law, Title VII of the Civil Rights Act of 1964, did not explicitly cover discrimination based on sexual orientation or gender identity, phrases not even coined at the time much less in common use.
      As early as the 1970s, however, gay rights advocates began arguing in court that a law prohibiting discrimination because of sex necessarily applies, as a simple matter of statutory construction, to discrimination because of sexual orientation as well. At the Supreme Court last week [Oct. 8], the veteran LGBT rights advocate Pamela Karlan opened with a simple and irrefutable example to prove that point, but conservative justices resisted the necessary implication of their strict textualist approach to statutory construction.
      "When an employer fires a male employee for dating men but does not fire a female employee for dating men, he violates Title VII," Karlan explained. That discrimination is "because of sex," Karlan continued, because the employer's 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."
      For most of the past 50 years, courts and the Equal Employment Opportunity Commission (EEOC) have found Title VII inapplicable to anti-gay discrimination on the ground that Congress in 1964 intended nothing beyond "traditional" notions of sex. Over the past 30 years, however, textualists led by the late Justice Antonin Scalia have insisted that words matter, not intentions, in the delicate judicial art of statutory construction.
      Courts stuck with this narrow approach even as the Supreme Court ventured beyond Congress's intent in decisions extending Title VII to issues unthought-of in the 1960s. The 9-0 decision in Meritor Savings Bank v. Vinson (1986) applied Title VII to a male supervisor's sexual harassment of one of the bank's female employees on the ground that the law was intended "to strike at the entire spectrum of disparate treatment of men and women' in employment."
      Three years later, the Court held in a 6-3 decision, Price Waterhouse v. Hopkins (1989), that Title VII also applies to adverse employment decisions based on an employee's failure to conform to gender stereotypes. The ruling allowed Ann Hopkins to sue after the accounting firm's male partners denied her a promotion because she was "too macho."
      A decade later, Scalia himself led a unanimous Court in extending Title VII even further. The ruling in Oncale v. Sundowner Offshore Services, Inc. (1998) applied Title VII to same-sex harassment suffered by the straight male plaintiff from his coworkers on an offshore oil rig. "[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils," Scalia explained in his opinion for the Court.
      The EEOC extended Title VII to anti-gay discrimination in a ruling in 2015 that favored a Federal Aviation Administration air traffic controller who was passed over for a promotion after mentioning to his supervisor that he and his partner had recently attended Mardi Gras celebrations in New Orleans. "We don't need to hear about that gay stuff," the supervisor reportedly told him.
      "Sexual orientation is inherently a sex-based consideration," the EEOC stated in its 17-page opinion in Baldwin v. Fox. "An allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."
      The gay plaintiffs in the two cases argued before the Court, Bostock v. Clayton County and Altitude Express, Inc. v. Zarda, were both fired after they were outed, inadvertently, by circumstances. Gerald Bostock was fired from his job as a child welfare specialist in Clayton County, Georgia, after the local gay paper showed him playing in the gay softball league. Donald Zarda was fired from a New York skydiving company after he tried to reassure a female student by telling her that he was 100 percent gay.
      The federal appeals court in New York ruled in Zarda's favor, but the federal appeals court in Georgia in Bostock's case stuck with the majority view that Title VII permits anti-gay discrimination. The EEOC gave both of the plaintiffs right-to-sue letters, but the agency was unheard from in either of the cases or a third case, Harris Funeral Homes v. EEOC, seeking to apply Title VII to protect transgender employees.
      With no independent litigating authority, the EEOC was sidelined by the Trump administration's decision to support the discriminating employers in the three cases. Representing the administration, Solicitor General Noel Francisco began simply but misleadingly, "Sex means whether you're male or female, not whether you're gay or straight."
      Two of the liberal justices, Sonia Sotomayor and Elena Kagan, hoisted Francisco on his textualist petard. "The text of the statute appears to be pretty firmly in Ms. Karlan's corner," Kagan told him. But Francisco gained ground with two of the conservatives, Samuel A. Alito Jr. and Neil Gorsuch, by warning that it would be "pernicious" for the Court to extend Title VII beyond what Congress intended.
      Alito and Gorsuch worried about "massive social upheaval" from a judicial ruling to extend Title VII to anti-LGBT discrimination. Oddsmakers were hedging their bets after last week's arguments, but take pity on the law clerks in the conservative justices' chambers assigned to show that sexual orientation has nothing to do with sex.