Sexual Orientation and Title VII

April 24, 2017

The Civil Rights Act of 1964 prohibits discrimination in employment on the basis of a person’s “race, color, religion, sex, or national origin.” For decades, the federal courts declined to read the law’s ban on sex discrimination as applying to sexual orientation discrimination. A recent decision suggests we may be at the beginning of a new era. In a case called Hively v. Ivy Tech, the federal appeals court in Chicago ruled that the Civil Rights Act protected an employee who said her employer discriminated against her because she is a lesbian. The opinion is an important legal development in its own right. It also offers examples of the competing ideas about how to interpret the many texts that make up the law. These ideas seldom find their way into the general public discussion. That is unfortunate because they speak in important ways to our understanding of our country as a nation of laws.

In our system of government, everyone agrees that the ultimate law-making authority should be a democratically elected legislature. Courts are expected to obey the legislature’s command, but courts must decipher what it is that the legislature has commanded. The late Justice Scalia strongly believed that the law’s text could be the only legitimate source of interpretation. The text is the only thing the legislature has approved. In difficult cases, however, the text alone is seldom clear. In the Hively case, the majority observed that if the plaintiff had been a man, her attraction to women would not have been a problem for her employer.  To the majority, the core meaning of sex discrimination is to treat someone differently than you would a person of the opposite sex.

The dissenting judges read the same text to come to a different conclusion. In everyday conversation, people do not use the word “sex” interchangeably with “sexual orientation.” Discrimination on the basis of sex thus must mean something different than discrimination on the basis of sexual orientation.

The idea that text is often ambiguous is hardly surprising. Legal thinkers have long suggested that courts should use legislative intent where legal text is ambiguous. The dissenters in the Hively case pointed out that, given the historical reality of the time, it is highly unlikely a majority of the 1964 Congress would have intended to protect gay men and women from workplace discrimination. The difficulty is that the many different members of a legislature have many different intents when they pass a law. Some may have strongly favored civil rights. Some may have just voted for a law they believed was politically expedient or to curry favor with party leadership. And, surely some even in 1964 would have favored protections for gay persons. Whose intent counts and how are we to know their precise intent so many years later?

Another idea advanced by the courts is to consider the law’s broader purpose. For example, one might say the purpose of the Civil Rights Act of 1964 is to prohibit discrimination based on immutable personal characteristics. Thus, when in doubt judges should construe the law to promote that purpose. One judge wrote separately in Hively to emphasize he was doing just that. Appealing to a public-regarding legislative purpose is noble, but it invites judges to substitute their own judgment for the democratically elected legislature. We might as well just say that the legislature’s purpose is “to do good,” and let the judges fill in the specifics. Text, legislative intent, and purpose all have their strengths and weaknesses as interpretive guideposts. In reality, most judges take a practical reasoning approach and use all three ideas.

In Hively, an 8-3 majority crossed party lines to extend federal workplace protection to gay and lesbian employees. The case is important, newsworthy and likely headed to the Supreme Court.