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Bostock, Zarda, and R.G & G.R. Harris Funeral Homes: Affirming Equality and Challenging Textualism

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18 Jun 2020
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June 18, 2020

Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020) (Gorsuch, J.).
Altitude Express, Inc. v. Zarda
R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC
Response by John Vlahoplus
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

Bostock, Zarda, and R.G & G.R. Harris Funeral Homes: Affirming Equality and Challenging Textualism

In three highly contentious cases,1 the Supreme Court has ruled that discharging employees because of their sexual orientation or transgender status discriminates against them because of their sex in violation of Title VII.2 The decision establishes that Title VII requires sex-blind employment actions, illustrates the shortcomings of textualism as an interpretive theory, and provides a roadmap for the subsequent development of Title VII. The Court’s reasoning should apply throughout Title VII and should establish that all employment decisions must be blind to race, color, religion, and national origin as well.

Title VII

Justice Gorsuch’s powerful majority opinion sets forth three principles governing Title VII. “First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.”3 The employer’s subjective intention or motivation does not control. If the employer considers an individual’s sex in taking an adverse employment action, then the employer discriminates because of the individual’s sex, even if the employer acts with the best of intentions, like seeking to treat all employees equitably. “Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.”4 If the employer considers an individual’s sex in making an adverse employment decision, then the employer discriminates because of the individual’s sex, even if other factors contributed to the decision. “Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”5 Title VII protects individuals, not groups. It is not restricted to discrimination based on unfair or biased beliefs or attitudes about a particular sex, contrary to what Justice Alito argues in his dissent.6 If the employer considers an individual’s sex in taking an adverse employment action, then the employer discriminates because of that individual’s sex. The majority adopts a simple rule from the Price Waterhouse v. Hopkins7 plurality: Under Title VII, an individual’s sex is simply “not relevant to the selection, evaluation, or compensation of employees.”8 The employers in the three cases may have discharged the employees because of a combination of two factors, such as the sex of the employees and that of those they love. Nonetheless, in each case the employee’s sex was one of those factors, and therefore the employer discriminated “because of”9 the individual employee’s sex. Discharging gays and lesbians equally does not avoid Title VII liability, but rather “doubles it.”10

The majority opinion is consistent with the Court’s 1977 holding in Dothard v. Rawlinson11 that a regulation banning “opposite sex” guards in single-sex penitentiaries explicitly discriminates because of each guard’s sex under Title VII12 despite the state’s claims that the regulation applies equally to both sexes13 and actually depends on the combination of the sexes of the guard and the inmates.14 As one Justice pointed out, a rule that depends on the combination of the sex of the guard and the prisoners draws “a frankly gender based distinction” by distinguishing “between females and males as such.”15

The Court’s reasoning should apply throughout Title VII, forbidding any adverse employment decision that considers an individual’s race, color, religion, sex, or national origin. For example, sex-stereotyping should be recognized as per se discrimination because of sex, not merely as evidence of discrimination, because it is not possible to sex-stereotype an individual without considering the individual’s sex.

Textualism

The majority and dissenting opinions reach radically different conclusions despite each claiming to apply textualism. Justice Gorsuch characterizes his analysis as a straightforward application of the plain and settled ordinary meanings of Title VII’s express terms. In passionate dissents, Justice Alito describes the majority opinion as a “pirate ship” flying the flag of textualism,16 and Justice Kavanaugh charges the majority with “latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law.”17 The competing opinions founder on the same indeterminacies that have bedeviled textualism since at least the Renaissance, such as whether a general rule includes specific instances only if they are expressly listed (“including but not limited to”) or automatically includes them unless they are expressly excluded (“other than”). The current incarnation of textualism, which claims that the “ordinary meaning” of legal texts resolves interpretive disputes non-normatively, does not save the theory from indeterminacy. The Justices cannot even agree on the meaning of “ordinary meaning.” Is it limited to the ordinary meaning of the words and phrases in the specific text of the disputed statute? Does it take into account extra-textual factors like similar or different texts of other statutes, the expectations of some ordinary readers at the time of enactment, or the expectations of a majority of the ordinary readers at that time? How does one identify the proper context in which to interpret ordinary meaning? Do judges cede their interpretive authority to the expectations of the public in 1964, when Congress enacted Title VII, or in 1991 when Congress eased the burden of proof for Title VII plaintiffs?

The Justices cite dueling canons of construction from judicial precedents and from Scalia and Garner’s Reading Law: The Interpretation of Legal Texts.18 Justice Gorsuch asserts that a broad statutory rule applies to all specific cases that it does not expressly exclude. Congress could have limited Title VII to discrimination solely or primarily because of sex, but it did not.19 So Title VII’s general rule reaches any discrimination because of sex. Justice Kavanaugh argues the opposite. One should not read a general rule to include a specific concept when other statutes expressly refer to it.20 Congress could have included sexual orientation and transgender status in Title VII but did not, so neither is included within Title VII’s prohibitions. Both sides claim that the ideal of protecting reliance on written law justifies their conclusion, but they reason backwards: any determinative and consistently applied interpretive theory allows people to rely on written law. Ultimately, the Justices’ dueling visions undermine textualism as an independent interpretive theory. If the Justices cannot agree on the meaning of “because of sex” in a statute enacted or amended in their lifetimes, then it is difficult to conclude that textualism can resolve legal disputes. If textualism cannot generate a different interpretation in 2020 than some group of ordinary citizens would have reached in considering a case in 1964, as the dissents argue, then it is difficult to conclude that the text, rather than the beliefs of specific individuals, constitutes the law of the land.

Justice Alito quotes an opinion of Judge Easterbrook to support his general theory of statutory interpretation.21 He apparently does not realize that Judge Easterbrook foreshadowed the Court’s LGBTQ decision twelve years ago in an opinion that analogized sex to race and explained the discrimination inherent in “same sex” rules that nominally apply equally to both sexes:

“Employers frequently assert that inmates (or students) respond more favorably to guards (or teachers) of their own sex or race. If this sort of justification had been advanced for matching the race of the inmates and the guards (or students and their teachers), courts would not go along. . . . Why then should courts accept the same sort of “justification” for sex discrimination?”22

Future Developments

Justice Alito excoriates the majority for not confronting the consequences of its decision for religious organizations, scores of existing anti-discrimination laws, and personal privacy. His dissenting opinion provides a roadmap for future challenges to discrimination based on LGBTQ status in housing, health care, restroom availability and other areas. In response, Justice Gorsuch suggests some available defenses like the First Amendment, Title VII’s existing exceptions, and the Religious Freedom Restoration Act. He unintentionally suggests another when noting that a law can unexpectedly protect groups that were disfavored at enactment, as the Americans with Disabilities Act protects state prisoners. Courts have long interpreted Title VII to protect the employment rights of opposite-sex officers in correctional facilities. In deciding specific cases, however, they allow personal interests like inmate privacy to limit the employee’s Title VII rights. The Court’s decision in Bostock, Zarda, and R.G & G.R. Harris Funeral Homes affirms equality while allowing important personal interests like the constitutional right to privacy to compete with Title VII in its subsequent judicial development.

John Vlahoplus is a Rhodes Scholar who holds degrees from Washington & Lee University, Oxford University and Harvard Law School. He has published extensively in the fields of legal theory and constitutional law.

  1. Bostock v. Clayton Cty., Ga., No. 17-1618 (U.S. June 15, 2020); Altitude Express, Inc. v. Zarda, No. 17-1623 (U.S. June 15, 2020); R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Emp’t Opportunity Comm’n, No. 18-107 (U.S. June 15, 2020).
  2. 42 U.S.C. § 2000e–2(a)(1) (2018).
  3. Bostock, slip op. at 14.
  4. Id.
  5. Id. at 15.
  6. Id. at 28 n.22 (Alito, J., dissenting).
  7. 490 U.S. 228 (1989).
  8. Bostock, slip op. at 9 (quoting Price Waterhouse, 490 U.S. at 239 (plurality opinion)).
  9. § 2000e–2(a)(1).
  10. Bostock, slip op. at 9.
  11. 433 U.S. 321 (1977).
  12. Id. at 332.
  13. See Brief of Appellants at 33–34, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76–422).
  14. See Reply Brief of Appellants at 9, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76–422).
  15. Oral Argument at 23:40–23:57, Dothard v. Rawlinson, 433 U.S. 321 (1977) (No. 76–422) (author’s transcription, which differs slightly from the Oyez.org transcription, Dothard v. Rawlinson, Oyez, https://www.oyez.org/cases/1976/76-422).
  16. Bostock, slip op. at 3 (Alito, J., dissenting).
  17. Id. at 27 (Kavanaugh, J., dissenting).
  18. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).
  19. Bostock, slip op. at 6.
  20. Id. at 13–15 (Kavanaugh, J., dissenting).
  21. Id. at 24 (Alito, J., dissenting) (“Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. . . . Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” (quoting Herrmann v. Cencom Cable Assocs., Inc., 978 F.2d 978, 982 (7th Cir. 1992))).
  22. Henry v. Milwaukee Cty., 539 F.3d 573, 588 (7th Cir. 2008) (Easterbrook, C.J., concurring) (citations omitted). The Henry court found that a “same sex” staffing policy requires “sex-based classification[s]” of employees and struck it down under Title VII. Id. at 585–86 (majority opinion).

Recommended Citation
John Vlahoplus, Response, Bostock, Zarda, and R.G & G.R. Harris Funeral Homes: Affirming Equality and Challenging Textualism, Geo. Wash. L. Rev. On the Docket (June 18, 2020), https://www.gwlr.org/bostock-zarda-harris-funeral-homes-affirming-equality-and-challenging-textualism/.

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