//  10/11/19  //  Commentary

The Supreme Court heard oral argument this week in two cases concerning whether Title VII of the Civil Rights Act of 1964, which forbids discrimination against an employee “because of such individual’s . . . sex,” prohibits firing someone because they are attracted to members of the same sex.[1]  That is, whether firing an employee because they are gay is sex discrimination.

Stanford Professor and renowned constitutional scholar Pam Karlan argued the cases before the Supreme Court with aplomb and the text of the statute on her side.  Justice Alito posed a hypothetical that, it appeared, he hoped would undermine the strength of her case.  He asked:

Let’s imagine that the decisionmaker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says:  I’m going to tell you two things about this candidate.  This is the very best candidate for the job, and this candidate is attracted to members of the same sex.  And the employer says:  Okay, I'm going—I’m not going to hire this person for that reason.  Is that discrimination on the basis of sex, where the employer doesn’t even know the sex of the individual involved?

Would there be liability under Title VII, Justice Alito pressed Professor Karlan, “in the situation where the decisionmaker has no knowledge of [the candidate’s] sex,” just the fact that they are attracted to people of the same sex?  (The argument transcript is here.)

Karlan is one of the nation’s great constitutional litigators, but her response and Justice Alito’s insinuation—that there would be no liability if an employer refused to hire a candidate knowing only that they are attracted to members of the same sex—can’t be correct. 

There are at least three reasons why, even if we leave aside the threshold point that Title VII targets discriminatory treatment, not employer knowledge (and regardless of actual knowledge of an applicant’s protected characteristic).

First, consider interfaith marriages.  Suppose an employer had a purportedly neutral rule that she would not hire any employee who was in an interfaith marriage.  She would hire Catholics, Jews, and Muslims alike—just not anyone who married across religious lines.  Such an employer would not have to know the religion of a particular candidate to refuse to hire those in interfaith marriages, just that they were in an interfaith relationship.  Yet that would clearly be religious discrimination. 

(Andrew Koppelman made a similar point on Balkanization with regard to race: It is unimaginable that Title VII would not prohibit, as race discrimination, an employer from refusing to hire anyone in an interracial marriage.)

Why is this the case?  Because discriminating against a person because she marries across (or not across) a category drawn on race, religion, or sex lines is still discrimination because of that characteristic—in fact, because of the individual’s characteristic on that front, that characteristic of her partner, and whether they, in the eyes of her employer, “match” correctly.

It is thus insufficient to respond, as the employers in these cases do, that sexual orientation is entirely distinct from sex—that a rule against gay people is about homosexuality, not sex, and treats men and women “equally.”  (Just as my hypothetical employer treats Catholics and Jews “equally,” and Koppelman’s treats black and white people “equally,” since each only disallows employees from marrying outside of their religion- or race-defined group.)  The Court rejected this sort of false logic with regard to race in Loving v. Virginia—but the logic remains false regardless of whether an employer discriminates against someone because their relationship crosses race lines, crosses religious lines, or fails to cross sex lines.  It is still discrimination because of race, religion, or sex.

Second, discrimination against gay people is inextricably defined by sex.  As the amicus brief of scholars of philosophy, which I joined, argues, same-sex attraction is partially defined by sex and cannot be applied to any individual without reference their sex.  Even if you do not know a person’s sex, to be same sex attracted means either (1) to be a man (2) attracted to other men or (1) a woman (2) attracted to other women.  Discrimination, even behind the veil, is dependent on this social meaning and related sex-specific stereotypes.  One of the most fundamental sex stereotypes is that men are attracted to women, and women attracted to men.  What do we mean when we say someone is gay?  We mean, at core, that they transgress that fundamental sex stereotype.  And so, even if you only know that someone is gay, you by definition know they violate that sex-based stereotype.  There are of course two different definitions and two different stereotypes—one for men and one for women—but they are still sex-based meanings. And discrimination because of each is still equally forbidden by Title VII.

Third, Justice Alito’s question falters because employment decisions are never in fact made behind the veil.  Even in his asserted hypothetical, the “subordinate” who “reviewed the candidates for [the] position” surely knew the candidate’s sex. 

This highlights a more fundamental point:  In the real world, rules like “we don’t hire gays” apply to real people of a particular sex.  The fact that a rule can be articulated in neutral terms in the abstract does not mean that it is not sex discrimination if, when the rule is applied to real individuals, it discriminates against an individual because of their sex.

To see why that is the case, we need not look further than the Supreme Court’s own landmark Title VII cases.  For instance, in Dothard v. Rawlinson, the Supreme Court ruled that the Alabama Department of Corrections’ “contact positions” rule—under which women were barred from guarding male inmates and men were barred from guarding female inmates—violated Title VII.  Consider Justice Alito’s hypothetical on those facts:  knowing only that an applicant applied to guard the opposite sex, the employer would have turned that applicant away.  In practice, the employer would apply two different rules and treat individuals differently because of their sex.  It would turn away men who applied to guard women, and he would turn away women who applied to guard men.  But, as the Court found, such a rule still constituted sex discrimination.  It did not matter whether the Department of Corrections could describe its rule in neutral no-opposite-sex-contact terms; as applied, the rule treated applicants differently because of their sex.

The same is true of discrimination against gay people.  Even if an employer were to impose a purportedly neutral rule that he did not hire people attracted to the same sex, in practice, that rule would impose two discriminatory sex-based rules.  One on men, and another on women—such that a man who married a Pamela would be congratulated, but a woman who married a Pamela would be fired; and a man who married a Bill would be fired, but a woman who married a Bill would be feted.  Such a supposedly neutral rule against gay employees would, in practice, apply differently to employees depending on their sex.  Instead of eliminating liability, that is double discrimination.

Sex discrimination behind the veil is still sex discrimination.


[1]The Court also heard argument in a third case involving a woman who was fired because she is transgender.

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