//  7/11/19  //  Commentary

This week, I've explained how to interpret Title VII as a textualist; why this interpretation forbids discrimination based on transgesnder status; and why common objections to that conclusion are wrong.

As noted in previous posts, these arguments are drawn from an amicus brief that I've submitted to the Supreme Court with Larry Tribe and Alex Conlon, on behalf of Seth Waxman, Ted Olson, Walter Dellinger, Karen Dunn, and Neal Katyal.

Today I'd like to address a related but distinct question: whether Title VII's ban on discrimination "because of such individual's ... sex" necessarily prohibits discrimination based on sexual orientation.

As I will show, the answer is yes.

Title VII & Sexual Orientation

The textualist analysis set forth in previous posts about  discrimination based on transgender status also applies to discrimination based on sexual orientation—and requires the same result. Obviously, this is not to claim that “sex” meant “sexual orientation” in 1964. It is, instead, to claim that discrimination based on sexual orientation inherently constitutes discrimination “because of such individual’s . . . sex.” See Hively, 853 F.3d at 343 (“[A]ctions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”); see also Zarda, 883 F.3d at 112-13.

To see why, one need only consult a dictionary. Sexual orientation is defined as “[a] person’s predisposition or inclination toward sexual activity or behavior with other males or females,” and is often categorized as “heterosexuality, homosexuality, or bisexuality.” See Homosexuality, Black’s Law Dictionary (11th ed. 2019). “Homosexuality,” in turn, is defined as “having a sexual propensity for persons of one’s own sex.” See Sexual Orientation, Oxford English Dictionary (5th ed. 1964). Bisexuals have a sexual propensity for persons of their own sex as well as persons of different sexes.[1]

As the EEOC has explained, “sexual orientation is inseparable from and inescapably linked to sex.” Baldwin v Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at *5 (July 16, 2015). Chief Judge Katzmann echoed this point in his en banc majority opinion for the Second Circuit: “Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.” Zarda, 883 F.3d at 113; see also id.at 136 (Lohier, J., concurring) (“[T]here is no reasonable way to disentangle sex from sexual orientation in interpreting the plain meaning of the words ‘because of . . . sex.’ The first term clearly subsumes the second, just as race subsumes ethnicity.”).[2] Simply put, sexual orientation consists in major part of the relationship between a person’s sex and the sex of those to whom he or she is sexually and/or romantically attracted.

From this understanding of the connection between “sex” and “sexual orientation,” it inevitably follows that “sexual orientation discrimination involve[s] sex-based considerations.” Baldwin, 2015 WL 4397641, at *5. Indeed, that link appears in the words a person would use to explain why she has fired an employee for being gay: I fired him because he is a man attracted to other men, and I disapprove of that. Even on the narrowest definition of the term, “sex” is referenced not once, but twice in this plain English account of an employer’s motives for sexual orientation discrimination. See Zarda, 883 F.3d at 113 (“[S]exual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted.”). And to borrow Judge Flaum’s analysis, “if discriminating against an employee because she is homosexual is equivalent to discriminating against her because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an enumerated characteristic: the employee’s sex.” Hively, 853 F.3d at 359 (Flaum, J., concurring). Of course, under 42 U.S.C. § 2000e-2(m), “[t]hat is all an employee must show to successfully allege a Title VII claim.” Id.

The entanglement of discrimination because of “sexual orientation” with sex-based motives is confirmed by a straightforward application of the familiar “but-for” test articulated in Manhart. See 435 U.S. at 711. A man who is fired for marrying a man would not have been fired if he were a woman who married a man. A woman who is fired for being attracted to women would not be fired if she were a man who were attracted to women. The fact that some employers may refer to sexual orientation rather than sex in explaining their motives is irrelevant: sexual orientation is defined by sex-linked terms and, as a factual matter, evokes sex-based motives. See Zarda, 883 F.3d at 113 (“The employer’s failure to reference gender directly does not change the fact that a ‘gay’ employee is simply a man who is attracted to men.”). Although this comparator test is ordinarily used to weigh case-specific evidence, it can also serve the useful function of clarifying whether discrimination of a general kind is inherently discrimination “because of such individual’s . . . sex.”[3]

The counterarguments raised against that reasoning in the lower courts do not support a different conclusion.

First, several judges have opined that Title VII exists only to prohibit sex inequality. See, e.g., Zarda, 883 F.3d at 143 (Lynch, J., dissenting) (“The problem sought to be remedied by adding ‘sex’ to the prohibited bases of employment discrimination was the pervasive discrimination against women in the employment market, and the chosen remedy was to prohibit discrimination that adversely affected members of one sex or the other.”). This argument is occasionally buttressed by contentions that nobody in 1964 would have believed “discrimination because of such individual’s . . . sex” to encompass discrimination against gay men, lesbians, and bisexuals. See id. at 167 (Livingston, J., dissenting). But as explained above with respect to discrimination based on transgender status, such objections bottom out on claims regarding purpose and expected application—even when they are characterized as arguments about the original meaning of statutory text. To accept these arguments would be to construct a Trojan Horse through which purposivism and legislative history could be readily smuggled into textualist analysis. See Lewis v. City of Chicago, 560 U.S. 205, 215 (2010) (“It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.”).

Second, Judge Sykes has argued that discrimination based on sexual orientation “accounts for” sex only “in the limited sense that [the employer] notices [it].” Hively, 853 F.3d at 367 n.5 (Sykes, J., dissenting). On this view, “sex” is “not the object of the employer’s discriminatory intent, not even in part.” Id. But whereas Judge Sykes criticizes efforts to “split homosexuality into two parts,” those two parts are merely the definition of homosexuality: (1) “a person’s sex” and (2) “his or her attraction to persons of the same sex.” Id. It hardly plumbs the outer limits of English usage to say that firing someone for being gay is motivated by the very term that appears twice in the standard definition of being gay. And that term is not just “noticed” in passing: there wouldn’t be a problem at all if the employee, or the employee’s romantic partner, were of a different sex. In that concrete sense, sex is central.

Finally, Judge William Pryor has concluded that Title VII sharply separates status and conduct, protecting only against discrimination based on statutorily enumerated statuses (and conduct seen as failing to conform with those statuses). See Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1259-60 (11th Cir. 2017) (W. Pryor, J., concurring). Although Judge Pryor agrees that discrimination based on transgender status is prohibited, Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011), he maintains that discrimination based on sexual orientation is allowed because it targets only a statutorily uncovered status and conduct that may not always reflect a gender stereotype, Evans, 850 F.3d at 1260 (W. Pryor, J., concurring).

As Judge Rosenbaum explained in dissent, this sharp separation of status and conduct lacks any basis in Title VII’s text and demonstrably rests on a misunderstanding of how ascriptive gender stereotypes apply to sexual orientation. See id. at 1261-68 (Rosenbaum, J., concurring in part and dissenting in part). Regardless, with respect to a purely textualist analysis, Judge Pryor’s distinction is irrelevant. Even if Title VII is read as prohibiting only discrimination because of a person’s “sex”—understood as the status of being male or female—it bars employment discrimination based on sexual orientation because a person’s “sex” (and that of his or her desired partners) is a motivating factor in such discrimination.[4]

 

[1] The American Psychological Association rightly emphasizes both physical and emotional attraction in defining these terms. See Am. Psychological Ass’n, Definition of Terms: Sex, Gender, Gender Identity, Sexual Orientation (Feb. 18-20, 2011).

[2] It would therefore “require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,’” a point confirmed by opinions seeking to do so, which evince “confusing and contradictory results.” Hively, 853 F.3d at 350; see also Hively v. Ivy Tech, 830 F.3d 698, 711 (7th Cir. 2016), reversed en banc, Hively, 853 F.3d at 350.

[3] Contrary to a common objection, the hypothetical in this paragraph does not change two characteristics by comparing a man who is attracted to men to a woman who is attracted to men. It isolates the single relevant variable—the sex of “such individual”—and switches only that characteristic. This also changes the employee’s sexual orientation (from gay to straight), but that only proves the sex-dependency of sexual orientation. Comparing a homosexual man to a homosexual woman, in contrast, stuffs the rabbit in the hat by changing the variable whose sex-linked nature we are trying to ascertain. Thus, Price Waterhouse did not compare a gender nonconforming man with a gender nonconforming woman to see if gender nonconformity is a sex-linked characteristic. It changed only the sex of the employee to see if sex-linked motives were at play. 

[4] Put differently, if an employer’s motives for firing an employee include “such individual’s . . . sex,” it simply does not matter whether the manner in which the employer is taking account of sex also implicates a “status” which is not enumerated in Title VII. The statute does not cover “marital status” or “parental status,” but firing a person for sex-linked reasons that overlap with (or are inherent) to such statuses would still be actionable under Title VII. So too here.


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