FEATURE CONTENTS INTRODUCTION 325 I. THE MERIT-BAS ED WORKPLACE AND THE MEANING OF TITLE VII 334 A. The Merit-Based Workplace 334 B. Original Meaning of Title VII 337 C. Dynamic Title VII 341 II. THE THREE FACES OF DISCRIMINATION "BECAUSE OF SEX": ENSURING A MERIT-BASED WORKPLACE 342 A. Sex as Biology: Relational Discrimination 343 1. The Early History of Title VII and the 1972 Amendments 347 2. The Pregnancy Discrimination Act of 1978 353 3. Constitutional Challenges to Same-Sex Sodomy Laws and Same-Sex Marriage Bars 357 B. Sex as Gender: Homophobia as Prescriptive Sex Stereotyping 362 1. The 1964 Act and the 1972 Amendments 363 2. The Pregnancy Discrimination Act of 1978 and the Family and Medical Leave Act of 1993 365 3. Hopkins and the 1991 Amendments 368 C. Sex as Sexuality: Sexual Harassment and the Merit-Based Workplace 381 III. TITLE VII's MERIT-BASED WORKPLACE UNDER A TEXTUALIST COURT AND A GRIDLOCKED CONGRESS 393 INTRODUCTION
Title VII of the Civil Rights Act of 1964 bars employment discrimination "because of... sex." (1) A successful part-time teacher at Ivy Tech Community College, Kimberly Hively, complained that the college refused to consider her for a permanent job because she is a lesbian. If true, does that refusal constitute discrimination because of sex? Because Title VII does not bar discrimination "because of... sexual orientation," federal appeals courts have uniformly said "no" to this question--until the Seventh Circuit, sitting en banc, reconsidered the issue. (2)
Writing for the en banc, eight-judge majority in Hively v. Ivy Tech Community College of Indiana, (3) Chief Judge Diane Wood offered two interconnected arguments to support the holding that an employer's refusal to hire a lesbian constitutes discrimination because of sex. Reading the statute literally, judges in sex discrimination cases often ask whether the plaintiff has shown that the employer would have treated a similarly situated "comparator" (a person of the opposite sex) more favorably. If Hively had been a man, sexually cohabiting with or married to a woman, the college would have considered him for permanent employment on his merits. Ivy Tech allegedly rejected Hively out of hand because she was a woman partnered with another woman. Hence, she was allegedly denied the job "because of... [her] sex" as a woman rather than a man. This line of reasoning is often called the "comparator argument." (4)
In the alternative, Chief Judge Wood reasoned that Hively was discriminated against because of the sex of her intimate associate (her partner). (5) A precedential basis for this "associational discrimination argument" is Loving v. Virginia, (6) where the Supreme Court ruled that state discrimination against interracial couples constitutes discrimination because of race. For the same reason that state discrimination against a black woman cohabiting with or married to a white man is race discrimination, Ivy Tech's discrimination against a woman cohabiting with or married to another woman is sex discrimination. In the first case, the regulatory variable--the factor that changes the legal treatment--is the race of the associated person; in the second case, the regulatory variable is the sex of the associated person.
Writing for three dissenting judges, Judge Diane Sykes criticized these formal arguments as an excessively dynamic, "judge-empowering" interpretation of the statutory language. (7) Focusing on the original meaning of the statutory text, Judge Sykes argued that "sex" in 1964 only meant one thing--the two biological sexes (male and female)--and could not have meant "sexual orientation," a term not widely used in 1964. (8) In contrast, Congress has in subsequent statutes, such as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, (9) specifically prohibited discrimination because of "sexual orientation" as well as because of "sex," indicating that the two terms have different meanings. (10) In ordinary parlance today, Judge Sykes argued, no one would say that workplace gay-bashing constitutes "discrimination because of sex"; almost everyone would say that it is "discrimination because of sexual orientation." (11) Not only does "sexual-orientation discrimination spring from a wholly different kind of bias than sex discrimination," (12) but the only legitimate means to update the statute in this way is through the legislative process. (13)
Concurring in most of Chief Judge Wood's opinion, Judge Joel Flaum (joined by Judge Kenneth Ripple) maintained that the text, read in light of the whole Act, supported Hively's Title VII claim. Given the allegations in the complaint, Judge Flaum found it hard to deny that Ivy Tech excluded her at least in part either because of her sex (the comparator argument) or because of the sex of her romantic partner (the associational discrimination argument). (14) In response to Judge Sykes's point that this was just a case of sexual orientation discrimination, Judge Flaum observed that it had elements of both sex-based and sexual orientation-based discrimination. (15) Because Title VII was amended in 1991 to bar sex discrimination even when sex is only one "motivating factor," today's statute supported Hively. (16)
In contrast to other judges in the majority, concurring Judge Richard Posner suggested that Chief Judge Wood's opinion was not dynamic enough. He joined her majority opinion but also maintained, contrary to Judge Sykes, that judges should "update" statutes based upon current social norms and their understanding of the best workplace policy. (17) Homosexuality has become sufficiently normalized in society that judges should dynamically interpret Title VII to reflect its most efficient deployment.
The same issue also recently divided the Eleventh Circuit. In Evans v. Georgia Regional Hospital, (18) the panel, in an opinion by District Judge Jose Martinez, held that a lesbian might have a Title VII claim for sex discrimination if the employer denied her opportunities because of gender stereotyping but has no Title VII claim for simple sex discrimination, even if she was denied a job because she is romantically attracted only to women. (19) Dissenting on the latter point, Judge Robin Rosenbaum argued that the gender stereotyping argument went further than the majority recognized and instead justified Title VII protection for female employees who depart from the deep stereotype that women should find romantic love with the right man, not the right woman. (20) Concurring in Judge Martinez's opinion, Judge William Pryor Jr. argued that Judge Rosenbaum's interpretation would amount to an amendment, rather than an interpretation, of the statute. (21) Counsel for Jameka Evans plans to petition the Supreme Court for review of the Eleventh Circuit's decision. (22)
Chief Judge Robert Katzmann of the Second Circuit has also recently urged a reconsideration of his court's precedent declining to apply Title VII to bar sexual orientation discrimination. (23) Like Chief Judge Wood, Chief Judge Katzmann found persuasive both the comparator and the associational discrimination arguments; (24) like Judge Rosenbaum, he opined that anti-LGBT discrimination involves gender stereotypes that the Supreme Court has ruled cannot be the basis for employment decisions in the merit-based workplace. (25) Chief Judge Katzmann also addressed the argument, previously accepted by the Second Circuit, that Congress had "ratified" the previous court of appeals decisions because it did not override them in its 1991 Amendments and because it declined to enact any one of several dozen bills specifically seeking to bar sexual orientation discrimination. Following the Supreme Court, he cautioned against drawing legal meaning from "a proposal that does not become law. Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change." (26)
Following Chief Judge Katzmann's suggestion, the Second Circuit has granted en banc review of this issue in Zarda v. Altitude Express, Inc. (27) The EEOC filed an amicus brief in that case, defending its view that LGBT employees like Donald Zarda are protected by Title VII. (28) The Trump Administration's Department of Justice, however, subsequently filed an amicus brief supporting the opposite interpretation on precisely the grounds rejected by Chief Judge Katzmann, namely, that Congress ratified the older court of appeals cases when it amended Title VII in 1991 and when it rejected bills that would have amended Title VII or created a new statute to protect against sexual orientation discrimination specifically. (29) In an appendix, the Justice Department's brief listed sixty-two bills introduced in Congress between 1974 and 2017 that would have 3addressed, in a variety of ways, the treatment of sexual and gender minorities in the workplace. Like most proposed legislation, a large majority of the bills died in committee, without hearings or any kind of vote. Over the last forty years, congressional committees held hearings on ten of these bills, and three were voted upon by one chamber (failing 49-50 in the first case, passing one chamber in the other two cases). (30)
With such a dramatic split in the circuits and even within the executive branch, the issue should soon reach the Supreme Court. (31) Ironically, the formalism of Chief Judge Wood's and Judge Flaum's approach would be attractive to the Supreme Court Justices (such as Justice Thomas) least inclined, ideologically, to read Title VII to protect LGBT employees and would be an incomplete analysis to some of the Justices (such as Justice Breyer) most likely to read Title VII more broadly. The whole act analysis suggested by Judge Flaum ought to be appealing to Chief Justice Roberts, (32) but would the Chief be willing to interpret a civil...