Balkinization: Justice Alito’s desperation move

Justice Alito’s desperation move

Andrew Koppelman

In the Title VII cases just argued in the Supreme Court, the argument that discrimination against gay people is sex discrimination is straightforward. The Civil Rights Act of 1964 bans discrimination based on sex, and says that discrimination means any treatment of a person in a manner which but for the person’s sex would be different. LGBT discrimination is an instance of such treatment: an employee who dates women is “homosexual” only if that employee is female.

In yesterday’s oral argument, Justice Alito offered a clever hypothetical that, he thought, might get around this logic.

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?

He then pressed Stanford Prof. Pamela Karlan, the attorney for the gay claimants, on the hypothetical “case that there would be no liability in the situation where the decisionmaker has no knowledge of sex.”

Karlan responded: “If there was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex.” But she pointed out that no case like that had ever been reported, and that in the cases actually before the Court, the employer did know the employee’s sex and would not have taken the adverse action had the employee’s sex been different.

Since the hypothetical matters so much to Alito, it is worth pointing out that it does not get him where he wants to go. Karlan is one of our greatest constitutional scholars, but here she conceded too much. Even in the hypothetical case, the sexual orientation discrimination would be sex discrimination.

To see why, consider another hypothetical case. I’ll make some small modifications in Alito’s language:

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 [married to a person of a different race]. 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 [race], where the employer doesn't even know the [race] of the individual involved?

I take it that no one would suggest that this case does not involve race discrimination. And that is in fact settled law under Title VII.

The analysis would not change if the employer claimed that it was merely discriminating against “miscegenosexuals,” and that the law’s protection of African-Americans should not be extended to an entirely different category of people. The only difference between the two responses is that here the neologism is unfamiliar. The flaw in both responses is the same: in any individual case, a person is discriminated against for being the wrong race or sex. The fact that the hypothetical employer has set up an automatic-discrimination protocol does not change that.

The parallel-discriminations move also proves way too much. Suppose an employer decides to demand equally of men and women that they “comport themselves in a manner consistent with the traditional understanding of their gender.” That of course returns us to the world of Hopkins v. Price Waterhouse, in which some high-paying jobs are denied to women because performing them competently is unfeminine.

Alito’s hypothetical is, in short, a desperation move, looking for some way to avoid the obvious implications of the statute’s plain text. The fact that he made it is evidence that the sex discrimination argument is mighty strong on the merits.

Which, of course, does not necessarily mean that it will win.

Posted 9:27 PM by Andrew Koppelman [link]