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.