Wednesday, July 08, 2020

Blackman, Barnett, and the Bostock decision

Andrew Koppelman

Josh Blackman and Randy Barnett argue in National Review that the Supreme Court was wrong to hold that discrimination against LGBT people is sex discrimination.  They claim that Justice Gorsuch’s opinion for the Court misunderstands Title VII of the Civil Rights Act, which forbids employers  to “discriminate against” employees “because of . . . sex.”  They argue that this phrase, in its ordinary meaning in 1964 (when the Civil Rights Act was passed), did not simply mean, as Justice Gorsuch’s opinion declared, treating someone “worse than others who are similarly situated.” 

It is, however, hard to figure out what Blackman and Barnett think the law does prohibit, or how they think they know.

The Court held in Bostock v. Clayton County that if an employer fires women who date women, but not men who date women, it violates Title VII of the Act, which prohibits sex discrimination in employment.  Blackman and Barnett claim that this misreads the statute.  “Had Justice Gorsuch relied on the ordinary meaning of ‘discriminate against’ in 1964, he would have recognized that bias or prejudice had to play some role in the differential treatment.”  The statute “did not merely refer to blindly treating a man differently than a woman. Rather, this standard made bias or prejudice an essential element of the causal injury.”  Evidently – they never come out and say this - they think that the necessary bias or prejudice is absent when an employer fires someone for being gay.

Their argument relies on a study by James Cleith Phillips, which was briefly cited in Justice Alito’s dissent.  Alito explained that Phillips “searched a vast database of documents from that time to determine how the phrase ‘discriminate against . . . because of [some trait]’ was used.”  The study relied on corpus linguistics analysis, which draws upon massive computerized collections of writings from the pertinent period to capture uses of a word or phrase, codes each instance for its meaning and context, and thus aims to ascertain the contemporaneous meaning.

The corpus linguistics method has been shown to be unreliable even with respect to words in use today.  The most common usages don’t tell you what a term means.  They tend to cluster around prototypical meaning, the most common meaning, which comes most easily to the mind of a reasonable person: “bird” prototypically means an animal that can fly. 

The prototypical meaning of “sex discrimination” is employers excluding women from desirable, high paying jobs.  Ordinary language however does not confine terms to their prototypical meaning.  Words don’t work that way.  Otherwise you will conclude that ostriches aren’t birds because they don’t fly. 

The ostrich case shows that meaning often refers to the definition of a word, which encompasses all its logical extensions.  That is the standard approach to Title VII. In Oncale v. Sundowner Offshore Services (1998), an employer argued that Title VII should not be read “literally” to protect against male-on-male harassment, because “homosexual” assault or boys-on-boys hazing was too far afield Congress’s “paradigm case” of a qualified woman not hired “because she is female.”  The Court, in an opinion by Justice Antonin Scalia, unanimously rejected the argument and applied the statutory text.  Like Gorsuch, he followed the words of the law rather than the unenacted intentions:  “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Phillips’s paper struggles to say just what it is that Title VII prohibits.  He concludes that “the operative text refers only to adverse treatment that rests on prejudice (or bias)—i.e., loose generalizations or other unfair beliefs, attitudes (indifference, discounting of interests, distaste, antipathy, etc.)—directed at some or all men, or at some or all women.”

But what counts as prejudice?  In 1873, when the Court held that a state could refuse to allow women to practice law, Justice Bradley wrote that the law was reasonable because the “paramount destiny and mission of woman” was “to fulfil the noble and benign offices of wife and mother.”  He was not guilty of indifference, discounting of interests, distaste, or antipathy.  He was not manifesting favoritism to men, but rather a boneheaded romantic valorization of women.  The modern Court has made clear that benevolent motive does not make sex discrimination permissible.

Phillips doesn’t mention that case, but he does try to reconcile his reading with Price Waterhouse v. Hopkins.  In that 1989 case, the plaintiff was denied a partnership because her hard-charging demeanor, which was valued and rewarded in male employees, made her male colleagues uncomfortable because she did not act as a woman should.  Her supervisor had told her to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."  The Supreme Court plurality wrote that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”  Phillips agrees that an employment action violates the statute if it is “based on the expectation that women will be meek.”  But other gender stereotypes – specifically, the expectation that women must be attracted to men, not women – are fine.  What is the difference?

The plain language of the statute does not draw these distinctions.  Blackman and Barnett offer the latest of a long series of efforts to evade the law’s plain language.

For Phillips and Alito, all the work is being done by the idea that Title VII only prohibits stereotypes that are “unfair.”  Similarly, Blackman and Barnett think that a discrimination plaintiff should have to prove that her mistreatment is “based on bias or prejudice.”  They all think that, in interpreting the statute, judges get to decide, evidently on the basis of nothing but their own gut instincts, which gender stereotypes are fair and which are biased.  And this is offered as a prescription for judicial restraint!

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