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!