Court Expands LGBT Worker Rights by Attacking Originalism

Moshe Z. Marvit April 6, 2017

The case is likely to end up before the Supreme Court. When it gets there, the Court will not only have to address the meaning of “sex,” finally, but also how laws should be read. (Photo by Mark Wilson/Getty Images)

An appeals court ruled in sup­port of LGBT rights this week, revers­ing decades of inter­pre­ta­tion that large­ly allowed com­pa­nies to dis­crim­i­nate against work­ers on the basis of sex­u­al orientation.

In their ground­break­ing deci­sion, nine of 12 judges in an en banc pan­el of the Sev­enth Cir­cuit Court of Appeals said that gay and les­bian work­ers are pro­tect­ed under Title VII. The Hive­ly v. Ivy Tech Com­mu­ni­ty Col­lege deci­sion marks a major break from an inter­pre­ta­tion that exclud­ed sex­u­al ori­en­ta­tion, except in instances where one could make an argu­ment of gen­der non­con­for­mi­ty. That meant that, pre­vi­ous­ly, in order for work­ers to prove dis­crim­i­na­tion under Title VII, they had to allege that they were being dis­crim­i­nat­ed against because they were not act­ing accord­ing to the stereo­type asso­ci­at­ed with their gender.

Kim­ber­ly Hive­ly had been an adjunct for 14 years at Ivy Tech Com­mu­ni­ty Col­lege in Indi­ana. She applied for six full-time posi­tions at the col­lege and, after being denied each, her adjunct con­tract was not renewed in 2014. So, with­out a lawyer, Hive­ly filed a one-para­graph dis­crim­i­na­tion charge with the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion. It stat­ed simply:

I have applied for sev­er­al posi­tions at IVY TECH, full­time, in the last 5 years. I believe I am being blocked from full­time employ­ment with­out just cause. I believe I am being dis­crim­i­nat­ed against based on my sex­u­al ori­en­ta­tion. I believe I have been dis­crim­i­nat­ed against and that my rights under Title VII of the Civ­il Rights Act of 1964 were violated.

She then filed her case in fed­er­al dis­trict court, again bring­ing for­ward the sim­ple argu­ment that Title VII should pro­tect a work­er from being dis­crim­i­nat­ed against on the basis of her sex­u­al ori­en­ta­tion. The dis­trict court was sym­pa­thet­ic to her claim, but explained that Title VII pro­hibits dis­crim­i­na­tion because of sex,” and explained that the court’s prece­dent has held that Con­gress intend­ed the term sex’ to mean bio­log­i­cal male or bio­log­i­cal female,’ and not one’s sex­u­al­i­ty or sex­u­al ori­en­ta­tion. Thus, harass­ment based sole­ly upon a person’s sex­u­al pref­er­ence or ori­en­ta­tion … is not an unlaw­ful employ­ment prac­tice under Title VII.’”

The appeals court reject­ed this long­stand­ing read­ing, stat­ing that it would require con­sid­er­able cal­is­then­ics to remove the sex’ from sex­u­al ori­en­ta­tion.’ The effort to do so has led to con­fus­ing and con­tra­dic­to­ry results, as our pan­el opin­ion illus­trat­ed so well.”

The court fur­ther explained that what­ev­er Con­gress meant in 1964 when it passed the law, or how­ev­er courts have inter­pret­ed the law in the inter­ven­ing decades, it was no longer ten­able to exclude sex­u­al ori­en­ta­tion. Indeed, since the Supreme Court announced in 2015 that the Con­sti­tu­tion pro­tects the rights of same-sex cou­ples, allow­ing sex­u­al ori­en­ta­tion dis­crim­i­na­tion on the job means a per­son can be mar­ried on Sat­ur­day and then fired on Mon­day for just that act,” the rul­ing read.

The major­i­ty (as well as Judge Richard Pos­ner in his con­cur­rence), not only acknowl­edged this impor­tant work­er pro­tec­tion under the law, but also per­formed a full-frontal attack on the forms of legal inter­pre­ta­tion that have become a hall­mark of the con­ser­v­a­tive legal move­ment. The orig­i­nal­ism advo­cat­ed by the late Supreme Court Jus­tice Antonin Scalia, or his pos­si­ble suc­ces­sor Neil Gor­such, says that judges must read laws only as they were writ­ten, and under­stand the words only as the drafters would have under­stood them. Such a view lim­its any inter­pre­ta­tion that expands a law to incor­po­rate instances that the drafters may not have con­sid­ered. Most often such orig­i­nal­ist read­ings lead to high­ly con­ser­v­a­tive, if not reac­tionary, results.

Writ­ing for the major­i­ty, Judge Diane Wood not only defied any orig­i­nal­ist under­stand­ing of the law, but refused to engage the mat­ter on orig­i­nal­ist terms. The rul­ing did not refer to any 1960s dic­tio­nar­ies to deter­mine the full mean­ing of sex,” as so many judges do these days when attempt­ing to deter­mine the mean­ing of even sim­ple words. Instead, it acknowl­edged that changes in soci­ety, and the word’s mean­ing, nec­es­sar­i­ly means that the law must change.

It is there­fore nei­ther here nor there that the Con­gress that enact­ed the Civ­il Rights Act in 1964 and chose to include sex as a pro­hib­it­ed basis for employ­ment dis­crim­i­na­tion (no mat­ter why it did so) may not have real­ized or under­stood the full scope of the words it chose,” the rul­ing read. This dis­re­gard for the orig­i­nal intent of the law’s drafters, and recog­ni­tion that laws should be read in today’s con­text, is a major shift from the orig­i­nal­ist analy­sis that Jus­tice Scalia helped spread. For too long, even judges who dis­agreed with orig­i­nal­ism still chal­lenged the con­cept on its own terms by refer­ring to old dic­tio­nar­ies and argu­ing that the mod­ern read­ing was implied by the orig­i­nal meaning.

In Hive­ly, the court held that the mod­ern con­cept of sex is broad enough to include both gen­der and sex­u­al ori­en­ta­tion. Any oth­er read­ing, no mat­ter what the 1964 Con­gress intend­ed, has led to absurd results in today’s world.

Judge Pos­ner went even fur­ther in his attack on the orig­i­nal­ist under­stand­ing of the law. Using a cum­ber­some­ly-named approach he calls judi­cial inter­pre­tive updat­ing,” he argues that judges can inter­pret texts by giv­ing them a mean­ing that infus­es the state­ment with vital­i­ty and sig­nif­i­cance today.” He acknowl­edges that in 1964, the term sex’…undoubtedly meant man or woman,’” and that homo­sex­u­al­i­ty, male or female, did not fig­ure in the minds of the leg­is­la­tors who enact­ed Title VII.” For an orig­i­nal­ist, that would be the end of the analy­sis. But Pos­ner finds such an approach shal­low. It forces an anachro­nis­tic view of sex onto the present and, in the present, “‘sex’ has a broad­er mean­ing than the gen­i­talia you’re born with,” he wrote.

It is not often that a case address­es nuanced ques­tions of sex, gen­der and iden­ti­ty, while also ques­tion­ing one of the foun­da­tions of con­ser­v­a­tive legal thought. This deci­sion is like­ly not the last word. The Sev­enth Circuit’s deci­sion comes on the heels of the Eleventh Cir­cuit find­ing that sex­u­al ori­en­ta­tion dis­crim­i­na­tion claims can­not be brought under Title VII and the Sec­ond Cir­cuit falling back on gen­der stereo­typ­ing for sex­u­al ori­en­ta­tion claims. Because of the cir­cuit split and the impor­tance of the Sev­enth Circuit’s deci­sion, the case is like­ly to end up before the Supreme Court. When it gets there, the Court will not only have to address the mean­ing of sex,” final­ly, but also how laws should be read.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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