Sunday, April 9, 2017
One of the advantages of being around a discipline for a long time is the irony of seeing once “extreme” arguments become accepted. In the first edition of our Employment Discrimination casebook in 1982, we made the (obvious) argument that discrimination on the basis of sexual orientation was sex discrimination because an employee, say, male, was being adversely treated for actions (sex with a male) that would draw no objection were the employee female.
Fast forward to 2017, and that’s now the law of the land, at least in the Seventh Circuit thanks to Hively v. Ivy Tech Community College of Indiana. And that simple switch-the-sexes comparison was one of the two prongs of the majority opinion (the other being transference to the gender context of Loving v. Virginia’s holding that discrimination on the basis of the race of one’s partner is race discrimination).
While the prevailing side in Hively garnered two other opinions adding additional routes to the same result (including a radical attack on the whole concept of original public meaning in statutory interpretation by Judge Posner), I was most taken with the simple logic of the majority’s “comparative” approach, i.e., if we switch the sexes and the result is not the same, it’s sex discrimination.
Why did it take more than 35 years for this logic to prevail? More to the point, why was that argument viewed as naïve, hopelessly technical for most of Title VII’s history? The obvious answer is that, to quote Holmes, the life of the law is not logic, it’s experience, and even those favoring LGBT rights may have found the straightforward logic too sterile and rarified in a system that favors more nuance in statutory interpretation.
But there’s another perspective from the law’s encounter with logic in this arena that may be of some interest. Judge Sykes, writing for three judges, dissented, largely drawing from “original public meaning” theory. In a passage that captures the essence of his objection, he wrote:
Is it even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination "because of sex" also banned discrimination because of sexual orientation? The answer is no, of course not.
I do understand, and agree, that if that question were asked of proponents of Title VII in 1964, they would have said no. So in that sense, the original public meaning of “sex” doesn’t reach sexual orientation.
But how does that analysis fit with the logical argument made by the majority? Are we assuming that the “person competent in the English language” is “reasonable” but not logical? That he or she is incapable of working out the implications of statutory language beyond the most intuitive meaning of the words? Another way to ask the question is whether the reasonable person is presumed to competent in English but not competent in simple logic.
I don’t know if there are good answers to these questions, but I do think they raise even more problems for original public meaning advocates, problems thrust into national attention by Hively.