Showdown Coming over Antidiscrimination Law
A recent prediction in this space turned out to be premature. In my post about the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College—which held that the word “sex” in Title VII of the Civil Rights Act of 1964  includes “sexual orientation”—I forecast that the U.S. Supreme Court would grant cert and reverse the Seventh Circuit. For unknown reasons, the defendant-employer in Hively decided not to seek appellate review of the controversial ruling, foiling my prophesy. Instead, Ivy Tech Community College in Indiana will defend Hively’s employment-discrimination lawsuit on the merits. Commentators on Hively have noted that “The Seventh Circuit is the highest court in the United States to advance such a holding, although the EEOC has been advancing such a position for some time.”
More precisely, since July 15, 2015—not such a long time ago, really—the Equal Employment Opportunity Commission has blatantly misinterpreted the text of Title VII in this way. That was when, in defiance of prevailing judicial decisions, and reversing its own longstanding position, the commission issued a decision conflating “sex” with “sexual orientation,” despite the fact that Congress has repeatedly declined to amend Title VII to add “sexual orientation” as a protected characteristic, even as it has enacted other statutes separately covering both sex and sexual orientation.
From a textualist perspective, it is simply absurd to construe Title VII as banning discrimination on the basis of sexual orientation. Under President Obama, a Democratic-dominated EEOC had begun this doctrinal somersault in 2012, when it issued a decision holding that Title VII’s reference to “sex” covers transgender status.
The community college’s decision to forgo a cert petition is not the end of the issue. Indeed, the activist position advanced by the EEOC (and now shared by the Seventh Circuit in Hively) is now on a collision course with the Trump Justice Department, which maintains that the unambiguous text of Title VII covers only “sex” and “does not reach discrimination based on sexual orientation.” This showdown, in a case pending before the Second Circuit, promises to be particularly dramatic because the EEOC and Justice have filed dueling amicus briefs taking diametrically opposed positions regarding the correct interpretation of Title VII. As in Hively, the panel decision in Zarda correctly ruled that Title VII does not cover discrimination on account of sexual orientation. However, inspired by the Seventh Circuit’s en banc hijinks, the Second Circuit granted rehearing en banc in Zarda.
The Justice Department’s brief pointedly rebukes the EEOC, reminding the Zarda court that the EEOC “is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” The full Second Circuit will have to choose sides, in either event making review by the Supreme Court more likely. When the issue eventually reaches the High Court, either in Zarda or another case, I remain confident that the tortured “reasoning” used by the EEOC and the Hively majority will be rejected.
In the meantime, the Left—blindly pursuing the LGBT agenda—is apoplectic that the Attorney General appointed by a duly elected President of the United States would dare to contradict a cadre of unelected agency bureaucrats regarding the interpretation of a federal statute, even if the agency is abandoning a position it held for 40 years. The issue isn’t—or at least shouldn’t be—whether workplace discrimination on the basis of sexual orientation ought to be prohibited as a policy matter, but rather how such a change in the law should be effected: which branch of government legislates policy. The Justice Department’s brief argues that:
The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.
On the other hand, proponents of gay rights have become impatient—tired of the pesky politics that prevent them from securing the policy outcomes they have long sought. As Ken Klukowski reports,
In recent years, lawyers for liberal activist groups shifted from their perennial efforts to amend federal civil rights laws to declare sexual orientation and gender identity to be specially protected categories like race, arguing now that legislative changes are not needed, because current laws against sex discrimination already cover those newer social disputes. Under President Barack Obama and Attorneys General Eric Holder and Loretta Lynch, the U.S. Department of Justice adopted those positions over the past several years. [Emphasis added.]
It is sobering to realize that Progressives no longer take the concept of law—honestly ascertaining the meaning of a text—seriously. Likewise for the basic premise of the Constitution that power emanates from the people. Only results matter; as long as the desired objectives are realized, the Left is indifferent to whether the rules were legitimately enacted.
We expect such crude nihilism from diehard political activists, and the obdurate ideologues who control the media, but shouldn’t the judiciary and legal academia be more committed to the integrity of lawmaking? Apparently not. Group Think is a powerful thing, and prevailing intellectual fashions strongly favor recognition of gay rights, with or without congressional assent. So the judicial oligarchy, cheered on by Progressive media, find clever ways to subvert the plain meaning of Title VII. Judges and law professors are nothing if not clever, and the sophistry they exhibit in distorting the plain meaning of the word “sex” is truly astonishing.
The legal columnist at Reuters, Alison Frankel, praises the en banc opinion in Hively as “a really shrewd majority opinion, relying on Supreme Court decisions by Justice Antonin Scalia.” Frankel is apparently referring to the unfortunate—and unanimous!—opinion Scalia authored in the 1988 case of in Oncale v. Sundowner Offshore Services, recognizing a claim under Title VII for “same-sex” harassment, even though the term “harassment” is not even mentioned in the statute. The legal concept of “sexual harassment” is explicitly derived from sex discrimination, and arose in the context of male-female predation, which conferred the required nexus to “sex.” “Same-sex” harassment is an oxymoron under Title VII—which is not concerned with boorish behavior, only discrimination based on sex.
Sadly, the Supreme Court’s confused Title VII “jurisprudence” contains many fatuous decisions, including authorizing claims based on disparate impact analysis (Griggs v. Duke Power, 1971) and “sex-stereotyping” (Price Waterhouse v. Hopkins, 1989). Most of these misguided theories were instigated by the EEOC, illustrating why that agency’s tendentious interpretation of Title VII should be taken with a grain of salt. And the Supreme Court further muddied the doctrinal waters in 2015 when it concocted a constitutional right to same-sex marriage in Obergefell v. Hodges. Errant High Court decisions can provide cover to activist lower court judges, who eagerly extrapolate flawed precedents to new frontiers.
That gambit won’t work in Zarda. When it comes to discrimination in the workplace based on sexual orientation, the meaning of Title VII is crystal clear: It is not covered. “Sex” and “sexual orientation” are not the same thing. From 1974 to the present, every Congress has declined to amend Title VII to include sexual orientation as a protected category, rejecting over 50 different proposals. The EEOC and Progressive judges think they have an effective work-around, and think they can get away with it—as they did in Hively.
More is at stake here than mere semantics and casuistry by result-oriented judges and EEOC bureaucrats. The issue is whether the nation is still a republic governed by its elected representatives, or a feudal fiefdom in which citizens have been reduced to serfs, with the Deep State acting as lords of the manor. The only legitimate way to expand Title VII to include sexual orientation is by statutory amendment, not judicial edict. As Ed Whelan has noted in National Review, “It’s the ordinary legislative process in Congress, not the bureaucratic machinations of EEOC ideologues, that ought to decide this issue.”
 853 F.3d 339 (7th Cir. 2017).
 42 U.S.C. section 2000e-2(a).
 The panel decision in Hively pointed out that “Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation,” and provided relevant citations in footnote 2.
 Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017).
 523 U.S. 75 (1998).
 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).