Title VII's Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections

The Equal Employment Opportunity Commission (EEOC) and the Seventh Circuit have taken the position that Title VII’s bar to employment discrimination “because of * * * sex” applies to discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons. This interpretation follows from the ordinary meaning of the statute, read as a whole and in light of its purpose. If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner. It is hard to deny that “sex” is not at least one “motivating factor” in the employment decision, which is all that the current version of Title VII requires for liability. Moreover, this reading of Title VII accords with its purpose, which is to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities. Treatment of anti-gay discrimination as a form of sex discrimination is not a new idea, but for several decades most federal judges have rejected it, and most Members of Congress have ignored it. This is an idea that has ripened over time, however. New circumstances have rendered the argument not only plausible but compelling. The biggest new development has been social facts and assumptions about sex minorities: In 1964, employees thought to be “homosexuals” were outside the scope of the merit-based workplace, because Americans believed them to be mentally ill, psychopathic, and predatory. Today, those views have been discredited, and this connects with a second new circumstance, a radically different constitutional baseline. As late as 2003, “homosexuals” could constitutionally be considered presumptive criminals, but the Supreme Court has for twenty years been developing a constitutional norm that gay people cannot be excluded from the law because of who they are. Indeed, the Court has ruled that the constitutional right to marry applies to same-sex (i.e., “homosexual”) couples. It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. A third new development has been the formal evolution of Title VII itself. Judges as well as commentators have largely ignored the “statutory history” of Title VII — its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court. The Trump Administration and other skeptics of a broad reading of sex discrimination maintain that Title VII divides the world into males and females and does nothing more than require employers to apply the same rules to both sexes; anti-homosexual workplace exclusions or harassment operates equally on both sexes (i.e., both lesbians and gay men are harmed). But the Supreme Court has authoritatively interpreted Title VII to bar gender stereotyping, which also operates to protect both male and female employees alike. Congress ratified and expanded upon that interpretation in its 1991 Amendments to Title VII, which also reaffirmed its statutory mission to ensure a merit-based workplace free from sex-based decision making, even when sex is but one “motivating factor” in the discrimination. Because LGBT persons are gender minorities and because anti-LGBT discrimination is rooted in rigid gender roles, Title VII today bars discrimination because of the sex of the employee’s partner/spouse, just as it bars discrimination because of the race or religion of his or her partner/spouse.