Textualism, Title VII, and "Discrimination . . . Because of Such Individual's Sex"

Does the text of Title VII prohibit discrimination on the basis of sexual orientation or transgender status?

At the beginning of the term, the Supreme Court heard oral argument in a trio of cases considering whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or transgender status. We are still waiting for the opinions in these cases.

Much commentary on these cases noted that the interpretive method generally favored by the court's conservatives (textualism) would seem to produce a "liberal" outcome (such discrimination is prohibited by Title VII), whereas consideration of purpose, legislative intent and legislative history would produce the more "conservative" outcome (such discrimination is not prohibited).

The textualist argument was made well by Professor Pamela Karlan at oral argument:

When a employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee's failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.

Consideration of Congressional purpose and intent, however, shows that sex discrimination and sexual orientation discrimination were understood as different things. Moreover, some would argue it is implausible that Congress sought to prohibit sexual orientation discrimination at a time when homosexual activity was illegal in much of the United States and was a basis for expulsion from the military.

Contrary to the conventional way these cases are often presented, James Phillips, a fellow at the Stanford Constitutional Law Center, argues that there is textual evidence supporting the employers' position that the prohibition of "discrimination . . . because of such individual's sex" does not cover sexual orientation discrimination. Here is the abstract of his short essay:

This short essay focuses on a linguistic (and therefore textualist) principle overlooked in the trio of Title VII cases currently before the U.S. Supreme Court: compositionality. By taking that principle seriously–a principle the Supreme Court has recognized in some form for a century–the essay uncovers corpus linguistic and dictionary evidence contemporaneous to the enactment of Title VII that sheds light on the relevant statutory language. That light provides an answer to the interpretive question the Court is facing.

Title VII makes it unlawful "to discriminate against any individual . . . because of such individual's . . . sex." Many observers seem to drop the word "against" and focus just on "discriminate." Or if they do take "against" into account, they nonetheless fail to read the whole operative statutory phrase—including "discriminate," "against," and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give "discriminate" and "against" the meaning each of them would have if it existed apart from the rest of the phrase. This "dissection" approach is most obvious in the most precise and careful formulations of the plaintiffs' central textualist argument, as this Essay will show.

But that approach, as I will also show, violates the linguistic principle of compositionality. So it produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument.

That is because, as it turns out, the phrase "discriminate against . . . because of [some trait]" was a linguistic unit (a composite) by the time of Title VII's enactment, which makes the principle of compositionality relevant. And read as a composite, the phrase had more semantic content than one could glean from separately analyzing and then amalgamating its three parts ("discriminate," "against," and "sex"). While a "dissection" reading might suggest that Title VII covers any adverse treatment that even adverts to sex, as plaintiffs suppose, a linguistically superior reading (taking compositionality into account) proves that the operative text refers only to adverse treatment that rests on prejudice or bias—i.e., unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular (whether the beliefs be outright falsehoods or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy). And this defeats the plaintiffs' textualist argument. Whatever the legal merits of their case overall, their textualist case fails because it violates a basic linguistic principle as applied to linguistic data from the era. But as it happens, the prejudice-based conception of discrimination that is required by the text properly read, also fits well with all the Court's precedents on sex discrimination.

To establish the above points about the text, this Essay appeals only to (1) dictionaries from the time of Title VII's enactment, and (2) systematic data on linguistic usage from the same period (which this Essay draws from the Corpus of Historical American English, containing 24 million words' worth of naturally occurring text that provides a balanced snapshot of American English usage).

Ryan Nees, a rising 3L at Stanford Law School, takes issue with Phillips account, and has authored an extensive post on the blog of the American Constitution Society. Here is a taste, summarizing the response:

Phillips's intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners' textualist reading depends upon "separately analyzing and then amalgamating . . . three parts" – namely, the words "discriminate," "against," and "sex." Analyzed in that way, the LGBTQ petitioners may have a point, and  Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase "discriminate against," which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.

Corpus linguistics could be a useful resource to identify idiomatic meaning of this sort. But the surprising consequence is that, the more idiomatic the meaning uncovered, the more purposivist the reasoning starts to appear. And for reasons I explain, Phillips's analysis is unpersuasive on its own terms, relying on a limited linguistic corpus while overlooking any possible legalistic meaning that prevailed at the time. It seeks to create a new term of art even as textualists have traditionally disfavored doing so. As the corpus-linguistic method rises in popularity as a tool of statutory interpretation, the Title VII case study demonstrates its risks.

Phillips, for his part, has posted a reply on the Originalism Blog.