Justice Brennan rejected the "literal" meaning of Title VII in United Steel Workers v. Weber

This landmark Title VII case relied on the "familiar rule" from Church of the Holy Trinity v. United States.


Randy Barnett and I recently published a commentary of Bostock v. Clayton County. We criticized Justice Gorsuch from building a textualist framework on top of precedents that did not take text seriously. In particular, Justice Gorsuch relied indirectly on Justice Brennan's plurality decision in Price Waterhouse v. Hopkins. We wrote:

Justice Gorsuch committed errors of both source and time. He determined the ordinary public meaning of a 1964 statute by relying on case law from decades later.

Consider another significant Title VII case, also authored by Justice Brennan: United Steel Workers v. Weber (1979). This case held that race-conscious affirmative action plans were consistent with Title VII. The majority expressly rejected the "literal" meaning of the phrase "discriminate against . . . because of . . . race." Justice Brennan explained:

In this context, respondent's reliance upon a literal construction of §§ 703(a) and (d) and upon McDonald is misplacedSee McDonald v. Santa Fe Trail Transp. Co., supra at 427 U. S. 281 n. 8. It is a "familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." Holy Trinity Church v. United States, 143 U. S. 457143 U. S. 459 (1892). The prohibition against racial discrimination in §§ 703(a) and(d) of Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose.

Chief Justice Burger responded in his dissent:

Oddly, the Court seizes upon the very clarity of the statute almost as a justification for evading the unavoidable impact of its language. The Court blandly tells us that Congress could not really have meant what it said, for a "literal construction" would defeat the "purpose" of the statute -- at least the congressional "purpose" as five Justices divine it today. But how are judges supposed to ascertain the purpose of a statute except through the words Congress used and the legislative history of the statute's evolution?

Justice O'Connor offered this concise summary of Weber in her concurrence in Johnson v. Transportation Authority:

In Steelworkers v. Weber, 443 U.S. 19399 S.Ct. 2721, 61 L.Ed.2d 480 (1979), this Court held that § 703(d) of Title VII does not prohibit voluntary affirmative action efforts if the employer sought to remedy a "manifest . . . imbalanc[e] in traditionally segregated job categories." Id., at 197, 99 S.Ct., at 2724. As Justice SCALIA illuminates with excruciating clarity, § 703 has been interpreted by Weber and succeeding cases to permit what its language read literally would prohibit. Post, at 669-671; see also ante, at 642-643 (STEVENS, J., concurring). Section 703(d) prohibits employment discrimination "against any individual because of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(d) (emphasis added). The Weber Court, however, concluded that voluntary affirmative action was permissible in some circumstances because a prohibition of every type of affirmative action would " 'bring about an end completely at variance with the purpose of the statute.' "This purpose, according to the Court, was to open employment opportunities for blacks in occupations that had been traditionally closed to them.

Brennans' anti-literalism is the exact opposite of the approach Justice Gorsuch used. Yet, Gorsuch's textualism was premised on the anti-textualist precedents from Justice Breyer. Thus, we deem Gorsuch's approach "half-way textualism."

Jurists on all courts need to grapple with the relationship between stare decisis and originalism/textualism. At a minimum, judges should  acknowledge how much of their decisions are mandated by precedents, and how much of their decisions extend those precedents. I wrote about this important dynamic here.

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  1. Wait, so now your criticism is that Justice Gorsuch was *too* textualist?

    1. Justice Gorsuch’s opinion was result driven. Anyone who fails to see that is being dishonest.

      1. Given Gorsuch's dissent in Pavan and concurrence in Masterpiece Cakeshop, I find it highly unlikely he was motivated by the result.

        1. Gorsuch's Pavan dissent and Masterpiece Cakeshop concurrence were works of fiction.

          It almost seemed as if he went out of his way to cough up the strangest hot take possible.

          There's no such thing as a gay wedding cake!

  2. Some things are so clear and obvious that only great minds can see through them to find the real substance. To wit: affirmative action does not discriminate against people, it discriminates for people. Somehow that changes everything.

    1. And Joe Sixpack is supposed to retain his respect for the law.

      1. Your betters do not want your respect. They merely expect your continuing compliance.

    2. Which means with respect to college admissions you would also have to oppose geographic diversity and legacy which have benefited whites for decades. So the Bush/Cheney ticket featured two affirmative action admissions to Yale.

      1. Explain how legacies benefit whites.

        1. Duuuuuuuuuh.

        2. Whites have disproportionate money. Wealth is inherited, so no one whose family has come into money in the past 20-40 years will be a legacy.

      2. No. Being color blind means ignoring race altogether. Stop documenting it, stop asking for it on forms, stop differentiating by it.

        Your list of supposed racist qualifiers is just supposition, and so vague and subjective that it means whatever you, a prosecutor, a jury, and a judge want it to mean. As such, it is useless.

        What ought to be done is go back to freedom of association. Remember that? Basic human right? Let bigots be bigots. If they want to lose business by rejecting customers for bigoted reason, let them. Whatever business they gain from other bigots will be more than made up for by those who boycott bigots.

        1. It amazes me that some still use this talking point.

          If I may add, the above person only believes in freedom of association for employers and business groups. Others are denied, and you feel they should accept your violence.

          History has shown us what business gains, and why your simple minded talking points are wrong.

        2. And we will ignore George Wallace winning 5 states when Trump and Biden were adults. So going forward race doesn’t matter and if it mattered in the past who cares...because you benefited from it when race mattered but now that it might not benefit you race doesn’t matter???

    3. We see here the different perspectives of someone who was raised in a privileged test tube (Gorsuch) and someone who had a hard life and personally saw the bloody consequences of badly decided Supreme Court decisions (Brennan).

  3. I see we're on to the "no true Scotsman" phase of mourning.

  4. This is the same court that decided "exchange established by a state" actually meant "exchange established by a state OR by the Federal government", so the Spirit of Brennan's opinion in Weber lives on.

  5. Okay, I give up.

    What does the United Steelworkers opinion have to do with Bostock?

    1. "Words mean whatever we want them to mean."

      1. That does appear to be Josh Blackman's take. Brennan was seriously wrong in United Steel Workers v. Weber because he took into account the purpose of Title VII which was to remedy historic discrimination against black people, but Gorsuch is wrong because he interpreted text without any of the same legislative purpose or history (that is, the inclusion of "sex" without debate) literally?

        I know Blackman's usual posts are too sycophantic for him to take seriously (as opposed to currying favor with the current administration), but this is just ludicrous. At best, he has established that the prevailing interpretation of the plain text was that, under Title VII, an employer may discriminate in favor of historical disadvantaged groups in limited circumstances. This says nothing about discrimination, such as in Bostock, where the discrimination isn't meant to help any historically disadvantaged group. And there is zero legislative history supporting the proposition that discrimination on the basis of sex was permissible when, as in Bostock, it had no remedial purpose at all.

        Blackman (and presumably Barnett, much to his embarrassment) are arguing for a new standard inconsistent with the plain meaning of the text and precedent (including United Steel Workers). This isn't originalism or textualism. This is a results-based quest for a do-over of several decades of law.

        It's a statute. Stare decisis and reliance interests dictate that you change the statute if you want it to say something different. You don't get to judicially rewrite it because you've now discovered the One True Meaning of text that unambiguously says what Gorsuch says it says. I though these people were against legislating from the bench.

        1. I though these people were against legislating from the bench.

          Which violates the principle government isn't supposed to expand its powers without permission from democracy, either by changes to the law, or amendment when seeking to invade a new domain.

          I guess democracy is only a holy grail rationalization when it doesn't get in your way.

        2. "...in Bostock, where the discrimination isn’t meant to help any historically disadvantaged group."

          Maybe I'm misunderstanding you, but are you saying gays have not historically been discriminated against in employment?

          1. Gays definitely are a historically disadvantaged group. The discrimination in Boystock was not for the purpose of helping them, but hurting them.

            Brennan wrote, in United Steel Workers that taking the language of Title VII literally would invalidate remedial programs (e.g., affirmative action) that involve consideration of a protected category in hiring decisions, but the purpose of the statute indicated that such remedial purposes may be lawful notwithstanding they violate the literal letter of the law.

            Blackman concludes that this establishes that the text of Title VII should not be applied literally, generally. He concludes, therefore, we shouldn't take the statute literally where the discriminatory purpose is to hurt a marginalized group. He can't really believe this absurdly tenuous line of logic.

    2. My sentiments exactly. Maybe Justice Gorsuch and Justice Brennan... gasp... have different rubrics of interpretation?

  6. It's painfully clear that politics matter, not law.

    1. For Blackman and Barnett, I know right?

    2. That seems to have been the point of this blog -- and the larger Federalist-Heritage-Olin-Bradley-Scaife world -- from inception.

  7. Scalia’s absurd liberal textualist Heller opinion can also be easily picked apart...so that seems to be a feature of liberal textualism. Bottom line—if you have a 180 IQ get a STEM degree and use your big brain to build a space ship or cure cancer or just about anything other than interpreting an over 200 year old document.

  8. Blackman makes a fair criticism about Gorsuch relying on Price Waterhouse while ignoring Weber. But, Blackman the
    leaves us hanging by not weighing on how he thinks textualism and stare decisis should have worked in this case.

    1. Stare decisis is Latin for “when convenient”.

    2. This is the only citation to Price Waterhouse in Gorsuch's opinion:

      Title VII's message is “simple but momentous”: An individual employee's sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion).

      So the claim that Gorsuch "relied indirectly" on it seems like one that needs a little more development.

      1. Per the OP:

        Justice Gorsuch relied indirectly on Justice Brennan's plurality decision in Price Waterhouse v. Hopkins

        In particular, Gorsuch referenced Burlington which relied on Price Waterhouse.

  9. Ultimately judges will tend to do what the intent of the law was for it to do. Sometimes they will say that outright, which is the case in the 1970's interpretations of the Civil Rights Acts. Other times, they will hide behind some shadow of justification. But the usual conclusion is what the judge *thinks* the law was supposed to do.

    For instance, present an otherwise solid criminal case but with some demonstrable bad police conduct. The judge might not outright suppress the evidence, but will usually find some way to "make it go away." Even if that means finding the part guilty but then imposing a rather light sentence.

    Trial court judges use their relationships with the local bar to find chamber based ways of making this happen. Intermediate appellate judges will use more formal means. Judges on courts of last resort tend to not shy away from constitutional ways of doing the dirty work.

    In the end the bench and bar are trained to think through things using logic and rationality. The secondary concern is political, which sometimes become the primary point to be made, but usually if you can make the most sound, logical, fair, and rational claim you will prevail about 80% of the time.

    I think in Bostock the conclusion was drawn using this and the ends is just ended up being what is the hatchet job the most justices would get them to sign on to the opinion.

    If you doubt this in 2019 if you asked any reasonable person on the street - "do you think a private company should be able to fire a person who becomes know as being homosexual because they married their same sex partner?" And the answer given by a broad cross section of the population is going to be "no."

    1. Have you followed the Zion Williamson case? The obvious solution is to find for the plaintiff with damages of $1.

    2. 'reasonable person'

      1. Most "reasonable people" are not rabid left wingers or libertarians.

    3. How about. "I think Congress needs to change the law. The courts need to rule on what the law IS, not what they want it to be".

      1. Yeah sure that work in civics class and sounds really good in a debate. Congress ought to make the law and courts ought to interpret it. Don't get me wrong in an ideal world that is how it would work. Bostock would have never got to the Supreme Court because Congress probably would have amended the Civil Rights statutes at some point before 2020. And I imagine Republicans really wish they did because that was their shot to put in religious liberty protections. Now, well, you think Democrats are going to play "lets make a deal" to get it into the law now the Supreme Court did the dirty work? Nope.

        1. If only Republicans were in a strong bargaining positions because, say, hypothetically, the controlled two of the three veto points in the legislative process!

          Let's face it, no one in the Republican Senate caucus has been interested in making laws for the better part of a decade. Strictly wrecking and obstructing.

          Of course, that doesn't explain why House Democrats keep churning out bills that no one will ever look at again. Talk about grandstanding. But that's a conversation for another day.

  10. The linked national review article says that "discrimination because of sex" implies bias or prejudiced, echoing the Kavanaugh's dissent's claim that there are "two distinct biases" surrounding sex and sexual orientation.

    But this just isn't true. The belief that women properly date men, and men properly date women, is just as much a sexed-based bias as the idea that women should work at home and men should work outside the home.

    The reason that in 1964 few people thought that sex discrimination encompassed sexual orientation discrimination was the prevalence of this particular bias.

    1. I agree that the belief that women properly date only men is a sex stereotype, but I'm not persuaded it is a bias against women.

      That being said, the problem with Blackman's position is the likelihood he must reject Price Waterhouse, Oncale and accept Weber (rejecting Ricci). He hasn't told us what he thinks of these precedents.

      1. "...women properly date only men is a sex stereotype, but I’m not persuaded it is a bias against women."

        It's not a bias against women (in this instance). The bias is against the comparator, a gay man who dates only men.

        Both date men. The female employee keeps her job. The male employee gets fired and escorted out of the building. The different treatment in employment is "because of...sex."

  11. The CRA has the word “religion” in it. At the time the law was signed Scientology would not have been considered a religion but today it enjoys just as much respect as religions like Christianity and Islam. So should Scientology be covered by the CRA when it wasn’t considered a religion in 1964?

    1. today [Scientology] enjoys just as much respect as religions like Christianity and Islam


  12. Yes, I can't believe Gorsuch didn't rely on the reasoning of noted textualist William Brennan (who probably would have voted with Gorsuch as well because he would have viewed this as a remedial statute designed to prevent workplace discrimination and should be construed broadly for that protection).

  13. Just so I understand:

    Gorsuch purports to be a textualist in Bostock;
    Brennan advances a purposivist interpretation in a Title VII case not discussed in Bostock;
    Gorsuch cites a different Brennan Title VII opinion in Bostock;
    therefore Gorsuch is a half-assed textualist?

    1. Blackman previously argued that Gorsuch's textualism is half-way because it relied on Brennan's purposivist opinion in Price Waterhouse. In this post, he further highlights that criticism by asking why did Gorsuch choose to rely on Price Waterhouse and ignore Weber.

  14. Bostock, p. 10: "Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision."

    Interesting that the Court adopts an analytical framework that treats transgender people as what they were identified as at birth rather than their current identity (I wager this phrasing, which I'm adopting here, resulted from some wrangling). An employer is at fault for treating a (transgender) female and a (non-transgender) female differently because one of them was previously identified as male. The discrimination is supposedly due to "traits or actions" tolerated in one but not another, but such discrimination is based on sex only if that transgender person is treated by the court as what they were born as. Otherwise, an employer is treating one woman differently than another -- which wouldn't necessarily be sex discrimination. Or is the Court saying merely that where sex is in the mix for an employer's decision, it is verboten?

    Under this framework, can sex-based dress/grooming rules survive? (Not as exciting as bathrooms and locker rooms, but it is an issue more employees have encountered). Such rules are generally permitted on the theory there is not an unequal burden on the sexes. If a (non-transgender) male wishes to have long hair, contrary to an employer's rules, does a court ignore the under-girding logic here and reject the claim because the employee is not transgender? Or is an argument feasible that he is not being treated equal to others born male who may identify differently now? Or because sex is in the mix, is the rule invalid? Or does a generally more strict rule applies because he is being treated differently than a woman?

    1. I'm not sure what it is that confuses you. Difference in treatment based on the sex a person identified in the past is still difference in treatment based on sex.

      1. Well you've made an assertion that doesn't directly address the nature of the Court's analysis I quoted or any of my questions.

        To understand the confusion, you will have to think about it more deeply and seriously consider what the Court means by: "the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth."

        What traits or actions are tolerated in the non-transgender female employee that are not tolerated in the transgender female employee?

    2. They were pretty clear in this ruling. But for your sex the act would be allowable is discrimination. Women's only scholarships, women's only sports leagues, sex based bathrooms, all those are but for your sex, and under the new ruling will need to be eliminated. Someone should really starting suing and make sure to quote heavily from this decision in their arguments.

  15. In fairness, the conservative justices consistently rejected Brennan’s view and opposed affirmative action based on a more textualist approach. However, Gorsuch wouldn’t have a majority without the court’s liberals, who agree with Brennan.

  16. Six hypotheticals.

    1. An employer refuses to hire bisexuals, people who date both men and women, whether male or female. Survives Bostock?

    2. An employer refuses to hire people who participate in “genital mutilation,” defined to include transgender surgery, whether male or female. Survives Bostock?

    3.,Same as 2 but also includes makeup or hormones not typically worn by cis people.

    4. Students at a frat party wear blackface. Protected as transracial behavior under Bostock? If your answer to this is different from your answer to 2 and 3, why?

    5. Plaintiff claims discrimination under the disparate impact theory alleging defendant hired 10 people, all male, all less qualified for the job than her. Defendant denies they are male and demands proof. Plaintiff offers the usual proof that would have been offered before Bostock, including their appearance and behavior. Defendant moves not just for summary judgment but sanctions, arguing Plaintiff has offered not evidence but unlawful gender stereotypes. Should defendant win and get sanctions? What evidence, if any, could a plaintiff offer to support a disparate impact claim under Bostock? Do disparate impact claims survive Bostock as a practical matter?

    6. Employer claims his vocation is part of his sexual identity, amd as a vocationally gay person, he hires men exactly as a domestically gay person dates men. Sued, and appearing before a judge, he concedes his conduct is covered under Title VII, but enforcement is prohibited under Title III. He argues courts are public facilities. Just as Title VII prohibits employers from discriminating in employment regardless of whether they regard an applicant’s domestic (non-employment) dating conduct as being itself “discrimination” or not, so Title III prohibits judges are prohibited from discriminating against parties in judicial proceedings regardless of whether they regard a party’s non-judicial conduct as discrimination or not. Simply scratch out the word “dates” and write in the word “hires” in crayon, and exactly the same textual logic that protects same-sex dating behavior from employers in Title VII protects same-sex employment behavior from judges in Title III. Is the employer’s sexual identity protected under Bostock?

  17. The immediately following Conspiracy post appears to welcome a departure from ‘literal application’ of a statute.

    This post appears to disparage departure from ‘literal application’ of a statute.

    Experienced consumers of the Volokh Conspiracy may reconcile the apparent incongruity by observing that one departure precipitated a decision that movement conservatives disdain (in the context of gay-bashing) and the other departure underlies a decision that movement conservatives applaud (in the context of gun-fondling).

    If I have misapprehended this circumstance, I hope a Conspirator explains the situation.

  18. Evidently some people need to create new neural networks in their brain to understand how straightforward Bostock is.
    Gays should have been included in "because of...sex" all along, based on the meaning of "sex" that has not changed since 1964.
    Why were gays excluded from the Civil Rights Act until 2020? Bigotry, people.
    At the signing ceremony for the Civil Rights Act, Lyndon Johnson remarked that race was the last cause of discrimination to be overcome in America.
    So loathed were gays no one noted that just years before Dwight Eisenhower had signed an executive order banning gays from federal employment and requiring contractors to do the same. State and local governments, and private employers of course, piled on.
    The rampant discrimination doesn't change the fact, though, that to discriminate against someone because he's gay is to discriminate based on sex.
    Based on Price Waterhouse, who more defies the stereotype of what a man is than a gay man?
    Also, gays don't get fired from their jobs (or beat up) because they love Barbra Streisand. They get fired because they are attracted to men, something Justice Scalia thought was good cause not to employ gays.
    A female employee who dates men doesn't get fired (or beat up). There's the difference, "because of...sex."

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