Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on five grounds: “race, color, religion, sex [and] national origin.” 42 U.S. V. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appear on this list. Over the past 45 years, bills have been introduced in Congress to add “sexual orientation”,1 and in recent years, bills have included “gender identity.”2 But to date, neither has passed either house. This also applies here. There is no way for a candidate to decide whether to check the gay or transgender box regardless of gender. To understand why, imagine that a candidate does not know what the words gay or transgender mean. Then, try writing instructions on who should check the box without using the words male, female, or gender (or a synonym).
That will not be enough. Similarly, there is no way for an employer to discriminate against those who check the gay or transgender box without discriminating in part on the basis of a candidate`s gender. By discriminating against homosexuals, the employer deliberately punishes men because they are attracted to men and women because they are attracted to women. By discriminating against transgender people, the employer inevitably discriminates against people whose gender was identified at birth and another today. However, the employer deliberately refuses to hire candidates partly on the basis of the gender of the persons concerned, even if it never learns the gender of a candidate. Does the Court really consider that Title VII prohibits discrimination on all these grounds? Is it illegal for an employer to refuse to hire an employee who has been sexually harassed in previous employment? Or a case of sexual assault or violence? The Court of Justice normally interprets a law in accordance with the public meaning of its wording at the time of its adoption. After all, only the words on the page represent the law passed by Congress and approved by the president. If judges could supplement, reshape, update or divert attention from old legal concepts inspired only by extratextual sources and our own ideas, we would risk changing laws outside the legislative process reserved for the representatives of the people. And we would deny people the right to continue to rely on the original meaning of the law on which they relied to govern their rights and duties. See New Prime Inc. v.
Oliveira, 586 U. pp. ___, ___ (2019) (Slip op., pp. 6–7). Dismissed employees have one thing in common. It`s not biological sex, attraction to men or attraction to women. It is attraction to members of their own sex – in a word, sexual orientation. And this, we can conclude, is the real motive of the employer.
The Statute provides a direct answer to this question. He tells us three times – even immediately after the words “discriminate” – that we should focus on individuals, not groups: employers must not “fail or refuse to hire or. Termination of a person or other. discriminate against any person with regard to his remuneration, working conditions or employment privileges on the basis of his remuneration. Gender. §2000e–2(a)(1) (emphasis added). And the meaning of “individual” was as undisputed in 1964 as it is today: “A certain being distinct from a class, species, or collection.” Webster`s New International Dictionary, at 1267. Again, Congress could have drafted the bill differently. She could have said that “it is an illegal employment practice to give priority to one sex over the other in recruitment, dismissal or conditions of employment”. He could have said that there should be no “gender discrimination”, which perhaps meant emphasizing the different treatment of the sexes as groups. More narrowly, it could only have banned “sexist politics” against women as a class. But again, that`s not the law we have.
Undoubtedly, Congress could have taken a more frugal approach. As in other statutes, it could have added “exclusively” to indicate that actions taken “because of” the coincidence of several factors do not contravene the law. See 11 U. S. C. §525; 16 U.S. C. §511. Or he could have written “primarily because of” to indicate that the prohibited factor must have been the primary cause of the defendant`s contested employment decision.
See 22 U. S. C. § 2688. But none of that is the law we have. Rather, Congress went in the opposite direction, supplementing Title VII of 1991 to allow a plaintiff to assert itself by simply demonstrating that a protected characteristic such as sex was a “motivating factor” in a defendant`s challenged employment practice. Civil Rights Act of 1991, §107, 105 Stat. 1075, codified in 42 U.S. V. §2000e–2(m). Under this more lenient standard, liability can sometimes follow, even if gender was not the cause of the employer`s contested decision.
However, as nothing depends on the motivating factor test in our analysis, we focus on the more traditional standard of causation, which continues to provide a practical, but no longer exclusive, means of mitigating the effects contemplated by Title VII. §2000e–2(a)(1). The important implications of employers` reasoning from expectations also show why they can`t hide behind the elephant gun in mouse holes. This canon recognizes that Congress “does not alter the fundamental details of a regulatory system in vague or ancillary terms.” Whitman v American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But that has no relevance here. We cannot deny that today`s position – that employers are prohibited from firing employees on the basis of homosexuality or transgender status – is an elephant. But where is the mouse hole? The prohibition of sex discrimination in the workplace in Title VII is an important element of federal civil rights legislation. It is written in very general terms. This repeatedly led to unexpected requests, at least from the point of view of those receiving them. Congress` key editorial decisions — focusing on discrimination against individuals rather than between groups, and holding employers accountable if gender is a cause of the complainant`s injuries — virtually guaranteed that unexpected motions would emerge over time.
This elephant never hid in a mouse hole; He has stood before us from the beginning. To be fair, the Court does not claim that Title VII prohibits discrimination on the basis of sex.
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