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1/16 I got a number of thought-provoking responses to my thread on textualism, originalism and the LGBT Title VII cases that I thought were worth responding to with a new thread. Thanks @BRSoucek @limerickless @espinsegall @marty_lederman @wizopindy @KineticDarkroom @sbendc_
2/16 First, a response to those who suggested the textualist analysis in the Title VII LGBT cases is not as straightforward as I suggest: I respectfully disagree. #textualism #LGBT #TitleVII
3/16 The conservative wing of the Court has consistently held that “because of" connotes “but-for” causation on a plain language reading. See Gross, Nassar, Burrage. As I laid out in my original thread, sex (even defined as “biological” sex) is a but-for cause in the LGBT cases.
4/16 The fact that sexual orientation or gender identity could also be considered a but-for cause does not matter. Title VII does not require sole causation. See McDonald v. Santa Fe Trail. Cf. Rehabilitation Act (prohibiting discrimination “solely by reason of” disability).
5/16 To the extent the argument is that “because of…sex” might connote a group-based harm, or a requirement of group-based animus (and that this would preclude liability here) this is also foreclosed by both text and precedent.
6/16 Title VII’s text specifically proscribes adverse employment actions taken “because of such individual’s…sex.” As the Supreme Court has recognized, this language means that there is an individual right not to be treated differently (regardless of group harms). See Manhart.
7/16 Construing Title VII as requiring group-based animus is also inconsistent with both text and precedent.
8/16 Consider the following example: Women of childbearing age/capacity are told they cannot work in positions involving exposure to lead because of the risk to a potential fetus. The employer genuinely is concerned exclusively with the well-being of fetuses.
9/16 This is literally “a refusal to hire….because of such individual’s… sex,” regardless of employer motive. See Johnson Controls. It does not pass the “simple test of whether the evidence shows treatment…in a manner which but for that person's sex would be different.”
10/16 The language of an anti-discrimination statute could focus on invidious motivation against a group, but Title VII does not.
11/16 Regarding sex-differentiated restrooms and grooming standards, they are unquestionably “because of…sex,” just as racially segregated restrooms were unquestionably “because of…race.”
12/16 If there is a textual justification for why such policies do not violate Title VII, it must reside in an argument that they do not alter the employee’s “terms, conditions or privileges of employment.” This may be true for some employees, though it is clearly not for all.
13/16 Regarding politics, it is true that these cases are political. But a conservative textualist (Justice Scalia) wrote Oncale (same-sex harassment) and Yeskey (prisoners) too. Textualists can be faithful to methodology above politics, and we should not assume otherwise here.
14/16 Finally, two excellent points that were raised in the comments that are worth amplifying.
15/16 As @BRSoucek points out, though I focus my analysis on 1964, there is a good argument that 1991 (when TVII was amended) is the relevant time for originalism inquiries. There are even stronger arguments that 1991-focused originalism is supportive of a pro-LGBT result.
16/16 And, as @sbendc_ suggests, even original expectations originalism, circa 1964, is not entirely determinate. One of the primary arguments against the ERA (prohibiting abridgment of rights “on account of sex”) was that it would prohibit sexual orientation discrimination.
