Textualism and Title VII
10 Wake Forest L. Rev. Online 32 (2020)
23 Pages Posted: 27 Jan 2020 Last revised: 24 Mar 2020
Date Written: January 25, 2020
Bostock v. Clayton County presents the question whether discharging an employee for being homosexual discriminates against him because of his sex under Title VII of the Civil Rights Act of 1964. Bostock’s supporters claim that it plainly does and herald the case as the ultimate test of faithfulness to the interpretive theory of textualism. The County, on the other hand, argues that Bostock’s interpretation actually rewrites the statute. It is debatable whether textualism can generate historically-determined, non-normative legal interpretations. Nevertheless, the text of Title VII supports Bostock’s claim. The Supreme Court can only rule against him by relying on a variety of controversial arguments from text, context, purpose, legislative history, legislative intent and expectations, canons of construction, and more — in a word, pluralism.
This Article details textual grounds for Bostock’s claim and landmark judicial decisions consistent with those grounds. It examines early case law holding that adverse employment decisions based on the relative sex of an employee and another person discriminate “because of” the employee’s sex and characterizing defenses like Clayton County’s as akin to the doctrine of Plessy v. Ferguson, which has no place in sex discrimination law. It connects those cases to the Supreme Court’s decision in Dothard v. Rawlinson and utilizes previously overlooked oral argument and briefing in that case to show that Rawlinson requires a ruling for Bostock. The Article concludes that the Supreme Court should reaffirm its own precedents supporting Bostock’s claim, rule that discharging employees because of their sexual orientation discriminates against them because of their sex, and leave the balancing of competing individual and governmental interests to congressional legislation or further development by lower courts.
Keywords: Title VII, Textualism, Pluralism, Discrimination, Sexual Orientation, LGBTQ Rights, Legal Interpretation, Legal History, Dothard v. Rawlinson, Bostock, Zarda, Stephens
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