Bostock was Bogus: Textualism, Pluralism, and Title VII

29 Pages Posted: 4 Feb 2021 Last revised: 9 Feb 2021

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Carey Law School

Guha Krishnamurthi

South Texas College of Law Houston

Date Written: February 1, 2021

Abstract

In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while a handful of critics, all conservative, agreed with the dissenters that textualism could not deliver the outcome that the decision reached.

This Essay shows that conservative critics of the majority’s reasoning were correct—up to a point. Specifically, it argues that Title VII’s ban on discrimination “because of” an employee’s “sex” does not cover discrimination because of their sexual orientation as a matter of “plain” or “ordinary” meaning. Further, it demonstrates that Gorsuch’s effort to establish that result as a matter of “legal” meaning wholly fails because it depends upon a fatally flawed application of the “but-for” test for causation, one that flouts bedrock principles of counterfactual reasoning. It follows that if a textualist approach to statutory interpretation is correct or warranted, then Bostock was wrongly decided. However, if Bostock was rightly decided, then it must follow that textualism is wrong or misguided. This Essay endorses the latter possibility, explaining that the dominant American approach to statutory interpretation is neither textualist nor purposivist but pluralist. It concludes by drawing powerful but previously unnoticed support for pluralism from Justice Samuel Alito’s principal dissent.

Keywords: constitutional law, employment discrimination, Title VII, employment law, Bostock, textualism, purposivism, pluralism

JEL Classification: K10, K31

Suggested Citation

Berman, Mitchell N. and Krishnamurthi, Guha, Bostock was Bogus: Textualism, Pluralism, and Title VII (February 1, 2021). Available at SSRN: https://ssrn.com/abstract=3777519 or http://dx.doi.org/10.2139/ssrn.3777519

Mitchell N. Berman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Guha Krishnamurthi

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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