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A stellar article by William N. Eskridge, Jr. makes important contributions to our understanding of the meaning and history of sex, discrimination, and big- and small- constitutionalism. Published on the eve of the Supreme Court’s hearing of blockbuster cases about whether gay and transgender people are protected under Title VII’s prohibition on discrimination “because…of sex” (R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda, and Bostock v. Clayton County, Georgia),1 the article offers easy entry into the key ideas at stake in significant civil rights issues today. It’s a must-read for anyone interested in civil rights or constitutional theory.

In Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, William Eskridge persuasively argues that Title VII’s prohibition on employment discrimination “because of…sex” applies to discrimination against LGBT people. Eskridge’s article is a tour-de-force exploration of the meaning and history behind “because…of sex.” It is not only a provocative read about the evolution of a statute, but it is also about the way that constitutional and statutory meaning interact over time. Eskridge demonstrates the tight interconnection of the development of Title VII and the Constitution’s treatment, not only of sex, but also of race and religion. He takes a step beyond his prior work to argue that formal changes in constitutional jurisprudence and statutory amendment must inform a statute’s current meaning. That analytical point—demonstrated through a rich and evocative history of “because of…sex”—is the article’s key contribution.

The article opens by discussing the opinions of appellate judges that formed the circuit split that prompted the Supreme Court to take up these cases, in order to explore a set of methodological questions surrounding statutory interpretation. Ironically, Eskridge notes that the methodologies of the judges that concluded Title VII covers LGBT employees would be attractive to the Supreme Court justices (such as Justice Thomas and Chief Justice Roberts) least ideologically inclined to read it to do so. “Will the Supreme Court divide along predictably ideological and political lines—or might the legal arguments provide a canvas to debate the issue in [a] relatively nonideological manner…?” he asks. (Pp. 329-30.)

A central pillar of Eskridge’s thesis is that any interpretation of Title VII’s text, purpose, or precedents—from any methodological perspective—is incomplete without an understanding of its statutory history, by which he means “its formal evolution through a process of amendment by Congress and authoritative interpretation by the Supreme Court.” (P. 331.)

The article elaborates Title VII’s statutory plan “to entrench a merit-based workplace where specified traits or status-based criteria (race, color, national origin, religion, and sex) are supposed to be irrelevant to a person’s job opportunities.” (P. 322.) It presents compelling evidence that “sex” did not mean merely “biological sex”—even in 1964. Even the 1961 Webster’s dictionary defined “sex” with more nuance as:

  • (1) “[o]ne of the two divisions of organisms formed on the distinction of male and female,” or sex as biology;
  • (2) “[t]he sphere of behavior dominated by the relations between male and female,” or sex as gender or social role;
  • (3) “the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct,” or sex as sexuality. (P. 338.)

The statutory history that Eskridge explores demonstrates several points. First, in barring employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin,” 42 U.S.C. §§ 2000e-2(a)-(d), and as both Congress and the Court have recognized, Title VII, commits itself equally to purging the workplace of race-, sex-, and religion-based discrimination. Eskridge connects the Supreme Court’s equal protection jurisprudence, especially Loving v. Virginia and McLaughlin v. Florida, to Title VII’s meaning. Given the equal footing of race and sex in Title VII, and the Court’s constitutional holdings that discrimination against interracial couples constitutes discrimination because of race—that is, the race of one person relative to that of their partner—discrimination against a man for partnering with another man (or a woman with another woman) is likewise sex discrimination for Title VII purposes. Furthermore, in Loving, the Court rejected the state’s argument—parallel to that made by opponents of LGBT protections here—that the law did not target whites or blacks, simply inter-racial marriage, because it equally prohibited both races from marrying across race lines.

Second, Title VII not only bars employment practices that treat all women differently from all men, but also practices that treat some men or some women differently because of their sex. The Supreme Court’s first sex discrimination case is illuminating. In Phillips v. Martin Marietta Corp., the Supreme Court held that Title VII prohibited an employer from disadvantaging not all women, but only those with preschool aged children. The deep point, Eskridge notes, is that Title VII is, and has always been, concerned with social roles and the social meaning of sex. That is, the statute, like evolving constitutional norms, targets not biology simpliciter (or the class of all women or men), but disadvantages due to expectations about how a person should behave because of their perceived membership in a class.

In addition, Price Waterhouse v. Hopkinsa precedent ratified and expanded by Congress when it amended Title VII in 1991—committed the Act to the broader principle that employers cannot prescribe non-merit-based gender roles. In that case, Ann Hopkins was denied partnership, despite having brought in $40 million in business in the early 1980s (surpassing all 87 men in her partner class), because some partners viewed her as too pushy, too ambitious, and insufficiently feminine, because she did not meet their stereotypes of how women should behave, dress, and act.

A key—and perhaps the deepest—sex stereotype highlighted by Eskridge is that men should be attracted to women and that women should be attracted to men. (P. 370.) To discriminate against LGB employees is not irrespective of sex (as targeting not women or men, but homosexuality), but doubly impermissible, because it enforces male stereotypes on some employees and female stereotypes on others. Likewise, an employer who discriminates against an employee for being transgender does so because that person fails to meet the employer’s expectations of how a person of that presumed birth sex should identify, dress, or behave. For this reason, too, Title VII should be understood to prohibit discrimination against LBGT people.

Finally, Eskridge explores the way in which the Constitution’s treatment of LGBT people evolved at the same time Title VII was formally evolving. In a series of landmark Fourteenth Amendment decisions between 1996 and 2015, the Court reversed its prior acquiescence to governmental treatment of gay people as criminals and psychopaths. For this reason, Eskridge argues, “judicial precedents premised on the assumption that Congress and employers can discriminate against gay and lesbian employees because they are presumptive criminals or psychopaths not only can be but must be revisited.” (P. 333.) In short, it is not only “constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress. It is impermissible, in light of recent constitutional holdings, to read Title VII to permit as much.” (P. 322.)

In this way, Eskridge notably breaks with Bruce Ackerman’s theory of constitutional moments. Where Ackerman views the adoption of the civil rights statues of the 1960s, including Title VII, as a watershed in a string of punctuated moments of higher law-making, Eskridge’s rich history illuminates the dynamic and evolving nature of statutory and constitutional meaning in their longer arc—showing how together Title VII and the Constitution have come to protect LGBT people.

The article concludes that “[t]he statutory text, structure, precedent, practice, and constitutional background norms is so tightly interconnected…[that] a poorly researched textual analysis, divorced from statutory history, [that read LGBT out of Title VII] would amount to an assault on the rule of law itself.” (P. 333.)

The piece provides critical insights into how to think about sex, discrimination, and the evolution of social and constitutional meaning. Often issues, such as those presented to the Court this term are framed as questions of whether constitutional or statutory text should extend to include LGBT people. Eskridge’s rich account forcefully demonstrates that Title VII’s “because…of sex” already does so. Indeed, to read LGBT people out of the statute would undermine principles protecting not only LGBT people or within Title VII, but far beyond them.

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  1. I previously litigated in the National Legal Department the ACLU, which is counsel in both Harris Homes and Zarda. I also advised on several briefs and joined the amicus brief of philosophy scholars in support of employees.
Cite as: Amanda Shanor, “Because…of Sex” & Constitutional Meaning, JOTWELL (September 20, 2019) (reviewing William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L. J. 246 (2017)), https://conlaw.jotwell.com/because-of-sex-constitutional-meaning/.