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Textualism and Title VII
John Vlahoplus

Although I am not a textualist or an originalist, I find this blog's responses to Richard Primus to be off the mark.  Michael Ramsey's response here relies heavily on the fact "that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time)."  That sounds in expected applications originalism, not textualism.  David E. Weisberg's response here argues from the logic of contemporary English usage rather than early 1960s usage.  Neither response cites dictionaries, other reference works, or other sources from the corpus of English usage around 1964. 

If textualism is to be a meaningfully independent originalist theory then it should rely on the meanings, whether thick or thin, of the words in the text at the time of enactment.  It should also have the theoretical power to produce interpretations that differ from original expected applications originalism.  For example, consider a hypothetical based on an earlier discussion here on this blog.  Congress enacts a statute providing:  "No one may travel beyond the outermost planet in the solar system."  At the time of enactment, everyone believes that Pluto is the outermost planet in the solar system.  Congress treats Pluto as a planet in subsequent legislation, such as its finding in 2002 here that "[c]ommercial reusable in-space transportation systems can . . . support potential National Aeronautics and Space Administration missions to Mars, Pluto, and other planets."

Later we learn that Neptune is the outermost planet in the solar system.  Perhaps the definition of a planet has always required a minimum size, and new exploration shows that Pluto lacks that size.  Does the statute ban travel beyond Neptune because it is the outermost planet in the solar system?  Or does it ban travel beyond Pluto because at the time of enactment many members of Congress thought that they were forbidding travel beyond Pluto?   The statute's text does not forbid traveling "beyond Pluto."  It forbids traveling "beyond the outermost planet in the solar system."  And the outermost planet is Neptune, regardless of what members of Congress thought that they were doing by enacting the statute.  A textualist might find that the statute forbids traveling beyond Neptune.

How might a textualist interpret Title VII using period sources and focusing on the meanings of the words in the statute's text?  "Discriminate" has long meant "[t]o treat a person or group in an unjust or prejudicial manner" (Oxford English Dictionary Online definition 4).  This definition appears to be consistent with Title VII.  The statute permits employers to rely on legitimate, professionally developed and honestly administered ability tests.  Making employment decisions after receiving the results of such tests is not unjust and does not pre-judge candidates.  Firing someone for being LGBTQ is both unjust and prejudicial -- as Professor Ramsey notes, "sexual orientation discrimination has a long and sad history."  Therefore firing someone for being LGBTQ discriminates against them.

"Because" when "followed by 'of' and a substantive" has long meant "by reason of, on account of" (Oxford English Dictionary Online definition 2.a).  For the ordinary lawyer, this is a simple description of causation.  A 1963 source here, for example, includes the usage "Plaintiff suffered injuries because of the negligent operation of a cab."  A well-known test of causation is but-for causation.  But for the Title VII plaintiffs' sex (their being male), would they have been fired?  No.  Therefore they were fired "because of" their sex.

This textual analysis shows that the employers discriminated against the Title VII plaintiffs because of their sex.

Another example supports this textual analysis.  Consider a criminal law providing "Everyone must wear clothing historically associated with his or her sex."  The law requires a female to wear only certain clothing "because of" her sex -- it explicitly refers to "her sex."  Consequently, if she wears historically male clothing she will be sanctioned also "because of" her sex.  But for being female, she would not be in violation of the law. 

One might argue that she is sanctioned because she did not wear the right clothing.  But that is fatuous.  What clothing is "right" is explicitly defined by "her sex."  It is also no objection that the same rule applies to males and sanctions a male if he wears clothing historically associated with females.  The law also requires him to wear certain clothing "because of" his sex; if he wears historically female clothing he will be sanctioned also "because of" his sex.  The rule treats each in an unjust and/or prejudicial manner because of (i.e., in a way that would not apply but for) his or her sex.

The amicus brief that David Upham links here at least cites a dictionary definition of "to discriminate" and argues against the Primus thesis on that basis.  That definition is "to make an adverse distinction" (brief page 22).  The brief argues that the employer can only discriminate by making an adverse sex distinction, not by accepting a distinction that society has already made (brief pages 22-23).   That definition is inconsistent with the text of Title VII, however.  For example, the statute uses the phrase "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual" because of race, sex etc. (emphasis added).  In Title VII, to "discriminate" against someone means to take an adverse action with respect to them such as to fail to hire them, consistent with the definition "[t]o treat a person or group in an unjust or prejudicial manner."  It does not mean to make an adverse distinction previously unknown to society.

There are deeper questions, such as whether textualism can actually be distinguished from intentionalism and expected applications at all; whether words derive meaning from an essence or merely by convention; whether definition consists of designation (such as designating nine things including Pluto to be planets) or of genus and difference (such as specifying that only a body that orbits a star and has a particular size is a planet); and even whether every definition is dangerous in legal interpretation, as Lord Ellesmere asserts in Calvin's Case.  If it is possible to set all of those aside and accept textualism (which is questionable), there is a strong textualist argument that the hypothetical statute bans travel beyond Neptune and that Title VII forbids discrimination against LGBTQ persons.