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01/28/2020

Textualism and Title VII (Again)
John Vlahoplus

Consider a rule forbidding opposite sex massages in a massage parlor because they involve too great an intimacy between the sexes.  An owner hangs two separate duty rosters.  The first lists all of the female employees and is titled “Available to massage female clients.”  The second lists all of the male employees and is titled “Available to massage male clients.”  One interpretation is that the rule is facially neutral.  It equally forbids males to massage females and females to massage males.  As the employer in Zarda argues:  “Neither sex is favored over the other.” 

A masseuse objects that the rule discriminates against her because of her sex.  If she were male, she could continue to massage male clients.  The owner responds patiently:  “You are mistaken.  The rule does not refer to your sex.  It refers to ‘opposite sex.’  Your objection changes two factors:  your sex from female to male, and the massage from opposite sex to same sex.  The very aim of the rule is to prevent too great an intimacy between the sexes.  To isolate your sex we must keep the massage opposite sex.  The proper comparison is to a male massaging a female, which the rule equally forbids.  See?  The rule doesn’t discriminate at all.”

A textualist might object that the text of Title VII does not forbid favoring one gender over the other or exempt discrimination based on good intentions.  It forbids the employer to “classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities … because of such individual’s … sex” unless sex is a bona fide occupational qualification for the position.  The textualist might ask:  “What do your rosters do if not classify your employees by sex?  What does that classification do if not deprive each individual employee of the opportunity to massage some of the parlor’s clients?”  The textualist might reason that the “equal” right to massage only members of your own sex explicitly discriminates against each employee because of such employee’s sex.

If the second interpretation is correct, a “no same sex massage” rule would also discriminate against each employee because of the employee’s sex.  So would a “no same sex orientation” rule, which necessarily classifies employees by their sex: only men can love women, and only women can love men. 

Which interpretation of Title VII is correct?  The first, which is based on gender favoritism?  Or the second, which is based on individual protection?  Textualism and Title VII (here) (forthcoming in the Wake Forest Law Review Online), considers the question in the context of the Supreme Court’s pending LGBTQ discrimination cases.  It provides additional textual support for the second interpretation.  It considers early “same gender” and “opposite sex” rules challenged under Title VII to illustrate the discrimination inherent in them.  Finally, it cites previously overlooked briefing and oral argument in Dothard v. Rawlinson to show that all eight of the Supreme Court Justices who reached the issue held that the second interpretation is correct.  It concludes that the Court should rule for the employees and leave the balancing of competing individual and governmental interests to congressional legislation or further development by lower courts.