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05/31/2020

A Reply to John Vlahoplus on Title VII
James Phillips

The Supreme Court has yet to release a decision in cases presenting the questions of whether Title VII’s ban on employment discrimination based on sex would also exclude discrimination based on sexual orientation and gender identity.  Those who think so have argued that the text is on their side.  I have shown that their putatively textualist argument violates an important linguistic (and hence properly textualist) principle:  the principle of compositionality.  Plaintiffs flout that principle when they fail to take the word “discriminate” together with its surrounding language as the semantic unit that it had become by the 1960s:  “discriminate against . . . because of . . . [one of several suspect classifications, including “sex”].”  In my piece, I read that whole phrase in light of the principle of compositionality, enactment-era dictionaries, and voluminous databases of English texts from that era.  I showed that properly read, Title VII’s ban on sex discrimination covers only those employment policies that reflect unfair attitudes or notions about some or all men in particular, or some or all women in particular.  I also showed that this reading is compatible with all of (and finds express support in many of) the Supreme Court’s precedents on Title VII.

In his brief response, John Vlahoplus doubts the last claim.  He suggests that my reading of Title VII contradicts one Supreme Court decision in particular: Ricci v. Destefano.  There a City administered a test to determine which of its firefighters to promote, but then threw out the test results when it noticed that racial minorities had scored lower than whites.  In its defense, the City said that it scrapped the test only to avoid a harmful disparate impact on minorities (and consequent liability for the City itself, under a statutory provision holding employers responsible for policies that have such impact).  Because this decision was motivated by a desire to avoid disparate impact liability, the City argued, it could not count as a violation of Title VII’s ban on direct discrimination.  But the Supreme Court determined that the City had indeed violated the latter ban.  Mr. Vlahoplus thinks that this holding disproves my theory that direct discrimination under Title VII must rest on unfair attitudes or generalizations based on a suspect classification.

That is not so.  The City in Ricci threw out a test that benefitted white candidates because the beneficiaries were white.  But to treat the fact that a test benefits whites as a knock against it is to discount the interests of white candidates in particular (i.e., relative to others’ interests).  And this comes squarely within the definition of class-based discrimination that emerged from my analysis.  As I repeatedly described the conclusion of my research, Title VII’s operative language is best read to ban treatment that reflects “unfair attitudes” (or ideas) toward members of one group in particular, including the “discounting of interests” of members of that group (not only “outright antipathy” toward them).  Pp. 3, 6, 7.  This focus on a discounting of white candidates’ interests relative to others’ is reflected throughout Justice Kennedy’s majority opinion and Justice Alito’s concurrence.  In Justice Kennedy’s telling, for instance, the City’s discarding of the test denied “equal opportunity” for white candidates; thwarted their “legitimate expectations,” created by the administration of the test; and wasted white candidates’ investment of “substantial time, money, and personal commitment in preparing” for the test.  Justice Alito likewise emphasized his view that the City denied members of one racial group a “fair chance” at promotion.   

To be sure, if an employer’s action merely prevents a disparate impact, for the sake of compliance with federal law, it does not rest on unfair attitudes or ideas, and so cannot violate Title VII on my reading.  But the Ricci Court agreed, so there is no contradiction.  The problem in Ricci, according to the Court, was that it was unreasonable for the City to think that keeping the test results would create a cognizable disparate impact.  (“[T]here is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability[.]”)  And if the City’s action did not prevent a cognizable harm to one racial group, it could only “amount[] to the sort of racial preference [for another group] that Congress has disclaimed”—the sort that necessarily reflects a discounting of the interests of members of one group in particular; the sort covered by my reading of Title VII in light of the principle of compositionality.