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05/21/2020

Further Thoughts on the SOGI Cases before the Supreme Court
David Weisberg

James Phillips and Ryan Nees offer (herehere and here) dueling versions of corpus linguistics (“CL”) analyses of that part of Title VII which makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]”  42USC Sec. 2000e-2(a)(1).  That language currently is in focus because the U.S. Supreme Court has sub judice in which plaintiffs assert that Title VII prohibits employers from discharging employees because of the employees’ sexual orientation or gender identity (“SOGI”).  The conflicting CL analyses present issues that are enormously recondite and obscure.  But, in my view, they amount to breaking a butterfly upon a wheel.  There other, simpler ways to resolve these cases. 

First, compare the above actual text of Title VII with this hypothetical version: “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, sexual orientation, gender identity, or national origin.”  I think every competent speaker of English would agree that the actual language of Title VII and the hypothetical language have different meanings.  That is, they have different meanings today, and they would have been understood to have different meaning in 1964.  (Indeed, I think there is a real question, which CL might indeed resolve, whether in 1964 the average intelligent native speaker of American English would have assigned any meaning at all to the phrase “gender identity”.)  The SOGI plaintiffs ought to prevail only if the two versions can reasonably be said to have the same meaning at some relevant time.  Having failed to make that showing, the plaintiffs should lose.

The same point can be made in this way: no one could truthfully say that the gay applicant was not hired or the gay employee was fired “because of such individual’s … sex.”  If one took an oath to tell the truth, the whole truth, and nothing but the truth, one would have committed perjury if, in answer to the question “Why was this male applicant rejected?”, someone with knowledge of all the facts asserted: “He was rejected because of his sex.”  Any competent speaker of English understands that this answer is true only if the employer never hires men, or never hires men for the position in question.  If the applicant was rejected because he was in a sexual relationship with another man, the whole truth is that he was rejected for just that reason, and not because of his sex.    

Implicitly conceding that the plain meaning of Title VII refutes their position, the SOGI plaintiffs argue that plain meaning is irrelevant, because the word ‘because’ in the statute has—or, at the very least, can fairly be given—a technical, legalistic meaning: the word ‘because’ denotes ‘but for’ causation.  Thus, if an employee is, e.g., discharged because of sexual orientation, analysis reveals that the individual’s sex must be a ‘but for’ cause of the firing, which implies the employee was fired “because of such individual’s… sex” in violation of Title VII. 

We know that ‘but for’ causation is typically applied in personal injury cases to determine whether, in the train of physical causation that ultimately resulted in plaintiff’s injury, some specific negligent act or omission was sufficiently incorporated in that train to be a proximate cause of the injury.  An employer’s motive for discharging an employee is not any part of a train of physical causation, unless one thinks of the mind/brain as a kind of Rube Goldberg mechanism in which a squirrel takes a nut from one side of a balance scale, causing the scale to tilt, which then upends a glass of water, which … etc.  The concept of ‘but for’ causation would, on its face, seem inapplicable to human motives and decision-making.  Nevertheless, during oral argument several Justices seemed to seriously entertain the idea.

The ‘but for’ gambit has two flaws, and one of them is fatal.  The first flaw—nonfatal, but nevertheless troubling—is that the ‘but for’ argument seemingly applies only to sex, and not to any other characteristic protected in Title VII.  Suppose, e.g., an employee is married to a person of a particular national origin, and the employer fires the employee for just that reason: the employer abhors persons of that particular national origin and anyone associated with such persons.  The spouse’s national origin would seem to qualify as a ‘but for’ cause of the termination, but, because the employee’s own national origin was irrelevant to the employer’s decision, there could not conceivably be a violation of Title VII.  The same would be true of an employer who fires an employee because of the race, color, or religion of the employee’s partner or spouse, where the employee’s own race, color, or religion plays no part in the decision.

The fatal flaw in the ‘but for’ position is that it generates a reductio ad absurdum.  The SOGI plaintiffs contend that a gay male employee who is fired would not have been fired ‘but for’ his sex.  But, by precisely the same token, the male employee would not have been fired ‘but for’ his partner’s sex.  That is, if a male employee had a female partner, there would be no firing.  And if both ‘but for’ causes are thought to operate simultaneously—that is, if both the male employee’s sex were different and his male partner’s sex also were different—that would result in a female employee with a female partner, and that employee also would be fired by an employer who by hypothesis abhors same-sex relationships.  Each ‘but for’ cause—the employee’s sex, and the employee’s partner’s sex—equally qualifies as the ‘but for’ cause of the termination.  Thus, one and the same firing both violates Title VII (because the sex of the employee is the ‘but for’ cause) and does not violate Title VII (because the sex of the employee’s partner is the ‘but for’ cause, and we have seen that the protected characteristics do not extend to partners or spouses of employees).  That result—a single act that simultaneously violates and does not violate a statute—is absurd.