« Josh Blackman and Seth Barrett Tillman on Faithless Electors
Michael Ramsey
| Main | Richard Reinsch Reviews Robert Reilly's "America on Trial"
Michael Ramsey »

05/24/2020

Title VII:  A Response to James Phillips
John Vlahoplus

In a recent draft article noted here, James C. Phillips argues that Title VII’s prohibition on discrimination because of sex only applies “to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women.”  Phillips’ interpretation is contrary to the Court’s major discrimination decisions and ignores important text in Title VII. 

Precedents.  Under the Court’s major precedents, any adverse decision that takes into account sex, race or other enumerated category discriminates against the employee because of his or her sex, race or other category.  Beliefs and attitudes are relevant to potential defenses such as that of a bona fide occupational qualification.  Consider the “reverse discrimination” decision in Ricci v. DeStefano.  The employer considered race in promoting employees in a good-faith effort to avoid disparate-impact liability under Title VII.  The employer did not take into account any unfair beliefs or attitudes about any race. The Court nonetheless found that the employer discriminated against the non-promoted employees because of their race: 

Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See § 2000e-2(a)(1) . . .  Whatever the City’s ultimate aim — however well intentioned or benevolent it might have seemed — the City made its employment decision because of race . . .  The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

This interpretation is consistent with the Court’s decision in Loving v. Virginia, which found “racial classifications in [marriage] statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the ‘integrity’ of all races.”  It is also consistent with important lower court decisions interpreting Title VII, such as Williams v. Saxbe: “That a rule, regulation, practice, or policy is applied on the basis of gender is alone sufficient for a finding of sex discrimination. . .  The reason for the discrimination under Title VII is not necessary to a finding of discrimination. . .  Rather, the reason for the discrimination may only be relevant in considerations of whether the policy or practice is based upon a bona fide occupational requirement.”  Similarly, the court in Evans v. Sheraton Park Hotel relied on a Title VII race discrimination precedent to find that using a sex classification per se discriminates against employees based on their sex: 

The unions in ILA were segregated on the basis of race. The unions here were segregated on the basis of sex.  The precise statute (42 U.S.C. § 2000e-2(c)(2)) involved in ILA is the one involved here.  It specifically prohibits discrimination based on race, color, religion, sex, or national origin . . .  Congress, in enacting Title VII found classifications based on sex inherently invidious.  We think the District Court correctly held that maintenance of unions segregated on the basis of sex constitutes a per se violation of 42 U.S.C. § 2000e-2(c).

Other text in Title VII.  Phillips applies a principle of compositionality to what he purports to be “the whole operative language of Title VII,” which he quotes as “discriminate against any individual . . . because of such individual’s  . . . sex.” However, Title VII has several operative provisions, only some of which include the term “discriminate against.”  Courts do not distinguish the provisions based on whether they include the term.  The Ricci Court specifically found that the employer’s promotion decisions violated § 2000e-2(a)(1), which includes the term “discriminate against.”  But the Court also referred to the singular “disparate-treatment prohibition contained in . . . § 2000e-2(a)” even though § 2000e-2(a)(2) does not contain the term “discriminate against.”

The Evans court found that § 2000e-2(c)(2) “specifically prohibits discrimination based on race, color, religion, sex, or national origin.”  But that subsection does not include the word “discrimination” or any variant of it.  Subsections -2(c)(1) and -2(c)(2), on the other hand, do include the term “discriminate against.”  The textual difference is irrelevant.  The court concluded that sex segregation “constitutes a per se violation of 42 U.S.C. § 2000e-2(c)” generally, without regard to a specific subsection.

The precedents are controlling.  Regardless of whether a specific provision of Title VII includes the term “discriminate against,” an employer cannot take adverse employment actions because of an individual’s sex absent a lawful justification such as a bona fide occupational qualification.  The employer’s beliefs and attitudes are instead relevant to the question whether such a justification exists.