Judge Sykes's Dissent and Judge Flaum's Concurrence
The argument that Title VII covers sexual orientation is not a slam dunk, and Judge Sykes presents a strong case against that conclusion. Most persuasive perhaps is Sykes's contention that the majority's reliance on hypothetical comparators fails to show that discrimination based on sexual orientation constitutes sex discrimination. As explained by the majority:
Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. . . . This describes paradigmatic sex discrimination.In the dissent's view, this comparison fails because it improperly compares a lesbian to a heterosexual man. In order to test whether differential treatment is based on sex, other variables must be kept constant, including the comparator's sexual orientation.
The best response to this argument is not in the majority decision but in Judge Flaum's concurrence. Flaum notes that "homosexual" is defined as having sexual desire for other individuals of the "same" sex (or one's "own" sex). Discrimination based on homosexuality, by definition, therefore requires a consideration of an individual's sex:
As such, discriminating against that employee because they are homosexual constitutes discriminating against an employee because of (A) the employee's sex, and (B) their sexual attraction to individuals of the same sex. And "sex," under Title VII, is an enumerated trait.Rather than trying to dissect sexual orientation discrimination by comparing a gay man or lesbian to a hypothetical heterosexual individual of the opposite sex, Flaum focuses on the nature of what it means to discriminate based on sexual orientation. An individual who discriminates against a gay man or lesbian does so because of the victim's sexual attraction to others of the same sex. This necessarily entails treating someone differently as a result of his or her sex, because if you keep everything else the same, including the sex of the individuals the person is attracted to, it is clear that the differential treatment stems from the victim's sex.
In response, Sykes argues:
But an employer who categorically won't hire homosexuals is not "accounting for" a job applicant's sex in the sense meant by antidiscrimination law; a hiring policy of "no homosexuals need apply" is gender blind. . . . An employer who refuses to hire a lesbian applicant because she is a lesbian only "accounts for" her sex in the limited sense that he notices she is a woman. But that's not the object of the employer’s discriminatory intent, not even in part. Her sex isn't a motivating factor for the employer's decision; the employer objects only to her sexual orientation.In my view, Sykes errs by failing to dissect what it means to discriminate on the basis of an individual's status as being gay or lesbian and she assumes that it is distinct from treating an individual differently based on his or her sex. As noted by the majority, this approach "commits the logical fallacy of assuming the conclusion it sets out to prove."
Imagine, for example, that an employer refuses to hire "gender nonconformists," men who are feminine and women who are masculine. Applying Sykes's logic in rejecting sexual orientation claims, discrimination based on gender nonconformity would not be sex discrimination because the discrimination is not based on a person's underlying gender but on a person's gender nonconformity. This conclusion, however, is clearly inconsistent with principles of disparate treatment analysis. Discrimination against effeminate men but not against effeminate women is sex discrimination, even if is labeled as discrimination based on gender nonconformity. For example, as explained by the Supreme Court in Price Waterhouse v. Hopkins: "In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender." Likewise, discrimination against a man because he is sexually attracted to men is sex discrimination, and that is not changed by labeling it as sexual orientation discrimination. It remains a form of sex discrimination.
What makes Sykes's arguments appealing, nonetheless, is that they seem to reflect common sense:
To a fluent speaker of the English language -- then [in 1964 when Title VII was passed] and now -- the ordinary meaning of the word "sex" does not fairly include the concept of "sexual orientation." The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning.In comparison, the reasoning in the majority decision and in Flaum's concurrence looks like legal hocus pocus and mumbo jumbo.
Judge Posner's Concurrence
And that brings me to Judge Posner's concurrence. Like Syke's dissent, Posner's concurrence seems to reflect common sense by acknowledging that sexual orientation discrimination is fundamentally different from treating men better than women. On the other hand, Posner favors a method of statutory interpretation that he calls "judicial interpretive updating," which involves giving a "fresh meaning" to a statute so that it has "vitality and significance today." Thus, in Posner's view, sex discrimination did not mean sexual orientation discrimination back in 1964, but we now conceive of sexual orientation discrimination as a form of sex discrimination, so judges should interpret the term "sex" to keep up with the times.
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of "sex discrimination" that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.Posner's concurrence is a decision that you either love or you hate. It's either a breath of fresh air or a stinking piece of dog shit. I fall into the latter camp. That's not because Posner undermines the legitimacy of the majority decision. He does do that, but if the majority's reasoning is faulty, he should be commended for pointing that out, even if he agrees with their conclusion.
What's wrong with Posner's opinion is that, even assuming his method of statutory interpretation is appropriate, it doesn't lead to the conclusion that sexual orientation discrimination is a form of sex discrimination. According to Posner, "we now understand discrimination against homosexual men and women to be a form of sex discrimination." What's Posner's basis for this understanding? Beats me. From what I can tell, he pulls it out of thin air.
To be sure, Posner explains at length why society has come to believe that discrimination against gay men and lesbians is wrong. He notes that sexual orientation is innate and not a choice like personal preferences about how to dress. And in a passage that strikes me as patronizing, Posner explains: "We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society. . . . The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose 'interpretation' of the word 'sex' in Title VII to embrace homosexuality . . . ."
But even if sexual orientation is innate and even if discrimination based on sexual orientation is wrong, it no more follows that sexual orientation discrimination is sex discrimination than it follows that sexual orientation discrimination is race discrimination or age discrimination.
Indeed, as Judge Sykes points out, we commonly understand sex and sexual orientation to be distinct concepts. In contrast, if the issue were whether Title VII covers gender identity discrimination, I think Posner would be on much more solid ground.
It's much too soon to predict whether, the Supreme Court, when it ultimately has to face the issue, will side with the majority and the concurrences or with the dissent. One thing's for sure, though -- whichever way the Court rules, it won't be relying on judicial interpretive updating.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
