When the Court Makes Title VII Law and Policy: Disparate Impact and the Journey from Griggs to Ricci

(Excerpt) This Article focuses on judicial lawmaking and policymaking in an important area of antidiscrimination law—Title VII of the Civil Rights Act of 1964’s regulatory regime. As enacted in 1964, Title VII only prohibited intentional employment discrimination on the basis of race, color, religion, sex, or national origin. The statute requires a finding that an employer “has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint.” “[Such] ‘disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others . . . . Proof of discriminatory motive is critical . . . .” Thereafter, in Griggs v. Duke Power Co., the United States Supreme Court held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Title VII claims alleging such “ ‘disparate impact’ . . . involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” The Court held, “Proof of discriminatory motive . . . is not required under a disparate-impact theory.

When the Court Makes Title VII Law and Policy: Disparate Impact and the Journey from Griggs to Ricci

(Excerpt) This Article focuses on judicial lawmaking and policymaking in an important area of antidiscrimination law—Title VII of the Civil Rights Act of 1964’s regulatory regime. As enacted in 1964, Title VII only prohibited intentional employment discrimination on the basis of race, color, religion, sex, or national origin. The statute requires a finding that an employer “has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint.” “[Such] ‘disparate treatment’ . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others . . . . Proof of discriminatory motive is critical . . . .” Thereafter, in Griggs v. Duke Power Co., the United States Supreme Court held that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Title VII claims alleging such “ ‘disparate impact’ . . . involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” The Court held, “Proof of discriminatory motive . . . is not required under a disparate-impact theory.

Same-Sex Marriage and \u3cem\u3eLoving v. Virginia\u3c/em\u3e: Analogy or Disanalogy?

In its 1967 decision in Loving v. Virginia, the United States Supreme Court struck down Virginia antimiscegenation laws prohibiting and criminalizing interracial marriages, holding that the challenged laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. In recent federal appeals court decisions, Loving has been invoked as an authoritative analogy supporting plaintiffs’ claims that same-sex marriage bans violate the Constitution. This Essay considers the posited Loving analogy and the contentions (1) that different-race marriage and same-sex marriage prohibitions present similar, albeit not identical, instances of unconstitutional state limitations on an individual’s freedom to marry the person of his or her choice, and (2) that interracial marriage bans are conceptually distinguishable from laws forbidding same-sex marriages and therefore do not violate the Constitution. The Essay concludes that Loving is a useful and authoritative analogy supporting the claims of plaintiffs who contend, among other things, that states may not constitutionally deny same-sex couples the right to marry based solely on the traditional view that marriage is, and should only be, the legal union of one man and one woman

Title VII and the Unenvisaged Case: Is Anti-LGBTQ Discrimination Unlawful Sex Discrimination

As discussed herein, courts and individual judges recognizing or not finding actionable Title VII anti-LGBTQ14 claims have offered different rationales in support of their conflicting positions, including three justifications discussed in this project: (1) the meaning of Title VII’s “because of sex” prohibition, (2) the Supreme Court’s and circuit courts’ construction of the “because of sex” provision in the context of sex stereotyping and gender nonconformity discrimination as applied to the anti- LGBTQ question, and (3) associational discrimination theory. Claim-recognizing jurists have looked to Title VII’s text, Supreme Court and circuit court precedent, and the views of the Equal Employment Opportunity Commission (EEOC) in supporting their position. Those rejecting the argument that Title VII covers anti- LGBTQ discrimination have focused on a posited original public meaning of the statute’s text circa 1964 and relied on circuit court precedents holding that sexual orientation and transgender discrimination claims are not cognizable under the statute. Both sides of the debate are catalogued and critiqued herein. The discussion proceeds as follows. As a prefatory matter, Part I discusses the last-minute addition of the word “sex” to the list of characteristics protected from discrimination in H.R. 7152, the proposed Civil Rights Act, and the path leading to the sex amendment’s inclusion in the legislation signed into law by President Lyndon B. Johnson on July 2, 1964. Part II examines the Supreme Court’s interpretations of the statute’s “because of sex” prohibition, focusing on the Court’s initial sex discrimination decisions and its subsequent recognition of unenvisaged causes of action for workplace sexual harassment, same-sex sexual harassment, and gender nonconformity discrimination. Part III addresses the question of whether sexualorientation discrimination violates Title VII’s sex discrimination ban and examines the justifications supporting and opposing statutory coverage in Hively, Zarda, and Bostock. Part IV turns to the separate and distinct issue of transgender discrimination and the Sixth and Fifth Circuits’ contrary holdings in G.R. and R.G. Funeral Homes (recognizing the claim) and Wittmer (foreclosing the claim). Part V concludes that the sexual-orientation-and-transgender-discrimination-is-sex-discrimination position is the better, if not best, interpretation and application of Title VII’s “because of sex” proscription. That view best comports with the language of the sex discrimination provision as construed by the Supreme Court, lower courts, and the EEOC and reflects a jurisprudential approach that does not render invisible significant legal and contextual changes occurring in the half century following the enactment of Title VII