Contributor, The Volokh Conspiracy

As you may already know, every couple of years Congress considers whether to pass the Employment Non-Discrimination Act, a federal statute that would ban employment discrimination on the basis of sexual orientation, much as discrimination on the basis of race, sex, etc. are already banned. So far, the legislation has not yet been enacted, and that was about where things stood when I was in law school, although since then one attempt, H.R. 3685, passed the House in 2007 by a 235-to-184 vote, and another, S. 815, passed the Senate in 2013 by a 64-to-32 vote.

So I have been somewhat intrigued in more recent years as an argument has emerged quite prominently in some federal courts that employment discrimination on the basis of sexual orientation is already illegal. The argument is that Title VII’s ban on sex discrimination also entails a ban on discrimination on the basis of sexual orientation, and it has gotten enough momentum that it is coming to the en banc U.S. Court of Appeals for the 7th Circuit on Wednesday in Hively v. Ivy Tech Community College.

While it may seem surprising for a decades-old statute to suddenly be discovered to have an important new implication like this, the argument has something going for it. As various folks have already argued (including co-blogger Ilya Somin) in various contexts, there is a sense in which sexual orientation can be seen as a form of formal sex discrimination. Plus there is a Supreme Court case, Price Waterhouse v. Hopkins, which holds that sex-based stereotyping is actionable under Title VII, and heteronormativity can be seen as a form of sex-based stereotyping. The Equal Employment Opportunity Commission has also recently endorsed this argument.

On the other hand, there is a less formal argument that this simply isn’t what Title VII was thought to cover when it was enacted — and that Congress’s repeated refusal to amend the statute since then confirms that the law has not yet changed. I sometimes think of this as the “but that can’t be right” principle of statutory interpretation, a lesser-known cousin of the absurdity doctrine. That principle brought us cases such as FDA v. Brown & Williamson (rejecting the argument that cigarettes are drug delivery devices) or perhaps some of the votes in Hayden v. Pataki (felon disenfranchisement laws permissible under Section 2 of the Voting Rights Act). I tend to have very textualist instincts and so to be dubious of these kinds of arguments, but they do have their place.

There’s much more to be said about this important issue, but I haven’t made up my own mind about it. But I’ll be at the en banc argument Wednesday and will report back if anything interesting happens.