KHVPF Insight
Are “Originalism” and “Textualism” Pro-Employee?
Republican nominated justices at the Supreme Court have held a majority for the past 54 years. This era has coincided with the rise of the judicial philosophy known as “originalism”—that the Constitution should be interpreted according to traditions, history, and the original public meaning of its text—and its statutory counterpart “textualism”—that statutes likewise should be interpreted in conformance with the original public meaning of a statute’s text. Following the retirement of Justice Anthony Kennedy in 2018 and the death of Justice Ruth Bader Ginsburg in 2020, Justices Brett Kavanaugh and Amy Coney Barrett ascended to the high court, ushering in the first time in history that “originalism” and “textualism” attained a clear majority on the court.
The effects of this change in judicial philosophy have resulted in outcomes embracing more conservative ideological positions in so-called “culture war” cases, including abortion, gun rights, and affirmative action. Yet proponents of “originalism” maintain that it is the only judicial philosophy that is neutral and keeps the judge’s personal political preferences out of judicial decision-making. It is worth asking whether that is true for the Court’s employment law decisions.
In Bostock v. Clayton County, the first major employment case following the Supreme Court’s jurisprudential shift, the Court—applying textualist reasoning—held that Title VII’s prohibition against discrimination “because of sex” was broad enough to prohibit discrimination based on sexual orientation and gender identity. This was certainly a “liberal” outcome, but was Bostock an anomaly? Three recent cases suggest that it may not be, and that the Court may be on the verge of a pro-employee shift, opening the doors to the courthouse broader to employees and making it easier to get to a jury on a claim of discrimination.
For instance, in Muldrow v. City of St. Louis, the Supreme Court unanimously overturned the requirement that an employee must show a “material, serious, or significant” adverse employment action to maintain a discrimination case against an employer. In its place, the Court ruled that an employee “need show only some injury respecting her employment terms or conditions”—in other words, the employment decision had to leave the employee “worse off, but need not have left her significantly so.” The Court invoked textualism to support this outcome, chastising a long line of lower court decisions that “rewrote Title VII, compelling workers to make a showing [of a material, serious, or significant injury] that the statutory text does not require.” The Court cited numerous cases that applied the old standard and acknowledged that, under its new rule, those cases would have resulted in favorable outcomes for employees and required trials. And the Court recognized that while this could open the floodgates of litigation, the Court was not concerned because that “would be the result of the statute Congress drafted.”
Perhaps sensing the shift in the high court’s jurisprudence, noted textualist jurists on the U.S. Circuit Courts of Appeals have also called into question the viability of long-standing precedent in employment cases rooted in “judge made” rules rather than Title VII’s text. These judges, too, recognize that the practical effect of these changes would make it easier for plaintiff- employees to bring lawsuits and withstand summary dismissal of their employment discrimination claims.
Two recent examples are illustrative. In Ames v. Ohio Dep’t of Youth Servs., noted textualist Raymond M. Kethledge questioned long-standing precedent requiring a higher showing in so-called “reverse discrimination” cases, requiring proof that the employer was unusual in that it discriminated against the majority. The plaintiff in Ames claimed she was discriminated against for being heterosexual, and while the Sixth Circuit affirmed the lower court’s ruling that her claim lacked merit, Judge Ketheledge argued that Title VII prohibits discrimination against “any individual” and, thus, different evidentiary burdens should not be imposed depending on “membership in different demographic groups.” He called on the Supreme Court to weigh in on the issue and overturn the standard.
Likewise, in Tynes v. Florida Dept. of Juvenile Justice, Judge Kevin Newsom of the Eleventh Circuit challenged the 50-year old McDonnell Douglas burden-shifting framework for proving employment discrimination through indirect evidence. Under the McDonnell Douglas framework, which was created by the Supreme Court in 1973, the employee first bears the burden of raising an inference of discrimination.The employer then must produce a legitimate, non-discriminatory reason for the action in question. Finally, the employee bears the ultimate burden of proving that the employer’s reason is a pretext for discrimination.
In Tynes, Judge Newsom called the McDonnell Douglas framework a “judge-concocted doctrine” that is “awfully made up” with no basis in the text of Title VII or any of the other employment statutes. He argued that the framework is “quite legislative” and “a flashing red light … that something is amiss.” He proposed instead that the Court overturn McDonnell Douglas and adopt a “convincing mosaic” approach, which simply asks the judge or jury to weigh the evidence and determine whether an inference of intentional discrimination is possible. He acknowledged that this approach would lead to more cases going to trial, but he maintained that this is the result mandated by the text of Title VII. McDonnell Douglas, he argued, has become a “code-like” collection of “distinct doctrinal pigeonholes” that judges never had the power to enact.
The rise of originalism and textualism in the federal judiciary has begun to impact employment law in ways that may favor employees. Bostock and Mudlow may be just the beginning of these cases that open the door to more employees claiming discrimination and make it easier for those employees to get to trial. We will continue to monitor how these philosophies impact employment law.