Title VII of the Civil Rights Act of 1964 forbids employers “to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Many interpretations of this statute by the Supreme Court have been extremely controversial. In the Weber case in 1979, for example, the Court approved a racial quota for admission to a training program at a large corporation. In dissent, Justice Rehnquist protested: “With today’s holding, the Court introduces into Title VII a tolerance for the very evil that the law was intended to eradicate, without offering even a clue as to what the limits on that tolerance may be.” Eight years later, the Court approved a local government’s decision to promote a white woman instead of a more qualified man. In dissent, Justice Scalia called for Weber to be overruled, arguing that a “statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism.”
In 2009, the Court put limits on employers’ discretion to use racial preferences to insulate themselves from liability under the theory of “disparate impact,” which had been adopted by the Court in 1971 and codified in 1991. In dissent, Justice Ginsburg argued that the majority had misconstrued both the statute and the Court’s precedents. She predicted that the decision “will not have staying power.” For his part, Justice Scalia wrote a concurrence in which he contended that the decision “merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII . . . consistent with the Constitution's guarantee of equal protection?”
This Term, the Court will decide whether the statutory prohibition against discriminating against an individual “because of such individual’s . . . sex” includes discrimination because of an individual’s sexual orientation or transgender status.
Stare decisis is generally regarded as a stronger force when applied to statutes than it is in constitutional law. The standard rationale is that it is much easier for the legislature to overrule statutory precedents than it is for the people to overrule constitutional precedents. But stare decisis has never been an absolute rule in either context. Has the Supreme Court been excessively reluctant to reconsider Title VII precedents that are inconsistent with the text and design of the statute? Or should the Court accept those precedents and build on what it views as the spirit of the law, even when it conflicts with the views of those who adopted the statute?
These issues, which are as controversial today as they ever were, will be discussed at the panel titled “Stare Decisis in Civil Rights Cases” at the Federalist Society’s National Lawyers Convention, Friday, November 15, in the Mayflower Hotel’s State Room, 12:00 pm to 2:00 pm. We hope you will join us in-person or via live stream on the Federalist Society’s website.