Page:Bostock v. Clayton County (2020).pdf/77

40 is no dispute that discrimination against an individual employee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average employee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it matter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–A, supra.

Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history.

So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court’s interpretation.

As the Court explained in ''General Elec. Co. v. Gilbert'', 429 U. S. 125, 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the