Does existing law ban workplace bias against gays? SCOTUS will decide

My new post at Cato covers the Supreme Court’s decision to resolve three cases in which it is argued that Title VII of the 1964 Civil Rights Act bans private workplace discrimination against gay and transgender employees. I cite a 2017 Seventh Circuit showdown on the question between Judges Richard Posner and Diane Sykes: “These philosophical divides on statutory interpretation — which of course play out every term in lower-profile cases — are likely to be on the Court’s mind next fall.” More: Jared Odessky, On Labor (rounding up commentary).


  • No one thought it did for years, then Posner decided to import it into the statute. That’s not the judicial function.

    • It is erroneous to see Posner as having decided. His opinion was a concurrence, while Judge Diane Wood wrote the majority opinion in the 8-3 ruling. (Various important players in employment discrimination law, such as the federal EEOC, had already endorsed the broad reading.) Posner is noteworthy not because his vote changed the outcome, but because of the starkness with which he was willing to ground the outcome in a philosophy of frank judicial activism.

      • I stand corrected and agree with your response.