Executive-branch agencies like the EEOC have no authority to forge a Northwest Passage around bicameralism and presentment. An executive-branch agency can of course opine on what it thinks a statute means, but a posture of judicial deference enables EEOC to make an end run around Congress’s decision to deny it substantive rulemaking authority. It has authority to only “ issue … procedural regulations.” There is no evidence of congressional intent to give EEOC interpretive authority over disputed statutory provisions. The tension between Griggs and General Electric has produced a regime in which litigants and lower courts can pick and choose between the inconsistent pronouncements from the Supreme Court-and then insist that their hand-selected passages be regarded as law because only the Supreme Court can overrule one of its own decisions.Īpart from the practical confusion this has caused, it is also important to keep in mind that EEOC lacks substantive rulemaking authority over Title VII. The Court has not expressly rejected the “great deference” language from Griggs, so lower courts continue to invoke and apply that standard. Gilbert that “courts properly may accord less weight” to EEOC’s interpretations of Title VII. Duke Power Company (a 1971 Supreme Court decision) concluded that EEOC’s “interpretations” of Title VII were “entitled to great deference,” simply because they reflect “he administrative interpretation of the Act by the enforcing agency.”įive years later, the Court seemingly walked back from Griggs and concluded in General Electric Co. EEOC’s proffered interpretation of the word “sex” could have a special force and effect because of a doctrine known as Griggs deference. The Equal Employment Opportunity Commission, however, potentially has an unfair advantage in these cases. Ideally, the Court would exercise independent judgment to either pick one of the offered interpretations that it finds most persuasive or reject all interpretations as being incompatible with the text of the statute Congress enacted in 1964. Title VII prohibits workplace discrimination “ because of … sex.” The Court’s decision will turn on how it interprets the word “sex.”Īs is typical in any statutory-interpretation case, parties and amici offer arguments and reasons why the word should or should not include “gender identity” and “sexual orientation.” That is what the parties are arguing before the Supreme Court in the two pending cases. In 2020, the Supreme Court is poised to decide whether Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or gender identity in Bostock v.
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