Brief of the New Civil Liberties Alliance in Support of the Employers
This case will address what Title VII of the Civil Rights Act of 1964 means by prohibiting employment discrimination “because … of sex.” Specifically, the Supreme Court will answer whether that language encompasses discrimination because of sexual orientation, gender identity, and/or transgender status. However the Court decides to interpret the phrase, it is crucial that the Court clarify how much deference—if any—is owed to the EEOC’s interpretations of Title VII. This issue arises because the EEOC does not have rulemaking authority to fill (perceived) gaps in the statute. It only has the authority to issue procedural rules. As NCLA’s brief explains, judicial deference to EEOC guidance or enforcement decisions thus wrongfully empowers the agency to create binding substantive rules, evade bicameralism and presentment, and violate the Due Process Clause.