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. Clayton County and R.G. & G.R. Funeral Homes v. EEOC. Title VII prohibits workplace discrimination “because of … sex.” The Court’s decision will turn on how it interprets the word “sex.”

As 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. 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.

The Equal Employment Opportunity Commission, however, potentially has an unfair advantage in these cases. EEOC’s proffered interpretation of the word “sex” could have a special force and effect because of a doctrine known as Griggs deference. Griggs v. 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 “[t]he administrative interpretation of the Act by the enforcing agency.”

Five years later, the Court seemingly walked back from Griggs and concluded in General Electric Co. v. Gilbert that “courts properly may accord less weight” to EEOC’s interpretations of Title VII.

Therein lies the problem. The Court has not expressly rejected the “great deference” language from Griggs, so lower courts continue to invoke and apply that standard. 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.

Apart from the practical confusion this has caused, it is also important to keep in mind that EEOC lacks substantive rulemaking authority over Title VII. It has authority to only “issue … procedural regulations.” There is no evidence of congressional intent to give EEOC interpretive authority over disputed statutory provisions. 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. Executive-branch agencies like the EEOC have no authority to forge a Northwest Passage around bicameralism and presentment.

More importantly, the “great deference” regime irreconcilably conflicts with the Constitution. A court that “defers” to the EEOC simply because the agency has weighed in on the interpretive question before the Court is abandoning its duty of independent judgment. A command to defer to the EEOC requires the judiciary to display systematic bias toward the EEOC whenever it appears as a litigant. Rather than exercise their own judgment about what the law is, judges under the Griggs regime extend “great deference” to the judgment of one of the actual litigants before them.

NCLA filed an amicus brief in the Supreme Court calling out these constitutional infirmities and urging the Court to firmly reject Griggs deference. The cases were argued in early October. A decision from the Court is expected sometime before the last week of June. It would be an important victory for protecting civil liberties if the Court were to reject injecting bias into its decisions by way of deferring to agency interpretations.

 Written by Adi Dynar