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Abstract

During the decade before the Supreme Court decided Bostock v. Clayton County, the Equal Employment Opportunity Commission (“EEOC”) interpreted Title VII to prohibit employment discrimination based on gender identity and sexual orientation. Through informal adjudication, independent litigation, and nonacquiescence, the EEOC successfully etched its interpretation of Title VII into law without receiving Chevron deference. The agency made arguments about the meaning of Title VII that succeeded in lower courts and eventually at the Supreme Court. However, the majority opinion in Bostock never mentioned the EEOC’s near-decade of work. Thus, the EEOC’s role in Bostock is both a potential model and a cautionary tale for agencies interpreting statutes after the elimination of Chevron deference. The EEOC’s success in federal courts demonstrates that agencies can play an influential part in interpreting statutes, even without deference. But the easy erasure of the EEOC by the Supreme Court demonstrates that agencies must do more to justify their role in statutory interpretation—both to courts and to the American public.

This Article explores the EEOC’s part in the backstory of Bostock, theorizing what the EEOC could and should have done differently to justify consideration of its views. Interpreting Title VII, the EEOC used the “traditional tools of statutory construction”—statutory text and judicial precedent. This Article argues that the EEOC should have also used methods of interpretation that capitalized on its unique capacities and role as an administrative agency, different from the capacities and role of federal courts. This Article also analyzes why the EEOC’s interpretations of Title VII received little public opposition from conservative members of Congress. While the EEOC did publicize its actions, this Article suggests ways that the EEOC could have further increased public attention to and deliberation about its interpretations. This Article concludes that an agency seeking to make the case that it deserves consideration of and deference to its interpretations of statutes should take actions and use methods of interpretation that emphasize the agency’s differences from courts. In short, agencies should act like agencies, not courts.

I. Introduction

II. Justifying the Role of Agencies in Statutory Interpretation ... A. Looking Beyond Congressional Intent ... 1. Sunstein and Vermeule on Capacities and Consequences ... 2. The Mashaw-Pierce Debate on Role and Responsibility ... 3. Eskridge and Ferejohn’s Administrative Constitutionalism ... B. Potential Objections to the EEOC’s Statutory Interpretation ... 1. The EEOC’s Democratic Legitimacy as an Independent Agency ... 2. The Choice of Policymaking Form of the EEOC’s Federal Sector Cases ... 3. Objections from Originalism, Textualism, and Judicial Supremacy ... C. Beyond Deference—Nonacquiescence and Departmentalism

III. Interpreting “Because of . . . Sex” … A. Theorizing Gender Identity and Sexual Orientation Discrimination as Sex Discrimination … 1. Per Se Sex Discrimination ... 2. Sex Stereotyping ... 3. Scientific Evidence About the Definition of Sex ... B. The EEOC’s History of Interpreting “Because of . . . Sex”

IV. The EEOC and the Prelude to Bostock ... A. Nominations and Confirmations ... B. The EEOC’s Federal Sector Cases ... 1. Gender Identity ... 2. Sexual Orientation ... C. The EEOC’s Litigation ... 1. Filing Lawsuits ... 2. Amicus Briefs ... 3. The EEOC Versus the Department of Justice ... D. Progressive Support, Conservative Silence

V. Bostock, Text and Precedent, and the Erasure of the EEOC

VI. Takeaways for the EEOC and Other Agencies ... A. The Potential for Agency Statutory Interpretation Post-Chevron ... B. The Importance of Aligning Interpretive Methodologies with the Justifications for an Agency’s Role in Statutory Interpretation ... C. Alternative Histories, Alternative Arguments

VII. Conclusion

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