Textualism confounds the linkage between jurisprudential methodology and philosophy. In popular conception, a judge’s choice of interpretive tools is bound to be tightly intertwined with the ideological flavor of that judge’s outcomes: originalism or strict constructionism lead to conservative results, while living constitutionalism or purposivism lead to liberal results. Textualism, once pilloried as a tool of the right, is now making a play at escaping that perceptual mold. As the methodology has become more and more ubiquitous, it has taken on a new character. It now boasts of broad acceptance throughout the judiciary and even such conservative paragons as Neil Gorsuch and Clarence Thomas have sometimes followed textualism toward what might seem rather progressive outcomes. Muldrow v. City of St. Louis,1 decided last term, is sure to join cases like Southwest Airlines v. Saxon, New Prime v. Oliviera, and the quintessential Bostock v. Clayton County in the pantheon of progressive textualism.
Missouri’s Sandra Sperino makes this point in her forthcoming article, When is Discrimination Harmful?, where she explores Muldrow’s dominating use of textualism to drastically expand the reach of employment discrimination laws. But, in its quest to excise subjective applications of Title VII, the Muldrow Court opened just as many doors as it closed—leaving lower courts to struggle with applications that are no less subjective than the standard Muldrow abandoned. What’s the root of this inextricable challenge? Sperino posits that the concept of “harm,” a foundational component of anti-discrimination law, inevitably “rests on judgments that cannot be answered through the statutory text alone.”
Muldrow concerned the transfer of a St. Louis police sergeant to a less prestigious and subjectively rewarding position because of her sex. Most circuits had held that transfers without a change in rank and pay like this do not constitute “harm” within the meaning of Title VII. Instead, actionable harm must rise to the level that it is “materially adverse” to the plaintiff. Muldrow rejects that standard, offering instead that the plain text of Title VII requires nothing more than a showing of “some harm.”
But, Professor Sperino and others, myself included, have noted that “some harm” is hardly more definite than “materially adverse.” The new standard is certainly lower, but how much lower is not clear, and the statutory text seems insufficient to reveal the answer. My own take on Muldrow would look beyond the text toward corresponding legal conceptions of harm.
Professor Sperino agrees. But from Muldrow she offers a more universal approach. Title VII, she suggests, was designed to be broad—and even ambiguous in parts—so as to leave room to “strike at the entire spectrum” of discrimination. The some-harm standard demonstrates this malleability. So, while textualism can answer some of the questions Title VII poses, stopping there leaves the job only half done. Taking the next step further, courts should look to the history and purpose of Title VII for answers.
In many ways, the modern approach to statutory interpretation, that leaves extraneous sources and policy off to the side, is superior. Done right, it avoids the manipulation, bias, and subjectivity that an open universe can introduce. But one of its biggest pitfalls is that past Congresses often wrote laws with the assumption that courts would look more broadly at the law’s history and purpose. In the case of Title VII, Sperino explains, this meant Congress wrote open-endedly—expecting that courts would apply the law as needed to strike broadly against discrimination. Indeed, many of the core tests courts apply to Title VII were developed by reference to its objective, not its text.
Sperino makes a compelling case for a more comprehensive approach to discrimination law. In fact, I might even go a step further to argue that Title VII and its sister-statutes double as one of a class of background statutes that provide context to the law more broadly. As courts grapple with the unanswered questions Muldrow left, they should take Professor Sperino’s lesson that those questions are supposed to be there. And they should take heed that answers exist, not just in the statute’s text, but in its character.
