Introduction: Interpreting the Constitution in Employment Law

Originalism is a legal philosophy that interprets the Constitution based on its original meaning at the time it was written. This approach influences many areas of law, including employment law and non-discrimination rights. Understanding how originalism impacts these rights helps clarify ongoing legal debates and policy decisions. Over the past several decades, originalism has moved from a fringe academic theory to a mainstream method of constitutional interpretation, shaping rulings on everything from federal power to individual liberties. In employment law—where questions of discrimination often intersect with constitutional protections and statutory interpretation—the originalist methodology has provoked both rigorous defense and sharp criticism. This article explores the foundations of originalism, the evolution of non-discrimination rights in the workplace, and the tensions that arise when a historically grounded interpretive approach meets evolving societal norms.

Understanding Originalism

The Origins and Core Principles

Originalism emerged as a distinct school of constitutional interpretation in the 1970s and 1980s, largely in response to the perceived judicial activism of the Warren and Burger Courts. Its foundational premise is that the Constitution’s meaning should be fixed according to the understanding that existed at the time each provision was adopted. Proponents include Justice Antonin Scalia, who famously argued that “the Constitution means what it meant to the people who ratified it,” and Judge Robert Bork, who emphasized adherence to original intent.

Originalism has two main branches: original intent and original public meaning. Original intent focuses on what the Framers themselves privately intended when drafting the text. Original public meaning, now the dominant version in modern jurisprudence, looks to how a reasonable person would have understood the text at the time of enactment. Justice Scalia championed the latter, asserting that it avoids the speculative nature of hunting for subjective intent while still constraining judges to historical context.

Why Originalism Matters in Employment Law

Employment discrimination claims often arise under federal statutes like Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA). Although these are statutes, not constitutional provisions, originalism influences how courts interpret them when constitutional questions are raised—for example, challenges to the scope of Congress’s power under the Commerce Clause or Section 5 of the Fourteenth Amendment to enact such laws. Moreover, an originalist approach to statutory interpretation can overlap with textualism, requiring judges to read employment statutes according to their ordinary meaning at the time of enactment. The result is a legal landscape where historical meaning carries substantial weight, sometimes clashing with contemporary understandings of equality.

Non-discrimination Rights in Employment Law: A Historical Overview

From the Civil Rights Act to Modern Protections

The cornerstone of federal employment non-discrimination law is Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, or national origin. Initially, the Act’s coverage was limited to employers with 25 or more employees, though that threshold has since been lowered to 15. The statute created the Equal Employment Opportunity Commission (EEOC) to enforce its provisions and has been amended several times to expand protections and remedies.

Subsequent landmark laws extended non-discrimination principles to other contexts: the Age Discrimination in Employment Act of 1967 (age 40 and older), the Pregnancy Discrimination Act of 1978 (clarifying that sex discrimination includes pregnancy), the Americans with Disabilities Act of 1990, and the Genetic Information Nondiscrimination Act of 2008. Most recently, the Equality Act—passed by the House multiple times but not yet law—would expand protections to sexual orientation and gender identity, building on the Supreme Court’s 2020 decision in Bostock v. Clayton County, which interpreted Title VII’s prohibition on sex discrimination to cover those categories.

The Role of Constitutional Amendments

Beyond statutes, the Constitution itself provides some antidiscrimination protections in employment, particularly through the Fourteenth Amendment’s Equal Protection Clause. Public-sector employees can bring constitutional claims against state and local government employers, alleging that discriminatory policies violate equal protection. The Fifth Amendment’s Due Process Clause provides analogous protection against federal employer discrimination. However, the burden of proof is higher than under Title VII, because plaintiffs must show intentional discrimination rather than merely disparate impact.

Originalism’s Application to Employment Discrimination

Key Supreme Court Cases

Several major decisions illustrate how originalist or originalist-adjacent reasoning has shaped employment discrimination law. In City of Boerne v. Flores (1997), the Supreme Court applied an originalist understanding of Section 5 of the Fourteenth Amendment to strike down portions of the Religious Freedom Restoration Act, curtailing Congress’s power to impose requirements on states beyond what the Court had defined as constitutional violations. That ruling directly affected employment discrimination claims against state entities, because it limited the reach of federal protections.

In Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of Alabama v. Garrett (2001), the Court—applying what many scholars describe as originalist reasoning about state sovereign immunity—held that state employers could not be sued for damages under the ADEA or Title I of the ADA, respectively. The Court reasoned that Congress lacked authority under Section 5 of the Fourteenth Amendment to abrogate state sovereign immunity for age or disability discrimination, because such classifications were not subjected to heightened scrutiny under original understanding. These decisions significantly limited the remedies available to public-sector employees, leaving them with injunctive relief only or reliance on state laws.

The Bostock Decision: Textualism vs. Originalism

Perhaps the most impactful Title VII case in recent memory, Bostock v. Clayton County (2020), divided the justices along methodological lines. Justice Gorsuch, writing for the 6-3 majority, applied a textualist interpretation: because discrimination based on sexual orientation or transgender status inherently involves sex, it falls within Title VII’s plain language. Critics on the right—including Justice Alito in dissent—argued that this approach deviated from originalism, because the 1964 Congress never intended to cover sexual orientation or gender identity. The majority countered that textualism looks to the ordinary meaning of the statutory text, not legislative intent, and that an employer who fires a man for being attracted to men, but does not fire a woman for being attracted to men, is treating that individual employee differently because of sex.

Bostock illustrates a crucial nuance: many originalists embrace textualism for statutes, but they may part ways when the statute’s original public meaning yields a result they dislike. The case also shows that originalism in practice often overlaps with, but is not identical to, textualism. The debate over whether Bostock was truly “originalist” continues among legal scholars.

Tensions Between Originalism and Modern Anti-Discrimination Law

Fixed Meaning vs. Evolving Standards

Originalism’s commitment to fixing constitutional meaning at the time of ratification sits uneasily with the dynamic nature of non-discrimination law. The Fourteenth Amendment’s Equal Protection Clause, ratified in 1868, was originally understood to permit racial segregation and to provide different rights to men and women. A strict originalist reading would not have produced Brown v. Board of Education (1954), which struck down segregated schools, or Reed v. Reed (1971), which first applied heightened scrutiny to sex-based classifications. To reconcile this, some originalists argue that the Equal Protection Clause’s text is broad enough to encompass new applications without changing its meaning, while others—often called “original methods originalists”—contend that the original understanding of “equal protection” included a principle of racial equality that logically condemns segregation. Similarly, the “public meaning” of “sex discrimination” in 1964 did not include sexual orientation, yet Bostock’s textualist reasoning reached that result. The tension remains unresolved.

Originalist Critiques of Disparate Impact

Another flashpoint is the doctrine of disparate impact, established in Griggs v. Duke Power Co. (1971). Under disparate impact, employment practices that are facially neutral but disproportionately harm a protected group may be unlawful unless justified by business necessity. Originalists often criticize this doctrine as exceeding the original intent of Title VII, which they argue was designed to prohibit only intentional discrimination. Critics point to the statutory language: “because of such individual’s race, color, religion, sex, or national origin,” which they read as requiring but-for causation and discriminatory motive. The Supreme Court has upheld disparate impact under Title VII, but conservative justices have signaled skepticism. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project (2015), the Court narrowly upheld disparate impact under the Fair Housing Act, but Justice Thomas’s concurrence in part called for overruling Griggs as inconsistent with the original meaning of Title VII.

Religious Accommodation and the First Amendment

Employment non-discrimination law also intersects with religious freedom, a conflict that originalist reasoning can sharpen. Title VII requires employers to accommodate employees’ religious practices unless doing so would cause undue hardship. The Supreme Court’s 2021 decision in Fulton v. City of Philadelphia and the 2023 decisions in Groff v. DeJoy (clarifying the undue hardship standard for Title VII religious accommodation) both reflect originalist concerns about protecting religious liberty. At the same time, religious employers have sought exemptions from non-discrimination requirements for sexual orientation and gender identity, arguing that Title VII’s text should be interpreted in light of the First Amendment’s original meaning. Lower courts are divided, and the Supreme Court has not yet addressed the question directly.

Implications for Future Law

The Current Supreme Court and Originalism

With a 6-3 conservative majority that includes several originalist or textualist justices, the trajectory of employment non-discrimination law may shift. The Court has already limited the reach of disparate impact, narrowed Congress’s power to abrogate state sovereign immunity, and signaled openness to stricter scrutiny of race-based affirmative action in employment (Students for Fair Admissions did not directly address Title VII, but its reasoning could be applied). On the other hand, Bostock demonstrates that textualism can produce surprisingly broad protections. Future cases may test whether the Court will apply originalism consistently or selectively, particularly when a statute’s original meaning conflicts with conservative policy preferences.

Legislative Responses and State-Level Action

Because originalist interpretations can constrain federal protections, advocates for expanded non-discrimination rights have increasingly turned to state legislatures. Many states have enacted laws that go beyond federal protections, covering LGBTQ+ employees, protecting against discrimination based on hairstyles associated with race (the CROWN Act), and setting higher damages caps. Conversely, states with originalist-leaning courts may interpret their own constitutions narrowly. This patchwork approach means that an employee’s protection from discrimination can depend entirely on location—a result some originalists embrace as respecting federalism.

Originalism and the Future of the Administrative State

The EEOC, as an administrative agency, plays a central role in enforcing Title VII and other non-discrimination statutes. Originalist skepticism of the administrative state, articulated in cases like West Virginia v. EPA (2022), may lead the Court to limit the EEOC’s rulemaking authority or its ability to issue guidance that effectively expands prohibitions. The “major questions doctrine” could be invoked to require clear congressional authorization before the EEOC can address novel discrimination theories, such as those based on intersectionality or algorithmic bias in hiring. Employers and employees alike may face greater uncertainty as the courts reexamine the scope of agency power through an originalist lens.

Conclusion: Balancing History and Progress

Originalism provides a structured method for interpreting laws according to their original meaning, offering stability and respect for the democratic processes that produced them. In the context of employment non-discrimination rights, this approach can protect settled expectations and limit judicial overreach. Yet the history of civil rights law is largely one of expanding protections to groups that were excluded by the original understanding. The tension between fidelity to original meaning and the drive toward greater equality will persist. Legal scholars, judges, and lawmakers must continue to grapple with whether—and how—an originalist framework can accommodate the evolving moral consensus that discrimination based on race, sex, sexual orientation, gender identity, age, or disability is fundamentally unfair. The answer will shape the future of employment law for generations to come.

For further reading: Stanford Encyclopedia of Philosophy – Originalism, Bostock v. Clayton County (SCOTUS opinion), EEOC – Title VII Text, City of Boerne v. Flores, and Oyez – Bostock v. Clayton County.