Reading Amendments and Expansions of Title VII Narrowly

INTRODUCTIONThroughout Title VII's history, Congress has amended and expanded Title VII. Often, the Supreme Court has read such amendments and expansions narrowly, even as it generally reads Title VII broadly or narrowly depending on the case before it. The Court's approach to Title VII expansions may merely indicate that the Court believes that such statutory alterations should be read only as broadly as necessary to effectuate their purposes. However, regardless of why the Court has interpreted these expansions narrowly, that the Court has done so suggests that Congress ought to consider carefully how it amends or expands Title VII in the future.This brief Essay examines how the Court has interpreted various amendments and expansions of Title VII and suggests that Congress will need to be very careful in how it expands Title VII to cover additional demographic characteristics and protect employees against all instances of discrimination Congress intends to ban. The Court's interpretations may have implications for the legislation like the proposed Employment Non-Discrimination Act ("ENDA"), which expands Title VII's coverage to sexual orientation and gender identity.1 Part I of this Essay discusses how the Court has interpreted Title VII's motivating factor test, which Congress installed as part of the Civil Rights Act of 1991 ("1991 Act").2 Part II discusses how the Court has interpreted Title VII's disparate impact cause of action, also part of the 1991 Act. Part III discusses how the Court has addressed the reasonable accommodation requirement in Title VII religion cases, which Congress installed through its 1972 Amendments to Title VII. Part IV discusses how the Court has interpreted pregnancy discrimination under the Pregnancy Discrimination Act of 1978,3 which amended Title VII.I. MOTIVATING FACTOR: READING PROOF STRUCTURES NARROWLYTitle VII prohibits discrimination by an employer against an individual "because of such individual's race, color, religion, sex, or national origin."4 However, when initially codified, Title VII did not specify how to prove that an employer had discriminated against an employee because of that employee's race, color, religion, sex, or national origin. Congress rectified that by adding the motivating factor test to Title VII through the 1991 Act.5 That test deems Title VII violated whenever an employer's decision is motivated in part by consideration of any factor deemed illegitimate under Title VII.6 However, rather than treat the motivating factor test as the causation test for all employment discrimination claims, the Supreme Court has treated the motivating factor test as a secondary and inferior way to prove causation.7 In the process, the Court has narrowed the effect of the motivating factor test and rejected its expansion outside of a narrow portion of Title VII.8A. Price Waterhouse v. Hopkins and the Motivating Factor TestCongress installed the motivating factor test in response to the Supreme Court's fractured decision in Price Waterhouse v. Hopkins.9 In that case, plaintiff Ann Hopkins was a senior manager who had been proposed for partnership at Price Waterhouse.10 Rather than being granted or rejected, Hopkins's partnership bid was held for reconsideration.11 The partners cited Hopkins's interpersonal skills as reasons for the hold.12 The trial court deemed those reasons legitimate and nondiscriminatory.13 However, other reasons also triggered the hold. Those reasons appeared to be based on discriminatory sex stereotyping.14 The Supreme Court had to determine how to analyze Title VII's causation clause when some motives for the employment action were legitimate and others were illegitimate.Price Waterhouse produced four opinions: a four-justice plurality, a concurrence by Justice O'Connor, a concurrence by Justice White, and a threejustice dissent. The plurality opinion ruled that proof that a discriminatory reason motivated the employment decision proved the elements of a Title VII violation, subject to the employer's affirmative defense that it would have made the same decision had it not considered the discriminatory reason. …