{"id":29309,"date":"2020-07-17T16:28:02","date_gmt":"2020-07-17T21:28:02","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=29309"},"modified":"2020-07-17T16:29:19","modified_gmt":"2020-07-17T21:29:19","slug":"bostock-v-clayton-county-an-unexpected-victory","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2020\/07\/bostock-v-clayton-county-an-unexpected-victory\/","title":{"rendered":"Bostock v. Clayton County: An Unexpected Victory"},"content":{"rendered":"

\"A[The following is a guest post from Alexa Bradley (L’18).]<\/em><\/p>\n

The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer.<\/p>\n

Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were always meant to be. On June 15, 2020, in Bostock v. Clayton County Board of Commissioners<\/a><\/em>, <\/em>the United States Supreme Court ruled in a 6-3 decision that Title VII\u2019s prohibition of workplace \u201csex\u201d discrimination clearly encompasses discrimination based on one\u2019s sexual orientation or transgender status because \u201chomosexuality and transgender status are inextricably bound up with sex.\u201d This long-awaited decision was an unexpected victory for the LGBTQi community, of course, but also for the sanctity of Title VII.<\/p>\n

Before I get into the weeds of the Bostock <\/em>opinion, a little background may be helpful. I\u2019ll first explain Title VII and some of the early Supreme Court case law interpreting \u201csex.\u201d Then, before I explain the opinion itself, I\u2019ll explain how the circuit courts had interpreted \u201csex\u201d when it came to claims involving sexual orientation and transgender status. Finally, after explaining the majority opinion, I\u2019ll unravel the dissenting arguments.<\/p>\n

\u00a0<\/em>Title VII Background
\n<\/em>Title VII<\/a> was enacted by Congress in 1964 to address the pervasive problems of employment discrimination and to ensure that, among the other enumerated characteristics, an employee\u2019s \u201csex\u201d was not relevant to their selection, evaluation, or compensation. According to Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)<\/a><\/em>, Congress drafted Title VII in broad terms to \u201cstrike at the entire spectrum of disparate treatment between men and women.\u201d Since Title VII\u2019s passage, the Court has been tasked on a number of occasions with clarifying the scope of protection provided by Title VII\u2019s ban on \u201csex\u201d discrimination.<\/p>\n

For example, in 1971, the Court held in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)<\/a><\/em> (per curiam<\/em>), that an employer who hired men with school-aged children but would not hire women with school-aged children had engaged in sex discrimination in violation of Title VII. The Court\u2019s decision in Phillips<\/em> created the \u201csex-plus\u201d theory of discrimination. Sex-plus discrimination is found when an employer, explicitly or in effect, classifies an employee on the basis of sex plus<\/em> another characteristic, such as \u201cwomen who have children.\u201d So, in Ms. Phillips\u2019s case, her employer discriminated against her because she was (A) a woman, who had (B) school aged children. Thus, her employer\u2019s decision was motivated, in part, by Ms. Phillips\u2019s sex, which violates Title VII.<\/p>\n

In 1978, the Court considered in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978)<\/a><\/em>, whether Title VII permitted an employer to require women to make larger contributions to the pension fund than men. The employer argued that the policy was justified because women are likely to live longer than men, so women would receive more over time from the pension fund. However, recognizing Title VII\u2019s clear focus on the individual <\/em>rather that a group<\/em>, the Court rejected the employer\u2019s justification. The Court reasoned that it may be true that women, as a whole, live longer than men, but an individual woman may die as early as a man, and that the individual, therefore, is the proper focus for Title VII. Thus, the Court held that an employer engages in sex discrimination in violation of Title VII when the employer uses generalizations or assumptions about an entire class of employees that results in individual disparate treatment.<\/p>\n

In 1986, the Court held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)<\/a><\/em>, that claims of workplace sexual harassment fall under the umbrella of \u201csex discrimination\u201d claims contemplated by Title VII, and in 1989, the Court held in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)<\/a><\/em>, that discrimination on the basis of an employee\u2019s failure to conform to expectations of gender norms \u2013 or sex-stereotyping \u2013 constitutes \u201csex\u201d discrimination in violation of Title VII.<\/p>\n

Finally, in 1998, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)<\/a><\/em>, an opinion written by the late Justice Antonin Scalia<\/a>, the Court found that Title VII\u2019s prohibition on \u201csex\u201d discrimination applies to cases of workplace harassment between members of the same sex. In so holding, Justice Scalia explained \u201cmale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.\u201d Id. <\/em>at 79.<\/p>\n

In considering the above-cited opinions, one central theme seems to ring through: \u201csex\u201d must be interpreted broadly.<\/p>\n

This theme becomes unavoidably clear when considered with Congress\u2019 abrupt response to the Court\u2019s holding in General Electric Co. v. Gilbert. 429 U.S. 125 (1976)<\/a><\/em>.\u00a0 In Gilbert<\/em>, the Court found that a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide such benefits for any absence due to pregnancy did not<\/em> constitute sex discrimination. In response, Congress passed the Pregnancy Discrimination Act of 1978<\/a>, which explicitly overturned Gilbert <\/em>and expanded Title VII\u2019s definition of \u201csex\u201d to cover \u201cpregnancy, childbirth, and related medical conditions.\u201d 42 U.S.C. \u00a7 2000e(k)<\/a>. Congress\u2019 swift action to overturn Gilbert<\/em> sent a clear message to the Court \u2013 the protected characteristics enumerated in Title VII are to be afforded broad interpretations.<\/p>\n

How We Got Here
\n<\/em>This is the landscape of Supreme Court decisions against which Bostock <\/em>must be understood. For years, plaintiff\u2019s attorneys have been navigating the landscape of Title VII precedents and attempting to fit their client\u2019s sexual orientation or transgender discrimination cases into one of the pre-existing sub-categories of \u201csex\u201d discrimination. For instance, sexual orientation and transgender status discrimination cases have been argued under sex-stereotyping and sex-plus theories of sex discrimination. Sometimes the cases would succeed; other times they would fail.<\/p>\n

In the recent years, however, some lawyers have argued that discrimination on the basis of one\u2019s sexual orientation or transgender status is <\/em>simply sex discrimination because the employer must <\/em>consider the employee\u2019s sex in order to engage in sexual orientation or transgender status discrimination.<\/p>\n

The Seventh Circuit was the first circuit to explicitly rule that sexual orientation discrimination is <\/em>sex discrimination cover by Title VII, in Hively v. Ivy Technical Community College of Indiana, 853 F.3d 339 (7th Cir 2017) (en banc)<\/a><\/em>. Sitting en banc, the Second Circuit followed the Seventh Circuit\u2019s lead. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc)<\/a><\/em>. Soon after, the Sixth Circuit found Title VII\u2019s ban on \u201csex\u201d discrimination to encompass discrimination based on an employee\u2019s transgender status. EEOC v. R.G. & G.R. Harris Funeral Homes Inc., 884 F.3d 560 (6th Cir. 2018)<\/a><\/em>.<\/p>\n

But the Eleventh Circuit held in Bostock v. Clayton County Board of Commissioners, 723 F. App\u2019x 964 (11th Cir. 2018) (per curiam)<\/a><\/em>, that Title VII did not<\/em> prohibit employers from firing employees because of their sexual orientation.<\/p>\n

The growing circuit split made the issue ripe for the Court\u2019s interpretation. Thus, on April 22, 2019, SCOTUS agreed to consider the issue dividing the Nation\u2019s courts and granted certiorari<\/em>, consolidating Bostock <\/em>(Eleventh Circuit) and R.G. & G.R. Harris Funeral Homes<\/em> (Sixth Circuit)\u2013 the Court later consolidated Zarda<\/em> (Second Circuit) with the other two cases.<\/p>\n

The facts of each of the cases were very similar at their core: In Bostock <\/em>and Zarda<\/em>, the plaintiff employees were terminated because of their sexual orientation and in R.G. & G.R. Harris Funeral Homes<\/em>, the plaintiff employee was fired she informed her employer that she was transgender and would begin presenting herself as a woman. Thus, the question the Court agreed to decide was whether firing an employee for their sexual orientation or transgender status constitutes \u201csex\u201d discrimination in violation of Title VII of the Civil Rights Act of 1964.<\/p>\n

As a plaintiff\u2019s side employment attorney, I have been obsessing over these consolidated cases since the Court granted cert<\/em>. During the summer and fall of 2019, I read the briefs<\/a> as they were filed and listened intently to oral arguments<\/a>, trying to figure out what the justices were thinking. After oral argument, I anxiously awaited (dreaded is probably the more accurate description) the Court\u2019s decision, which was expected to come down in June.<\/p>\n

Beginning June 1, I woke up every morning to a deep pit of dread in my stomach. To me, the answer to the question facing the Court has always seemed simple: of course sexual orientation and transgender status discrimination constitutes sex discrimination! How can anyone possibly argue that the consideration of the employee\u2019s \u201csex\u201d is not a necessary and fundamental component in sexual orientation and transgender discrimination?<\/p>\n

But I realize many people do not share my view, including, I assumed, a majority of the Court. The appointments of Neil Gorsuch<\/a> (in April 2017) and Brett Kavanaugh<\/a> in (October 2018) gave the Court a definite majority that leaned to the right; I thought it was all but guaranteed that that majority would also not share my view. The consequences of such a ruling would have been devastating, not just to the LGBTQi community but to our entire understanding of the scope of protections afforded to employees under Title VII. If the Court had decided to apply a narrow interpretation of \u201csex\u201d in Bostock<\/em>, then the entire pre-Bostock <\/em>line of cases, all of which interpret \u201csex\u201d broadly, would have been instantly called into question.<\/p>\n

Thankfully, my own \u201cparade of horribles\u201d were not realized. My prediction about the Court\u2019s decision was dead wrong, and I\u2019ve never been happier to be so wrong. Even more thrilling, to me, was that the Court\u2019s majority consisted of six of the nine justices: Chief Justice John Roberts, Jr.<\/a>, Justice Ruth Bader Ginsburg<\/a>, Justice Stephen Breyer<\/a>, Justice Sonia Sotomayor<\/a>, Justice Elena Kagan<\/a>, and Justice Neil Gorsuch, who penned the majority opinion.\u00a0 So, let\u2019s look at that opinion more closely.<\/p>\n

The Majority Opinion
\n<\/em>The majority opinion is an exercise in straight-up statutory interpretation. Writing for the majority, Justice Gorsuch explained that \u201c[t]he answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.\u201d Bostock<\/em>, 590 U.S. at ___; 2020 U.S. LEXIS 3252, at *10. To reach this inescapable conclusion, the majority relied on the plain text of the statute, assuming the term \u201csex\u201d referred \u201cto biological distinctions between male and female.\u201d Id.<\/em> at *14.<\/p>\n

The Court then analyzed the causation standard that Title VII employs. Specifically, Title VII prohibits employers from taking certain actions against an employee \u201cbecause of sex.\u201d This language signifies a \u201cbut-for\u201d causation standard, which has historically been afforded a broad interpretation. The Court has recognized that an event often has more than one \u201cbut-for\u201d cause. Accordingly, the causation standard applied must not be rigid.<\/p>\n

This interpretation is further evidenced, as the Court recognized, by the Civil Rights Act of 1991<\/a> in which Congress supplemented Title VII to allow a plaintiff to succeed in a Title VII case under an even more lenient causation standard. Under the more lenient causation standard, a plaintiff must demonstrate only that Their protected characteristic was a \u201cmotivating factor\u201d in the employer\u2019s adverse employment action. 42 U.S.C. \u00a7 2000e-2(m)<\/a>.<\/p>\n

Justice Gorsuch acknowledged the plain meaning of the term \u201csex\u201d and the broad interpretation of \u201cbecause of\u201d:<\/p>\n

From the ordinary public meaning of the statute\u2019s language at the time of the law\u2019s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn\u2019t matter if other factors besides the plaintiff \u2019s sex contributed to the decision. And it doesn\u2019t matter if the employer treated women as a group the same when compared to men as a group.<\/p><\/blockquote>\n

Bostock<\/em>, 590 U.S. at ___, 2020 U.S. LEXIS 3252, at *20. Then, the Court adopted a simple test to determine whether an employment decision was made \u201cbecause of sex.\u201d<\/p>\n

If the employer intentionally relies in part on an individual employee\u2019s sex when deciding to discharge the employee\u2014put differently, if changing the employee\u2019s sex would have yielded a different choice by the employer\u2014a statutory violation has occurred.<\/em> Title VII\u2019s message is \u201csimple but momentous\u201d: An individual employee\u2019s sex is \u201cnot relevant to the selection, evaluation, or compensation of employees.\u201d<\/p><\/blockquote>\n

Id. <\/em>(emphasis added).<\/p>\n

Applying that test to the consolidated cases before it, the Court was faced with only one possible answer: \u201cThe statute\u2019s message for our cases is equally simple and momentous: An individual\u2019s homosexuality or transgender status is not relevant to employment decisions. That\u2019s because it is impossible<\/em> to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.\u201d Id. <\/em>at *20-21 (emphasis added).<\/p>\n

Like the majority, I believe that \u201csex\u201d and \u201csexual orientation\u201d and \u201csex\u201d and one\u2019s \u201ctransgender status\u201d are inextricably intertwined. Let\u2019s consider just \u201csexual orientation\u201d for a moment. In order for an employer to discriminate against an employee for their sexual orientation, the employer must <\/em>consider the employee\u2019s sex first. As Judge Flaum explained in his concurrence in Hively<\/em>, \u201cFundamental to the definition of homosexuality is the sexual attraction to individuals of the \u2018same sex\u2019\u201d 853 F.3d at 358 (en banc). Therefore, one must consider a person\u2019s sex\u2014the biological marker of being a man or a woman\u2014to know if they are sexually attracted to others of the \u201csame sex.\u201d<\/p>\n

The same can be said about one\u2019s transgender status. The Merriam-Webster Dictionary<\/a> defines \u201ctransgender\u201d as \u201cof, relating to, or being a person whose gender identity differs from the sex the person had or was identified as having at birth.\u201d Here, again, \u201csex\u201d plays an inescapable and fundamental role in understanding the term \u201ctransgender.\u201d<\/p>\n

Thus, in both types of discrimination, an employer must<\/em> consider the employee\u2019s sex\u2014the employee\u2019s biological marker of being a man or a woman\u2014before the employer can identify the employee as transgender (one who is identifying with the other sex) or homosexual (one who is sexually attracted to someone of the same sex). Without the employer\u2019s impermissible consideration of the employee\u2019s sex, it would not be possible for an employer, or anybody for that matter, to discriminate against another on the basis of sexual orientation or transgender status. This is simply because the terms \u201csexual orientation\u201d and \u201ctransgender\u201d cannot <\/em>be understood or defined without explicit <\/em>reference to sex.<\/p>\n

To illustrate the necessary role that \u201csex\u201d plays in discrimination based on one\u2019s sexual orientation or transgender status, Justice Gorsuch offered the following hypothetical:<\/p>\n

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer\u2019s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee\u2019s sex, and the affected employee\u2019s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee\u2019s sex plays an unmistakable and impermissible role in the discharge decision.<\/p><\/blockquote>\n

Id. <\/em>at *21-22.<\/p>\n

This hypothetical perfectly demonstrates the inseparable link between one\u2019s \u201csex\u201d and \u201csexual orientation\u201d and \u201csex\u201d and \u201ctransgender status.\u201d Accordingly, the Court logically concluded that discrimination based on one\u2019s sexual orientation or transgender status is the precise type of conduct that Title VII, by its plain terms and established meaning, banned.<\/p>\n

While this could have ended the Court\u2019s analysis, Justice Gorsuch went further to ensure that the Court\u2019s opinion was impenetrable. He explained that the holding of the Court is additionally supported by three of the Court\u2019s leading precedents, all of which were discussed above: (1) Phillips v. Martin Marietta Corp<\/em>. (sex-plus discrimination); (2) Los Angeles Department of Water & Power v. Manhart <\/em>(policies relying on sex-based generalizations about a group of employees are impermissible sex discrimination); and (3) Oncale v. Sundowner Offshore Services, Inc. <\/em>(same-sex harassment is \u201csex\u201d discrimination). The Court gleaned three lessons from these three cases that provided additional support for the Court\u2019s holding.<\/p>\n

\u201cFirst, it\u2019s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.\u201d Id. <\/em>at *28. Essentially, an employer can call its discriminatory practice whatever it wants or posit motivations behind the practice that don\u2019t have anything to do with the employee\u2019s \u201csex\u201d (e.g., <\/em>an employer can state that the adverse employment action was motivated solely by the employee\u2019s sexual orientation or transgender status).<\/p>\n

However, the Court emphasized that \u201cjust as labels and additional intentions or motivations didn\u2019t make a difference in Manhart<\/em> or Phillips<\/em>, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.\u201d Id. <\/em>at *28-29.<\/p>\n

The second lesson the Court drew from the three cases is simple and straightforward. Title VII liability can attach even when the employee\u2019s sex is not the \u201csole or primary cause of the employer\u2019s adverse action.\u201d Id. <\/em>Thus, an employer cannot escape liability just because another factor, even a more important factor, may have informed the employer\u2019s adverse employment action.<\/p>\n

The final lesson is that \u201can employer cannot escape liability by demonstrating that it treats males and females comparably as groups.\u201d Id. <\/em>at *29. Citing Manhart<\/em>, Justice Gorsuch explained that \u201can employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual\u2019s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.\u201d Id. <\/em>at *29-30.<\/p>\n

As Justice Gorsuch acknowledged, the long line of precedent interpreting Title VII required the Court to find as it did. To hold otherwise would have rendered the Court\u2019s prior decisions meaningless and upended our understanding of the protection afforded by Title VII. Just as the late Justice Scalia observed in Oncale v. Sundowner Offshore Services, Inc.<\/em>, that same-sex sexual harassment may not have been anticipated by the members of Congress who adopted the Civil Rights Acts in 1964, Justice Gorsuch also acknowledged that the result reached by the Court in Bostock<\/em> may not have been anticipated by the members of Congress who adopted the Civil Right Act in 1964. However, he cautioned that \u201cthe limits of the drafters\u2019 imagination supply no reason to ignore the law\u2019s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it\u2019s no contest. Only the written word is the law, and all persons are entitled to its benefit.\u201d Id. <\/em>at *10.<\/p>\n

Here, it is indisputable that an analysis of the statute\u2019s text bolstered by an application of the Court\u2019s prior Title VII cases leads to only one result: that discrimination on the basis of one\u2019s sexual orientation or transgender status is <\/em>discrimination \u201cbecause of sex.\u201d<\/p>\n

From now on, our law will recognize that \u201c[a]n employer who fires an individual merely for being gay or transgender defies the law.\u201d Id. <\/em>at *58.<\/p>\n

The Dissents
\n<\/em>The dissenting opinions are particularly lengthy, compared to the 33-page majority opinion. Justice Samuel Alito<\/a> wrote a 54-page dissent (that Justice Clarence Thomas<\/a> joined) and attached an additional 53 pages of appendices; Justice Kavanaugh wrote a 27-page dissent that basically repeated one argument.<\/p>\n

Despite their length, however, the dissents\u2019 main points can be summed up as follows: (1) the majority is legislating from the bench; (2) \u201csexual orientation\u201d and \u201cgender identity\u201d do not appear in the text of Title VII, so discrimination on the basis thereof is not prohibited by Title VII; (3) an employer\u2019s blind policy of refusing to hire homosexuals or individuals who identify as transgender does not consider the employee\u2019s sex; and (4) a parade of horribles will follow from the breadth of the majority\u2019s decision.<\/p>\n

None of these points have any credence, but all of them share a common theme: a fundamental misunderstanding of Title VII and statutory interpretation.<\/p>\n

First, the majority did not legislate from the bench. Despite the protests from the dissenters, the Court engaged in nothing more than a textual analysis of the plain language of the statute. Had the majority reached a contrary conclusion, then I\u2019d agree the Court was legislating from the bench. As explained above, \u201csex\u201d and \u201csexual orientation\u201d and \u201csex\u201d and \u201ctransgender status\u201d are inextricably intertwined. And it wasn\u2019t just the four liberal justices who agreed; both Chief Justice Roberts and Justice Gorsuch agreed that statutory analysis led to the single inescapable conclusion that Title VII\u2019s ban on discrimination \u201cbecause of sex\u201d necessarily includes discrimination based on one\u2019s sexual orientation or transgender status.<\/p>\n

While the second point made by the dissenters is refuted by the above paragraph, it is further bolstered by the Court\u2019s long history of defining \u201cbecause of sex\u201d broadly to effectuate Title VII\u2019s purpose. One need not look further than the cases discussed above to find a plethora of examples of the Court defining \u201cbecause of sex\u201d to extend to types of sex discrimination that are not explicitly mentioned in the statute\u2019s text.<\/p>\n

Take Meritor Savings Bank FSB v. Vinson<\/em>, for example. \u201cSexual harassment\u201d or \u201chostile work environment\u201d claims are not specifically mentioned in Title VII\u2019s text; however, the Court concluded that sexual harassment is necessarily a type <\/em>of sex discrimination because the employee\u2019s sex is an indispensable component of the sexual harassment equation. Notably, in Oncale v. Sundowner Offshore Services, Inc., <\/em>the Court interpreted even same-sex<\/em> sexual harassment as actionable under Title VII, even though nothing in the text of the statute mentions it. So, too, here, sexual orientation discrimination and transgender discrimination are types <\/em>of sex discrimination because the employee\u2019s sex is an indispensable component of the equation.<\/p>\n

In an attempt to show that precedent does not require the interpretation the majority gives, Justice Alito cites to Price Waterhouse v. Hopkins<\/em>. 490 U.S. 228 (1989); however, Justice Alito seems to misconstrue its holding. Justice Alito claims that Title VII does not forbid discrimination based on sex stereotypes, yet that is in part what Price Waterhouse v. Hopkins<\/em> holds. Perplexingly, Justice Alito then goes on to state that just because Title VII does not forbid discrimination based on sex stereotypes, \u201c[t]hat does not mean . . . that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex.\u201d Bostock<\/em>, 590 U.S. at ___; 2020 U.S. LEXIS 3252, at *82 (Alito J., dissenting).<\/p>\n

Equally as confusing, Justice Alito additionally argues that the sex stereotyping theory cannot apply to individuals who are attracted to the same sex or transgender individuals because \u201cthe grounds for the employer\u2019s decision \u2013 that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex \u2013 apply equally to men and women. \u2018[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sex-specific<\/em> stereotype at all.\u2019\u201d Id. <\/em>at *83 (Alito J., dissenting) (quoting Hively<\/em>, 853 F.3d, at 370 (Sykes, J., dissenting)).<\/p>\n

However, as the majority explained, it does not matter that the \u201cgrounds for the employer\u2019s decision\u201d applies equally to men and women because Title VII is focused not on men and women as groups; rather, it is focused on men and woman as individuals<\/em>. The test is not <\/em>whether an employer would fire men and women equally for being homosexual or identifying as transgender. Rather, the proper test, as announced by the majority, is a simple but-for test and requires the employer to change only the sex of the employee in question, allowing everything else to remain the same. And, \u201cif changing the employee\u2019s sex would have yielded a different choice by the employer[,] a statutory violation has occurred.\u201d Id.<\/em> at *20.<\/p>\n

Furthermore, contrary to Justice Alito\u2019s assertion that a sex-stereotyping theory of discrimination cannot apply to individuals who are attracted to the same sex or transgender individuals because \u201cheterosexuality is not a . . . sex-specific<\/em> stereotype,\u201d being gay, lesbian, bisexual, or transgender forms a basis for failing to conform to perhaps the most widespread sex stereotypes out there \u2013 that men should be attracted to women and women to men, and that individuals must identify with their sex assigned to them at birth. In fact, courts have been recognizing claims brought by homosexual and transgender employees under a sex-stereotyping theory for years. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999)<\/a><\/em> (recognizing that \u201c[j]ust as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.\u201d); Nichols v. Azteca Restaurant Enterprises, 256 F.3d 864, 874 (9th Cir. 2001)<\/a><\/em> (holding that gender stereotyping of a male gay employee by his male co-workers was actionable harassment under Title VII\u2019s prohibition of sex discrimination); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002)<\/a><\/em> (en banc) (accord).<\/p>\n

The third point is perhaps the most persuasive \u2013 yet still fatally flawed \u2013 argument that the dissenters offer. However, a moment\u2019s thought and a true understanding of Title VII instantly illuminate the flaws in the argument. Justice Alito argues that an employer who has \u201ca blanket policy against hiring gays, lesbians, and transgender individuals\u201d and implements this policy by requiring the homosexual and transgender applicants to check a box on the application form, \u201cwithout knowing the biological sex of any job applicants,\u201d cannot possibly discriminate on the basis of sex. Bostock<\/em>, 590 U.S. at ___; 2020 U.S. LEXIS 3252, at *68-69 (Alito J., dissenting).<\/p>\n

While, on its face, this may give the reader pause; however, the flaw in Alito\u2019s argument is his refusal to acknowledge that \u201csex\u201d is a necessary consideration required to define and understand the terms \u201csexual orientation\u201d and \u201ctransgender.\u201d Therefore, the precise example to which Justice Alito cites to \u201csupport\u201d his argument would constitute a facially discriminatory policy because the question on the application itself violates Title VII by making a hiring decision based on sex.<\/p>\n

Justice Gorsuch addresses the precise argument that Justice Alito attempts, which quickly lays to rest any perceived merits of Alito\u2019s argument:<\/p>\n

Even in this example, the individual applicant\u2019s sex still weighs as a factor in the employer\u2019s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer\u2019s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant\u2019s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants. The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex.<\/p><\/blockquote>\n

Id. <\/em>at *34-35.<\/p>\n

Even though Justice Gorsuch\u2019s counter-hypothetical conclusively undermines Justice Alito\u2019s hypothetical, Justice Alito takes his hypothetical one step further to make an incomprehensible conclusion. Justice Alito concludes that \u201cif an employer does not violate Title VII by discriminating on the basis of sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same [blanket policy against hiring gays, lesbians, and transgender individuals] even if it knows the sex of these individuals.\u201d Id. <\/em>at *69 (Alito J., dissenting). This is quite a head-scratcher. He is essentially arguing that an employer can <\/em>consider an employee\u2019s sex when making employment decisions affecting that employee. As we know, this is the precise conduct that Title VII prohibits.<\/p>\n

The final point the dissenters make is, of course, the dreaded \u201cflood gates\u201d argument. The argument goes something like this: \u201cBecause of the Court\u2019s decision today, life as we know it will be upended, and we will face a series of horrible consequences.\u201d The problem with these types of naked policy appeals is best summarized by Justice Gorsuch: \u201cGone here is any pretense of statutory interpretation; all that\u2019s left is a suggestion we should proceed without the law\u2019s guidance to do as we think best. But that\u2019s an invitation no court should ever take up.\u201d Id. <\/em>at *54-55.<\/p>\n

\u201cParade of horribles\u201d arguments warrant no further attention other than this: the potential \u201cundesirable consequences\u201d of the Court\u2019s decision to which Justice Alito cite are all examples of issues and questions that were not before the Court. They are potential legal questions better left for a different day. Most landmark decisions will necessarily impact our understanding of related laws. However, the potential for creating additional legal questions is no reason to ignore the language of a statute when the language demands a particular result.<\/p>\n

Going Forward
\n<\/em>The Bostock <\/em>decision afforded an entire community of people protection in the workplace under a law from which they were previously excluded. This decision bestowed upon the LGBTQi community a sense of equality and personhood that so many of us take for granted. Every person, regardless of certain immutable characteristics, deserves to stand on equal footing with those who enjoy the most privilege in our society. No one is equal until we are all equal and Bostock <\/em>gets us one step closer to achieving this goal.<\/p>\n

We still have a long way to go to rid our society of the systemic toxins that permeate even our unconscious decisions, but change does not happen overnight. Thankfully, we now live in a world that is a little bit better than it was on June 14, and I am grateful for that.<\/p>\n","protected":false},"excerpt":{"rendered":"

[The following is a guest post from Alexa Bradley (L’18).] The days in which same-sex couples could marry on Sunday and be fired on Monday are no longer. Gone, too, are the days in which a transgender employee could be fired for giving themselves the gift of living their life as the person they were […]<\/p>\n","protected":false},"author":281,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[351,85,98,66,33,122,357],"tags":[],"class_list":["post-29309","post","type-post","status-publish","format-standard","hentry","category-alumni-contributor","category-circuit-splits","category-civil-rights","category-human-rights","category-labor-employment-law","category-public","category-u-s-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/29309","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/281"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=29309"}],"version-history":[{"count":4,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/29309\/revisions"}],"predecessor-version":[{"id":29313,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/29309\/revisions\/29313"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=29309"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=29309"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=29309"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}