Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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When an employer fires an employee because she is homo-
sexual or transgender, two causal factors may be in play—
both the individual’s sex and something else (the sex to
which the individual is attracted or with which the individ-
ual identifies). But Title VII doesn’t care. If an employer
would not have discharged an employee but for that in-
dividual’s sex, the statute’s causation standard is met,
and liability may attach.
   Reframing the additional causes in today’s cases as addi-
tional intentions can do no more to insulate the employers
from liability. Intentionally burning down a neighbor’s
house is arson, even if the perpetrator’s ultimate intention
(or motivation) is only to improve the view. No less, inten-
tional discrimination based on sex violates Title VII, even if
it is intended only as a means to achieving the employer’s
ultimate goal of discriminating against homosexual or
transgender employees. There is simply no escaping the
role intent plays here: Just as sex is necessarily a but-for
cause when an employer discriminates against homosex-
ual or transgender employees, an employer who discrim-
inates on these grounds inescapably intends to rely on
sex in its decisionmaking. Imagine an employer who has
a policy of firing any employee known to be homosexual.
The employer hosts an office holiday party and invites em-
ployees to bring their spouses. A model employee arrives
and introduces a manager to Susan, the employee’s wife.
Will that employee be fired? If the policy works as the em-
ployer intends, the answer depends entirely on whether the
model employee is a man or a woman. To be sure, that em-
ployer’s ultimate goal might be to discriminate on the basis
of sexual orientation. But to achieve that purpose the em-
ployer must, along the way, intentionally treat an employee
worse based in part on that individual’s sex.
   An employer musters no better a defense by responding
that it is equally happy to fire male and female employees
who are homosexual or transgender. Title VII liability is
12             BOSTOCK v. CLAYTON COUNTY Opinion of the Court

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