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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Bostock—asking whether Mr. Bostock, a man attracted to
other men, would have been fired had he been a woman—
we don’t just change his sex. Along the way, we change his
sexual orientation too (from homosexual to heterosexual).
If the aim is to isolate whether a plaintiff ’s sex caused the
dismissal, the employers stress, we must hold sexual orien-
tation constant—meaning we need to change both his sex
and the sex to which he is attracted. So for Mr. Bostock,
the question should be whether he would’ve been fired if he
were a woman attracted to women. And because his em-
ployer would have been as quick to fire a lesbian as it was
a gay man, the employers conclude, no Title VII violation
has occurred.
   While the explanation is new, the mistakes are the same.
The employers might be onto something if Title VII only en-
sured equal treatment between groups of men and women
or if the statute applied only when sex is the sole or primary
reason for an employer’s challenged adverse employment
action. But both of these premises are mistaken. Title VII’s
plain terms and our precedents don’t care if an employer
treats men and women comparably as groups; an employer
who fires both lesbians and gay men equally doesn’t dimin-
ish but doubles its liability. Just cast a glance back to Man-
hart, where it was no defense that the employer sought to
equalize pension contributions based on life expectancy.
Nor does the statute care if other factors besides sex con-
tribute to an employer’s discharge decision. Mr. Bostock’s
employer might have decided to fire him only because of the
confluence of two factors, his sex and the sex to which he is
attracted. But exactly the same might have been said in
Phillips, where motherhood was the added variable.
   Still, the employers insist, something seems different
here. Unlike certain other employment policies this Court
has addressed that harmed only women or only men, the
employers’ policies in the cases before us have the same ad-
verse consequences for men and women. How could sex be
22             BOSTOCK v. CLAYTON COUNTY Opinion of the Court

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