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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changed two things: the applicant’s sex and her trait of fail-
ing to conform to 1950s gender roles. The “simple test” thus
overlooks that it is really the applicant’s bucking of 1950s
gender roles, not her sex, doing the work. So we need to
hold that second trait constant: Instead of comparing the
disappointed female applicant to a man who applied for the
same position, the employer would say, we should compare
her to a man who applied to be a secretary. And because
that jobseeker would be refused too, this must not be sex
discrimination.
   No one thinks that, so the employers must scramble to
justify deploying a stricter causation test for use only in
cases involving discrimination based on sexual orientation
or transgender status. Such a rule would create a curious
discontinuity in our case law, to put it mildly. Employer
hires based on sexual stereotypes? Simple test. Employer
sets pension contributions based on sex? Simple test. Em-
ployer fires men who do not behave in a sufficiently mascu-
line way around the office? Simple test. But when that
same employer discriminates against women who are at-
tracted to women, or persons identified at birth as women
who later identify as men, we suddenly roll out a new and
more rigorous standard? Why are these reasons for taking
sex into account different from all the rest? Title VII’s text
can offer no answer.
                              B
   Ultimately, the employers are forced to abandon the stat-
utory text and precedent altogether and appeal to assump-
tions and policy. Most pointedly, they contend that few in
1964 would have expected Title VII to apply to discrimina-
tion against homosexual and transgender persons. And
whatever the text and our precedent indicate, they say,
shouldn’t this fact cause us to pause before recognizing lia-
bility?
   It might be tempting to reject this argument out of hand.
24              BOSTOCK v. CLAYTON COUNTY Opinion of the Court

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