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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The Court tries to cloud the issue by spending many pages
discussing matters that are beside the point. The Court ob-
serves that a Title VII plaintiff need not show that “sex”
was the sole or primary motive for a challenged employ-
ment decision or its sole or primary cause; that Title VII is
limited to discrimination with respect to a list of specified
actions (such as hiring, firing, etc.); and that Title VII
protects individual rights, not group rights. See ante, at 5–
9, 11.
All that is true, but so what? In cases like those before
us, a plaintiff must show that sex was a “motivating factor”
in the challenged employment action, 42 U. S. C. §2000e–
2(m), so the question we must decide comes down to this: if
an individual employee or applicant for employment shows
that his or her sexual orientation or gender identity was a
“motivating factor” in a hiring or discharge decision, for ex-
ample, is that enough to establish that the employer dis-
criminated “because of . . . sex”? Or, to put the same ques-
tion in different terms, if an employer takes an employment
action solely because of the sexual orientation or gender
identity of an employee or applicant, has that employer nec-
essarily discriminated because of biological sex?
The answers to those questions must be no, unless dis-
crimination because of sexual orientation or gender identity
inherently constitutes discrimination because of sex. The
Court attempts to prove that point, and it argues, not
merely that the terms of Title VII can be interpreted that
way but that they cannot reasonably be interpreted any
other way. According to the Court, the text is unambiguous.
See ante, at 24, 27, 30.
The arrogance of this argument is breathtaking. As I will
show, there is not a shred of evidence that any Member of
Congress interpreted the statutory text that way when Ti-
tle VII was enacted. See Part III–B, infra. But the Court
apparently thinks that this was because the Members were
not “smart enough to realize” what its language means.
Cite as: 590 U. S. ____ (2020) 7 ALITO, J., dissenting

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