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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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 pol-
icy even if it knows the sex of these individuals. If an em-
ployer takes an adverse employment action for a perfectly
legitimate reason—for example, because an employee stole
company property—that action is not converted into sex
discrimination simply because the employer knows the em-
ployee’s sex. As explained, a disparate treatment case re-
quires proof of intent—i.e., that the employee’s sex moti-
vated the firing. In short, what this example shows is that
discrimination because of sexual orientation or gender iden-
tity does not inherently or necessarily entail discrimination
because of sex, and for that reason, the Court’s chief argu-
ment collapses.
   Trying to escape the consequences of the attorney’s con-
cession, the Court offers its own hypothetical:
     “Suppose an employer’s application form offered a sin-
     gle box to check if the applicant is either black or Cath-
     olic. 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’s race or religion? Of course
     not.” Ante, at 18.
  How this hypothetical proves the Court’s point is a mys-
tery. A person who checked that box would presumably be
black, Catholic, or both, and refusing to hire an applicant
because of race or religion is prohibited by Title VII. Re-
jecting applicants who checked a box indicating that they
are homosexual is entirely different because it is impossible
to tell from that answer whether an applicant is male or
female.
  The Court follows this strange hypothetical with an even
stranger argument. The Court argues that an applicant
                 Cite as: 590 U. S. ____ (2020)          11 ALITO, J., dissenting

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