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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could not answer the question whether he or she is homo-
sexual without knowing something about sex. If the appli-
cant was unfamiliar with the term “homosexual,” the appli-
cant would have to look it up or ask what the term means.
And because this applicant would have to take into account
his or her sex and that of the persons to whom he or she is
sexually attracted to answer the question, it follows, the
Court reasons, that an employer could not reject this appli-
cant without taking the applicant’s sex into account. See
ante, at 18–19.
   This is illogical. Just because an applicant cannot say
whether he or she is homosexual without knowing his or
her own sex and that of the persons to whom the applicant
is attracted, it does not follow that an employer cannot re-
ject an applicant based on homosexuality without knowing
the applicant’s sex.
   While the Court’s imagined application form proves noth-
ing, another hypothetical case offered by the Court is tell-
ing. But what it proves is not what the Court thinks. The
Court posits:
    “Imagine an employer who has a policy of firing any
    employee known to be homosexual. The employer
    hosts an office holiday party and invites employees to
    bring their spouses. A model employee arrives and in-
    troduces 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.”
    Ante, at 11.
   This example disproves the Court’s argument because it
is perfectly clear that the employer’s motivation in firing
the female employee had nothing to do with that employee’s
sex. The employer presumably knew that this employee
was a woman before she was invited to the fateful party.
Yet the employer, far from holding her biological sex
12                 BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting

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