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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members of the same sex, these two employees are not ma-
terially identical in every respect but sex. On the contrary,
they differ in another way that the employer thinks is quite
material. And until Title VII is amended to add sexual ori-
entation as a prohibited ground, this is a view that an em-
ployer is permitted to implement. As noted, other than pro-
hibiting discrimination on any of five specified grounds,
“race, color, religion, sex, [and] national origin.” 42 U. S. C.
§2000e–2(a)(1), Title VII allows employers to decide
whether two employees are “materially identical.” Even id-
iosyncratic criteria are permitted; if an employer thinks
that Scorpios make bad employees, the employer can refuse
to hire Scorpios. Such a policy would be unfair and foolish,
but under Title VII, it is permitted. And until Title VII is
amended, so is a policy against employing gays, lesbians, or
transgender individuals.
   Once this is recognized, what we have in the Court’s hy-
pothetical case are two employees who differ in two ways––
sex and sexual orientation––and if the employer fires one
and keeps the other, all that can be inferred is that the em-
ployer was motivated either entirely by sexual orientation,
entirely by sex, or in part by both. We cannot infer with
any certainty, as the hypothetical is apparently meant to
suggest, that the employer was motivated even in part by
sex. The Court harps on the fact that under Title VII a pro-
hibited ground need not be the sole motivation for an ad-
verse employment action, see ante, at 10–11, 14–15, 21, but
its example does not show that sex necessarily played any
part in the employer’s thinking.
   The Court tries to avoid this inescapable conclusion by
arguing that sex is really the only difference between the
two employees. This is so, the Court maintains, because
both employees “are attracted to men.” Ante, at 9–10. Of
course, the employer would couch its objection to the man
differently. It would say that its objection was his sexual
orientation. So this may appear to leave us with a battle of
16              BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting

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