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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labels. If the employer’s objection to the male employee is
characterized as attraction to men, it seems that he is just
like the woman in all respects except sex and that the em-
ployer’s disparate treatment must be based on that one dif-
ference. On the other hand, if the employer’s objection is
sexual orientation or homosexuality, the two employees dif-
fer in two respects, and it cannot be inferred that the dis-
parate treatment was due even in part to sex.
   The Court insists that its label is the right one, and that
presumably is why it makes such a point of arguing that an
employer cannot escape liability under Title VII by giving
sex discrimination some other name. See ante, at 14, 17.
That is certainly true, but so is the opposite. Something
that is not sex discrimination cannot be converted into sex
discrimination by slapping on that label. So the Court can-
not prove its point simply by labeling the employer’s objec-
tion as “attract[ion] to men.” Ante, at 9–10. Rather, the
Court needs to show that its label is the correct one.
   And a labeling standoff would not help the Court because
that would mean that the bare text of Title VII does not
unambiguously show that its interpretation is right. The
Court would have no justification for its stubborn refusal to
look any further.
   As it turns out, however, there is no standoff. It can eas-
ily be shown that the employer’s real objection is not “at-
tract[ion] to men” but homosexual orientation.
   In an effort to prove its point, the Court carefully includes
in its example just two employees, a homosexual man and
a heterosexual woman, but suppose we add two more indi-
viduals, a woman who is attracted to women and a man who
is attracted to women. (A large employer will likely have
applicants and employees who fall into all four categories,
and a small employer can potentially have all four as well.)
We now have the four exemplars listed below, with the dis-
charged employees crossed out:
                  Cite as: 590 U. S. ____ (2020)           17 ALITO, J., dissenting

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