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/ ↗

Full Text

2,103 chars

by or in support of the employees. The Court apparently
finds these arguments unpersuasive, and so do I, but for the
sake of completeness, I will address them briefly.
1
One argument, which relies on our decision in Price Wa-
terhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opin-
ion), is that discrimination because of sexual orientation or
gender identity violates Title VII because it constitutes pro-
hibited discrimination on the basis of sex stereotypes. See
883 F. 3d, at 119–123; Hively, 853 F. 3d, at 346; 884 F. 3d
560, 576–577 (CA6 2018). The argument goes like this. Ti-
tle VII prohibits discrimination based on stereotypes about
the way men and women should behave; the belief that a
person should be attracted only to persons of the opposite
sex and the belief that a person should identify with his or
her biological sex are examples of such stereotypes; there-
fore, discrimination on either of these grounds is unlawful.
This argument fails because it is based on a faulty prem-
ise, namely, that Title VII forbids discrimination based on
sex stereotypes. It does not. It prohibits discrimination be-
cause of “sex,” and the two concepts are not the same. See
Price Waterhouse, 490 U. S., at 251. That does not mean,
however, that an employee or applicant for employment
cannot prevail by showing that a challenged decision was
based on a sex stereotype. Such evidence is relevant to
prove discrimination because of sex, and it may be convinc-
ing where the trait that is inconsistent with the stereotype
is one that would be tolerated and perhaps even valued in
a person of the opposite sex. See ibid.
Much of the plaintiff ’s evidence in Price Waterhouse was
of this nature. The plaintiff was a woman who was passed
over for partnership at an accounting firm, and some of the
adverse comments about her work appeared to criticize her
for being forceful and insufficiently “feminin[e].” Id., at
235–236.
Cite as: 590 U. S. ____ (2020) 19 ALITO, J., dissenting

Other Sections in This Document (1015)

Full Text