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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The main issue in Price Waterhouse––the proper alloca-
tion of the burdens of proof in a so-called mixed motives Ti-
tle VII case—is not relevant here, but the plurality opinion,
endorsed by four Justices, commented on the issue of sex
stereotypes. The plurality observed that “sex stereotypes
do not inevitably prove that gender played a part in a par-
ticular employment decision” but “can certainly be evidence
that gender played a part.” Id., at 251.17 And the plurality
made it clear that “[t]he plaintiff must show that the em-
ployer actually relied on her gender in making its decision.”
Ibid.
   Plaintiffs who allege that they were treated unfavorably
because of their sexual orientation or gender identity are
not in the same position as the plaintiff in Price Water-
house. In cases involving discrimination based on sexual
orientation or gender identity, the grounds for the em-
ployer’s decision—that individuals should be sexually at-
tracted only to persons of the opposite biological sex or
should identify with their biological sex—apply equally to
men and women. “[H]eterosexuality is not a female stereo-
type; it not a male stereotype; it is not a sex-
specific stereotype at all.” Hively, 853 F. 3d, at 370 (Sykes,
J., dissenting).
   To be sure, there may be cases in which a gay, lesbian, or
transgender individual can make a claim like the one in
Price Waterhouse. That is, there may be cases where traits
or behaviors that some people associate with gays, lesbians,
or transgender individuals are tolerated or valued in per-
sons of one biological sex but not the other. But that is a
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  17 Two other Justices concurred in the judgment but did not comment

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