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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clear, and therefore it simply does not matter whether peo-
ple in 1964 were “smart enough to realize” what its lan-
guage means. Hively, 853 F. 3d, at 357 (Posner, J., concur-
ring). According to the Court, an argument that looks to
the societal norms of those times represents an impermis-
sible attempt to displace the statutory language. Ante, at
25–26.
   The Court’s argument rests on a false premise. As al-
ready explained at length, the text of Title VII does not pro-
hibit discrimination because of sexual orientation or gender
identity. And what the public thought about those issues
in 1964 is relevant and important, not because it provides
a ground for departing from the statutory text, but because
it helps to explain what the text was understood to mean
when adopted.
   In arguing that we must put out of our minds what we
know about the time when Title VII was enacted, the Court
relies on Justice Scalia’s opinion for the Court in Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75 (1998). But
Oncale is nothing like these cases, and no one should be
taken in by the majority’s effort to enlist Justice Scalia in
its updating project.
   The Court’s unanimous decision in Oncale was thor-
oughly unremarkable. The Court held that a male em-
ployee who alleged that he had been sexually harassed at
work by other men stated a claim under Title VII. Although
the impetus for Title VII’s prohibition of sex discrimination
was to protect women, anybody reading its terms would im-
mediately appreciate that it applies equally to both sexes,
and by the time Oncale reached the Court, our precedent
already established that sexual harassment may constitute
sex discrimination within the meaning of Title VII. See
Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986).
Given these premises, syllogistic reasoning dictated the
holding.
                  Cite as: 590 U. S. ____ (2020)            37 ALITO, J., dissenting

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