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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decide for the defendants in Oncale, it would have been nec-
essary to carve out an exception to the statutory text. Here,
no such surgery is at issue. Even if we totally disregard the
societal norms of 1964, the text of Title VII does not support
the Court’s holding. And the reasoning of Oncale does not
preclude or counsel against our taking those norms into ac-
count. They are relevant, not for the purpose of creating an
exception to the terms of the statute, but for the purpose of
better appreciating how those terms would have been un-
derstood at the time.
                              2
  The Court argues that two other decisions––Phillips v.
Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam),
and Los Angeles Dept. of Water and Power v. Manhart, 435
U. S. 702 (1978)––buttress its decision, but those cases
merely held that Title VII prohibits employer conduct that
plainly constitutes discrimination because of biological sex.
In Philips, the employer treated women with young chil-
dren less favorably than men with young children. In Man-
hart, the employer required women to make larger pension
contributions than men. It is hard to see how these hold-
ings assist the Court.
  The Court extracts three “lessons” from Phillips, Man-
hart, and Oncale, but none sheds any light on the question
before us. The first lesson is that “it’s irrelevant what an
employer might call its discriminatory practice, how others
might label it, or what else might motivate it.” Ante, at 14.
This lesson is obviously true but proves nothing. As to the
label attached to a practice, has anyone ever thought that
the application of a law to a person’s conduct depends on
how it is labeled? Could a bank robber escape conviction by
saying he was engaged in asset enhancement? So if an em-
ployer discriminates because of sex, the employer is liable
no matter what it calls its conduct, but if the employer’s
                  Cite as: 590 U. S. ____ (2020)           39 ALITO, J., dissenting

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