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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conduct is not sex discrimination, the statute does not ap-
ply. Thus, this lesson simply takes us back to the question
whether discrimination because of sexual orientation or
gender identity is a form of discrimination because of bio-
logical sex. For reasons already discussed, see Part I–A,
supra, it is not.
   It likewise proves nothing of relevance here to note that
an employer cannot escape liability by showing that dis-
crimination on a prohibited ground was not its sole motiva-
tion. So long as a prohibited ground was a motivating fac-
tor, the existence of other motivating factors does not defeat
liability.
   The Court makes much of the argument that “[i]n Phil-
lips, the employer could have accurately spoken of its policy
as one based on ‘motherhood.’ ” Ante, at 14; see also ante,
at 16. But motherhood, by definition, is a condition that can
be experienced only by women, so a policy that distin-
guishes between motherhood and parenthood is necessarily
a policy that draws a sex-based distinction. There was sex
discrimination in Phillips, because women with children
were treated disadvantageously compared to men with
children.
   Lesson number two—“the plaintiff ’s sex need not be the
sole or primary cause of the employer’s adverse action,”
ante, at 14—is similarly unhelpful. The standard of causa-
tion in these cases is whether sex is necessarily a “motivat-
ing factor” when an employer discriminates on the basis of
sexual orientation or gender identity. 42 U. S. C. §2000e–
2(m). But the essential question—whether discrimination
because of sexual orientation or gender identity constitutes
sex discrimination—would be the same no matter what cau-
sation standard applied. The Court’s extensive discussion
of causation standards is so much smoke.
   Lesson number three––“an employer cannot escape lia-
bility by demonstrating that it treats males and females
comparably as groups,” ante, at 15, is also irrelevant. There
40              BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting

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