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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is no dispute that discrimination against an individual em-
ployee based on that person’s sex cannot be justified on the
ground that the employer’s treatment of the average em-
ployee of that sex is at least as favorable as its treatment of
the average employee of the opposite sex. Nor does it mat-
ter if an employer discriminates against only a subset of
men or women, where the same subset of the opposite sex
is treated differently, as in Phillips. That is not the issue
here. An employer who discriminates equally on the basis
of sexual orientation or gender identity applies the same
criterion to every affected individual regardless of sex. See
Part I–A, supra.
III
A
Because the opinion of the Court flies a textualist flag, I
have taken pains to show that it cannot be defended on tex-
tualist grounds. But even if the Court’s textualist argu-
ment were stronger, that would not explain today’s deci-
sion. Many Justices of this Court, both past and present,
have not espoused or practiced a method of statutory inter-
pretation that is limited to the analysis of statutory text.
Instead, when there is ambiguity in the terms of a statute,
they have found it appropriate to look to other evidence of
“congressional intent,” including legislative history.
So, why in these cases are congressional intent and the
legislative history of Title VII totally ignored? Any assess-
ment of congressional intent or legislative history seriously
undermines the Court’s interpretation.
B
As the Court explained in General Elec. Co. v. Gilbert, 429
U. S. 125, 143 (1976), the legislative history of Title VII’s
prohibition of sex discrimination is brief, but it is neverthe-
less revealing. The prohibition of sex discrimination was
“added to Title VII at the last minute on the floor of the
Cite as: 590 U. S. ____ (2020) 41 ALITO, J., dissenting

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