ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Tuesday, June 23, 2020

Guest Post by Joshua Silverstein on Bostock, Part II


Silverstein  Josh -- Official PictureA Guest Post by Joshua Silverstein (left)

Part I is here.

Part II: Exploring the Majority’s Conceptual Claim about Discrimination Based on Sexual Orientation or Transgender Status.

To see why the Bostock majority concluded that adverse employment decisions based on sexual orientation or transgender status are necessarily also based on sex, start by returning to the language of Title VII.  The statute bars adverse employment actions “because of” various characteristics, including race and sex.  “Because of” is understood to establish a “but-for” causation standard.  Maj. Op. at 5.  “[A] but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a but-for cause.”  Maj. Op. at 5.  In other words, if changing a person’s sex and nothing else would reverse an adverse employment decision, then the employee’s sex was a but-for cause of the decision.  To illustrate, if employer A would not have fired employee X if X were a man rather than a woman—and no other facts are changed—then X’s sex was a “but-for cause” of the dismissal.  The employer fired X “because of” X’s sex in violation of Title VII.  Maj. Op. at 9.

Two notes of elaboration are in order.  First, sex need not be the sole basis for an adverse employment decision.  Indeed, sex (or any other characteristic identified in Title VII) need not be the primary cause.  As long as sex is a but-for cause of the decision, then the decision is barred under Title VII.  Maj. Op. at 5-6, 10-11.  Second, an employer need not specifically intend to discriminate based on sex.  It is thus irrelevant that an employer was consciously concerned only with homosexual or transgender status when terminating an employee.  Once again, if sex is a but-for cause of a decision, then Title VII makes the decision unlawful.  Maj. Op. at 17-18.

In light of this analysis, here is how Justice Gorsuch (right) Associate_Justice_Neil_Gorsuch_Official_Portrait_(cropped_2)described the requirements of Title VII: “[A]n employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discrimi­nates against that person in violation of Title VII.”  Maj. Op. at 7; accord Maj. Op. at 9 (“An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”).  Under that rule, Justice Gorsuch continued, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  Maj. Op. at 9.  Gorsuch demonstrates this point with an example that is the heart of the entire majority opinion, and thus I will refer to it as the “key example” throughout the rest of these posts.

“Consider, for exam­ple, an employer with two employees, both of whom are at­tracted to men.  The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman.  If the employer fires the male employee for no reason other than the fact he is at­tracted to men [i.e., on grounds of sexual orientation], the employer discriminates against him for traits or actions it tolerates in his female colleague [i.e., attraction to men].  Put differently, the employer intentionally singles out an em­ployee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.”  Maj. at 9-10 (bracketed language added).   (The majority offers another essentially identical example involving a transgender person at the same location in the opinion.)

To unpack this, the only distinguishing feature between the two employees in this hypothetical, the majority argues, is their sex.  The two individuals have comparable abilities, skills, and other traits, including that both are sexually attracted to men.  If the employer fires the man for being attracted to other men, but not the woman for being attracted to the exact same people (men), then the employer has necessarily taken adverse employment action against the man “because of such individual’s . . . sex.”  The man’s sex is a “but-for cause” of his termination because if we changed his sex and nothing else—if we changed the man into a woman and left everything else constant, including who the employee is attracted to—he would not have been fired.  That violates Title VII.

According to the majority, this example demonstrates that “homosexuality and transgender status are inextricably bound up with sex.”  Maj. Op. at 10.  Any time an employer makes an adverse employment decision based on sexual orientation or transgender status, the employer is inherently making the decision, at least in part, based on sex; sex is at least one but-for cause of the decision.  And adverse employment decisions based on sex are forbidden by the plain language of Title VII.

Note that the crucial point here is not one of linguistic meaning.  As I said yesterday, there is no dispute between the majority and the dissenters over the meaning of the word “sex.”  Nor is there any dispute over the meaning of any other term in Title VII.  Maj. Op. at 25 (“[T]he employers agree with our understanding of all the statutory language . . . .  Nor do the dissents offer an alternative account about what these terms mean.”).   The majority’s claim is conceptual.  Discrimination on the basis of sexual orientation or transgender status is conceptually tied to discrimination on the basis of sex.  To repeat, the majority’s point is that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex.”  Maj. Op. at 9 (emphasis added); accord Maj. Op. at 10 (“[T]o discriminate on these grounds [sexual orientation and transgender status] requires an employer to intentionally treat individual employees differently because of their sex.”) (emphasis added).  And that is not a claim about the meaning of Title VII.  The two dissents spend many pages challenging the majority as to the meaning of various terms in the statute.  See, e.g., Alito Dis. at 4-5, 21-28, 33, 35; Kav. Dis. at 5-21, 24-25.  But all of that analysis is irrelevant if the majority is correct about the conceptual connection between (1) sex discrimination, and (2) sexual orientation and transgender status discrimination.

One final note for today: One might plausibly conceptualize the dispute in the case as being about the meaning of “because of” in Title VII, or about the nature of the “but-for cause” test.  But there really is no disagreement about the meaning of “because of,” nor any dispute over what constitutes but-for causation.  Instead, I think the case is best understood as concerning whether but-for causation is actually satisfied when a person is fired because of homosexuality or transgender status.  The majority claims the answer is yes, and does so for conceptual reasons.  The defendants and the dissent, as I will explain in tomorrow’s post, claim otherwise.

Commentary, Contract Profs, Current Affairs, In the News, Labor Contracts, Recent Cases | Permalink