ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Wednesday, June 24, 2020

Guest Post by Joshua Silverstein on Bostock, Part III


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

Part I is here.

Part II is here.

Part III: The Dissents’ Response to the Majority’s Conceptual Claim About Discrimination Based on Sexual Orientation or Transgender Status, and the Majority’s Reply.

Unsurprisingly, the defendant-employers in Bostock and both dissents challenge the majority’s conceptual claim that discrimination based on a person being homosexual or transgender is always based on sex as well.  Justice Kavanaugh says very little on this point, so between the two dissents, I focus here on Justice Alito’s.  Justice Alito (right) Alitooffers a number of arguments that sexual orientation and transgender status discrimination do not inherently involve sex discrimination, nearly all of which I find completely unpersuasive (see, e.g., Alito Dis. at 9-10).  But one argument has some merit, and it is the same argument offered by the defendants and implied by Justice Kavanaugh.  Alito and the defendants assert that the majority’s key example that I discussed in yesterday’s post is invalid.  Recall that the majority stated that there is only one difference between the two employees in the hypo: sex.  The majority further stated that if we change only the sex of the employee from male to female, the employee would not be terminated, showing that sex is the but-for cause of the dismissal.

The defendants and Justice Alito respond that this is not so; there are actually two differences between the male and female employees in the hypo: (1) sex, and (2) sexual orientation.  Alito Dis. at 14-15.  Because both employees are attracted to men, the male is homosexual and the female is heterosexual.  And if we change the male employee into a female, but leave the employee attracted to men, we are not just changing the employee’s sex from male to female.  We are also changing the employee’s sexual orientation from homosexual to heterosexual.  “If the aim is to isolate whether a plaintiff’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted.” (emphasis added)).  Maj. Op. at 21.  And if we change the employee from a man attracted to men to a woman attracted to women, the employee would still be fired due to the employee’s sexual orientation.  It follows, the defendants and Justice Alito claim, that only sexual orientation, and not sex, plays a causal role in the termination.  After all, “[h]ow could sex be necessary to the result if a member of the opposite sex . . . [would] face the same outcome from the same policy?”  Maj. Op. at 21-22.  Put another way, firing employees based on sexual orientation or transgender status results in men and women being treated exactly the same; such policies, the defendants assert, “have the same adverse consequences for men and women.    Maj. Op. at 21; accord Alito Dis. at 15-17, 40 (“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 also Kav. Dis. at 12-13 (implying the same point).  Ergo, no sex discrimination.

The majority replies principally with a reductio ad absurdum argument—an argument that the premises of one’s opponents lead to an absurd conclusion that all would reject.  The structure of the argument is as follows: The reasoning of the defendants and Justice Alito necessarily results in sex not being a but-for cause when an employer makes adverse employment decisions based on traditional gender roles.  But since no one believes that to be the case, no one could accept the argument of the defendants and Justice Alito that sex is not a but-for cause when an employer makes an adverse employment decision based on sexual orientation or transgender status.  Let me explain.

The central piece of the majority’s reply is the following example: Suppose an employer wants to “revive workplace gender roles of the 1950s.  He enforces a policy that he will hire only men as mechanics and only women as secretaries.”  Maj. Op. at 22.  If the employer denies a qualified woman a position as a mechanic, sex discrimination is clear under the but-for standard of Title VII since a qualified man would have received that job.  The same is true if the employer denies a qualified man a position as a secretary.  The reasoning of the defendants and Justice Alito with respect to sexual orientation and transgender status commits them to respond that there is a problem with this conclusion, just as they contend there is a problem with the majority’s key example discussed yesterday.  “By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles.”  After all, a man applying to be a mechanic is actually following 1950s gender roles.  Maj. Op. at 22-23.  A proper comparison, under the reasoning of the defendants and Justice Alito, thus requires changing both sex and gender non-conformity.  This means that “[i]nstead of comparing a disappointed female applicant to a man who applied for the same [mechanic] position, the employer would say, we should compare her to a man who applied to be a secretary.  And because that jobseeker would be refused too, this must not be sex discrimination,” but rather only discrimination based on failing to conform to traditional gender roles.  Maj. Op. at 23.  More precisely, the defendants and Justice Alito are logically committed to the proposition that sex was not a but-for cause of the decision not to hire the female who sought to be a mechanic (or the male who sought to be a secretary); the only cause was non-compliance with traditional gender roles.  Maj. Op. at 23.

But, the majority observes, “[n]o one thinks” that termination based on traditional gender roles is permitted by Title VII.  Maj. Op. at 23.  To the contrary, everyone admits that sex is a but-for cause when an adverse employment decision is based on traditional gender roles.  Termination based on either sexual orientation or transgender status is indistinguishable from termination based on traditional gender roles.  Therefore, sex must be a but for cause in all three circumstances.  And thus Title VII legally bars all three types of dismissal—again, those based on gender non-conformity, sexual orientation, and transgender status—for precisely the same reason.

Note that the majority’s analysis here is grounded, in part, on the fact that Title VII is concerned with discrimination against individual men and women on the basis of sex.  Even if an employer treats men as a class the same as women as a class, the employer can still be unlawfully discriminating on the basis of sex.  Maj. Op. at 7-8, 11-12.  To illustrate, “an employer who fires a woman, Hannah, be­cause she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally.  But in both cases the employer fires an individual in part because of sex.  In­stead of avoiding Title VII exposure, this employer doubles it.”  Maj. Op. at 9.  That helps to explain why it is no defense to liability for sex discrimination that an employer treats homosexual (or transgender) men and women in exactly the same manner.  Maj. Op. at 11-12.  An employer that fires both men and women due to sexual orientation (or transgender status) has doubled its liability rather than eliminated it.  Maj. Op. at 12.

In tomorrow’s post, I will supplement the majority’s reasoning with some of my own thoughts regarding the conceptual connection between discrimination based on sex and discrimination based on sexual orientation and transgender status.

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