Joel Dillard

Representing Mississippi Workers



Homosexuality and Bostock's sex discrimination analysis

You may have heard something about our subject for today. As the headlines shouted it Supreme Court outlaws discrimination against gays or something like that. And yes, that is the most important practical element of the Court's decision. It is something that a lot of people have been working on for quite some time - including here at this firm, as we have discussed more than once on this blog.

But the headline just scratches the surface. Most people probably do not realize just how important this case will be - and for reasons that having nothing to do with homosexuality. It will probably be cited tens of thousands of times in the next few years, often in cases having nothing to do with sexual orientation. I've already cited it twice, and the case has only been out a week or so. The logic of the case is revolutionary - simple, but transformative.

The key is the word because. Title VII says an employer cannot discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. As I have said previously, the logical view is that this means that any employer action which differentiates between the sexes is unlawful sex discrimination.

In Bostock the Court agreed. It interpreted because as meaning a strict kind of what is called but for causation. The analysis is simple: if you imagine the same person in the same situation, and simply switch the sex, would they be treated differently? If so, this is discrimination because of sex. It does not matter what else is going on, what other factors are at play. Thus, it isn't discrimination based on homosexuality which is illegal, per se. It is just that discrimination based on sexual orientation will typically also be sex discrimination. It's about biological sex, not sexuality.

For example, imagine a man named Pat is fired. Is it discrimination? To find out, just imagine Pat were a woman. Change absolutely nothing else. Would Pat still have been fired? So, for example, if Pat is fired for sleeping with Larry. Does it matter that Pat is a man? If the answer is yes then this is sex discrimination. If the answer is no then it is not. No matter why the answer is what it is, the mere fact the answer is different because Pat is a man means it is discrimination against Pat for being a man - not for being gay necessarily, but for being a man.

This logic has surprising consequences. To take one example, there will be no more man's dress code and woman's dress code: no man can be penalized for wearing hair or clothes that meet the woman's dress code, or vice versa. Decades of caselaw goes out the window. Willingham v. Macon Telegraph Publishing Co., 507 F. 2d 1084 (5th Cir. 1975).

In fact, at first glance the decision would appear to mandate complete sex-blindness by employers. (One minor exception remains the Bona Fide Occupational Qualification (BFOQ), which we've discussed before.) Putting aside the BFOQ, any rule or decision which - even in an indirect or circuitous way - acknowledges the existence of sexual differences between employees needs careful consideration.

So, to take an even more surprising example, those subject to the Act can no longer penalize people for joining single-sex clubs.

What does this mean for efforts to combat discrimination - particularly sexual harassment? Does this mean the employer cannot see sex differences when trying to eliminate discrimination in the workplace? Not quite. It can consider the sex of the victims, but not the sex of the perpetrator.

Lets revisit Pat. If Pat supervises two employees, Nancy and Tom, and Pat treats Nancy much better than Tom because Pat prefers women, then the employer can fire Pat for doing so - as long it would fire Pat regardless of whether s/he is herself a man or woman. It is not about Pat's sex, but the sex of Pat's victims.

Back to an employer having a rule punishing people for joining same-sex clubs. Here we are getting into weird, speculative considerations. But suppose Pat joins the Drones club. The club has a rule that only men can join. If Pat were a woman and successfully managed to join, she would not be punished. But because Pat is a man, he is punished. Thus the punishment is itself discriminatory. What then, can be done to combat this kind of sex discrimination without committing sex discrimination in the process? Change what you are penalizing Pat for. Don't penalize Pat for joining the Drones, penalize Pat (when Pat is on the admissions committee of the Drones) for refusing to admit Nancy while admitting Tom. This is not about Pat's sex - you would penalize Pat for discriminating against Nancy regardless of whether Pat was a woman - but about the sex of Pat's victims, which is an acceptable consideration.

Finally, note that the same logic applies to race. Anything other than pure race-blindness will be entering a mine-field - regardless of the employer's good intentions. It will be interesting to think about the consequences there. Suppose a supervisor named Derrick posts on Facebook There is no country on earth where black people have more opportunities than America. Anyone who disagrees can just get out. Hard to imagine Derrick's own race won't determine whether the employer punishes Derrick. And how should an employer treat employees that join a racially exclusive club?

And religion may be an even more fascinating area.

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