Textualism and Bostock

On June 15, 2020, in the case of Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Acts protects employees from discrimination because they may be gay or transgender. Justice Neil Gorsuch’s opinion was an exercise in a textual interpretation of the statute’s language. His opinion has engendered serious debate over his method of statutory interpretation. Matthew Green, Professor of Law at Cleveland-Marshall College of Law and Nelson Lund, University Professor at George Mason University offer differing and illuminating evaluations of the cogency of Gorsuch’s analysis. Both agree, however, that irrespective of the policy outcome, the key issue is whether the Court’s constitutional and statutory analysis is correct.

Professor Green, your witness.

Roughly a year ago, with an assist from the U.S. Supreme Court, the LGBTQ equality movement was heartened. In Bostock v. Clayton, Ga., 140 S.Ct. 1731 (2020), the Court held that Title VII of the Civil Rights Act of 1964’s prohibition on sex discrimination also prohibits discrimination “for being gay or transgender.” Bostock was a surprise to many. For the past 25 years, every Supreme Court decision favorable to the LGBTQ equality movement had been written by Justice Anthony Kennedy, who retired from the Court in 2018. Several of those decisions squeaked by with a narrow 5-to-4 margin and were regularly accompanied by vigorous dissents. Some wondered how a post-Kennedy Court with an increasing rightward tilt would handle a case involving LGBTQ equality.[1]

It turns out concern was unwarranted. Writing for a 6-3 Court majority, Justice Neil Gorsuch sets forth a cogent analysis of Title VII’s plain language to reach the Court’s holding.[2] The Court holds that firing any individual “simply for being homosexual or transgender” constitutes discrimination because of sex and falls within Title VII’s sweep. I set forth below what I consider his compelling analysis of the statute’s text to reach that conclusion.

A. Title VII’s Prohibition of Sex Discrimination

Justice Gorsuch’s opening sentence in Bostock may well sum up the Court’s holding: “Sometimes small gestures can have unexpected consequences.”[3] Title VII doesn’t define what it means to discriminate. Congress left that task to the courts.[4] Since the statute’s passage, however, courts have had particular difficulty determining what it means to discriminate because of sex.[5] That difficulty may rest in part on the provision’s origin. Congress’s principal concern when Title VII was promulgated was race discrimination. Two days before the House voted on the pending civil rights legislation, Representative Howard Smith, a Southern Democrat who opposed the measure, proposed amending Title VII to add sex as a prohibited ground for discrimination.[6] As Justice Gorsuch explains in Bostock, some suggest that Representative Smith may have hoped the “broad language” would have “wide-ranging effect,” not because he sought to root out sex discrimination in all its possible manifestations, but because he hoped a blanket prohibition against sex discrimination would act as a poison pill, scuttling the legislation entirely.[7]

Whatever its origins or the intent behind it, from its inception, the provision barring sex discrimination has been anything but static. Justice Gorsuch aptly explains that since Title VII’s passage the Court has applied the statute’s sex provision to situations few in 1964 would have expected it to have anything to do with. Justice Gorsuch puts it plainly: “If [in 2020] we applied Title VII’s plain text only to applications some [yet-to-be-determined] group of people expected in 1964, we’d have more than a little law to overturn.”[8] To his point, it is unlikely that in 1964 many people, if any, would have expected Title VII to proscribe sexual harassment although it’s now settled that it does so.[9]

Similarly, even fewer people in 1964 likely would have understood the statute to prohibit male-on-male sexual harassment. Indeed, some lower federal courts had rejected such claims when they first emerged, particularly where both victim and harasser were heterosexual, because they surmised Congress could not have intended the statute to apply in those situations.[10] In Oncale v. Sundowner Offshore Services, Inc.,[11] however, the Supreme Court rejected such reasoning. Writing for a unanimous Court, Justice Antonin Scalia explained that “male-on-male sexual harassment was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But . . . it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[12] In all likelihood, applying Title VII to male-on-male harassment may have surprised both the statute’s enacting legislators and the voters who put them in office, but as Oncale demonstrates, such facts cannot stand in the way of what the law’s text commands.

The arguments made in Oncale against recognizing same-sex harassment claims under Title VII are strikingly similar to the arguments made in Bostock against recognizing discrimination for being gay and transgender. For instance, the dissents in Bostock accuse the majority of legislating from the bench rather than interpreting the statute Congress passed.[13] The employers in Oncale made analogous arguments with regard to same-sex harassment.[14] The Oncale Court disagreed. It explained that in all sex-discrimination cases, “[t]he critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”[15] Because the plaintiff in Oncale alleged that the harassment he endured would not have occurred but for his sex, he stated a triable Title VII claim.[16]

As explained below, because Justice Gorsuch ably demonstrates that when employers discriminate against individuals for being gay or transgender, “sex plays a necessary and undisguisable” role in the decision, those claims fall within Title VII’s scope.[17]

B. A focus on Title VII’s Plain Language

Title VII, in pertinent part, provides that it is unlawful

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s . . . sex . . .[18]

In the first several pages of its opinion, the Court analyzes the statute’s relevant terms to explain why an employer that discriminates on the basis of an individual’s homosexuality and transgender status necessarily “discriminates against”that “individual” “because of” his or her “sex.” I briefly summarize the Court’s analysis of those terms.

1. Sex

A principal issue in Bostock was how to define the word “sex” for Title VII purposes. The parties disagreed on the term’s meaning. The Court did not wade into the debate, but “proceed[e]d on the assumption that “sex” signified what the employers suggest[ed] . . . .” That is “sex” means one’s “status as either male or female [as] determined by reproductive biology.”

2. “Because of”

Title VII prohibits employers from taking certain actions “because of” an individual’s sex. Citing relevant Title VII precedent, the Court explains that a statute using the words “because of” refers to “but-for” causation. That standard is met when a particular outcome (e.g., a discharge) would not have occurred but for a particular cause (say, sex). In other words, if, while holding everything else constant, changing the cause (sex) would yield a different outcome (the discharge), but-for causation is present.

Critically, the Court explains that a particular outcome may have multiple but-for causes, and the outcome may not occur without the confluence of each. That means an employer cannot escape liability under Title VII because it points to some other factor (aside from a protected characteristic) that also contributes to the challenged act so long as sex is one but-for cause.

The Court provides a helpful example. If an accident (the outcome) transpires only because of two causal factors working in tandem—the defendant ran a red light and the plaintiff failed to signal her turn—both may be “but for” causes of the accident. The defendant cannot skirt liability by arguing that although he ran the red light, the accident only occurred because the plaintiff also failed to use her turn signal. Running the light remains a “but-for” cause of the accident.

3. Discriminate against any Individual

The Court turns to the final two relevant terms. The Court explains that not every sex-based distinction an employer makes will amount to discrimination for purposes of Title VII. Rather, to “discriminate against,” “refers to “distinctions or differences in treatment that injure protected individuals.” It’s an important point. Under Title VII “injury” is assessed using an objective standard, i.e., would a reasonable person in the plaintiff’s position find the act injurious?[19] It would likely not be discriminatory, for instance, for an employer to require men and women to use bathrooms consistent with their birth-assigned sex. That practice, however, may affect transgender workers differently.

Finally, Title VII protects individuals from discrimination. As the Court explains, the antidiscrimination provision uses that word three times. That means “an employer who intentionally treats any individual 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 [individual] in violation of Title VII.”

C. Putting the Pieces Together

The Court had no difficulty applying the aforementioned terms to the facts of the case and concluding that Title VII’s plain text bars an employer from firing someone “simply for being homosexual or transgender.” Such discrimination, the Court explained, constitutes sex discrimination because an employer necessarily takes an individual’s sex into account when acting on the basis of either characteristic. For instance, an employer that discharges a woman for being attracted to women violates Title VII if the employer would not also discharge a man attracted to women. Likewise, an employer violates the statute if it fires an employee assigned a male sex at birth but who now identifies as female if it fails to treat similarly an employee assigned a female sex at birth who also now identifies as female. In both scenarios, but for the discharged employees’ sex, they would not have been fired.

It does not matter if the employer is motivated by factors in addition to the employee’s sex, like the sex to which the employee is attracted or with which she identifies. In either case, sex is one “but-for” cause for the termination. That alone triggers Title VII.

The majority’s focus on the “individual” and “but-for” causation also responds to an issue Justice Samuel Alito raises in his dissenting opinion. He argues that an employer that discharges employees on the basis of, say, sexual orientation does not engage in discrimination on the basis of sex because the employer is applying the same standard to both sexes—prohibition of same-sex attraction. That factor, he contends, and not sex, is the common trait the discharged employees share and the motive behind their discharge.[20]

As Justice Gorsuch explains, however, employers cannot necessarily escape Title VII liability because they apply similar standards to a class of men and women.[21] “[A]n employer who intentionally fires an individual homosexual or transgender employee in part because of sex violates the law even if the employer . . . subject[s] all male and female homosexual and transgender employees to the same rule.”[22]

Interpreting Title VII otherwise would cause a discontinuity in the Court’s Title VII case law.[23] For instance, more than 30 years ago the Court held that employers may not discriminate on the basis of prescriptive sex stereotypes, in which the employer imposes on its employees a gender-based standard and penalizes those who fail to live up to it.[24] Accordingly, an employer who fires male employees because they behave in a stereotypically feminine manner violates Title VII even if the employer also fires female employees who act in stereotypically masculine ways. It is no defense for the employer to argue that no discrimination occurs in these instances because the employer is applying the same standard to both sexes—an insistence that both men and women conform to conventional gender roles or norms. Rather, if an employer fires a man for being too feminine but would treat a feminine woman differently, Title VII is violated because his treatment would have been different had he been a woman, i.e., but for his sex.

Justice Gorsuch provides a helpful example in Bostock.

[A]n 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.[25]

The same is true for an employer who fires both men and women for being attracted to members of the same sex or for failing to identity with their-birth assigned sex. As Justice Gorsuch explains, an employer that “is equally happy to fire male and female employees who are homosexual or transgender nevertheless violate Title VII.”[26] In other words, “[j]ust as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.”[27] In either case, sex is a but-for cause for their discharge.

I find Justice Gorsuch’s analysis compelling. Title VII’s text and the Court’s precedent lead to the unavoidable conclusion that Title VII’s sex discrimination provision encompasses discrimination for being gay or transgender.

Professor Lund, your witness

People with strong policy views are understandably pleased when courts declare that the law has adopted policies they support. And it’s only human for judges to resolve close legal cases in favor of what they regard as sound policies. Bostock v. Clayton County[28] involved an emotionally charged policy issue, but it was not a legally close case. And it was wrongly decided.

Title VII of the 1964 Civil Rights Act forbids employers to intentionally discriminate against any individual “because of such individual’s . . . sex.”[29] Bostock held that discrimination on the basis of homosexuality or of being transgender violates the unambiguous text of the statute.

Justice Gorsuch’s majority opinion consists essentially of a two-step argument. Step one is to find an interpretation of the phrase “because of such individual’s sex” that is consistent with the conclusion he favors. He assumes, though only arguendo, that “sex” has its ordinary meaning, which refers to the biological classes of male and female.[30] More significantly—indeed crucially—he says that the term “because of” incorporates into Title VII what he characterizes as the traditional standard of causation, which “is established whenever a particular outcome would not have happened ‘but for’ the purported cause.”[31]

Step two is to find a hypothetical that illustrates why an individual’s sex is necessarily a but-for cause of every adverse employment decision resulting from a rule that discriminates against homosexual or transgender individuals. And that, Gorsuch thinks, is easily done. Assume, for example, that an employer has two employees, one of each sex, both of whom are sexually attracted to men. If the employer discriminates based on sexual orientation and discharges the male but not the female employee, the discharged employee would have kept his job but for his sex.[32] Ergo, Title VII was violated.

Gorsuch insists that the argument I just summarized is absolutely conclusive. The text is the law and that’s that. Most importantly, evidence about the understanding of the text held by those who voted for Title VII in 1964, or by the public that authorized those legislators to act, is simply irrelevant. Why? Because the text is so completely clear and unambiguous that it cannot possibly mean anything other than what Gorsuch says it means.[33]

Both steps in the argument are fallacious.

It is true of course, as Gorsuch says, that events often have multiple but-for causes. All events (except perhaps the Big Bang) obviously have multiple but-for causes. It is also true that this does not imply that a defendant can avoid liability for his own conduct by pointing to some other but-for cause: “So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision.”[34] The law would likely hold this defendant liable. But it is not true that all but-for causes attributable to a defendant are sufficient to establish legal causation. If, for example, a defendant negligently drove at a high rate of speed, which caused him to be sitting still at a red light sooner than he otherwise would have arrived there, he will not be liable if another driver rear-ends him at the intersection. It is simply false to pretend that but-for causation is sufficient to establish legal causation.

The only support Gorsuch offers for his claim that legal causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause is a citation to a specific passage in an age discrimination case: Gross v. FBL Financial Serv., 557 U.S. at 176.[35] Unfortunately, this is a blatant misrepresentation of what Gross says. That opinion makes the unremarkable observation that but-for causation is ordinarily the minimum that must be established. It never says or implies that but-for causation is sufficient to establish legal causation:

The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean “By reason of, on account of ” (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (explaining that the claim “cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome ” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 652–655 (2008) (recognizing that the phrase, “by reason of,” requires at least a showing of “but for” causation (internal quotation marks omitted)); Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63–64 (2007) (observing that “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition” and that the statutory phrase, “based on,” has the same meaning as the phrase, “because of” (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) “An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).[36]

The second step in the Court’s argument is also fallacious. “Sex” does not mean “sexual orientation,” nor does it mean “sexual identity.” An employer can have and enforce a policy against employing homosexuals or transgender individuals without knowing the sex of the individuals adversely affected by the policy. Because the case did not involve a disparate impact claim, even the lawyer for the Bostock plaintiffs admitted that this would not violate the statute.[37] And if the employer happens to know the sex of an individual adversely affected by the policy, that cannot transform the policy into one that intentionally discriminates against any individual because of that individual’s sex. Thus, Gorsuch is demonstrably wrong to claim that under the statute “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[38]

Recall the Court’s supposedly dispositive hypothetical. An employer has two employees, one of each sex, both of whom are sexually attracted to men. If the employer discharges the male for being attracted to men but not the female, the discharged employee would have kept his job but for his sex, and he has therefore in some abstract sense been discriminated against because of his sex. But has he been intentionally discriminated against because of his sex, as the statute requires?[39] To show why not, Justice Alito’s dissent offers a different hypothetical. Rather than assume just two employees, assume four: a heterosexual of each sex and a homosexual of each sex. When the employer enforces a policy against employing homosexuals, it results in the discharge of the two employees whose descriptions are crossed out:

Man attracted to men

Woman attracted to men

Woman attracted to women

Man attracted to women

The discharged employees have something in common, but it is not their sex. Nor is it an attraction to men, or an attraction to women. Both individuals were discharged because of their homosexuality. Neither was discharged because of being a man or because of being a woman, or because of any characteristic of the sex to which they belong.[40]

As Gorsuch purports to acknowledge, the meaning of the term “because of” is “by reason of” or “on account of,”[41] which does not imply that but-for causation is always either necessary or sufficient. In fact, Gorsuch never quite says that “because of” always encompasses any and every but-for cause, which would be patently false. On the contrary, he admits that in “ordinary conversation,” discrimination on the basis of homosexuality or transgender status would not be regarded as sex discrimination.[42]

The ordinary meaning of “because of” is a much more plausible interpretation of the statutory language than Bostock’s novel and idiosyncratic but-for causation interpretation. Nevertheless, Gorsuch says that “in the language of law” every but-for cause establishes legal causation,” [43] or more colorfully, “You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.”[44] But the text of the statute says no such thing. And Gorsuch points to nothing in the statute that implies or even suggests any such thing. Nor, as we’ve seen, is there any support for this remarkable legal theory in the ADEA opinion that supposedly adopted it.

What’s worse, Gorsuch simply waves away the part of Title VII’s text that actually specifies a standard of causation, namely that liability is established when sex is a “motivating factor” for an employment practice, even if it is not a but-for cause.[45] Perhaps Justice Alito was being charitable when he said: “The Court’s extensive discussion of causation standards is so much smoke.”[46]

The linchpin of the majority’s argument is that the statutory language unambiguously forbids discrimination based on homosexuality or the characteristic of being transgender. As I’ve shown, this is demonstrably false. If anything, the statutory language unambiguously excludes such discrimination from its coverage. But even if one assumed that the language might be ambiguous enough to be susceptible to the Gorsuch interpretation, it would not follow that the Justices get to pick between two possible interpretations based on their policy preferences.

The majority’s insupportable new theory of legal causation enabled the Court to ignore all of the traditional indicia of statutory meaning. As Alito demonstrated (without any rebuttal from Gorsuch), there is not a shred of evidence that anyone who voted for Title VII would have accepted Bostock’s interpretation of the statute. What’s more, every Court of Appeals until 2017 rejected it, and for 48 years, so did the statute’s enforcement agency, the EEOC.[47] The claim that Title VII outlawed discrimination based on homosexuality and transgenderism in 1964 has no basis in the statutory text, or in the legislative history, or in decades of judicial and administrative precedent.

In one of his few efforts to put some limit on the reach of the decision, Gorsuch declares that Title VII only applies to traits or actions that are “inextricably bound up with sex,” but not to traits or actions “related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another.”[48] Nothing in the statute’s text or legislative history supports this distinction. As Alito pointedly noted, the text of the statute forbids discrimination because of sex itself, not because of things “inextricably bound up with sex,” such as sexual harassment or sexual assault. “Does the Court really think that Title VII prohibits discrimination on all these grounds? Is it unlawful for an employer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence?”[49] Gorsuch refused to respond to these questions.

As these examples illustrate, the Bostock opinion has logical implications that no Justice will accept. And that’s on top of the fact that the holding is based on an untenable theory of legal causation. Future Courts will be forced to reject Bostock’s reasoning, whether they admit it or not.


[1] See Jacob Pramuk and Marty Steinberg, Anthony Kennedy Retiring from Supreme Court (June 27, 2018), https://www.cnbc.com/2018/06/27/anthony-kennedy-retiring-from-supreme-court.html (explaining that Justice Kennedy’s departure could have massive effects on gay rights).

[2] Justice Gorsuch was joined by Chief Justice John Roberts, Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Elena Kagan and Justice Sonia Sotomayor. Justice Samuel Alito, joined by Justice Clarence Thomas, dissented. Justice Brett Kavanagh separately dissented.

[3] Bostock, 140 S.Ct. at 1737.

[4] See e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (explaining that “final responsibility for enforcement of Title VII is vested with federal courts”); see also id. at 45 (“ [F]ederal courts have been assigned plenary powers to secure compliance with Title VII.”).

[5] See e.g., Bostock, 140 S.Ct. at 1752 (explaining that shortly after Title VII’s passage, an Equal Employment Opportunity Commission (EEOC) Commissioner described the statute’s “sex provision [as] difficult to . . . control.”).

[6] See id.

[7] Id.

[8] Id. at 1751.

[9] Tara Leigh Grove, Which Textualism, 134 Harv. L. Rev. 265, 295 (2020) (explaining that “[i]t is doubtful that many “ordinary people” in 1964 would have deemed a prohibition on sex discrimination to bar sexual harassment.”).

[10] See McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1196 (4th Cir. 1996), overruled by Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

[11] 523 U.S. 75.

[12] Id. at 79.

[13] See Bostock, 140 S.Ct. at 1754 (Alito, J., dissenting) (“There is only one word for what the Court has done today: legislation.”); see also id. at 1822-23 (Kavanaugh, J., dissenting) (opining that Title VII does not outlaw sexual orientation discrimination and “the responsibility to amend Title VII” so that the statute reaches such discrimination requires congressional action).

[14] See Oncale v. Sundowner Offshore Serv., 1996 WL 33413293, at 7-8 (1993) (Petitioner’s Brief in Opposition) (“[S]ame-gender discrimination . . . is beyond the reach of Title VII. Going beyond the statute’s parameters amounts to judicial legislation—providing a right Congress did not choose to establish in the language of Title VII.”).

[15] Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring).

[16] See Bostock, 140 S.Ct. at 1744.

[17] See id. at 1737.

[18] 42 U.S.C. § 2000e-2(a).

[19] See Burlington N. & Santa Fe R. Co. v. White, 548 U.S. 53, 69 (2006) (explaining that the Court has “emphasized the need for objective standards” in various “Title VII contexts”); see also id. at 68-69 (“We refer to . . . a reasonable employee because we believe that [Title VII’s] standard for judging harm must be objective.” That “standard is judicially administrable.”).

[20] Bostock, 140 S.Ct. at 1763 (Alito, J., dissenting).

[21] See id. at 1744.

[22] Id.

[23] See id. at 1749.

[24] See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion).

[25] Bostock, 140 S.Ct. at 1741.

[26] Id. at 1742.

[27] Id. at 1742-43.

[28] 140 S. Ct. 1731 (2020). This essay draws substantially on Nelson Lund, Unleashed and Unbound: Living Textualism in Bostock v. Clayton County, 21 Federalist Society Review 176 (2020).

[29] 42 U.S.C. § 2000-e2(a):

It shall be an unlawful employment practice for an employer—

  • to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
  • to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

[30] 140 S. Ct. at 1739.

[31] Id. (emphasis added) (citing Gross v. FBL Financial Serv., 557 U.S. 167, 176 (2009)).

[32] Id. at 1741-42.

[33] Id. at 1749. Justice Gorsuch cites three precedents that he thinks confirm his interpretation of the statutory text. Id. at 1743-44. Justice Alito’s dissent argues that those cases are easily distinguishable. Id. at 1773-75. Whatever one thinks about that dispute, Gorsuch does not maintain either that the result in this case is dictated by stare decisis or that the outcome of this case would be different if none of those precedents existed.

[34] 140 S. Ct. at 1739 (majority opinion).

[35] Id.

[36] Gross, 557 U.S. at 176 (footnote omitted).

[37] See id. at 1759 (Alito J., dissenting).

[38] Id. at 1741 (majority opinion).

[39] Gorsuch does not purport to rely on the statute’s “disparate impact” provision, 42 U.S.C. § 2000e-2(k).

[40] 140 S. Ct. at 1763 (Alito, J., dissenting).

[41] Id. at 1739 (majority opinion). Every dictionary I have consulted gives the same definition.

[42] Id. at 1745.

[43] Id. at 1739.

[44] Id. at 1745.

[45] Id. at 1739-40 (asserting that § 703(m) of Title VII merely supplements the standard of causation that the majority mistakenly imputed to the Gross opinion). § 703(m) provides: “Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”

[46] 140 S. Ct. at 1775 (Alito, J., dissenting).

[47] Id. at 1757-58 (Alito, J., dissenting).

[48] Id. at 1742 (majority opinion).

[49] Id. at 1761 (Alito, J., dissenting).


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