Friday, September 06, 2019

Thoughts on the SG’s “Lesbian Comparator” Argument in the Pending Title VII Sexual-Orientation Cases

Marty Lederman

           In a pair of cases that’ll be argued on October 8th—Bostock v. Clayton County, Georgia, No. 17-1618, and Altitude Express, Inc. v. Zarda, No. 17-1623—the Supreme Court will consider whether the provision in Title VII of the Civil Rights Act of 1964 making it unlawful for a covered employer to “discriminate against” an employee “because of such individual’s . . . sex” prohibits that employer from firing an employee because he’s a gay man.

            The defendant employers and the Solicitor General recently filed their briefs arguing that there’s no Title VII liability in these cases.  Those briefs frame the issue in a particular, familiar way:  They assume that the Court’s decision depends upon whether it would violate Title VII for an employer to implement a policy that categorically excludes all persons with same-sex orientation, gay men and lesbians alike, from the workforce—as though the cases involve what a couple of court of appeals judges (Judge Lynch in the Second Circuit and Judge Sykes in the Seventh Circuit) described as employers who “insist[] that [their] employees match the dominant sexual orientation regardless of their sex” and therefore hire “only heterosexual employees.”    

As I’ll explain in Parts IV and V of this post, I think such a categorical “heterosexuals only need apply” policy would violate Title VII, even if it equally affected gay men and lesbians alike.  Before getting to that discussion, however, in Part III I explain why this common framing of the question—based on a hypothetical employer who believes that homosexuality as such is immoral and thus won’t employ gay men or lesbians—is not, in fact, the scenario raised by these cases or, indeed, by virtually any of the reported cases in which employees have alleged that they were fired because of their same-sex orientation.  In Bostock and Zarda, for instance, if the supervisors in question did fire the plaintiffs (at least in part) because they were gay men--something the plaintiffs will have to establish--it's not at all obvious that they would have fired similarly situated lesbians, too.  Indeed, both of the defendant employers in these cases, like almost all employers covered by Title VII, steadfastly insist that they don't have a policy or practice of hiring only heterosexuals—in part, no doubt, because such discrimination would be unlawful wholly apart from Title VII, but also because very few employers in the nation today would be willing to exclude all gay employees from their workforce:  such a policy or open and notorious practice would be foolhardy, if not economically disastrous (not to mention morally odious) for almost employers.

Once this crucial point is acknowledged—namely, that there’s no reason to believe these employers would have treated lesbian employees the way they (allegedly) treated the gay male plaintiffs—that ought to resolve the Title VII question, because both the Solicitor General and the defendants themselves concede that even if Congress didn’t intend to prohibit discrimination based upon sexual orientation, as such, it is a form of prohibited sex discrimination for a covered employer to treat a gay man less favorably than the employer would have treated a similarly situated lesbian (or vice versa).


Gerald Bostock was the longtime Child Welfare Services Coordinator for Clayton County, Georgia.  Shortly after it became known he was participating in a gay recreational softball league, the County discharged Bostock.  Bostock alleges that the County did so because he’s a gay man.  (Although Clayton County is a government entity, Bostock for some reason did not bring a constitutional claim under the Fourteenth Amendment--his allegations were limited to Title VII.)

Donald Zarda, an openly gay man, worked as a skydiving instructor for Altitude Express, Inc., a New York company doing business on Long Island.  In June 2010, his supervisor, the owner of the company, discharged him after Zarda mentioned to a customer that he was gay.  The record contains evidence that when another instructor similarly disclosed to a customer that he was in a heterosexual marriage, Altitude Express did not fire or otherwise sanction that straight instructor.  Zarda alleged that he had been “discriminated against because of [his] gender,” and that Altitude Express fired him because he “did not conform [his] appearance and behavior to sex stereotypes” and had “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”  (Zarda died in an accident while his case was being litigated.  The executors of his estate, however, are continuing to press his claims for damages against Altitude Express.)

There are two significant things to note about the cases at the outset:  First, both employers deny that they acted on the basis of the employees' sexual orientation.  The cases come to the Court on the assumption the plaintiffs could demonstrate to a jury that their employers fired them, at least in part, because they were gay men--but that's a disputed fact.  Second, neither plaintiff alleges that his employer had, or implemented, a policy of hiring only heterosexuals; in both cases, they are prepared to prove only that they themselves were discharged because they were gay men.

The plaintiffs' primary argument in both cases about why their discharges violated Title VII is fairly straightforward:  Because Altitude Express and Clayton County (allegedly) would not have fired them if they had been women and all other factors remained the same—including their attraction to men—each of the discharges was made “because of” the employee’s sex (in the sense that his maleness was a necessary, or “but for,” cause of the firing).  In other words, the appropriate “Title VII comparator” is a hypothetical straight woman in the plaintiff’s position.  Furthermore, the plaintiffs’ argument continues, such a discharge “because of” their sex violated Title VII because it was based upon a stereotype of how men are supposed to act—namely, that they should be attracted to women, not men—that’s irrelevant to male employees’ ability to perform their jobs.  

The plaintiffs argue that their cases are thus analogous to Price Waterhouse v. Hopkins (1989), in which the plaintiff, Ann Hopkins, alleged that an accounting firm unlawfully discriminated against her when it refused to offer her a partnership.  Hopkins did not allege that the firm disfavored her simply because she was a woman.  Instead, Hopkins introduced evidence showing that Price Waterhouse had effectively prohibited her from comporting herself in what the firm considered to be a stereotypically masculine manner—supervisors had urged her to stop swearing and being “overly aggressive” and to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry”—in order to become a partner.  The firm did not impose such requirements on, or have such expectations with respect to, its similarly situated male candidates for partnership.  The Court held that such disparate treatment on the basis of sex-specific “stereotypes” in workplace behavior, dress and comportment was sufficient to establish that Price Waterhouse had unlawfully “discriminated against” Hopkins “because of” her sex.  As the Court put the point in a 1971 opinion quoted in Price Waterhouse, “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

The employers and the Solicitor General insist that this way of thinking about the relevant question of sex “discrimination” in Zarda and Bostock is (as the SG puts it) “misguided.”  The plaintiffs’ proffered comparison, the SG argues (p.10), between how the employer treated a man attracted to men and how the employer would have treated a woman attracted to men, “is logically flawed because it changes both the sex and the sexual orientation of the comparator,” such that “the two hypothetical employees are thus not similarly situated” in terms of the characteristic that motivated the employer, i.e., same-sex orientation.  “The correct comparison,” according to the SG and the defendants, is between a gay man and a lesbian in the same employment position:  The SG assumes (id.) that “they would be similarly situated—and they would be treated the same.”  Accord Altitude Express Br. at 44 (“the appropriate comparator for Zarda is a lesbian woman (that is, a woman attracted to the same sex)”; Clayton County Br. at 28 (“One relevant trait that must be kept the same is the employee’s sexual orientation, since that is the very trait that is the subject of this case.”).

Ergo (or so the argument goes), because the “heterosexuals only" employer presumably treats gay men and lesbians the same, there is no discrimination because of the employees’ “sex.”  As the SG explains (p.17):  “So long as the employer treats similarly situated individuals of both sexes equally, it has not discriminated against either on the basis of sex.  Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex, but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.”

As I’ll elaborate shortly, this argument is flawed for several reasons—most importantly, because the reframing of the question doesn’t describe the cases before the Court, nor the mine run of Title VII claims involving unfavorable job actions on the basis of employees’ sexual orientation.  Before I get there, however, it’s important to emphasize two concessions the employers and the SG make—concessions required by the way in which they insist the Court must approach the question:

First, they concede that in a case such as Price Waterhouse, involving expected employee conduct in the workplace, it would not be a defense to Title VII liability if an employer applied separate, complementary, sex-based stereotypes on male and female employees, respectively—such as both expecting female employees to avoid being too “macho” and expecting male employees to avoid being too timid or effeminate.  That would, instead, be a case of doubling down on the impermissible discrimination.  Here’s the SG, for example (pp. 25-26, quoting a hypothetical raised in Zarda’s brief): 

[A]n employer who “fires both a woman like Hopkins for being too ‘macho’ and a man for not being sufficiently ‘manly’” . . . violates Title VII because it would be treating a subset of women (macho women) worse than a similarly situated subset of men (macho men) and—in a separate act of discrimination—treating a subset of men (effeminate men) worse than a similarly situated subset of women (effeminate women).  Each practice separately violates Title VII because each results in “disparate treatment of men and women” [quoting City of Los Angeles Department of Water & Power v. Manhart (1978)].

Second, and crucially, the defendants and the SG acknowledge that even if (as they insist) Congress hasn’t prohibited discrimination on the basis of sexual orientation as such, an employer would nevertheless violate Title VII’s prohibition on sex discrimination if it treated a gay man, by virtue of his sexual orientation, worse than it would have treated a similarly situated lesbian (or vice versa).  “For example,” the SG writes (at p.19), “if ‘an employer is willing to hire gay men but not lesbians, then the comparative method has exposed an actual case of sex discrimination.’”  See also id. at 29 (“an employer who discriminates against employees in same-sex relationships does not engage in discrimination because of ‘sex’ as long as the employer treats men in same-sex relationships the same as women in same-sex relationships”); accord Altitude Express Br. at 35 (“When an employer that makes decisions based on sexual orientation treats both men and women attracted to the same sex in the same manner, there is no sex discrimination.”); Clayton County Br. at 28 (“[A] hypothetical example illustrating an actual case of sex discrimination based on the employer’s treatment of a similarly situated comparator is if an employer fires a female employee because she is lesbian but retains a male employee who is homosexual.”).


With those important, common understandings in mind, let’s return now to the SG’s/employers’ proposed framing of the question, which assumes a religious or (in Judge Lynch's words) “homophobic” employer who insists upon employing only heterosexual individuals.  Such an employer, argue the SG and the employers, does not discriminate on the basis of the disfavored employees’ sex.  Altitude Express’s brief, for example, reasons (p.36) that for “employers who make employment decisions based on employees’ attraction to the same sex” (take note that AE pointedly doesn’t include itself in this description), it’s incorrect to say that they “have one policy for men and ‘another, parallel policy’ for women” (quoting Zarda’s Brief):  “The policy is the same, the motive is the same, and the treatment of men attracted to the same sex and women attracted to the same sex is the same.”  Accord Clayton County Br. at 39-40; SG Br. at 17, 19-20.

The most vivid account of this argument, which rests upon the idea of employers applying a singularundifferentiated and sex-neutral stereotype in favor of “heterosexuality,” is found in Judge Lynch’s discussion in his dissent in Zarda (883 F.3d at 158):

[T]he homophobic employer is not deploying a stereotype about men or about women to the disadvantage of either sex.  Such an employer is expressing disapproval of the behavior or identity of a class of people that includes both men and women. . . .  That disapproval does not stem from a desire to discriminate against either sex, nor does it result from any sex-specific stereotype, nor does it differentially harm either men or women vis-à-vis the other sex.  Rather, it results from a distinct type of objection to anyone, of whatever gender, who is identified as homosexual.  The belief on which it rests is not a belief about what men or women ought to be or doit is a belief about what all people ought to be or do — to be heterosexual, and to have sexual attraction to or relations with only members of the opposite sex.

See also, e.g.Altitude Express Br. at 44 (“[T]he notion that men should be attracted only to women and women should be attracted only to men is a single ‘stereotype,’ . . . two sides of the same coin That view is not unique to either sex, and acting on it does not single out either sex for disfavored treatment.”) (some internal quotations omitted).


There are several problems with this proposed framing of the issue.  For example, as I’ll explain in Part IV below, even with respect to a hypothetical employer that did impose a categorical requirement of “heterosexuality,” such a requirement is not, in effect, different from a facially neutral rule that “All employees must refrain from adopting nontraditional sex roles,” which in turn is equivalent to a slightly more forthcoming policy that “women must not be too aggressive and men must not be too passive,” which the government and the defendants concede would violate both male and female employees’ Title VII rights.  Such a “single rule”/“single stereotype” theory is also in tension with governing precedents such as Dothard v. Rawlinson (1977), and with the established precedent that an employer violates Title VII when it prohibits all employees from interracial marriage.  For these reasons, the “similarly situated lesbian” is not the proper “comparator.”  Moreover, as I discuss in Part V, even if an employer’s general opposition to homosexuality—for example, on religious grounds—might in some sense be based upon a “single” stereotype that all humans should be heterosexual, that expectation itself is typically predicated upon two different, “complementary” stereotypes about the proper, distinct roles of men and women, respectively, in intimate and family relationships.  And if that is so, there would be Title VII liability even if the “similarly situated lesbian” were the appropriate comparator.

Before we get to all of that, however, there’s a more fundamental problem with the “we prefer heterosexuals of both sexes” framing—namely, that it assumes an employer practice or policy that isn’t present in these cases or, indeed, in virtually any cases that are the usual subjects of Title VII litigation involving gay and lesbian employees.

The argument depends upon the assumption that the employers in question would have also have fired female employees in the same positions who were themselves openly gay—that, as the SG puts it (p.16), the employer has effectively made heterosexuality a “qualification” for the job, regardless of the employee’s sex.   

Altitude Express and Clayton County, however, are not such employers, nor would they ever assert otherwise.  They don’t purport to apply a categorical prohibition on all “homosexual” employees, gay men and lesbians alike.  Indeed, it’d be unlawful for them to do so, wholly apart from Title VII.  New York law expressly prohibits Altitude Express from discriminating against its employees on the basis of sexual orientation, see N.Y. Exec. L. § 296.1(a) (“It shall be an unlawful discriminatory practice . . . [f]or an employer . . ., because of an individual’s . . . sexual orientation, … to discharge from employment such individual . . . .”).  And although Georgia law doesn’t appear to prohibit Clayton County—a government entity—from engaging in such discrimination, the Fourteenth Amendment presumably would.  What’s more, it obviously wouldn’t be in the employers’ economic or (in the County’s case) governmental interest to refuse to employ gay individuals, even if it were legal to do so.

That explains why Altitude Express proudly boasts on the very first page of its brief that it has “not discriminated against any employee for any reason,” and why Clayton County likewise doesn’t come anywhere close to suggesting it would have fired a lesbian in Bostock’s position.  (It’s telling that every time the employers describe their preferred framing of the question, they refer not to themselves but instead to a generic, hypothetical “employer” that would treat gay men and lesbians the same.)

Accordingly, even if the Court were to hold that the plaintiffs have the burden of convincing the trier of fact that a similarly situated gay woman would not have been treated as badly as they were (but it shouldn't--see Part IV, below), it should be relatively easy for the plaintiffs--if they prove they were discharged because they were gay men--to make such a showing, because the plaintiffs aren't going to introduce evidence of an employer policy or practice of firing all non-heterosexual employees and the defendants themselves won’t introduce any evidence that they would have fired a similarly situated lesbian (indeed, they might readily concede that they wouldn’t have done so).  Either way—whether the defendants are silent on the question or concede that they wouldn't have fired a lesbian—“the inference of discrimination will easy [for the jury] to draw,” Oncale v. Sundowner Offshore Servs, Inc., 523 U.S. 75, 80 (1998), especially once the plaintiffs have shown the jury that such conduct would have been unlawful under state (Zarda) or constitutional (Bostock) law and that both employers disclaim any policy of hiring only heterosexuals.

It’s important to stress that this is not simply some fortuitous, idiosyncratic point about the two particular cases that happen to be before the Court.  In almost all Title VII cases of this sort, the defendant employers, far from relying upon a “heterosexuals only” policy or a claim that they are Judge Lynch’s hypothetical “homophobic employer,” will vociferously deny that they would ever discriminate against gay employees of either sex.  Indeed, it’s difficult to identify any employers in America, apart from perhaps some churches and their auxiliaries, that satisfy the characteristics of the hypothetical employer posited by the SG and the defendants—viz., those that acknowledge a policy or practice of disfavoring, or refusing to employ, gay and lesbian individuals alike.  Employers covered by Title VII (generally speaking, those with more than 15 employees) virtually never will concede, or suggest, that they “object[] to homosexuality as a trait . . . in both men and women” (Clayton County Br. 39-40) or “act[]” on the “view” that “all people,” regardless of their sex, “ought to . . . be heterosexual” (Altitude Express Br. 43).  And they surely won’t insist that heterosexuality is a “qualification” for employment (SG Br. 16) in their workforce. 

Instead, most cases will resemble the two before the Court—where plaintiffs allege that a supervisor or other decision-maker fired or otherwise disfavored a particular individual for being a gay man or a lesbian, even in the absence of a categorical employer objection to homosexuality.  If the plaintiff in any such case persuades the jury that he was fired because he was gay, it should be relatively simple for him also to persuade a jury to draw the reasonable inference from the evidence (cf. Oncale, 523 U.S. at 80-81) that a similarly situated woman would not have been fired, regardless of whether that hypothetical female “comparator” employee were gay or straight.  And where that’s established—as it should be in all or almost all cases where the plaintiff shows that the employer acted against the plaintiff because of he or she was gay—all of the parties in Bostock and Zarda, and the Solicitor General, agree that the employer has engaged in a form of sex discrimination that Title VII forbids.

Accordingly, if the Court were to hold that a similarly situated lesbian is the proper comparator in these cases (but see Part IV, below, in which I explain why that’s not the proper way to view the Title VII question), it should be very careful not to further suggest that imposing such a burden on the plaintiff would preclude liability in these or any other cases.  [UPDATE:  The reactions of some readers to this Part suggest to me that I ought to make this pellucidly clear:  I do NOT think it is correct to invoke the "lesbian comparator"--as I explain in Part IV, that would be inconsistent with well-established Title VII law.  The point of this Part III is simply to point out that not only is Judge Lynch's framing incorrect, it also does not describe all or almost all Title VII cases (and therefore it's not a very useful or representative framing).  Moreover, even if the Court were to adopt Judge Lynch's framing of the hypothetical "lesbian comparator," that would not mean (as Judges Lynch and Sykes assumed) that plaintiffs automatically or likely would lose on their Title VII claims--to the contrary.  If the Court (wrongly) concludes that the hypothetical lesbian is the proper comparator, it should not hold that Title VII doesn't protect employees from discrimination based upon their sexual orientation."  Instead, it should do what it did in Oncale, namely, explain that such discrimination--like same-sex harassment--can (but does not necessarily) violate Title VII, assuming the plaintiff makes a certain showing, which can be satisfied in many ways, including by asking the jury to draw reasonable inferences from the evidence presented, including the employer's disclaimers.]


OK, but now let’s return to the underlying legal question:  Is a hypothetical similarly situated lesbian the proper comparator in these cases?  Primarily for the reasons explained at pages 38-41 of Zarda’s opening brief, I don’t think so.

Recall the basic premise of the argument:  that the employer in question consistently applies what we might call a “relational” policy concerning how “all” employees ought to behave with respect to some other types of people, such as Judge Lynch’s hypothetical employer who acts in accordance with a belief not “about what men or women ought to be or do,” but instead “about what all people ought to be or do — to be heterosexual.”

In such a case, where the employer purports to establish a “singular” norm about how employees of both sexes (or of all races or religions) are to interact with persons of the same or another sex (or race or religion)--what we might call a relational condition for employment that itself turns on the "protected" characteristics (sex, race, etc.) of the employee and the characteristics of other parties with whom the employee relates--controlling case law indicates that the employer does indeed violate Title VII, notwithstanding the fact that the policy might, in particular applications, redound to the detriment of employees of both sexes (or employees of various races or religions).

In Dothard v. Rawlinson (1977), for example, a prison regulation imposed limitations on the assignment of “either male or female” guards to facilities that “would require contact with the inmates of the opposite sex without the presence of others.”  433 U.S. at 325 n.6 (quoting Administrative Regulation 204(1), (9)(B)).  The Court found—and there was no dissent on this point—that the prison’s application of this sex-specific but facially sex-neutral regulation to Dianne Rawlinson, so as to deny her a job guarding male prisoners, was a form of “explicit[]” and “overt[]” discrimination against her on the basis of her sex, id. at 332, even though the same regulation would likewise have prevented male guards from securing jobs in women’s facilities—which would have been a case of discrimination “because of” their sex, too.  (The Court ultimately concluded that the defendant in Dothard wasn’t liable because sex was a bona fide occupational qualification (BFOQ) in that circumstance.  Id. at 336-37.  But there wasn’t any disagreement that application of the regulation resulted in discrimination against Rawlinson on the basis of her sex.) 

The only thing the SG has to say about the regulation in Dothard (see p.22 of his brief) is that it “explicitly” discriminated against women on the basis of their sex “because even women who satisfied the statutory height and weight requirements were prohibited [under the regulation] from serving in the specified positions at male-only prisons.”  That accurate description of thos the regulation in Dothard operated, however, doesn’t distinguish Dothard from the hypothetical case in which an employer imposes a policy that all employees must be heterosexual.  To the contrary:  In form, “No employees, either male or female, may guard prisoners of the opposite sex” is exactly the same as “No employees, male or female, may sleep with (or be attracted to) individuals of the same sex.”  If the former “explicitly” discriminates against women on the basis of their sex, then so, too, does the latter policy “explicitly” discriminate against men on the basis of their sex.  Therefore, just as it was no defense to Title VII liability in Dothard that the employer would have equally applied the “same-sex-only” assignment regulation to a male prison guard, so, too, there’d be liability where an employer fired a particular gay man pursuant to a “heterosexuals only” policy.

This result also follows from cases involving employers that disciplined or discharged employees who married people of a different racesee Zarda Br. at 32 & n.9 (citing cases), even where the employer might have applied a “no interracial marriages” rule across the board, without regard to the races of the affected employees.  The courts of appeals have uniformly, and correctly, held that such cases, analogous to the constitutional decisions in Loving v. Virginia and Bob Jones Univ. v. United States, do involve discrimination on the basis of the employee’s race in violation of Title VII, even though it’s the interracial aspect of the relationship between the employee and another person, rather than the particular race of the employee, to which the employer objects.

The Solicitor General agrees that the employers in such “no interracial marriage” cases unlawfully discriminate against their employees on the basis of their race, but insists (p.29) that those cases are distinguishable from cases involving preferences for heterosexuals because “[u]nlike race-based distinctions, sex-based distinctions are not invariably invidious.”  The pertinent Title VII inquiry, however, doesn’t turn on whether the employer’s motive is invidious or benign.  Indeed, an employer can be liable under Title VII even if it discriminates between men and women with the most laudable of intentions.  See, e.g., UAW v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (“The beneficence of an employer’s purpose does not undermine the conclusion that an explicit gender-based policy is sex discrimination under § 703(a).”).

Dothard’s treatment of the “same-sex-only guarding” regulation, as well as the “no interracial marriage” decisions, demonstrate that even if the Court were confronted with the case of an employer who excluded gay men and lesbians alike from the workplace, and did so because of a facially undifferentiated moral opposition to homosexuality that allegedly didn’t depend upon distinct male and female stereotypes—from what Judge Lynch called “a distinct type of objection to anyone, of whatever gender, who is identified as homosexual”—the employer nevertheless would violate Title VII by applying such a policy to discharge an employee because he’s gay.  These well-established and indistinguishable precedents show, in other words, that the “similarly situated lesbian” is not the proper “comparator.”  


There’s yet another reason why such a hypothetical case would violate Title VII, too, even if one were to assume that a hypothetical, similarly situated lesbian was the proper “comparator.”  If an employer purported to exclude gays and lesbians from the workplace altogether because of an undifferentiated opposition to “homosexuality” or “same-sex relations,” it would be a mistake to presume, as Judge Lynch did, that such a policy is not predicated on “a belief about what men or women ought to be or do.”  Altitude Express is wrong, in other words, to insist (p.44) that “the notion that men should be attracted only to women and women should be attracted only to men is a single ‘stereotype,’ . . . two sides of the same coin.”  

To be sure, an “All humans—and thus all employees—should be heterosexual” policy takes the form of a single stereotype when stated at such a degree of generality—namely, that no one should sleep with or be attracted to persons of the same sex.  Nevertheless, such a facially “neutral” policy opposing homosexuality is typically predicated upon a religious or moral view that men and women should have complementary, and very different, roles when it comes to intimate relationships (and family formation).  

The Catechism of the Catholic Church, for example, teaches (¶¶ 2333, 2357) that:  “Everyone, man and woman, should acknowledge and accept his sexual identity.  Physical, moral, and spiritual difference and complementarity are oriented toward the goods of marriage and the flourishing of family life.”  Thus “Sacred Scripture . . . presents homosexual acts as acts of grave depravity,” and “tradition has always declared that ‘homosexual acts are intrinsically disordered,” because they “do not proceed from a genuine affective and sexual complementarity.  Under no circumstances can they be approved.”  Accord Brief of United States Conference of Catholic Bishops, et al., in Perry v. Schwarzenegger, No. 10-16696 (9th Cir. 2010) (“The Catholic Church teaches that . . . [t]he unitive meaning of marriage relates to the sexual difference and complementarity of men and women on both a biological and spiritual level, i.e., body and soul (their entire person).”); Roger Scruton, Sexual Desire:  A Philosophical Investigation at 307-09 (using sources from Ancient Greece and modern literature to argue that “male and female homosexuality are significantly different, just as male and female desire are different,” and that the “complementarity” of the sexes is “an important element in heterosexual desire”:  “Male desire evokes the loyalty which neutralizes its vagrant impulse; female desire evokes the conquering urge which overcomes its hesitations.”); id. at 309 (discussing Protestant theologian Erich Fuchs’ argument that the “impurity” of gay sex lies “in the refusal of differences and the triumph of non-differentiation”:  “[S]exuality should be lived out by the man and woman as the very meaning of all differentiation.”).
As the precedents of Dothard and the interracial-marriage cases demonstrate (see Part IV, above), the government’s proposed “lesbian comparator” is the wrong way to think about the question, and thus a plaintiff shouldn’t have to show that an employer’s “heterosexuals only” policy is predicated upon such distinct sex-based stereotypes about the proper and complementary roles of men and women in sexual relationships.  But even if the Court were to hold that the plaintiff does carry that burden of showing that the employer would have treated a lesbian differently, and even if a particular employer were to insist that it would have fired the hypothetical lesbian employee just as he discharged the gay male employee, it shouldn’t be difficult for the plaintiff in such a case to persuade a reasonable jury to draw an inference that the “dual discharges” would in fact be predicated on distinct expectations of different proper roles for men and women (at least absent some evidence that the employer had some other, neutral reason for excluding both gay men and women from the workplace). 

And a plaintiff who makes such a showing should prevail under Title VII, because then the case would be analogous to one in which an employer discharges a woman for being too aggressive and a man for being too timid—a scenario in which the SG and the employers agree that the employer violates Title VII twice over.* 

Indeed, in many respects this is an even more straightforward and compelling case for Title VII protections than even that Price Waterhouse-based hypothetical, because a fundamental premise of that provision of the 1964 Civil Rights Act is that when it comes to employment opportunities, biology should not be destiny, and employees shouldn’t be categorized or assessed on the basis of immutable characteristics that aren’t germane to their ability to perform the work in question.  In contrast to Price Waterhouse, which at the very least involved employer expectations about how employees were supposed to act in the workplace, an employer who insists upon hiring only heterosexuals does so because of views about the proper, distinct roles of men and women in their most intimate relations outside the workplace.  Those views might in many cases be based upon “decent and honorable religious or philosophical premises,” and “utmost, sincere conviction[s]” about “divine precepts” (Obergefell).  Nevertheless, such convictions about whether there are (or are not) “moral and spiritual difference[s] [between] and complementarity [of]” men and women in their private relations (see the Catholic Catechism, quoted above) have little or no relation to the quality of work that individuals of various different sexual orientations can perform for the employers covered by Title VII.  Therefore, whether or not a particular employee conforms to the employer’s beliefs about the propriety and morality of sexual conduct outside the workplace ought to have no bearing on that employee’s employment opportunities.


            One more thing:  The SG also emphasizes that not all actions taken by employers because of an employee’s sex violate Title VII—in particular, that Title VII permits employers to maintain certain sex-specific dress and grooming code rules, and sex-segregated restrooms. 

That’s true.  But as I explain with my co-amici Sam Bagenstos, Mike Dorf, Leah Litman and Margo Schlanger in an amicus brief we filed in a related case involving a transgender employee, most such expressly sex-based dress, grooming and restroom rules generally survive Title VII scrutiny not because they aren’t imposed because of employees’ sex—of course they are—and not because they impose harms equally on male and female employees, but instead because they don’t impose any appreciable harm on most or all employees in the first place.  As the Court has held in a line of cases dealing with sexual harassment, culminating in Oncale, even where an employer takes an action because of employees’ sex, it doesn’t violate Title VII as applied to an employee who suffers no more than “innocuous” harm.  Most such rules and policies are therefore facially lawful (i.e., permissible with respect to the vast majority of employees in a workplace) and an employer may retain them, even if it might not be permissible for the employer to apply some of those sex-based rules to some or all transgender employees who could suffer serious harms if compelled to comply with them.  (For much more on this, please see our brief.)

            By contrast, effectively requiring an employee to cease being gay or lesbian as a condition of employment obviously imposes a harm that’s anything but innocuous.  The question of how Title VII deals with dress and grooming and restroom rules therefore shouldn’t affect the proper result in Bostock and Zarda.

* It’s possible, I suppose, that some defendant employer might deny that its “heterosexual only” policy is premised on such expectations regarding, or moral or religious beliefs concerning, distinct, sex-specific roles for men and women in sexual and marital relations.  It’s hard to imagine, however, that such an employer would be able to offer an alternative explanation that wouldn’t itself be problematic under Title VII.  In any event, the important point for present purposes is that, as in Oncale, the plaintiff ought to be able to argue to the jury that it can and should draw a reasonable inference that the employer is, in fact, acting upon two distinct stereotypes about proper sex roles of men and women, respectively.

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