Monday, August 16, 2021

Koppelman vs. Berman and Krishnamurthi

Andrew Koppelman

In Bostock was Bogus: Textualism, Pluralism, and Title VII, forthcoming in the Notre Dame Law Review and available on SSRN, Mitchell Berman and Guha Krishnamurthi argue that Bostock v. Clayton County rested on a defective understanding of causation.  They claim that an employer who discriminates against LGBT people is not motivated by the employee’s sex, as the Court held, but rather by the employee’s sexual orientation. 

I disagree, and have just posted a response.  (I have been arguing for decades that LGBT discrimination is properly understood as an illegal form of sex discrimination.)  They are both distinguished scholars, but they mistakenly take the linguistic happenstance of a separate term for gender-atypical behavior – here, “homosexuality” – to subtract those whom the term describes from the statute’s protection.  Parallel conjunctions of discriminations do not balance out.  If they did, the statute could be nullified in all of its applications by allowing employers to discriminate against those, male or female, black or white, who seek jobs inconsistent with the traditional social role of their race or sex.

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