Understanding Bostock: A Response to Ryan Anderson

By: AYAN GUPTA


The United States Supreme Court, in Bostock v Clayton County,[1] held that the firing of an individual based on their sexual orientation, or on the basis that they are transgender, amounts to sex discrimination under Title VII of the 1964 Civil Rights Act.[2] In his analysis on SCOTUSBlog, Ryan Anderson, who filed an amicus brief for advocating for the employers in the case, has criticized the formulation of the Court.[3]

Anderson has argued that Justice Gorsuch has only supplied “half a theory of discrimination.”[4] Under his formulation, the test laid down by the judgement is that if by replacing the sex of the complainant, the result would have been different, it amounts to discrimination. This logic is undoubtedly an aspect of the Court’s judgement. However, it would be immature to summarize the logic of the Court in just this “simplistic” formulation. There is much more to the judgement. In this article, I will take the hypotheticals he offers and explain how they will amount to discrimination (unlike what he argues) under Bostock’s ratio. In this process, I will attempt to clarify the Court’s judgement.

Anderson argues that Bostock’s test of only changing the sex of the employee and asking would the situation would have been different is incomplete. He argues that the Court requires only a causation and an injury without ever linking the two.

However, that is not what the Court does. It correctly notes the fact that discrimination entails wrongful treatment arising out of differential treatment. The Court states that

To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated … So, taken together, an employer who intentionally treats a person worse because of sex . . . discriminates against that person in violation of Title VII [5]

In the oral arguments too, the requirement for an injury was a matter of concern. Pamela Karlan, representing the Plaintiffs, aptly points this out with an example.[6] She explains that she will be referred to as “Ms. Karlan” by the Chief Justice. The defendant advocate would instead be referred to as “Mr. Harris.” She explains that this act of sex-based differentiation does not amount to discrimination. The very essence of discrimination is the existence of an injury arising from the differential treatment. Therefore, by default, the use of the word “discrimination” implies the link.[7]

Thus, the test that the Court effectively lays down is that if by changing the sex of the employee, the treatment would be different, and if such different treatment would be disadvantageous, Title VII would be triggered.

In this context, it is imperative to analyze another hypothetical Anderson offers. He gives the examples of a male employee who regularly enters a women’s locker-room and is fired for the same.[8]  He says, rightly, that changing the sex of the employee would lead to a different result. Under his formulation of Bostock, this in and out of itself would lead to discrimination, aptly forgetting the requirement for an injury. Accordingly, he argues, the Court has effectively outlawed separate bathrooms as they amount to discrimination.

Now two things must be noted here. Firstly, the correct application of the test would require changing the sex of the employee in a “similarly situated” manner.[9] That would mean that the correct comparator here would be asking what the employer’s reaction would be if a woman were to enter the men’s washroom. In this case, it is reasonable to assume that the result would be the same. If it is not, then it would be discrimination. In any case, the firing of the employee, here, is not intentionally in order to discriminate. The termination is because he entered a restricted private space. There is an apparent lack of intention to discriminate based on sex.

In any case, his argument that the Court has effectively outlawed sex-specific places falls apart once we rope in the requirement of disadvantageous treatment, which the Court has done. There is no injury caused by differentiating bathrooms.

At the heart of Anderson’s misunderstanding, and Bostock’s ratio, is the difference between differentiation and discrimination. Both the acts involve treating individuals belonging to separate groups in a different manner. However, differentiation involves differential treatment based on reasonable differences, whereas discrimination involves an intention to cause a disadvantageous effect.[10] It is important to note that the “disadvantageous effect” is not a subjective standard, i.e., it does not depend completely on whether the plaintiff feels wronged on not. Rather, the Court sees it as a question of existence of a disparate impact.[11] Separate washrooms, for instance, have no disparate impact.

Anderson is right that discrimination based on sexual orientation indeed involves a fundamentally different kind of intention. The Court does not deny that. Instead, the very logic of the but-for causation is figuring out whether sex plays a role. Sex does inevitably play a role when it comes to sexual orientation. Discrimination based on sexual orientation involves accepting the sexual orientation of heterosexual persons of one sex and not of another, in each specific instance. Undoubtedly, sex is not the primary motivating factor in such discrimination. However, that is not what Title VII requires; it merely requires the existence of sex as a ground. Thus, when there is an intention to discriminate based on sexual orientation, it inevitably involves an intention to discriminate based on sex. Sex and sexual orientation are distinct; however, they are, nevertheless, inextricably connected.

Anderson, goes on, and says that when an employer refuses to hire both gays and lesbians (and both transmen and transwomen), there is no discrimination. Both sexes, of a particular characteristic, are being treated equally. Therefore, he says, the main intent is to discriminate based on orientation and not sex. Indeed, the link between homosexuality (and transsexuality) and sex does not change the reality that there is discrimination purely on the grounds of orientation existing here. However, at the same time, the linkage between the two means that sex plays a role too. A woman attracted to a man will not be fired in a similarly situated condition. A man attracted to a man would be.

When the focus of the analysis shifts to determining whether gays and lesbians are treated equally, two mistakes are made. First, the comparator is not similarly situated. A similarly situated comparator for a gay man would be a straight woman. The similarly situated aspect being that both persons are attracted to men. If one recalls the earlier discussion above around the washroom example, there also, a similarly situated comparator would have been a woman entering a male-only space. Similarly situated does not necessarily mean the same situation with the sex-reversed.

The second error here is that comparing the treatment of gays and lesbians is a group comparison. Title VII looks at an individual test. Thus, the comparator asks whether a woman dating a man would be fired too. The object in question here is an individual and not a group.

In conclusion, the essence of the Bostock involves using a comparator in a similarly situated manner in an instance where the differentiation causes a disadvantage (or a disparate impact). It is true, however, that the Court could have done a better job of expressing the niche difference between differentiation and discrimination. Nevertheless, Justice Gorsuch has done an incredible job in simplifying a deeply insightful analysis and Ryan Anderson misses the point of that insight.

[1] Bostock v Clayton County U.S. LEXIS 3252 (2020).

[2] 42 U.S.C. §§ 2000e to 2000e-15 (1970), as amended, 42 U.S.C. §§ 2000e to 2000e-17 (Supp. II, 1972)

[3] Ryan Anderson, Symposium: The simplistic logic of Justice Neil Gorsuch’s account of sex discrimination, SCOTUSBlog (June 16, 2020), https://www.scotusblog.com/2020/06/symposium-the-simplistic-logic-of-justice-neil-gorsuchs-account-of-sex-discrimination/ (last visited 19, 2020).

[4] Id.

[5] Supra note 1 at 11.

[6] Transcript of Oral Argument at 19, Bostock v Clayton County U.S. LEXIS 3252 (2020).

[7] Supra Bostock at 11; See also Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006).

[8] Anderson, supra note 3.

[9] Supra note 1 at 11.

[10] See also Aart Hendriks, Disabled Persons and Their Right to Equal Treatment: Allowing Differentiation while Ending Discrimination, 1(2) Health and Human Rights 152.

[11] Supra note 1 at 11; see also Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988).

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