4 ms·

In the decision, they emphasized that these terms are separate concepts in order to come to the conclusion that it's impossible to discriminate on the basis of

In the decision, they emphasized that these terms are separate concepts in order to come to the conclusion that it's impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex. Every example of discrimination based on sexual orientation can be re-framed as an example of discrimination on the basis of sex using a "but-for" test. From the decision: > Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

pdonis 6y ago
But Alito's dissent extends this same example to make an opposite argument. Suppose we have four people: a man attracted to men, a man attracted to women, a woman attracted to men, and a woman attracted to women. The first and fourth (homosexual) are fired, while the second and third (heterosexual) are not. Now it no longer makes sense to say the ones who got fired were fired because of their sex, because a person of the same sex was not fired in each case.
- rrrrrrrrrrrryan 6y ago
  Sounds like he's almost accidentally stumbled upon the idea of intersectionality. Many businesses have a "front of the house" consisting of people that interact with customers, clients, etc., and a "back of the house" that might be comprised of warehouse workers, etc. Many businesses in the south used to only hire white people in the front of the house, and only men in the back of the house. After civil rights laws came into effect, many of these businesses argued that their hiring wasn't racist, because they employ lots of black people (in the warehouse). And they're not sexist, because they employ lots of women (in the front of the house). But if you're a black woman, you're still out of luck. Because of this, the courts ruled that these policies are still considered discrimination on the basis of sex/race. Yes, these hiring policies weren't discriminating against ALL women, but just a subset (women who happen to be black). Or looked at differently, a subset of a race (black people who happen to be women). Either way, it's still discrimination against a protected class - both intuitively, and by law. Similarly, this decision states that firing someone because they're lesbian or gay would be discrimination against a subset of women (women who are attracted to women), or a subset of men (men who are attracted to men). In cases involving the protections of individuals, you can't start by looking at the aggregate of all the people working at the company, and analyze the company hiring policy, attribute-by-attribute (e.g. sex, race, etc)., in isolation. It'll still lead to discrimination, because each individual has many attributes, and the combination of those attributes can be the source of the discrimination. Instead, you have to start with the individual affected person who brought the case forward, look at all of their attributes, and if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision, then it's considered discriminatory.
  - pdonis 6y ago
    > if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision First, I'm not convinced this rule is actually in accord with the plain language of the statute. Kavanaugh's dissent argues that, for decades, all three branches of the Federal government--Congress, the Executive, and the Supreme Court itself--have taken "discrimination because of sex" and "discrimination because of sexual orientation" to be two separate and legally distinct categories of discrimination. The majority opinion simply ignores all that prior evidence about how the Federal government has interpreted the plain language of the statute. Second, it's not clear to me that the hypothetical the majority is using here is the correct one. One of the key grounds given by LGBTQ individuals for their right to equal treatment is that those traits are innate. But if, for example, sexual orientation is an innate trait, then changing a man attracted to men into a woman attracted to men is changing more than just that person's sex: it's changing their sexual orientation as well. In other words, the Court's hypothetical is not "changing just one thing, leaving everything else the same", as it claims to be. On this view, which is a better reflection of the views LGBTQ people are actually advocating, the proper hypothetical for changing just the person's sex, leaving everything else intact, would be to change a man attracted to men into a woman attracted to women. And in that hypothetical, the hiring/firing decision would not change; and by contrast, in corresponding hypothetical where you only changed sexual orientation, not sex (so changing a man attracted to men into a man attracted to women), the hiring/firing decision would change. Which leads to the opposite conclusion from the one the majority makes.
    - rrrrrrrrrrrryan 6y ago
      Appreciate the detailed reply. I understand the dissent better now - it's more nuanced than my initial impression was. The discussion in this thread has made me fully appreciate, while this might be a step forward for human rights, these protections really do need to be explicitly codified in law as well. Not just because they're resting on fragile interpretations of existing law, but also because this interpretation wouldn't necessarily extend to bisexuals, asexuals, etc.
    - dllthomas 6y ago
- dragonwriter 6y ago
  > Now it no longer makes sense to say the ones who got fired were fired because of their sex, because a person of the same sex was not fired in each case. They were each fired for something someone of the opposite sex would not have been fired for, so, in both cases, they were fired on the basis of sex since their sex was a sine qua non of the firing. It's possible for a firm to have two closely related discriminatory policies, one of which discriminates against each sex. They don't net out to nondiscrimination, but instead provide causes of action for discrimination for those harmed by each policy.
  - pdonis 6y ago
    I understand that this is the majority's argument. I personally don't find either side's argument in this respect much more convincing than the other; both seem contrived to me.

pdonis 6y ago

But Alito's dissent extends this same example to make an opposite argument. Suppose we have four people: a man attracted to men, a man attracted to women, a woman attracted to men, and a woman attracted to women. The first and fourth (homosexual) are fired, while the second and third (heterosexual) are not. Now it no longer makes sense to say the ones who got fired were fired because of their sex, because a person of the same sex was not fired in each case.

rrrrrrrrrrrryan 6y ago
Sounds like he's almost accidentally stumbled upon the idea of intersectionality. Many businesses have a "front of the house" consisting of people that interact with customers, clients, etc., and a "back of the house" that might be comprised of warehouse workers, etc. Many businesses in the south used to only hire white people in the front of the house, and only men in the back of the house. After civil rights laws came into effect, many of these businesses argued that their hiring wasn't racist, because they employ lots of black people (in the warehouse). And they're not sexist, because they employ lots of women (in the front of the house). But if you're a black woman, you're still out of luck. Because of this, the courts ruled that these policies are still considered discrimination on the basis of sex/race. Yes, these hiring policies weren't discriminating against ALL women, but just a subset (women who happen to be black). Or looked at differently, a subset of a race (black people who happen to be women). Either way, it's still discrimination against a protected class - both intuitively, and by law. Similarly, this decision states that firing someone because they're lesbian or gay would be discrimination against a subset of women (women who are attracted to women), or a subset of men (men who are attracted to men). In cases involving the protections of individuals, you can't start by looking at the aggregate of all the people working at the company, and analyze the company hiring policy, attribute-by-attribute (e.g. sex, race, etc)., in isolation. It'll still lead to discrimination, because each individual has many attributes, and the combination of those attributes can be the source of the discrimination. Instead, you have to start with the individual affected person who brought the case forward, look at all of their attributes, and if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision, then it's considered discriminatory.
- pdonis 6y ago
  > if changing any one (protected) attribute (in this case, sex) would lead to a different hiring/firing decision First, I'm not convinced this rule is actually in accord with the plain language of the statute. Kavanaugh's dissent argues that, for decades, all three branches of the Federal government--Congress, the Executive, and the Supreme Court itself--have taken "discrimination because of sex" and "discrimination because of sexual orientation" to be two separate and legally distinct categories of discrimination. The majority opinion simply ignores all that prior evidence about how the Federal government has interpreted the plain language of the statute. Second, it's not clear to me that the hypothetical the majority is using here is the correct one. One of the key grounds given by LGBTQ individuals for their right to equal treatment is that those traits are innate. But if, for example, sexual orientation is an innate trait, then changing a man attracted to men into a woman attracted to men is changing more than just that person's sex: it's changing their sexual orientation as well. In other words, the Court's hypothetical is not "changing just one thing, leaving everything else the same", as it claims to be. On this view, which is a better reflection of the views LGBTQ people are actually advocating, the proper hypothetical for changing just the person's sex, leaving everything else intact, would be to change a man attracted to men into a woman attracted to women. And in that hypothetical, the hiring/firing decision would not change; and by contrast, in corresponding hypothetical where you only changed sexual orientation, not sex (so changing a man attracted to men into a man attracted to women), the hiring/firing decision would change. Which leads to the opposite conclusion from the one the majority makes.
  - rrrrrrrrrrrryan 6y ago
    Appreciate the detailed reply. I understand the dissent better now - it's more nuanced than my initial impression was. The discussion in this thread has made me fully appreciate, while this might be a step forward for human rights, these protections really do need to be explicitly codified in law as well. Not just because they're resting on fragile interpretations of existing law, but also because this interpretation wouldn't necessarily extend to bisexuals, asexuals, etc.
  - dllthomas 6y ago
dragonwriter 6y ago
> Now it no longer makes sense to say the ones who got fired were fired because of their sex, because a person of the same sex was not fired in each case. They were each fired for something someone of the opposite sex would not have been fired for, so, in both cases, they were fired on the basis of sex since their sex was a sine qua non of the firing. It's possible for a firm to have two closely related discriminatory policies, one of which discriminates against each sex. They don't net out to nondiscrimination, but instead provide causes of action for discrimination for those harmed by each policy.
- pdonis 6y ago
  I understand that this is the majority's argument. I personally don't find either side's argument in this respect much more convincing than the other; both seem contrived to me.