`
`Nos. 17-1618, 17-1623, 18-107
`
`
`
`Petitioner,
`
`IN THE
`Supreme Court of the United States
`_______________
`GERALD LYNN BOSTOCK,
`v.
`CLAYTON COUNTY, GEORGIA,
`Respondent.
`_______________
`ALTITUDE EXPRESS, INC., AND RAY MAYNARD,
`Petitioners,
`v.
`MELISSA ZARDA AND WILLIAM MOORE, JR.,
`CO-INDEPENDENT EXECUTORS OF THE ESTATE OF
`DONALD ZARDA
`Respondents.
`_______________
`R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
`Petitioner,
`v.
`EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND
`AIMEE STEPHENS,
`Respondents.
`_______________
`On Writs of Certiorari to the United States Courts of
`Appeals for the Eleventh, Second, and Sixth Circuits
`_______________
`BRIEF OF KENNETH B. MEHLMAN ET AL. AS
`AMICI CURIAE IN SUPPORT OF THE EMPLOYEES
`_______________
`
`ROY T. ENGLERT, JR.
`Counsel of Record
`LAURIE R. RUBENSTEIN
`PETER A. GABRIELLI
`CAROLYN M. FORSTEIN
`ROBBINS, RUSSELL, ENGLERT, ORSECK,
`UNTEREINER & SAUBER LLP
`2000 K STREET NW 4TH FLR
`WASHINGTON, DC 20006
`(202) 775-4500
`renglert@robbinsrussell.com
`
`
`
`
`
`
`
`
`
`
` i
`
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF AUTHORITIES ..................................... ii
`INTEREST OF THE AMICI CURIAE .................... 1
`SUMMARY OF ARGUMENT .................................. 2
`ARGUMENT ............................................................ 5
`I. THE PLAIN TEXT OF TITLE VII
`PROHIBITS DISCRIMINATION
`BECAUSE OF AN INDIVIDUAL
`EMPLOYEE’S SEXUAL ORIENTATION
`OR TRANSGENDER STATUS .......................... 5
`A.
`Discrimination Because of Sexual
`Orientation or Transgender Status
`Necessarily Constitutes
`Discrimination Because of Sex ................ 6
`Congressional “Intent” Does Not
`Override Unambiguous Text ................. 10
`Title VII Prohibits Discrimination
`Against Individuals, Rather than
`Against Protected Classes at Large....... 15
`II. PAST PRACTICE DOES NOT REQUIRE A
`CONTRARY RESULT ...................................... 22
`CONCLUSION ....................................................... 24
`
`
`B.
`
`C.
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`ii
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Barnes v. Train,
`No. 1828-73, 1974 WL 10628 (D.D.C.
`Aug. 9, 1974), rev’d sub nom. Barnes
`v. Costle, 561 F.2d 983 (D.C. Cir.
`1977) .................................................................. 13
`
`Boyle v. United States,
`556 U.S. 938 (2009) ........................................... 12
`
`Bridge v. Phoenix Bond & Indem. Co.,
`553 U.S. 639 (2008) ........................................... 11
`
`Buckhannon Bd. & Care Home, Inc. v.
`W. Va. Dep’t of Health & Human
`Res.,
`532 U.S. 598 (2001) ........................................... 23
`
`City of Los Angeles, Dep’t of Water &
`Power v. Manhart,
`435 U.S. 702 (1978) ..................................... 20, 21
`
`Corne v. Bausch & Lomb, Inc.,
`390 F. Supp. 161 (D. Ariz. 1975),
`vacated, 562 F.2d 55 (9th Cir. 1977) ................ 13
`
`EEOC v. Abercrombie & Fitch Stores,
`Inc.,
`135 S. Ct. 2028 (2015) ......................................... 7
`
`Food Mktg. Inst. v. Argus Leader Media,
`588 U.S. ____ (2019) (slip op.) ........................... 23
`
`
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`
`
`
`
`iii
`
`TABLE OF AUTHORITIES—Continued
`
`
`Gen. Dynamics Land Sys., Inc. v. Cline,
`540 U.S. 581 (2004) .................................... 15, 16
`
`Page(s)
`
`Gross v. FBL Fin. Servs., Inc.,
`557 U.S. 167 (2009) ............................................. 6
`
`Hively v. Ivy Tech Cmty. Coll.,
`853 F.3d 339 (7th Cir. 2017) ............................ 22
`
`Keene Corp. v. United States,
`508 U.S. 200 (1993) .......................................... 23
`
`Lewis v. City of Chicago,
`560 U.S. 205 (2010) ........................................... 11
`
`McNally v. United States,
`483 U.S. 350 (1987) .......................................... 24
`
`Meritor Sav. Bank, FSB v. Vinson,
`477 U.S. 57 (1986) ........................... 12, 13, 14, 15
`
`Milner v. Dep’t of Navy,
`562 U.S. 562 (2011) ........................................... 23
`
`NLRB v. SW Gen., Inc.,
`137 S. Ct. 929 (2017) ......................................... 10
`
`Oncale v. Sundowner Offshore Servs.,
`523 U.S. 75 (1998) ......................................passim
`
`Pa. Dep’t of Corr. v. Yeskey,
`524 U.S. 206 (1998) ......................... 10, 11, 12, 16
`
`
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`
`iv
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`TABLE OF AUTHORITIES—Continued
`
`
`Phillips v. Martin Marietta Corp.,
`400 U.S. 542 (1971) ..................................... 21, 22
`
`Page(s)
`
`Sandifer v. U.S. Steel Corp.,
`571 U.S. 220 (2014) ............................................. 7
`
`Sedima, S.P.R.L. v. Imrex Co.,
`473 U.S. 479 (1985) ........................................... 12
`
`Univ. of Tex. Sw. Med. Ctr. v. Nassar,
`570 U.S. 338 (2013) ......................................... 6, 7
`
`Constitution and statutes
`U.S. CONST. Art. I, § 7 .............................................. 1
`42 U.S.C. § 2000e ..................................................... 7
`42 U.S.C. § 2000e-2(a)(1) ................................passim
`42 U.S.C. § 2000e-2(m) ............................................. 7
`42 U.S.C. § 12132 ................................................... 12
`
`Other Authorities
`CHAMBERS’S TWENTIETH CENTURY
`DICTIONARY (William Geddie ed.,
`First American ed. 1965) .............................. 8, 17
`THE OXFORD ENGLISH DICTIONARY
`(1933) ....................................................... 8, 17, 18
`
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`TABLE OF AUTHORITIES—Continued
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`Page(s)
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`Ellen Frankel Paul, Sexual Harassment
`as Sex Discrimination: A Defective
`Paradigm, 8 YALE L. & POL’Y REV.
`333 (1990) .......................................................... 12
`RANDOM HOUSE DICTIONARY OF THE
`ENGLISH LANGUAGE (unabridged ed.
`1966) .............................................................. 8, 17
`ANTONIN SCALIA & BRYAN A. GARNER,
`READING LAW: THE INTERPRETATION
`OF LEGAL TEXTS (2012) ...................................... 10
`WEBSTER’S THIRD NEW INTERNATIONAL
`DICTIONARY OF THE ENGLISH
`LANGUAGE (unabridged ed. 1961) ................. 8, 17
`
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`The amici curiae listed in the Appendix respect-
`fully submit this brief in support of the petitioner in
`Bostock v. Clayton County, No. 17-1618, the respon-
`dents in Altitude Express, Inc. v. Zarda, No. 17-1623,
`and respondent Aimee Stephens in R.G. & G.R.
`Harris Funeral Homes, Inc. v. EEOC, No. 18-107.1
`
`INTEREST OF THE AMICI CURIAE
`Amici curiae are Republicans, former Republicans,
`and political conservatives from diverse backgrounds.
`Amici have served as officeholders in Republican
`presidential administrations, as Members
`of
`Congress, as members of state legislatures, as officials
`in political campaigns and political parties, as
`political candidates, and as advocates, advisors, and
`activists for various political and social causes. Amici
`support a textualist approach to statutory interpreta-
`tion, in recognition that only the text, not legislative
`history or other unenacted indicia of “purpose” or
`“intent,” is actual law, passed by Congress and
`presented to the President in accordance with
`Article I, Section 7 of the Constitution of the United
`States. Because amici believe that Title VII’s plain
`language protects against discrimination based on
`sexual orientation and transgender status, amici
`submit that the decisions below in Zarda and R.G. &
`
`
`1 All parties have given consent to the filing of this brief. No
`counsel for a party wrote this brief in whole or in part, and no
`counsel or party made a monetary contribution intended to fund
`the preparation or submission of this brief. No person other than
`the amici curiae or their counsel made a monetary contribution
`intended to fund its preparation or submission.
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`G.R. should be upheld, and the decision below in
`Bostock should be reversed.
`A full list of amici is provided as an Appendix to
`this brief.
`
`SUMMARY OF ARGUMENT
`Basic principles of textualism resolve this case.
`Title VII of the Civil Rights Act of 1964 tells employers
`that it is unlawful to “fail or refuse to hire or to
`discharge any individual, or otherwise to discriminate
`against any individual with respect to his compensa-
`tion, terms, conditions, or privileges of employment,
`because of such individual’s . . . sex.” 42 U.S.C.
`§ 2000e-2(a)(1). These words are unambiguous, and
`this Court’s cases have taken them as such. Both
`textualism and precedent accordingly command that
`Title VII’s words be applied to mean what they say: It
`is unlawful for an employee’s sex to contribute to an
`employer’s decision to discharge or otherwise dis-
`criminate against the employee.
`Yet that is exactly what happened in all three
`cases on review. Two men were discharged because
`they were gay, which necessarily means that they lost
`their jobs because they were men who were attracted
`to men. Had they been similarly situated women—
`that is, women who were attracted to men—their
`employers would not have discharged them for such
`attraction. The other plaintiff is a transgender woman
`whose employer discharged her for representing
`herself as the woman she understood herself to be.
`The employer so acted because the employee declined
`to accede to the demand that employees who had been
`assigned “male” at birth (or whom the employer other-
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`wise believed to be male in essence) refrain from
`representing themselves as women. Had the plaintiff
`been assigned female at birth (or had the employer
`otherwise believed her to be female in essence), she
`would not have been discharged for representing
`herself as a woman. Thus, in all three cases, an
`employee was fired for attractions or actions that his
`or her employer would have tolerated for members of
`another sex. Plainly, the employees were discharged
`because of their sex. These are straightforward
`violations of the plain words of Title VII.
`The employer-litigants and the dissenters below
`have elided this common-sense textualist approach by
`relying on extra-statutory evidence of how they
`contend Members of Congress or the general public in
`1964 would have believed that Title VII would be
`applied. They assert that, when Title VII was enacted,
`Congress and the American public would not have
`expected it to protect sexual orientation and trans-
`gender status because those aspects of identity were
`not the subjects of significant political debate at the
`time. Perhaps so, but it is not relevant. As this Court
`has repeatedly recognized, in Title VII cases as well as
`cases in other areas of the law, statutes often apply
`more broadly than their drafters anticipated, and
`extrinsic evidence of statutory “intent” is irrelevant
`when the statute’s words are clear.
`The employer-litigants and dissenters below addi-
`tionally conflate discharge or discrimination “against
`any individual,” as denoted in the statute, with
`discharge or discrimination against a protected class
`of people. As the plain text of Title VII indicates, and
`as the Court has expressly acknowledged, Title VII
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`bars discrimination against an individual because of
`that individual’s protected traits. It does not matter
`that an employer might discriminate against men in
`some situations (e.g., when they are attracted to men)
`and women in other situations (e.g., when they are
`attracted to women), such that the aggregate of the
`employer’s many discriminatory actions does not
`favor men as a class or women as a class. Each
`adverse employment action against an individual
`because of that individual’s sex is an independent
`violation of Title VII, according to the words Congress
`wrote. In each instance, the individual is treated
`differently from a similarly situated employee of
`another sex. The statute does not allow employers to
`escape liability by committing further acts of discrim-
`ination against individuals of another sex.
`Finally, to the extent that some decisions of courts
`of appeals have disagreed with the conclusions that
`flow naturally from statutory text, that is no reason
`for the Court to fail to apply sound textualist
`principles. To discharge or discriminate based on
`sexual orientation or transgender status is necessari-
`ly to discharge or discriminate because of sex, and no
`lower-court precedent can establish otherwise. Except
`when lower-court decisions have been ratified by later
`congressional enactment, this Court has always
`rejected arguments that it should defer to statutory
`interpretations reached in the lower courts and has
`independently applied the tools of statutory construc-
`tion.
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`ARGUMENT
`I. THE PLAIN TEXT OF TITLE VII PROHIBITS
`DISCRIMINATION BECAUSE OF AN INDI-
`VIDUAL EMPLOYEE’S SEXUAL ORIENTA-
`TION OR TRANSGENDER STATUS.
`Title VII provides that employers may not “fail or
`refuse to hire or . . . discharge any individual, or
`otherwise . . . discriminate against any individual
`with respect to his compensation, terms, conditions, or
`privileges of employment, because of such individual’s
`. . . sex.” 42 U.S.C. § 2000e-2(a)(1). The mandate is
`clear: An employer violates Title VII if it treats an
`individual applicant or employee worse than it would
`have if that person were of a different sex. As
`explained below, discrimination against an employee
`because of his or her sexual orientation flouts this
`prohibition; doing so, by definition, treats a man who
`has some traits or engages in some behaviors
`differently from a woman who has the same traits or
`engages in the same behaviors. So too does dis-
`crimination on the basis of transgender status; an
`individual employee who was assigned “male” at birth
`receives disparate treatment from one who was
`assigned “female” at birth despite engaging in the
`same behavior. In interpreting the plain meaning of
`the statute, it is irrelevant that Congress in 1964
`might not have anticipated that sex discrimination
`would subsume discrimination based on sexual
`orientation or transgender status. Moreover, attempts
`by the employer-litigants to confine Title VII liability
`to employers who disfavor men as a class or women as
`a class are misplaced. The statute bars discrimination
`against “any individual . . . because of such indi-
`
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`vidual’s . . . sex.” Id. (emphasis added). Discrim-
`inating against a man because of his sex and
`discriminating against a woman because of her sex
`constitute separate and independent violations of
`Title VII.
`A. Discrimination Because of Sexual Orien-
`tation or Transgender Status Necessarily
`Constitutes Discrimination Because of
`Sex.
`By its plain text, Title VII applies whenever one of
`its enumerated traits motivates the discharge of an
`employee or any of the other specified employment
`practices. See 42 U.S.C. § 2000e-2(a)(1). The phrase
`“because of” ordinarily denotes “but-for” causation. In
`Gross v. FBL Financial Services, Inc., this Court held,
`based on the ordinary meaning of “because of,” that a
`plaintiff attempting to prove age discrimination under
`the Age Discrimination in Employment Act has the
`burden to establish that age was “the ‘but-for’ cause of
`the employer’s adverse action.” 557 U.S. 167, 176
`(2009). And in University of Texas Southwestern
`Medical Center v. Nassar, this Court held, based on
`that ordinary meaning of “because of,” that “Title VII
`retaliation claims require proof that the desire to
`retaliate was the but-for cause of the challenged
`employment action.” 570 U.S. 338, 352 (2013). Under
`that formulation, the text forbids adverse action if a
`protected trait “was the ‘reason’ that the employer
`decided to act.” Gross, 557 U.S. at 176.2
`
`
`2 A 1991 amendment to Title VII broadened that standard,
`stating that “an unlawful employment practice is established
`when the complaining party demonstrates that race, color,
`
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`“Sex” is not defined in Title VII. See generally 42
`U.S.C. § 2000e (definitions). The term is therefore
`“interpreted as taking [its] ordinary, contemporary,
`common meaning.” Sandifer v. U.S. Steel Corp., 571
`U.S. 220, 227 (2014) (internal quotation marks
`omitted). According to several dictionaries published
`close in time to the passage of Title VII, sex broadly
`refers to the fact of being male or female and the
`physical and behavioral characteristics commonly
`associated with those facts. For example, a 1961
`dictionary defines sex as
`the sum of the morphological, physiological,
`and behavioral peculiarities of living beings
`that subserves biparental reproduction with its
`concomitant
`genetic
`segregation
`and
`recombination
`which
`underlie
`most
`evolutionary change, that
`in
`its typical
`dichotomous occurrence is usu. genetically
`controlled and associated with special sex
`
`religion, sex, or national origin was a motivating factor for any
`employment practice, even though other factors also motivated
`the practice.” 42 U.S.C. § 2000e-2(m). In Nassar, this Court
`recognized that the amendment created a “lessened causation
`standard.” 570 U.S. at 348-349. See also EEOC v. Abercrombie &
`Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015) (Title VII “relaxes”
`the “traditional standard of but-for causation” to “prohibit even
`making a protected characteristic a motivating factor in an em-
`ployment decision”
`(internal quotation marks omitted)).
`Accordingly, by statutory text, it is unlawful for an employee’s
`“sex” to cause an employer to discharge or discriminate against
`the employee, whether or not there are additional motives for the
`adverse employment decision. Because the complaints contain
`well-pleaded allegations that sexual orientation or transgender
`status was the motivating factor in each case before the Court,
`no question about mixed motives is presented by these cases.
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`chromosomes, and that is typically manifested
`as maleness and femaleness.
`WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF
`THE ENGLISH LANGUAGE (unabridged ed.) (1961).
`Similarly, a 1966 dictionary includes definitions
`such as “the fact or character of being either male or
`female,” “either of the two groups of persons exhibit-
`ing this character,” and “the sum of the structural and
`functional differences by which the male and female
`are distinguished, or the phenomena or behavior
`dependent on those differences.” THE RANDOM HOUSE
`DICTIONARY OF THE ENGLISH LANGUAGE (unabridged
`ed.) (1966). These definitions are consistent with
`others published during the same general period. E.g.,
`CHAMBERS’S TWENTIETH CENTURY DICTIONARY
`(William Geddie ed., First American ed. 1965) (“the
`quality of being male or female: either of the divisions
`according to this, or its members collectively . . .: the
`this distinction”
`whole domain connected with
`(emphasis added)). Older dictionaries also empha-
`sized the generality and breadth of “sex,” such as the
`definition, “The distinction between male and female
`in general.” THE OXFORD ENGLISH DICTIONARY (1933)
`(emphasis added). The definitions also comport with
`much more current usages.
`Given these broad contemporary definitions of the
`term “sex,” it is clear that discrimination on the basis
`of sexual orientation or transgender status necessari-
`ly constitutes action taken because of the individual
`employee’s sex. It is impossible to cognize a person’s
`sexual orientation without first noting whether the
`person is male or female (or possesses the physical or
`behavioral characteristics usually associated with
`
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`being male or female). For example, a gay man is gay
`only by virtue of being a man who is attracted to or
`has sex with men. This is tautological; a woman
`attracted to or having sex with men would not be gay.
`To treat a male employee who is attracted to men less
`favorably than a female employee who is attracted to
`men is, necessarily, to discriminate against the male
`employee because of his sex. It would penalize him for
`traits or actions that would be permissible for his
`female colleagues.
`
`Likewise, to penalize a female employee for being
`attracted to or having sex with women, while not tak-
`ing adverse employment action against male employ-
`ees who are attracted to women, discriminates against
`the female employee because of her sex. The plain text
`of Title VII does not tolerate those inequities.
`For similar reasons, discrimination against an em-
`ployee for being transgender also occurs “because of
`such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1).
`Such discrimination treats a person who was
`considered male at birth, but identifies as a woman,
`differently from a person who was classified as female
`at birth and also currently identifies as a woman. To
`permit a female-identifying employee who was
`assigned female at birth to represent herself as a
`woman while prohibiting a transgender woman from
`doing the same is to discriminate against the trans-
`gender woman because she was considered to have a
`particular sex at birth (and/or because the employer
`believes that the sex assigned to the employee at birth
`is the employee’s current sex). Title VII flatly
`prohibits that practice.
`
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`10
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`B. Congressional “Intent” Does Not Override
`Unambiguous Text.
`That the enacting legislature and/or the American
`public circa 1964 may not have expected the statute to
`apply to such discrimination does not change the
`result demanded by Title VII’s plain text. It is well
`established that Congress’s subjective intent or
`expectation about how a statute would apply, even if
`discernible, “is irrelevant” where statutory text is
`unambiguous. Pa. Dep’t of Corr. v. Yeskey, 524 U.S.
`206, 212 (1998).
`Congress enacts and the President considers for
`signature only “the text” of a statute, “not the prefer-
`ences expressed by certain legislators.” NLRB v. SW
`Gen., Inc., 137 S. Ct. 929, 942 (2017). Consequently, it
`is not unusual to find situations in which “the text
`plainly applies or does not apply by its very words,”
`even though “the legislators did not consider [that]
`particular circumstance.” ANTONIN SCALIA & BRYAN A.
`GARNER, READING LAW: THE INTERPRETATION OF
`LEGAL TEXTS 350 (2012); see also id. at 56 (“The
`difference between textualist interpretation and so-
`called purposive interpretation is not that the former
`never considers purpose. It almost always does. . . .
`[T]he purpose must be derived from the text, not from
`extrinsic sources such as legislative history or an
`legal drafter’s desires.”
`assumption about
`the
`(emphasis added)). Here, the relevant purpose is to
`ban discrimination because of sex. Even if some
`legislators in 1964 performed the mental gymnastics
`required to consider discrimination based on sexual
`orientation or transgender status to be somehow
`independent of sex, even if some legislators simply
`
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`11
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`had no opinion on the subject, and even if some
`legislators inserted the word “sex” in hopes of making
`the bill so broad that it would not pass, none of that
`justifies claiming to identify a statutory “purpose”
`different from the one so plainly stated in the text.
`The Court has consistently recognized that
`seemingly unanticipated applications of a statute are
`“the product of the law Congress has written” and that
`“[i]t is not for [the Court] to rewrite the statute so that
`it covers only what we think is necessary to achieve
`what we think Congress really intended.” Lewis v.
`City of Chicago, 560 U.S. 205, 215 (2010). In those
`circumstances, the Court has “repeatedly refused to
`adopt narrowing constructions.” Bridge v. Phoenix
`Bond & Indem. Co., 553 U.S. 639, 660 (2008).
`For example, in Pennsylvania Department of
`Corrections v. Yeskey, the Court considered whether
`the Americans with Disabilities Act applied to
`inmates in state prisons. 524 U.S. at 208. The statute
`broadly stated that “‘no qualified individual with a
`disability shall, by reason of such disability, be ex-
`cluded from participation in or be denied the benefits
`of the services, programs, or activities of a public
`entity, or be subjected to discrimination by any such
`entity.’” Id. at 209 (emphasis added) (quoting 42
`U.S.C. § 12132). The petitioners argued that the
`quoted language did not apply to state prisons and
`prisoners, in part because the “statement of findings
`and purpose . . . [did] not mention prisons and
`prisoners.” Id. at 211. In rejecting that argument,
`Justice Scalia wrote for a unanimous Court that “‘the
`fact that a statute can be applied in situations not
`expressly anticipated by Congress does not demon-
`
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`12
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`
`strate ambiguity. It demonstrates breadth.’” Id. at 212
`(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,
`499 (1985)).
`Yeskey is no outlier among the Court’s precedents.
`In Boyle v. United States, for example, in rejecting a
`narrowing interpretation of RICO argued to be more
`consistent with legislators’ purpose in passing the
`statute, the Court wrote: “Because the statutory
`language is clear, there is no need to reach petitioner’s
`remaining arguments based on statutory purpose,
`legislative history, or the rule of lenity. In prior cases,
`we have rejected similar arguments in favor of the
`clear but expansive text of the statute.” 556 U.S. 938,
`950 (2009) (emphasis added).
`“Because of” and “sex” are broad terms, not ambig-
`uous ones. That they apply to contexts that many
`legislators may not have anticipated in 1964 in no way
`justifies dispensing with a plain reading of the text.
`The Court’s decisions in Meritor Savings Bank, FSB
`v. Vinson, 477 U.S. 57 (1986), and Oncale v.
`Sundowner Offshore Services, 523 U.S. 75 (1998), well
`illustrate the point. In Meritor, the Court recognized
`that sexual harassment and a resulting hostile work
`environment could constitute discrimination because
`of sex under Title VII. Meritor, 477 U.S. at 66. It is
`unlikely that Congress or the public in 1964 would
`have expected Title VII to forbid sexual harassment.3
`In fact, before Meritor, at least two courts had rejected
`
`3 See, e.g., Ellen Frankel Paul, Sexual Harassment as Sex
`Discrimination: A Defective Paradigm, 8 YALE L. & POL’Y REV.
`333, 346 (1990) (“[T]he legislative history of Title VII does not
`indicate that Congress intended to address sexual abuses in the
`workplace.”).
`
`
`
`
`
`
`
`
`
`13
`
`
`that application. One simply ruled that the statute did
`not “apply to verbal and physical sexual advances by
`another employee, even though he be in a supervisory
`capacity.” Corne v. Bausch & Lomb, Inc., 390 F. Supp.
`161, 163 (D. Ariz. 1975), vacated, 562 F.2d 55 (9th Cir.
`1977). The other reasoned that “[t]he substance of
`plaintiff’s complaint [wa]s that she was discriminated
`against, not because she was a woman, but because
`she refused to engage in a sexual affair with her
`supervisor.” Barnes v. Train, No. 1828-73, 1974 WL
`10628, at *1 (D.D.C. Aug. 9, 1974), rev’d sub nom.
`Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
`Contrary to the latter court’s posited distinction
`between discrimination against women and discrim-
`ination against people who refuse to have affairs with
`their supervisors, Meritor recognized that Title VII
`applies where “a supervisor sexually harasses a
`subordinate because of the subordinate’s sex.” Meritor,
`477 U.S. at 64 (emphasis added). The Court explained,
`Sexual harassment which creates a hostile or
`offensive environment for members of one sex
`is every bit the arbitrary barrier to sexual
`equality at the workplace that racial harass-
`ment is to racial equality. Surely, a require-
`ment that a man or woman run a gauntlet of
`sexual abuse in return for the privilege of being
`allowed to work and make a living can be as
`demeaning and disconcerting as the harshest of
`racial epithets.
`Id. at 67 (internal quotation marks omitted). Con-
`sistent with the ordinary meanings of “because of” and
`“sex,” this Court’s holding confirmed that discrimina-
`tion occurs because of sex if an employee’s sex contrib-
`
`
`
`
`
`
`
`
`
`14
`
`
`utes to disadvantageous terms of employment. The
`Court’s implicit reasoning was that a woman who is
`subject to a “hostile or offensive environment for
`members of one sex” (in this case, women) might not
`have been subject to that precise hostility or offense
`had she been a man. Id. (internal quotation marks
`omitted). Her entitlement to Title VII relief thus flows
`not from the subjective expectations of Title VII’s
`authors, but from the textually compelled principle
`that it is unlawful for an employer to make her sex the
`cause (or one of multiple causes) of any disadvantage
`in the terms of her employment.
`Oncale reaffirmed this point and made it more
`explicit. There, a male plaintiff alleged he had been
`sexually harassed by male coworkers. Oncale, 523
`U.S. at 77. In holding that same-sex sexual harass-
`ment could give rise to a Title VII claim, the Court
`(speaking through Justice Scalia) recognized that
`there was “no justification in the statutory language
`or [the Court’s] precedents for a categorical rule
`excluding same-sex harassment claims from the
`coverage of Title VII.” Id. at 79. The Court recognized
`that “male-on-male sexual harassment
`in the
`workplace was . . . not the principal evil Congress was
`concerned with when it enacted Title VII,” id., but the
`text commanded a result—namely, that harassment
`resulting from the plaintiff’s sex be prohibited.
`Congress’s subjective concerns and priorities in
`enacting Title VII were therefore of no importance:
`“[S]tatutory prohibitions often go beyond the principal
`evil to cover reasonably comparable evils, and it is
`ultimately the provisions of our laws rather than the
`principal concerns of our legislators by which we are
`governed.” Id.
`
`
`
`
`
`
`
`
`
`
`
`15
`
`In the cases on review, the ultimate question is
`both simple and no different from the questions in
`Meritor, Oncale, or any other case applying the plain
`language of Title VII
`in the context of sex
`discrimination: Would the plaintiffs below have been
`treated differently by their employers were they of a
`different sex? The answer, in each case, is “yes.”
`Assuming their allegations to be true, Mr. Zarda
`and Mr. Bostock would not have been terminated for
`their attraction to men if they, themselves, had not
`been men. See 17-1623 Pet. App. 12; 17-1618 Pet. App.
`2. Likewise, if Ms. Stephens’s account is correct, she
`would not have been terminated for representing
`herself as a woman had her employer perceived her to
`be female, rather than male. 18-107 Pet. App. 8a-9a.
`The sex of each employee was a key motivating factor
`(and a but-for cause) for discharging all three
`plaintiffs. It does not matter that Congress or the
`public in 1964 may not have predicted these applica-
`tions of plain text. See, e.g., Oncale, 523 U.S. at 79; see
`also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S.
`581, 606-613 (2004) (Thomas, J., dissenting) (arguing
`that reliance on the legislative and/or “social history”
`of the term “age” is not an appropriate method of
`interpreting the ADEA, in contrast to applying the
`statute’s “plain language”).
`C. Title VII Prohibits Discrimination Against
`Individuals, Rather than Against Protect-
`ed Classes at Large.
`The employer-litigants and dissenters below have
`argued that discrimination based on sexual orienta-
`tion does not constitute sex discrimination where
`same-sex-attracted men are treated the same as
`
`
`
`
`
`
`
`
`
`16
`
`
`same-sex-attracted women. The argument posits that,
`if men and women are equally penalized for being
`attracted to persons of the same respective sex, then
`neither men nor women as a group are placed at a dis-
`advantage. For example, the lead dissent in Zarda
`asserts,
`[I]n the area of sex discrimination, where the
`groups to be treated equally do have potentially
`relevant biological differences, not every
`distinction between men and women in the
`workplace constitutes discrimination against
`one gender or the other. The distinctions that
`were prohibited, however, in either case, are
`those that operate to the disadvantage of
`(principally) the disfavored race or sex. That is
`the social problem that the statute aimed to
`correct.
`17-1623 Pet. App. 99-100.
`That reasoning is erroneous. As explained above,
`the fact that Title VII may have “aimed to correct” a
`limited “social problem” does not alter the effect of the
`statute’s broad and unambiguous text. E.g., Oncale,
`523 U.S
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