Bostock v. Clayton County

Justice Alito (45:12): Let's imagine that the decisionmaker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says: I'm going to tell you two things about this candidate. This is the very best candidate for the job, and this candidate is attracted to members of the same sex. And the employer says: Okay, I'm going --I'm not going to hire this person for that reason. Is that discrimination on the basis of sex, where the employer doesn't even know the sex of the individual involved?

Andrew Koppelman: Justice Alito, the Court rejected the logic of your hypothetical in 1964, in McLaughlin v. Florida. The Court in that case invalidated a criminal statute prohibiting an unmarried interracial couple from habitually living in and occupying the same room at night. The state tried to defend the law by relying on Pace v. Alabama, an 1883 case that held that such laws treat both races equally – just as the employer in your hypothetical claims that he is treating the sexes equally. The Court rejected the argument, overruled Pace, and held that the State had failed to establish that the statute served “some overriding statutory purpose requiring the proscription of the specified conduct when engaged in by a white person and a Negro, but not otherwise.” It was therefore “an invidious discrimination forbidden by the Equal Protection Clause.” Loving v. Virginia reached the same conclusion in the marriage context.

McLaughlin stands for the proposition that if the government defines prohibited conduct by reference to a characteristic, then the prohibition is not neutral with reference to that characteristic. The employer in your hypothetical does not pass the simple test of whether the evidence shows “treatment of a person in a manner which but for that person’s sex would be different.”

To see the discrimination inherent in your hypothetical case, let me make some small modifications in your language:

“Let's imagine that the decisionmaker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says: I'm going to tell you two things about this candidate. This is the very best candidate for the job, and this candidate is [married to a person of a different race]. And the employer says: Okay, I'm going --I'm not going to hire this person for that reason. Is that discrimination on the basis of [race], where the employer doesn't even know the [race] of the individual involved?”

Of course it is. And that is settled law under Title VII.

In any individual case, the employer discriminates against a person for being of the wrong race or sex. The fact that the hypothetical employer has set up an automatic-discrimination protocol does not change that.

The parallel-discriminations characterization also proves too much. Suppose an employer decides to demand equally of men and women that they “comport themselves in a manner consistent with the traditional understanding of their gender.” That of course returns us to the world of Hopkins v. Price Waterhouse, in which employers deny women some high-paying jobs because performing them competently is unfeminine. Price Waterhouse rejected that world.

The Civil Rights Act of 1964 bans discrimination based on sex and says that discrimination means any treatment of a person in a manner which would be different but for the person’s sex. Discrimination against gay men and lesbians is an instance of such treatment: an employee who dates women is “homosexual” only if that employee is female and her exclusion is accordingly based on her sex. Your hypothetical would therefore violate the statute’s plain terms.