Altitude Express v. Zarda (consolidated at the Supreme Court with Bostock v. Clayton County, Georgia) is among the most controversial cases of this term. Title VII prohibits employers from discriminating against their employees “because of . . . sex.” The issue before the Court is whether, based on this same language, an employer cannot discriminate against an employee because of his sexual orientation.
Zarda presents three primary arguments that sex discrimination encompasses sexual orientation discrimination. The first, and the focus of this column, is textual: that sexual orientation is impossible to understand without reference to sex, and therefore, under the plain language of the statute, sexual orientation discrimination is necessarily a subset of sex discrimination. The second is that sexual orientation discrimination is unlawful sex stereotyping under Price Waterhouse v. Hopkins, because it is grounded in a belief about how men should behave (real men don’t have sex with men) and how women should behave (women don’t have sex with women). The third argument is that sexual orientation discrimination is a form of unlawful associational discrimination. In Loving v. Virginia, the Court explained that discrimination against a person in an interracial marriage is race discrimination because it tells members of one race whom they should and should not associate with. Likewise, discrimination against a person in a same-sex relationship is sex discrimination because it tells members of one sex whom they should and should not associate with.
Given the textualist leaning of the Supreme Court, and perhaps a contemporary shift towards textualism more generally, the text-based argument is appealing. But is it correct?
The crux of Zarda’s textual argument is the following comparison: if Zarda’s employer will fire a man who likes men, but not fire a woman who likes men, he is treating Zarda worse for being a man. This is discrimination because of sex.
This test is elegant because it is so simple. But it elides an important word: “because.” Zarda might be treated differently than a woman, but is it “because” he is a man?
The answer to this question is more evident in a less politically charged context.
Consider Ronald Zardle, who has a twin brother (Bob). Mr. Zardle, naturally, applied for a job as a scuba diving instructor with a company called Altitude Compressed, and Altitude Compressed has an unusual policy. Altitude Compressed will not hire anybody with an identical twin. Altitude Compress is particularly concerned about identical twins because they are, by definition, the same sex. In fact, Altitude Compressed has never hired anybody with a same-sex sibling: it has not hired men with brothers or women with sisters. (Altitude Compressed’s mission statement is “Don’t worry, be happy,” and the company fears that same-sex siblings, namely identical twins, are too competitive.) Therefore, when Ronald Zardle applies, and notes on his resume that he is an identical twin, Altitude Compressed refuses him a job, citing its policy against identical twins.
Ronald Zardle sues Altitude Compressed under Title VII for discriminating against him because of sex. He argues the following: it is impossible to consider if someone is an identical twin without reference to sex. Altitude Compressed refused me a job for being a man with a male twin, Bob, whereas my sister, Jane, would have been hired with the exact same male sibling. Since I would have been treated differently if I were a woman, my employer discriminated against me because of sex.
The problem with Zardle’s argument is that it changes two variables: sex and status as an identical twin. As any scientist worth her salt will explain, it is impossible to determine a causal impact without isolating a single variable. If every time Bob eats strawberries he gets sick, he might conclude he is allergic to strawberries. But if he has eaten peanuts every time he eats strawberries, he may realize that he is not allergic to the strawberries after all. If Bob notices that every person in his office who has been fired is under 5’6″, and Bob is 5’4″, he may fear losing his job. But if everybody his employer fired was also a woman, height no longer seems predictive. Likewise with Ronald Zardle. If Ronald were Bob’s sister rather than Bob’s brother, he could have been hired. In that sense, he could have been hired if he were a woman. But knowing that he was an identical twin, and that Altitude Compressed refuses all identical twins, accounts for all the variance associated with his sex. Sex is no longer a predictive factor in the employment decision.
This conclusion is particularly clear under the condition that Justice Alito proposed at oral arguments in Zarda/Bostock: the employer reads its applications blind. In Mr. Zardle’s case, we can imagine that Altitude Compressed knew that one applicant was a twin and, accordingly, knew that the applicant must have a same-sex sibling. Nobody with hiring power, however, ever knew that the applicant was Ronald Zardle, or that the applicant was male. Altitude Compressed is certainly discriminating, but it is the unusual form of “identical twin” discrimination. Being male is not the cause of the discrimination, so there is no sex discrimination at play.
None of this, of course, is to condone discrimination on the basis of sexual orientation. Part of the reason that this case feels so difficult (or at least should) is that respondents ask the Court to say, “The lovely statute Congress passed protects you from an employer who hates men, but not an employer who hates you for being gay.” As Professor Karlan argued for petitioners at the start of her oral argument, lower courts have to “count epithets” to determine whether discrimination is based on sex or sexual orientation. But this is not a factually difficult inquiry—it is a morally difficult inquiry. If Zarda’s sex stereotyping and associational discrimination arguments—which I believe are closer calls—do not prevail, hopefully Congress will get its act together and amend Title VII. In the meantime, Bostock, Zarda, and Zardle have an unconvincing textual argument.
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My friend Jareb Gleckel argues that sexual orientation discrimination does not qualify as sex discrimination under the text of Title VII. He rejects the argument that sex discrimination occurs whenever an employer treats a woman better or worse than it would have treated a similarly situated man. To illustrate the point, he offers the example of an employer who excludes identical twins/same-sex siblings from a job so that the employer is treating a man with an identical twin (or non-identical brother) differently from a woman with the exact same male sibling. (For purposes of this response, I will put to one side the case of trans identical twins who might not be of the same sex as each other).
Jareb suggests that to call the above example sex discrimination is to miss the confounding variable of being a same-sex sibling or an identical twin. If we isolate people with same-sex siblings (or identical twins), we see that this explains all of the variance with no need to call on sex as a causal variable. In the same way, Jareb argues, if we isolate people with same-sex partners, we see that sexual orientation explains all of the variance with no need to call on sex as a causal variable. Straight men and women can have the job; gay men and women cannot. Sex thus drops out of the equation.
Total Formalism Not So Bad
One response to Jareb’s hypothetical case is to bite the bullet: although it might seem trivial to lose your job because you and your sibling are of the same sex, “because of sex” means “because of sex,” and if your employer would have treated you better if you were of the opposite sex, then you have individually suffered sex discrimination. The text of Title VII entitles “any individual” rather than groups of men or women to freedom from discrimination. The fact that the employer also discriminates against an individual of the opposite sex therefore does not cancel anything out. There is no confounding variable, moreover, because the employer is considering your sex in making the decision (unlike the innocent strawberry that has nothing to do with your allergic reaction). If one insists on formalism and therefore on treating the same-sex-sibling policy as the literal sex discrimination that it is, moreover, one needn’t fear a rash of lawsuits challenging legitimate employment practices that qualify as discriminatory. Including such conduct within the scope of Title VII is less a reductio ad absurdum than it is a parade of horribles without any floats.
What If I Agree With Jareb’s Resolution?
Assume arguendo that as Jareb suggests, refusing to hire people with same-sex siblings (or identical twins) is lawful and does not constitute discrimination under the text of Title VII, notwithstanding the causal relationship between sex and employment. Does that assumption mean that discrimination against gay men and lesbians is also lawful? Or alternatively, does it mean that one who wishes to oppose such discrimination must rely on something beyond the fact that sexual orientation discrimination denies male employees what it grants to female employees (the right to have a male partner) and vice-versa?
The answer is that we can understand the text of Title VII to bar sexual orientation discrimination even if it does not bar same-sex-sibling/identical twin discrimination. Sexual orientation discrimination treats men and women differently in a manner that is more than just nominally related to sex. By contrast, an employer who refuses to hire people who have same-sex siblings or identical twins does not truly perpetrate sex discrimination.
Consider another example of discrimination only nominally based on sex. An employer hires a cleaning staff to stock and wash the men’s room on Mondays and Tuesdays and the women’s room on Wednesdays and Thursdays. Therefore, if John uses the restroom on a Friday, he might find the stalls empty of bathroom tissue and in an unclean condition. A woman using the restroom on the same Friday will find plenty of toilet paper and very clean surfaces. Has the employer thereby violated Title VII? It seems absurd to answer that question affirmatively. There is nothing truly sex-related about the allocation of bathroom benefits at the workplace in question, notwithstanding the causal connection between an individual’s sex and his restroom experience.
Discrimination on the basis of sexual orientation treats men and women differently in ways that are very much related to sex. When an employer refuses to hire a person with a same-sex partner, it is, of course, engaging in formal discrimination of the sort observed in the same-sex-sibling and restroom examples. If a man whose partner is a man wants to work for the employer, he cannot, while a woman whose partner is a man can take the same job. Similarly, if a woman whose partner is a woman wants to work there, she cannot. But a man whose partner is a woman may take that job. But in the siblings/twins example, we could formulate the policy as stating that neither male nor female employees may have same-sex siblings, so neither sex is better off than the other. Couldn’t we say the same of gay men and lesbians?
The two examples are different because of what it means to bar gay men and lesbians from working for you. If you are an employer who refuses to hire a man whose partner is a man or a woman whose partner is a woman, your policy differentiates men from women in a manner that hurts a subset of men as men and a subset of women as women. In other words, it truly treats them worse because of sex. Policies that harm a person in a manner that is more than just nominally related to her sex either enforces gender rules about what men and women are supposed to be or impermissibly segregates men and women from one another. The Court in Price Waterhouse v. Hopkins, for that reason, held that refusing partnership to a woman who was insufficiently feminine was sex discrimination. It was more than nominally discriminatory; a woman was suffering a detriment for failing to behave in ways that women have long been compelled to behave. Requiring men to act in a masculine fashion would not make up for the discrimination against women because men have long endured a mandate that they conform their behavior and style to a masculine ideal, which is different from a feminine ideal in ways that sometimes harm and sometimes help men.
Women fired for having a same-sex sibling, by contrast, suffer no more than, and no differently from, anyone fired for an arbitrary reason (e.g., having attached versus detached earlobes). It doesn’t injure them as women. Similarly, a male employee who goes to the restroom and finds no bathroom tissue because it is Friday (and men’s rooms are cleaned Mondays and Tuesdays) suffers no sex-particular injury. It would be no different for such an employee if the men’s room was in bad shape because the cleaning staff wouldn’t get to the second floor under Monday. Assuming that women get as much bathroom-cleaning support overall as men do, the different-days regime is going to be irrelevant to both the individual who happens to be disappointed with Friday’s amenities and the sex-based group to which he or she belongs.
By refusing to hire gay men and lesbians, an employer effectively requires families to structure themselves around separate male and female roles. It prescribes the differing ways in which men and women should live their lives not only inside but outside of the office. It accordingly discriminates between men and women both formally and in a manner that inflicts a gender-relevant injury. For that reason, the Court should find for respondent in Altitude Express Inc. v. Zarda (and in Altitude Compressed v. Zardle).