That’s ridiculous. It’s like saying dogs are a type of animal, but yellow dogs are not.
Men who sew are a subclass of men. If your firing is in any way contingent on belonging to the protected class, it’s unacceptable.
You can fire a man for a reason unrelated to his gender. But if your reason for firing him includes in any part his gender, nope.
This goes beyond your misunderstanding the law, and moves into misunderstanding how categories work.
What if he’s a cleanosexual?
The posts are getting ridiculous.
Sure you can drink at 7. You just can’t be under the influence of alcohol between 8 and quitting time. Given biological realities, that means the overwhelming majority of us cannot meet the employer’s requirements if we do drink at 7, but the employer’s regulation actually covers only what goes on during work time.
You fired him because a man who sews doesn’t conform to your ideas of masculine behavior, in the same way that you fired the male nurse because that job doesn’t conform to those same ideas of masculinity or traditional gender roles or whatever. You don’t object to sewing or nursing as jobs or tasks or hobbies; however, based on sex you have decided which sex “should” perform them, and object to people of the wrong sex performing them. That’s classic sex discrimination.
How much authority do employers have to regulate the conduct of employees who are off the clock?
Yes, there are some employees, such as professional athletes who sign contracts with conduct clauses, but that’s not what I’m talking about. I’m talking about the average Joe (or Jane) who does NOT sign an employment contract, whose employee handbook and other information very clearly state that it is NOT an “employee contract”.
The difference is that while man entering a woman’s locker room contrary to employer instructions might (or might not) be subject to discipline I do not see where, absent some sort of formal contract, an employer is allowed to regulate the personal and private conduct of an employee outside of work hours when that conduct does not affect and is irrelevant to job performance (you can tell someone they can’t show up to work intoxicated, for example, which affects consumption of mind altering substances prior to arrival). Thought that sort of notion went away when school districts were no longer allowed to fire women for getting married or pregnant. An employer has some rights in regulating conduct on the employment premises, but not at an employee’s home.
That’s what dress codes SHOULD be.
For example, rather than saying “men with beards must wear beardnets in food preparation areas” they should be written “people with beards must wear beardnets in food preparation areas”. Granted, there are a vanishingly small number of women with beards, but if a woman happened to have a beard she would be subject to the same regulation written in gender-neutral terms.
My own company calls for all employees to wear either black or khaki trousers, with an exception for those who only wear skirts for religious reasons. In practice, this means only women wear skirts on the job presently but if a man showed up whose religion prohibited men from wearing trousers he, too, would be allowed to opt for a skirt. I am not currently aware of any such religion, but it does leave the possibility open to accommodate such an employee.
very few places now have written dress codes for office work. Most places are business casual except for banking and lawyers and some Drs. My credit union went to business casual a while back. In the 80s Ross Perot’s EDS made men wear suit and tie and women could not wear pants. They eventually let women wear pants but I don’t know if they are business casual . Almost all tech places are business casual. I worked at a place with business casual and we got a new director of HR and she always dressed up. After a year she said we could wear business casual on Fridays, I guess she did not notice we already did that every day. She started to wear jeans on Fridays so I guess the change was just for her.
So a judge can say that I can discriminate against someone because of sex so long as I use “reasonable parameters” and a judge decides what parameters are reasonable? So a judge could decide that firing a man for using the women’s locker room is reasonable but firing a man because he sleeps with other men is not? Is this judge even pretending to interpret the law or is he writing it as he goes along?
I understand this is how the law is applied and that is why it leads to absurd results such as this case. If the term “because of …sex” was cabined in the way it was understood at the time of its enactment, and how I have proposed, you wouldn’t have what has become a runaway freight train and created this behemoth in employment law.
Just to use your test, if I fire a man for using the women’s locker room, does that reason “include in any part his gender” as you propose. It does. Therefore I cannot fire him for that. But I would guess that you, like some other posters would probably want to amend that to say “except those things about his gender that I personally find to be a reasonable thing to distinguish based on gender such as restrooms, locker rooms, and dress codes” but then again, you aren’t being a judge, you are writing a law.
In my view, UltraV, you’re ascribing a flavor to the opinion which isn’t there.
So the subsequent discussion is to determine the ordinary public meaning of the employment discrimination statute.
And the distillation is:
This correctly describes the causation standard of Title VII. Congress crafted a broad rule, and courts should not author their own exceptions into the rule to avoid results that judges might not prefer.
Now, I apologize for not capturing the various counter-examples you have offered earlier in the thread. Can I ask you to supply a reply here in which you feel you have uncovered some flaw in the preceding analysis?
Almost as interesting as the decision itself, for me, is reading some of the commentary on various news and politics websites, and seeing the sudden sober respect for textualism among a bunch of liberal commentators, and the equally sudden excoriation of it by a bunch of conservatives.
Good thread title / user name combo, by the way. 
Which was expected by court watchers. Roberts cares about the integrity of the court. Its the Roberts Court and what happens under it will be tagged with his name in History books. He isn’t going to let it swing wildly right or left if his vote makes a difference.
Gorsuch and Kavanaugh are pro-corporate and pro-life - their reasons for being on the Court. I think Kavanaugh will turn out to be a partisan hack - Gorsuch, in cases like this, will likely cross…I hate him from my pro-choice stance, but he is an excellent legal scholar and smart.
Thomas has discovered he is a black man, once again. He REALLY wanted to hear the case on qualified immunity. Again, from the point of view of my own pro-choice leanings, he isn’t what I would want on the court, but he has some surprises in him.
Indeed.
Equally interesting is how both the majority opinion and the dissent invoke a textualist analysis – obviously reaching different conclusions, which is perfectly possible when there is disagreement about the meaning of words.
We are all textualists now. 
Whatever one thinks of Thomas’s politics and his legal worldview, I think that a statement like this does him a profound disservice.
Just about everything Thomas does, every argument he makes on the bench, and every decision or dissent he hands down, is a reflection of his sense of himself as a black man in the United States. And this includes both his conservative politics and his conservative jurisprudence. I understand that there has been, since the Anita Hill hearings (and even before), a tendency to dismiss or ridicule Thomas as somehow betraying or forgetting what it means to be African American, but if you read Corey Robin’s excellent book, The Enigma of Clarence Thomas, released last year, you find someone whose blackness has always been an indelible part of his self-image, and of his ideas about America.
That doesn’t mean I agree with his politics or his jurisprudence (neither does Robin, for that matter), but he’s an incredibly complex character, something that his critics often don’t adequately appreciate.
I would think that a male employee that insisted on entering the women’s restroom while it was in use by women would be guilty of harassment.
I, uh, have to admit I share UltraVires confusion over exactly how the needle is threaded here. I think perhaps his point is hard to respond to because of his tone or the specific examples chosen, but underlying it seems (to me) to be a genuine confusion.
The underlying question is, what part of the opinion – aside from the part where Gorsuch simply asserts that the decision does not cover them – allows for separate-but-equal treatment of different genders (and, following on, allows employers to fire employees for violating those separate but equal rules)?
Am I correct in understanding that this is not considered to be a concern because nothing about yesterday’s decision changes the existing understanding of the law as allowing such separate treatment? That is, the decision only addresses the applicability of the law to LGBT individuals fired for being LGBT, and not existing jurisprudence on the applicability of separate-gender facilities or policies?
Powers &8^]
Textualism is a fundamentally amoral philosophy. I prefer judges to interpret the law in the way that is most good, whether that be textual or otherwise. Just like I prefer members of every profession to do their job in the way that is most good.
And before you ask, who decides what is “most good”? The judges, of course. Which is why it’s important to select good judges.
As I understand it, a decision like this has a “penumbra.” The most obvious and immediate result will be that lower courts will be more likely to rule against Trump in his efforts to remove LGBT protection under the Affordable Health Care Act. They can point to this precedent.
So, maybe, in some future time, someone will sue over a matter similar to those having been raised here – not necessarily a man fired for sewing buttons on shirts, but perhaps a man fired for not wearing a necktie, when his female colleagues aren’t made to. Perhaps this decision will make it easier for him to win.
42 U.S. Code § 2000e-2 allows for an employer to discriminate on the basis of gender when gender differences “… [are] a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."
The existence of a bona fide occupational qualification was not raised by the employers in this case (or, more precisely, not a question the Court accepted for consideration). But it’s just a much a part of federal law, and just as available to employers, as the rest of Title VII.
NB: my iPhone kept correcting “bona fide,” to “bona dude,” which I found very amusing.
Trump has appointed 200 Article III judges so far, including two Supreme Court justices.
I invite you to consider the game theory here: if not everyone shares your view of “good,” results and “good,” judges, perhaps amoral judges committed to neutral application of the words if the law will produce reliably better results than judges appointed by Presidents whose views if “good,” diverge from yours.