Go into a high-end restaurant or bar, a high-end jewellery or clothing shop, or have a look at pharmaceutical industry salespeople. In a majority of those situations, you’ll notice that the customer-facing employees are good looking - much more so than the average population. That leads me to the conclusion that it’s not illegal to use personal attractiveness as a criteria in hiring decisions. So I’m considering someone like Eddie Izzard. Eddie Izzard - Wikipedia Depending upon how he presents himself, he’s a fairly attractive man, or an unattractive woman. So suppose someone with the equivalent of Eddie Izzard’s man-presenting looks was hired as a receptionist for a high-end restaurant. That person then shows up presenting themselves as a woman, similar to how Eddie Izzard presents himself/herself as a woman. There’s no way the restaurant would have hired a woman who looks like Eddie Izzard’s female presentation. So, under the SCOTUS decision we’re discussing, is it equal treatment of the sexes to fire a “woman” who would never have been hired except that she presented herself/himself as a man?
Is that settled, or is it just that it would be very difficult to prove that the reason one hadn’t been hired was due to one’s looks?
In any case, even if a standard of “must be conventionally attractive” is allowed (which it might be, because I don’t think that’s a protected class) the standards would have to be the same for all genders. I don’t know that ‘we think this person is attractive as a man but ugly as a woman’ would stand up. Airlines were allowed to keep some weight standards for flight attendants because they were able to phrase it as a safety issue – must be able to easily fit into x space – but they had to stop requiring the women to be thinner than the men.
Not exactly. The Dilemma is predicated on how well you can predict what the opposite number will do – how accurately your model of the other side predicts their behavior.
Much as I’m in favor of the result, I’m very dubious about the wisdom of finding a new meaning of great significance hiding in a statute passed 56 years ago. The Framers intended such things to come by congressional action or not at all. Such lengthy reaches in textual interpretation erode support for the Supreme Court as an impartial arbiter.
Justice Kavanaugh? Is that you?
For the Court to suddenly discover that Congress meant to do so all along, in a law adopted half a century ago, is rather fishy.
Of course it is; fortunately, that’s not what the Court did at all.
The majority found that even though Congress did not realize in 1964 that the wording they chose to implement the law also protected transgender individuals and homosexual people, the prohibition on treating the different sexes disparately necessarily includes such protections. They are (the Court found) inseparable, notwithstanding the fact that such inseparability is a relatively novel discovery.
Powers &8^]
Exactly.
The majority ruled upon a perfectly plausible reading of the text – they invented nothing.
[quote]The employers assert that “no one” in 1964
or for some time after would have anticipated today’s result.
But is that really true? Not long after the law’s passage,
gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application. See, e.g., Smith v. Liberty Mut. Ins. Co., 395 F.
Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from
1969); Holloway v. Arthur Andersen & Co., 566 F. 2d 659,
661 (CA9 1977) (addressing claim from 1974). And less
than a decade after Title VII’s passage, during debates over
the Equal Rights Amendment, others counseled that its
language—which was strikingly similar to Title VII’s—
might also protect homosexuals from discrimination. See,
e.g., Note, The Legality of Homosexual Marriage, 82 Yale L.
J. 573, 583–584 (1973). [/quote]
Pharma sales reps are usually very attractive young women because most Drs. are men.
Next Monday should be the last day of the court session so the Trump taxes and abortion cases will be released then.
No, the prisoners Dilemma is entirely predicated on how your current actions might affect the future actions of your opponent. In a single game non-cooporation is always the best strategy, no matter what you predict your opponents behavior to be. It is only in repeated games that trust is a useful strategy. In those cases you can use your behavior to incentivize good behavior in your opponent. In that case the best strategy is generally held to be tit for tat. So long as they cooperate with you by say bringing highly qualified judges up for a vote rather than stonewalling them, you do likewise. But if they deviate from conventional norms you must deviate as well. Constant cooperation in the hopes of your opponents better nature shining through doesn’t make you a good player it makes you a sucker.
For some reason, I didn’t get the updates to the thread.
Sure. Let’s just take one. My law firm (hypothetically) has a policy that men must wear a coat and tie to work as part of the dress code. A man in my employ consistently refuses to wear a coat and/or tie. I fired him.
He brings suit under the 1964 Civil Rights Act alleging that if he were not a man, he would not have been fired. Using Gorsuch’s language, we only have to change his sex, and see if that had anything at all to do with his firing. Under the opinion, the answers to both questions must be “yes.”
Same analysis with a man using the women’s locker room at my firm (yeah right, like I have gyms and locker rooms at my little law practice) or using the women’s restroom or wearing long hair. Same argument. Switch the sex of the man and would I fire him? No, therefore says Gorsuch, I am in violation of the law.
Even a more extreme example. A male employee waives his erect penis at other employees in the common office area. Would I fire a biological woman for waiving her erect penis? I would not as it is a biological impossibility, therefore according to Gorsuch, if I changed the sexes, no action would have been taken, and sex was at least a part of it. Yes, the waiving of the erect penis was a larger part of it, but if ANY part of it is because of sex, it is actionable.
And again, it does no good to say that I would fire a woman for exposing her vagina in the common area, because as Gorsuch says, we cannot change different facts, and the level of discrimination we look at is to the individual employee. Far from being protected because I would fire both employees for exposing their genitals, I have double exposure for discriminating against the man in the first instance and the woman in the second.
So, Bricker, what part of Gorsuch’s holding would disallow an action for any of the above?
And to follow up. Gorsuch says if sex has ANY part in the firing, then it is actionable. So therefore I could provide an honest mental list of why I fired this man (again hypo. I don’t care if my employees are gay or transgender):
- He shows up for work drunk every day.
- He gets in fist fights in the common area.
- He misses scheduled court appointments more than 50% of the time.
- He fails to wear a tie to court having judges calling me and demanding that I make him wear a tie.
- He tells everyone at work that he thinks my wife is a cheap whore.
- He is a shit-stirrer, provoking intra office arguments about personal issues.
- He never brings his own lunch but eats other employees’ lunches out of the refrigerator.
- He is gay. I don’t want to work with gay people anyways.
Under Gorsuch’s opinion, the guy is immune to being fired because at least a part of it, arguably #4 and definitely under this opinion, #8 were a part of his firing. Because I have #8 in my mind, and would have to answer honestly in court, then I can NEVER fire a gay man at my business. Because, according to Gorsuch, as #8 played a part in his firing, then it doesn’t matter if #1-#7 were otherwise good reasons. It is actionable if I fire this man.
Could you point to something in Gorsuch’s opinion that suggests otherwise?
I’m not seeing it.
Let’s say that, since you “have to answer honestly in court,” you get asked whether you would’ve fired the guy for Reason #3; and possibly you answer “yes”. Or possibly you answer “yes, regardless of that employee’s sex,” since that’s also true.
But if it’s true that you would’ve fired him regardless, then it’s not like you would’ve double-fired him for some other reason; you can honestly state that you’d have said “you’re fired” even if the employee had been female instead of male, or heterosexual instead of homosexual. So if you’re asked whether #4 or #8 played any part in the guy getting fired, you can honestly reply that, no, it’s not that other factors merely contributed to the decision; it’s that the other factors sufficed.
Isn’t that the whole point of the decision going on and on about but-for causation?
Couldn’t the whole ‘penis’ argument be mooted by just firing him for exposing his genitalia? Would you fire a woman for exposing her genitalia? Yes. No rule violation.
I think a harder argument would be firing a woman for exposing her breasts while not firing a man. I can’t think of any generic wording that would cover that.
Gorsuch:
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward
rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.
It doesn’t matter if other factors besides the plaintiff ’s sex
contributed to the decision…
From Gorsuch’s opinion, you cannot go so broad as to say “genitalia” or else you could likewise say “homosexuality.” You have to look at the direct facts.
In your hypothetical, factors besides the plaintiff’s sex didn’t merely contribute to the decision; they constituted the decision, because you’re envisioning a plaintiff for whom factors other than sex already add up to a “but-for” decision.
if you can honestly say that you’d still have fired that plaintiff in a fact pattern where the sex were reversed, then you can honestly say that (a) no, your decision wasn’t “in part” due to sex, because (b) the plaintiff’s sex wasn’t one of the factors contributing to the decision: you added together #1 and #2 and #3 and called it a day before you even got to #4, because the other factors had already added up to 100%.
I’m not following. In my honest (hypothetical) mind, I listed all eight reasons why I wanted to fire the guy. At least one and probably two were “because of sex.” (#4 and #8) As Gorsuch said, it doesn’t matter if other factors contributed to the decision.
I think what you are saying is that if we take those items out and simply look at #1-#3 and #5-#7 then that would be enough for any employer to fire the guy, therefore my firing was justified even though I considered his sex among my reasons and was therefore not a “but for” cause.
If that’s the case, then it is even worse as we have a federal judge looking into, not sex based reasons, but OTHER reasons and determining for an employer if they are “good enough.” Sure, in my hypo it is easy, but close cases are where it counts. And that is where the “special rights” accusation comes in.
Say instead of the outrageous examples I gave, there are two: 1) the guy printed out 1,000 pages on the company copier for personal use, and 2) he is gay and I don’t like that. In that situation, I get a judge deciding if using the company copier is a good ground for firing and did I really do that because of the copier use or because he was gay. If the employee is a straight white male, then there is no question I can fire him for personal copier use, even if a federal judge or any other person might think my decision harsh or hasty or that some lesser punishment would be in order.
But yes, I think I have to concede on that example, as even if it is bad policy it is the law. If we remove #4 and #8 and I can show that I would have still fired him, then his sex was not a cause of his firing, even if I had additional objections to his homosexuality. Good point. I still stand by my prior examples.
But you’re not inventing the wheel, here; even before this decision, the idea was that firing a black guy and pointing at his copier use could raise a question for the courts: did you actually fire him because he’s black, which is impermissible? Or is it that using the copier in such a way is so big a deal that you’d still be firing him even if he were white?
You don’t get to say the copier use merely contributed; it has to be bad enough to suffice on its own. And, well, same thing here, is all.
I believe that an “attractiveness” standard is allowed, as attractiveness is not a protected class. But companies need to tread carefully there because if someone complains that minority applicants are less likely to meet their standards for appearance, then they could be in for trouble.
Abercrombie and Fitch ended up dropping their “look“
policy after a couple of lawsuits, one regarding a Muslim applicant who wore a hijab.
Make sure you look at the “direct” facts, not the “erect” facts. 