4months,CLOSED,TitleVII
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:16−cv−01460−ODE

Bostock v. Clayton County Board of Commissioners Assigned to: Judge Orinda D. Evans Case in other court: USCA − 11th Circuit., 17−13801−GG Cause: 42:2000e Job Discrimination (other)
Plaintiff

Date Filed: 05/05/2016 Date Terminated: 07/21/2017 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Gerald Lynn Bostock

represented by Brian J. Sutherland Buckley Beal, LLP Suite 3900 600 Peachtree Street, NE Atlanta, GA 30308 404−781−1100 Email: bsutherland@buckleybeal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Brian Green Buckley Beal, LLP Suite 3900 600 Peachtree Street, NE Atlanta, GA 30308 404−781−1101 Fax: 866−558−0985 Email: bgreen@buckleybeal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas Joseph Mew , IV Buckley Beal, LLP The Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 404−920−0348 Fax: 404−781−1101 Email: tmew@buckleybeal.com ATTORNEY TO BE NOTICED

V. Defendant Clayton County Board of Commissioners TERMINATED: 09/12/2016
Defendant Clayton County

represented by Martin B. Heller Freeman Mathis & Gary, LLP −Atl Suite 1600 100 Galleria Parkway Atlanta, GA 30339−5948 770−818−1284 Email: mheller@fisherphillips.com
represented by Jack Reynolds Hancock Freeman Mathis & Gary, LLP 661 Forest Parkway Suite E Forest Park, GA 30297 404−335−7143

Fax: 404−361−3223. Email: jhancock@fmglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martin B. Heller (See above for address) TERMINATED: 06/22/2017
William H. Buechner , Jr. Freeman Mathis & Gary 100 Galleria Parkway Suite 1600 Atlanta, GA 30339−5948 770−818−0000 Email: bbuechner@fmglaw.com ATTORNEY TO BE NOTICED

Date Filed 05/05/2016
05/05/2016 05/09/2016 08/01/2016
08/01/2016 08/02/2016
08/02/2016 08/03/2016 08/16/2016 08/23/2016 09/09/2016

# Docket Text
1 COMPLAINT with Jury Demand filed by Gerald Lynn Bostock. ( Filing fee $ 400 receipt number 100082958.) (Attachments: # 1 Civil Cover Sheet)(bnw) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. Modified on 5/6/2016 to edit file date(bnw). (Entered: 05/06/2016)
2 Electronic Summons Issued as to Clayton County Board of Commissioners. (bnw) (Entered: 05/06/2016)
Submission of 1 Complaint to District Judge Orinda D. Evans. (bnw) (Entered: 05/09/2016)
3 ORDER regarding above civil action. This civil action was filed on May 5, 2016, summons issued and since that time no action has taken place. IT IS THEREFORE ORDERED, that the Plaintiff show cause why above complaint should not be DISMISSED for failure to effectuate service of process pursuant to LR 41.2(B) within ten (10) days of date of entry of this order. The Clerk is directed to resubmit this action in ten (10) days. Signed by Judge Orinda D. Evans on 07/28/16. (fap) (Entered: 08/01/2016)
Clerks Certificate of Regular and Certified Mailing Return Receipt (91 7199 9991 7032 5720 1816) as to Gerald Lynn Bostock re 3 Order. (fap) Modified on 8/1/2016 (fap). (Entered: 08/01/2016)
4 First AMENDED COMPLAINT against Clayton County Board of Commissionerswith Jury Demand, filed by Gerald Lynn Bostock. (Attachments: # 1 Plaintiff's Certificate of Interested Persons)(Mew, Thomas) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 08/02/2016)
6 Certificate of Interested Persons and Corporate Disclosure Statement (attached to the Complaint) filed by Gerald Lynn Bostock. (jkl) (Entered: 08/17/2016)
5 Return of Service Executed by Gerald Lynn Bostock. Clayton County Board of Commissioners served on 8/2/2016, answer due 8/23/2016. (Mew, Thomas) (Entered: 08/03/2016)
Submission of 3 Order, submitted to District Judge Orinda D. Evans. (fap) (Entered: 08/16/2016)
7 MOTION to Dismiss and Memorandum of Law in Support by Clayton County Board of Commissioners. (Heller, Martin) (Entered: 08/23/2016)
8 Consent MOTION for Leave to File Second Amended Complaint (), MOTION to Substitute Party Clayton County, Georgiaby Gerald Lynn Bostock. (Attachments: # 1 Exhibit A − Second Amended Complaint, # 2 Text of Proposed Order)(Mew, Thomas)

09/12/2016
09/12/2016
09/13/2016 09/13/2016 09/26/2016 10/13/2016 10/27/2016 10/28/2016 11/03/2016 11/03/2016 11/03/2016
11/17/2016 11/17/2016 12/01/2016 12/15/2016 02/02/2017

(Entered: 09/09/2016)
9 ORDER − Having reviewed PLAINTIFF'S CONSENT MOTION FOR LEAVE TO AMEND COMPLAINT AND TO SUBSTITUTE DEFENDANT, and for good cause shown, Plaintiff's Consent Motion is hereby GRANTED. The Clerk is directed to enter the Plaintiff's Second Amended Complaint and the same is deemed filed. Defendant's Motion to Dismiss the Plaintiff's First Amended Complaint is DENIED AS MOOT, without prejudice to Defendant's right to file a Motion to Dismiss Plaintiff's Second Amended Complaint. Signed by Magistrate Judge Walter E. Johnson on 9/12/16. (klb) (Entered: 09/12/2016)
10 SECOND AMENDED COMPLAINT against Clayton County with Jury Demand, filed by Gerald Lynn Bostock.(klb) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 09/12/2016)
11 NOTICE of Appearance by William H. Buechner, Jr on behalf of Clayton County (Buechner, William) (Entered: 09/13/2016)
12 NOTICE of Appearance by Jack Reynolds Hancock on behalf of Clayton County (Hancock, Jack) (Entered: 09/13/2016)
13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Clayton County. (Attachments: # 1 Exhibit 1 − EEOC Charge of Discrimination, # 2 Exhibit 2 − EEOC Dismissal and Notice of Rights)(Heller, Martin) (Entered: 09/26/2016)
14 RESPONSE in Opposition re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Gerald Lynn Bostock. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mew, Thomas) (Entered: 10/13/2016)
15 REPLY BRIEF re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Clayton County. (Heller, Martin) (Entered: 10/27/2016)
Submission of 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, submitted to Magistrate Judge Walter E. Johnson. (fap) (Entered: 10/28/2016)
16 FINAL REPORT AND RECOMMENDATION re 10 Amended Complaint, filed by Gerald Lynn Bostock. Signed by Magistrate Judge Walter E. Johnson on 11/3/16. (klb) (Entered: 11/03/2016)
FINAL REPORT AND RECOMMENDATION − The undersigned RECOMMENDS that Defendant's Motion to Dismiss 13 be GRANTED, and that the Second Amended Complaint be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Walter E. Johnson on 11/3/16. (klb) (Entered: 11/03/2016)
17 ORDER for Service of 16 Final Report and Recommendation by Magistrate Judge Walter E. Johnson. Each party may file written objections to the Report & Recommendation within 14 days of service. If no objections are filed, the Report & Recommendation may be adopted as the opinion and order of the District Court. Signed by Magistrate Judge Walter E. Johnson on 11/3/16. (klb) (Entered: 11/03/2016)
18 OBJECTIONS to 16 Report and Recommendation filed by Gerald Lynn Bostock. (Attachments: # 1 Exhibit)(Mew, Thomas) (Entered: 11/17/2016)
Submission of 16 FINAL REPORT AND RECOMMENDATION re 10 Amended Complaint, filed by Gerald Lynn Bostock to District Judge Orinda D. Evans. (bnw) (Entered: 11/17/2016)
19 REPLY to Objection to Report and Recommendation re 18 Objections to Report and Recommendation filed by Clayton County. (Heller, Martin) (Entered: 12/01/2016)
20 REPLY to Objection to Report and Recommendation re 18 Objections to Report and Recommendation filed by Gerald Lynn Bostock. (Mew, Thomas) (Entered: 12/15/2016)
21 ORDER: For the reasons stated, Defendant's Motion to Dismiss 13 , the R&R 16 , and Plaintiff's objections 18 are all DEFERRED pending the Eleventh Circuit's decision. Signed by Judge Orinda D. Evans on 2/2/17. (bnw) (Entered: 02/02/2017)

06/20/2017 06/22/2017 07/21/2017
07/21/2017 07/21/2017 08/21/2017
08/21/2017 08/21/2017 08/24/2017 09/13/2017
05/10/2018
07/26/2018 08/19/2019 08/20/2019

22 Consent MOTION to Withdraw Martin B. Heller as Attorney by Clayton County, and Clayton County Board of Commissioners. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Consent Withdrawal) (Heller, Martin) (Entered: 06/20/2017)
23 ORDER granting 22 Motion to Withdraw as Attorney. Attorney Martin B. Heller terminated. Signed by Judge Orinda D. Evans on 6/22/2017. (sap) (Entered: 06/22/2017)
24 ORDER OVERRULING Plaintiff's 18 Objections and ADOPTING IN FULL the 16 Final Report and Recommendation. Defendant's 13 Motion to Dismiss for Failure to State a Claim is GRANTED and this case is hereby DISMISSED with prejudice. Costs are taxed to the Plaintiff. Signed by Judge Orinda D. Evans on 7/20/2017. (sap) (Entered: 07/21/2017)
25 CLERK'S JUDGMENT in favor of Defendant against Plaintiff for the costs of this action. (sap)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 07/21/2017)
Civil Case Terminated. (sap) (Entered: 07/21/2017)
26 NOTICE OF APPEAL as to 25 Clerk's Judgment, 24 Order on Motion to Dismiss for Failure to State a Claim, Order on Final Report and Recommendation,, by Gerald Lynn Bostock. Filing fee $ 505, receipt number 113E−7338353. Transcript Order Form due on 9/5/2017 (Mew, Thomas) (Entered: 08/21/2017)
27 NOTICE Of Filing Appeal Transmission Letter by Gerald Lynn Bostock re: 26 Notice of Appeal. (kac) (Entered: 08/21/2017)
28 Transmission of Certified Copy of Notice of Appeal, Clerk's Judgment, Orders, Report and Recommendation, and Docket Sheet to US Court of Appeals re: 26 Notice of Appeal. (kac) (Entered: 08/21/2017)
29 USCA Acknowledgment of 26 Notice of Appeal, filed by Gerald Lynn Bostock. Case Appealed to USCA− 11th Circuit. Case Number 17−13801−BB. (pjm) (Entered: 08/24/2017)
Pursuant to F.R.A.P.11(c), the Clerk certifies that the record is complete for purposes of this appeal re: 26 Notice of Appeal. Case Appealed to USCA − 11th Circuit. USCA Case Number 17−13801−BB. The entire record on appeal is available electronically. (kac) (Entered: 09/13/2017)
30 USCA Opinion received (AFFIRMING) re: 26 Notice of Appeal filed by Gerald Lynn Bostock. In accordance with FRAP 41(b), the USCA mandate will issue at a later date. Case Appealed to USCA − 11th Circuit. USCA Case Number 17−13801−BB. (kac) (Entered: 05/10/2018)
31 Certified copy of MANDATE of USCA AFFIRMING the decision of the District Court re: 26 Notice of Appeal filed by Gerald Lynn Bostock. Case Appealed to USCA − 11th Circuit. USCA Case Number 17−13801−EE. (kac) (Entered: 07/26/2018)
32 UNITED STATES SUPREME COURT FORTHWITH LETTER from USCA re: 26 Notice of Appeal filed by Gerald Lynn Bostock. USCA Case Number 17−13801−GG. Appeal Record due by 9/3/2019. (kac) (Entered: 08/19/2019)
33 Electronically transmitted Record on Appeal to Supreme Court of the United States re: 26 Notice of Appeal. USCA Case Number 17−13801−GG. USSC Case No. 17−1618. (kac) (Entered: 08/20/2019)

 
 Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 1 of 11
0RIGll'~AL

IN THE UNITED STATES DISTRICT COURT FILED IN CLERK'S OFFICE U.S.D.C. ·Atlanta

FOR THE NORTHERN DISTRICT OF GEORGIA

M~ DIVISION

MAY 05 2016 ·.•,

Gerald Lynn Bostock

B JAMEy S N: . ~I~ =N,~ Cle~ rk;1

Deputy Clerk

(Print your full name)

Plaintiffpro se,

CIVIL ACTION FILE NO.

v.

1:16-CV-1460

Clayton County Board of Commissioners

(to be assigned by Clerk)

(Print full name of each defendant; an employer is usually the defendant)
Defendant(s).

PRO SE EMPLOYMENT DISCRIMINATION COMPLAINT FORM

Claims and Jurisdiction

1. This employment discrimination lawsuit is brought under (check only those that apply):

X

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq., for employment discrimination on the basis of race, color,

religion, sex, or national origin, or retaliation for exercising rights

under this statute.

NOTE: To sue under Title VII, you generally must have received a notice of right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC").

Page I of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 2 of 11

Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seg., for employment discrimination against persons age 40 and over, or retaliation for exercising rights under this statute.
NOTE: To sue under the Age Discrimination in Employment Act, you generally must first file a charge of discrimination with the EEOC.

Americans With Disabilities Act of 1990,42 U.S.C. §§ 12101 et ~'for employment discrimination on the basis of disability, or retaliation for exercising rights under this statute.
NOTE: To sue under the Americans With Disabilities Act, you generally must have received a notice of right-to-sue letter from the EEOC.

X

Other (describe)

Employment discrimination on the basis of

of sexual orientation.

2. This Court has subject matterjurisdiction over this case under the above-listed statutes and under 28 U.S.C. §§ 1331 and 1343.
Page2 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 3 of 11

Parties

3. Plaintiff. Print your full name and mailing address below:

Name

Gerald Lynn Bostock

Address 3818 Beya Way

Atlanta, Ga 30340

4. Defendant(s).

Print below the name and address of each defendant listed on page 1 of this fonn:

Name Address

Clayton County Board of Commissioners 112 Smith Street Jonesboro, Ga 30236

Name Address

Name Address

Location and Time
5. Ifthe alleged discriminatory conduct occurred at a location different from the address provided for defendant(s), state where that discrimination occurred:

Page 3 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 4 of 11
6. When did the alleged discrimination occur? (State date or time period)
June 03, 2013

Administrative Procedures

7. Did you file a charge of discrimination against defendant(s) with the EEOC or

any other federal agency?

)f Yes

No

If you checked "Yes," attach a copy of the charge to this complaint.

8. Have you received a Notice of Right-to-Sue letter from the EEOC?

-X - Yes

- -No

If you checked "Yes," attach a copy of that letter to this complaint and state the date on which you received that letter:
February 05, 2016

9. If you are suing for age discrimination, check one of the following:
60 days or more have elapsed since I filed my charge of age discrimination with the EEOC
Less than 60 days have passed since I filed my charge of age discrimination with the EEOC

Page4 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 5 of 11

10. If you were employed by an agency of the State of Georgia or unsuccessfully sought employment with a State agency, did you file a complaint against defendant(s) with the Georgia Commission on Equal Opportunity?

- - Yes

__ No

X Not applicable, because I was not an employee of, or applicant with, a State agency.

If you checked "Yes," attach a copy ofthe complaint you filed with the Georgia Commission on Equal Opportunity and describe below what happened with it (i.e., the complaint was dismissed, there was a hearing before a special master, or there was an appeal to Superior Court):

11. If you were employed by a Federal agency or unsuccessfully sought employment with a Federal agency, did you complete the administrative process established by that agency for persons alleging denial of equal employment opportunity?

- - Yes

_ _ No

X Not applicable, because I was not an employee of, or applicant with, a Federal agency.

If you checked "Yes," describe below what happened m that administrative process:

Page 5 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 6 of 11

Nature of the Case

12. The conduct complained about in this lawsuit involves (check only those that apply):

failure to hire me

failure to promote me

demotion

reduction in my wages

working under terms and conditions of employment that differed

from similarly situated employees

harassment

X

retaliation

X

termination of my employment

failure to accommodate my disability

other (please s p e c i f y ) - - - - - - - - - - - - - -

13. I believe that I was discriminated against because of (check only those that apply):

my race or color, which i s - - - - - - - - - - - - -

my religion, which i s - - - - - - - - - - - - - - -

my sex (gender), which is

male

female

my national origin, which i s - - - - - - - - - - - - my age (my date of birth is _ _ _ _ _ _ _ _ _ _ __.,

my disability or perceived disability, which is:

my opposition to a practice ofmy employer that I believe violated the federal anti-discrimination laws or my participation in an EEOC investigation

X

other (please specifY) _s_ex_u_ai_O_r_ie_nt_at_io_n_ _ _ _ _ _ _ __

Page 6 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 7 of 11
14. Write below, as clearly as possible, the essential facts of your claim(s). Describe specifically the conduct that you believe was discriminatory or retaliatory and how each defendant was involved. Include any facts which show that the actions you are complaining about were discriminatory or retaliatory. Take time to organize your statements; you may use numbered paragraphs ifyou find that helpful. Do not make legal arguments or cite cases or statutes.
1. The defendant discriminated against Bostock because of his sexual orientation.
2. Bostock was employed by Defendant as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County. Bostock's employment with Defendant began on or about January 13, 2003. Bostock was charged with the primary responsibility of Clayton County CASA (Court Appointed Special Advocate).
3. During the over ten (10) years Bostock was employed by the Defendant, he received good performance evaluations and carried out his duties. Clayton County CASA was awarded the Established Program Award of Excellence by Georgia CASA in 2007, and Bostock was recognized by National CASA for program expansion and served on the National CASA Standards and Policy committee in or around 2011-2012.
4. Beginning in January 2013, Bostock became openly involved with a gay recreational softball league, Hotlanta Softball League. The Hotlanta Softball League is an active member of the Amateur Sports Alliance of North America ("ASANA") and the North American Gay Amateur Athletic Alliance ("NAGAAA"). Both ASANA and the NAGAAA are non-profit organizations dedicated to the promotion of amateur athletics with a special emphasis on the participation of
(Attach no more than five additional sheets ifnecessary; type or write legibly only on one side of a page.)
Page 7 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 8 of 11
4. continued-
amateur athletics with a special emphasis on the participation of members from the LGBTQ Community. The HotIa nta Softball League ranks as one of the largest member cities within ASANA and NAGAAA.
5. Bostock actively promoted the Clayton County CASA organization to the softball league.
6. In the months after Bostock joined the Hotlanta Softball League, Bostock's participation in the league was openly criticized by at one or persons who had a major and significant influence and impact on the Defendant.
7. In or around April of 2013, Defendant advised Bostock that an Internal Audit was being conducted on program funds managed by Bostock. Bostock did not engage in any improper conduct with regard to any funds under his custody or control.
8. During those months Bostock's sexual orientation was also openly criticized by one or more persons who had a major and significant influence and impact on the Defendant.
9. In May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where Bostock's termination was being discussed, comments about Bostock's sexual orientation were made multiple times.
10. Unexpectedly, and despite having received favorable evaluations in May 2013, Bostock was terminated on or about June 3, 2013.
11. Even after Bostock was terminated, comments about Bostock's participation in the Hotlanta Softball League continued to be a topic of discussion by at one or more persons with a major and significant influence on the Defendant, including comments made to Channel 2 ABC News.
12. Defendant conceded to pressures to terminate Bostock because of his sexual orientation and did in fact terminate him.
13. Defendant advised Bostock that he was being terminated for Conduct Unbecoming of a Clayton County Employee. That purported reason, however, was a pretense for discrimination.
14. Bostock applied for Unemployment Benefits during June 2013, which was approved by the Georgia Department of Labor {"GDOL"). Defendant appealed the GDOL's decision. In or around September 2013 the GDOL held a hearing and determined that the Defendant's termination was wrongful.
15. In or around September 2013, Bostock filed a complaint with the EEOC. On February 5,
2016, Bostock received a Right-to-Sue Letter.
16. As a direct and proximate cause of Defendant's wrongful conduct, Bostock has been injured and damaged, to wit: out of pocket expenses, loss of income and benefits, loss of employment;

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 9 of 11
16. continuedto have to seek other employment and/or income; to forego compensation and benefits; to have his career significantly adversely impacted; to suffer termination; and to endure mental anguish, emotional distress, humiliation and shame.

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 10 of 11

15. Plaintiff
X

still works for defendant(s) no longer works for defendant(s) or was not hired

16. If this is a disability·related claim, did defendant(s) deny a request for

reasonable accommodation?

Yes

No

Ifyou checked "Yes," please explain: ------------------------

.,K.- 17. If your case goes to trial, it will be heard by a judge unless you elect a jury

trial. Do you request a jury trial?

Yes

No

Request for Relief
As relief from the allegations of discrimination and/or retaliation stated above, plaintiffprays that the Court grant the following relief(check any that apply):
Defendant(s) be directed to _ _ _ _ _ _ _ _ _ _ _ __

X

Money damages (list amounts)------------

X

Costs and fees involved in litigating this case

X

Such other relief as my be appropriate

Page 8 of 9

Case 1:16-cv-01460-ODE Document 1 Filed 05/05/16 Page 11 of 11

PLEASE READ BEFORE SIGNING THIS COMPLAINT
Before you sign this Complaint and file it with the Clerk, please review Rule 11 of the Federal Rules of Civil Procedure for a full description ofyour obligation ofgood faith in filing this Complaint and any motion or pleading in this Court, as well as the sanctions that may be imposed by the Court when a litigant (whether plaintiff or defendant) violates the provisions ofRule 11. These sanctions may include an order directing you to pay part or all of the reasonable attorney's fees and other expenses incurred by the defendant(s). Finally, ifthedefendant(s) is the prevailing party in this lawsuit, costs (other than attorney's fees) may be imposed upon you under Federal Rule ofCivil Procedure 54(d)(l).

Signed, this _5__ day of May

'20 16

(Signature of plaintiffpro se)
~ /.AI,J Bs-r&~
(Printed name of plaintiffpro se)
-1<?1 r i??YA ~k
(street address)
~714 ~ :S~J:fP
(City, State, and zip code)
e lat/WJJ;J- t~-~/'OA.
(ema· address)
tfvl{ q;?:_f~J>1
(telephone number)

Page9 of 9

 
 Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 1 of 10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, Plaintiff,
v. CLAYTON COUNTY,
Defendant.

)

)

) CIVIL ACTION

) File No. 1:16-CV-1460

)

)

JURY TRIAL DEMANDED

)

)

)

SECOND AMENDED COMPLAINT

Plaintiff Gerald Lynn Bostock (“Plaintiff”) files this Second Amended

Complaint against Defendant Clayton County (“Defendant”) for violations of Title

VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, 42

U.S.C. § 2000e et seq. (“Title VII”).

PARTIES

1.

At all times relevant to this action, Defendant employed Plaintiff.

2.

Plaintiff submits himself to the jurisdiction of this Court.

3.

Defendant is a political division of the state of Georgia and is subject to the

Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 2 of 10

jurisdiction and venue of this Court. 4.
Defendant may be served with process by delivering a copy of Summons and Complaint to Jeffrey E. Turner, Chairman, Clayton County Administration 112 Smith Street, Jonesboro, GA 30236 for service of process.
5. Defendant is an “employer” as defined by Title VII.
ADMINSTRATIVE 6.
Mr. Bostock timely filed a charge for sex and sexual orientation discrimination with the Equal Employment Opportunity Commission.
7. Mr. Bostock filed this lawsuit within 90 days of the receipt of his Notice of Right to Sue.
JURISDICTION AND VENUE 8.
Jurisdiction of this Court is proper pursuant to 28 U.S.C. § 1331 (federal question).



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Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 3 of 10


9. Venue is proper in this district and division pursuant to 28 U.S.C. § 1391(b)(1) because Defendant resides within the Northern District of Georgia.
10. Venue is also proper in this district and division pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to this Complaint occurred within the Northern District of Georgia.
STATEMENT OF FACTS 11.
Plaintiff began working for the Defendant on or about January 13, 2003. 12.
Plaintiff is a gay male. 13.
Plaintiff was employed by Defendant as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County. Plaintiff was charged with the primary responsibility of Clayton County CASA (Court Appointed Special Advocate).



3

Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 4 of 10


14. During the over ten (10) years Plaintiff was employed by the Defendant, he received good performance evaluations and the program received accolades. Clayton County CASA was awarded the Established Program Award of Excellence by Georgia CASA in 2007. Plaintiff was recognized by National CASA for program expansion and served on the National CASA Standards and Policy committee in or around 2011-2012 .
15. Beginning in January 2013, Plaintiff became involved with a gay recreational softball league called the Hotlanta Softball League.
16. Plaintiff actively promoted the Clayton County CASA organization to the softball league as a source of volunteer opportunities for league members.
17. In the months after Plaintiff joined the Hotlanta Softball League, Plaintiff’s participation in the league and his sexual orientation and identity were, on information and belief, openly criticized by one or more persons who had significant influence on the decisionmaking of the Defendant.



4

Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 5 of 10

18. In or around April 2013, Defendant advised Plaintiff that it was conducting an internal audit on program funds Plaintiff managed.
19. Plaintiff did not engage in any improper conduct with regard to program funds under his custody or control.
20. Defendant initiated the audit as a pretext for discrimination against Plaintiff based on his sexual orientation and failure to conform to a gender stereotype.
21. On information and belief, in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where Plaintiff’s supervisor was present, at least one individual made disparaging comments about Plaintiff’s sexual orientation and identity and participation in the league.
22. On or about June 3, 2013, Defendant terminated Plaintiff’s employment.

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5

Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 6 of 10


23. Defendant stated that Plaintiff was terminated for Conduct Unbecoming of a Clayton County Employee. That purported reason, however, was a pretext for discrimination against Plaintiff based on his sex and/or sexual orientation.
COUNT I Sex Discrimination in Violation of Title VII of The Civil Rights Act of 1964, as Amended
24. Plaintiff incorporates by reference the preceding Paragraphs as if fully restated herein.
25. Plaintiff is a gay male.
26. Plaintiff is an “employee” as defined by Title VII, 42 U.S.C. § 2000e et seq.
27. Defendant is an “employer” as defined by Title VII, 42 U.S.C. § 2000e et seq.
28.

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Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 7 of 10

Having worked in his position previously, Plaintiff was qualified for the position of Child Welfare Services Coordinator.
29. Defendant discriminated against Plaintiff in the terms and conditions of Plaintiff’s employment when it terminated Plaintiff’s employment.
30. As a direct and proximate result of the Defendant’s actions, Plaintiff has suffered damages including emotional distress, inconvenience, loss of income and benefits, humiliation, and other indignities.
31. Plaintiff is entitled to an award of back pay and benefits, compensatory damages, reinstatement or front pay, attorney’s fees, and all other appropriate damages, remedies, and other relief available under Title VII and all federal statutes providing remedies for violations of Title VII.
32. Defendant acted intentionally and maliciously with respect to Plaintiff, entitling Plaintiff to recover punitive damages against Defendant.
33.

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7

Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 8 of 10
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Additionally, or in the alternative, Defendant undertook its unlawful conduct recklessly with respect to Plaintiff and his federally protected rights, entitling Plaintiff to recover punitive damages against Defendant.
PRAYER FOR RELIEF WHEREFORE, Plaintiff demands a TRIAL BY JURY and requests the following relief: a. a declaratory judgment that Defendant violated Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq.; b. a permanent injunction, prohibiting Defendant from engaging in unlawful employment practices in violation of Title VII; c. full back pay from the date of Plaintiff’s termination, taking into account all raises to which Plaintiff would have been entitled but for his unlawful termination, and all fringe and pension benefits of employment, with prejudgment interest thereon; d. reinstatement to Plaintiffs’ former position with Defendant at the same pay grade, or in the alternative, front pay to compensate Plaintiff for lost future wages, benefits and pension;

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Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 9 of 10
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e. compensatory damages in an amount to be determined by the
enlightened conscience of the jury, for Plaintiff’s emotional distress, suffering,
inconvenience, mental anguish, loss of enjoyment of life and special damages;
f. punitive damages;
g. attorneys’ fees and costs; and
h. all other and further relief as this Court deems just and proper.
Respectfully submitted,
BUCKLEY BEAL LLP
By: s/ Thomas J. Mew IV
Thomas J. Mew IV tmew@buckleybeal.com Georgia Bar No. 503447 Brian J. Sutherland bsutherland@buckleybeal.com Georgia Bar No. 105408 T. Brian Green bgreen@buckleybeal.com Georgia Bar No. 801098
Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101

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Case 1:16-cv-01460-ODE Document 10 Filed 09/12/16 Page 10 of 10
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, Plaintiff,
v. CLAYTON COUNTY,
Defendant.

)

)

) CIVIL ACTION

) File No. 1:16-CV-1460

)

)

JURY TRIAL DEMANDED

)

)

)

CERTIFICATE OF SERVICE

I hereby certify that on September 9, 2016, I electronically filed the

SECOND AMENDED COMPLAINT with the Clerk of Court using the

CM/ECF system, which will automatically send email notification of such filing to

all current attorneys of record.

BUCKLEY BEAL, LLP Promenade, Suite 900 1230 Peachtree Street NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101


s/ Thomas J. Mew IV Georgia Bar No. 503447 tmew@buckleybeal.com
10

 
 No. _________ ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
GERALD LYNN BOSTOCK,
Petitioner, v.
CLAYTON COUNTY, GEORGIA,
Respondent.
---------------------------------  ---------------------------------
On Petition For Writ Of Certiorari To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------  ---------------------------------
PETITION FOR WRIT OF CERTIORARI
---------------------------------  ---------------------------------
BRIAN J. SUTHERLAND Counsel of Record
THOMAS J. MEW IV BUCKLEY BEAL, LLP The Promenade, Suite 900 1230 Peachtree Street, N.E. Atlanta, Georgia 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101 Email: bsutherland@buckleybeal.com
tmew@buckleybeal.com
Counsel for Petitioner Gerald Lynn Bostock
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i
QUESTION PRESENTED
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

ii
LIST OF PARTIES
Pursuant to Rule 14.1(b), Petitioner states that the parties include: 1. Gerald Lynn Bostock, Plaintiff and Petitioner; 2. Clayton County, Georgia, Defendant and Re-
spondent.

iii
TABLE OF CONTENTS Page
Question Presented ............................................. i
List of Parties ...................................................... ii
Table of Contents ................................................. iii
Table of Authorities ............................................. vi
Opinions Below .................................................... 1
Statement of Jurisdiction .................................... 1
Constitutional and Statutory Provisions Involved................................................................ 1
Statement of the Case ......................................... 2
A. Factual Background .................................. 5
B. The District Court’s Erroneous Decision Dismissing Mr. Bostock’s Case .................. 7
C. The Eleventh Circuit’s Erroneous Refusal to Conclude that this Court’s Decision in Price Waterhouse v. Hopkins Abrogated Blum v. Gulf Oil Corporation .................... 10
Reasons for Granting the Petition....................... 12
I. This Court Must Resolve the Split Among the Circuits as to Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Employees on the Basis of Sexual Orientation ........................... 12

iv
TABLE OF CONTENTS – Continued Page
II. The Lower Courts are Eviscerating Price Waterhouse and the Civil Rights Act of 1991 as they Struggle to Observe an Artifical and Unworkable Distinction Between Sex Stereotype Discrimination and Sexual Orientation Discrimination ....................... 19
III. This Court Must End Workplace Discrimination Against Gay and Lesbian Employees Because it is Unjust and Forbidden by Title VII under this Court’s Decisions ...... 26
Conclusion............................................................ 33
Appendix
United States Court of Appeals for the Eleventh Circuit, Opinion, May 10, 2018........................ App. 1
United States Court of Appeals for the Eleventh Circuit, Order on Petition for Hearing En Banc, May 3, 2018 ............................................ App. 4
United States District Court for the Northern District of Georgia, Magistrate’s Final Report and Recommendation, November 3, 2016 ....... App. 5
United States District Court for the Northern District of Georgia, Order, July 21, 2017....... App. 26
United States District Court for the Northern District of Georgia, Judgment, July 21, 2017........ App. 34

v
TABLE OF CONTENTS – Continued Page
Initial Brief of Appellant, filed in the United States Court of Appeals, November 13, 2017 .. App. 36
Petition for Hearing En Banc, filed in the United States Court of Appeals, November 13, 2017 ... App. 60

vi
TABLE OF AUTHORITIES Page
CASES:
Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015) ................................................................ passim
Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) .....................................13
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) ................................................................ passim
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ...................................................................9
Brannum v. Mo. Dep’t of Corr., 518 F.3d 542 (8th Cir. 2008) .................................................................16
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ..................................................................17, 21
Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) ....................................................21
City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978) ...........................30, 34
Clark v. Cache Valley Elec. Co., 573 Fed. App’x 693 (10th Cir. 2014).................................................16
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) .......................................................................16
Clemons v. City of Memphis, Tn., No. 16-CV02333-JPM-CGC, 2016 WL 7471412 (W.D. Tenn. Dec. 28, 2016) ................................................15
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999)........................................................16

vii
TABLE OF AUTHORITIES – Continued Page
Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tn., 555 U.S. 271 (2009) ....................16
Dandan v. Radisson Hotel Lisle, No. 97 C 8342, 2000 WL 336528 (N.D. Ill. Mar. 28, 2000) ..............21
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................................................19
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998)....................................17
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)............3
E.E.O.C. v. BOH Bros. Const. Co., LLC, 768 F. Supp. 2d 883 (E.D. La. 2011) ..............................20
E.E.O.C. v. Family Dollar Stores, Inc., No. CIV.A. 1:06CV2569TWT, 2008 WL 4098723 (N.D. Ga. Aug. 28, 2008)....................................................21, 25
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) ......................................................... passim
Fox v. Shinseki, No. CV 11-04820 EDL, 2013 WL 4034086 (N.D. Cal. Aug. 6, 2013) ............................17
Girouard v. United States, 328 U.S. 61 (1946) ...........31
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277 (11th Cir. 2004)...............................................18
Grove v. Midwest Airlines, Inc., No. 1:07-CV1120-HTW-ECS, 2009 WL 10699906 (N.D. Ga. Jan. 21, 2009) ..........................................................16
Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003)......................................... passim

viii
TABLE OF AUTHORITIES – Continued Page
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) ...........................................13
Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807 (E.D. Va. 2016) ..................................................15
Hively v. Ivy Tech. Comm. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017)................................... passim
Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008) ........................................................................17
Kay v. Independence Blue Cross, 142 Fed. App’x 48 (3d Cir. 2005) ................................................20, 25
Lawrence v. Texas, 539 U.S. 558 (2003) ..................4, 33
Loving v. Virginia, 388 U.S. 1 (1967) ..........................17
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .......................................................................35
Medina v. Income Support Div., New Mexico, 413 F.3d 1131 (10th Cir. 2005).......................................13
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) .......................................................................27
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983)............................30, 34
Norris v. Diakin Drivetrain Components, 46 Fed. App’x 344 (6th Cir. 2002) ........................................19
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)....4, 27, 33
Oncale v. Sundowner Offshore Srvcs., Inc., 523 U.S. 75 (1998) .................................................. passim

ix
TABLE OF AUTHORITIES – Continued Page
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986).........................................17
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ..........................................................30, 31
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ............................................................... passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) .................................................................19
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002)..........................................................13
Schmedding v. Tnemec Co., Inc., 187 F.3d 862 (8th Cir. 1999)..........................................................20
Smith v. Liberty Ins. Co., 569 F.2d 325 (5th Cir. 1978) ..........................................................................9
Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483 (E.D.N.Y. 2011)..............................25
Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) ........................................................................15
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 998 (6th Cir. 1999) .................................................................17
Tobinick v. Novella, 884 F.3d 1110 (11th Cir. 2018) ........................................................................32
Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) .......................................................................25

x
TABLE OF AUTHORITIES – Continued Page
U.S. Dep’t of Hous. & Urban Dev., Washington, D.C. v. Fed. Labor Relations Auth., 964 F.2d 1 (D.C. Cir. 1992) ........................................................13
U.S. v. Price, 361 U.S. 304 (1960)................................31 Vance v. Ball State Univ., 570 U.S. 421 (2013)...........29 Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th
Cir. 2006) .................................................................13 Williamson v. A.G. Edwards and Sons, Inc., 876
F.2d 69 (8th Cir. 1989).............................................13 Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs,
197 F. Supp. 3d 1334 (N.D. Fla. 2016) ....................14 Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138
(4th Cir. 1996)..........................................................13 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d
Cir. 2018) ......................................................... passim Zuber v. Allen, 396 U.S. 168 (1969).............................31
FEDERAL STATUTES: § 107(a) of the Civil Rights Act of 1991, 105 Stat.
1075 ............................................................. 24, 26, 34 28 U.S.C. § 1254(1)........................................................1 42 U.S.C. § 2000e et seq. ..................................... passim 42 U.S.C. § 2000e-2 ............................................. passim 42 U.S.C. § 2000e-2m ............................................25, 26 42 U.S.C. § 2000-3(a)...................................................16

xi
TABLE OF AUTHORITIES – Continued Page
STATE STATUTES:
O.C.G.A. § 15-11-100(1) ................................................5
O.C.G.A. § 15-11-104(d) ................................................5
O.C.G.A. § 15-11-106(a) ................................................5
O.C.G.A. § 15-11-106(b) ................................................5
OTHER AUTHORITIES:
Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 153775 (2d Cir. July 26, 2017), 2017 WL 3277292...................................14
William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322 (2017) ..........................................................23, 31
Joel Hall, Clayton CASA Welcomes New Volunteers, Clayton News Daily, Mar. 10, 2010, available at http://www.news-daily.com/news/ clayton-casa-welcomes-new-volunteers/article_ 331a8350-5ab2-5307-9130-2c3b15d08666.html (last visited May 15, 2018) .........................................6
Zachary R. Herz, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396 (2014) .................................23
Remarks of Senator Everett Dirksen, Senate Floor Hearing Transcript, U.S. Congress, Senate, Cong. Rec. 88th Cong. 2d Sess. ........................35

xii
TABLE OF AUTHORITIES – Continued Page
Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715 (2014) .......................................................................23
Anthony E. Varona, Jeffrey M. Monks, En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67 (2000) .........................................23
COURT RULES: Fed. R. App. P. 35(b)-(c) ...............................................11 Fed. R. Civ. P. 12(b)(6) ...................................................7 Fed. R. Civ. P. 72(b) .......................................................8

1
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Eleventh Circuit was issued on May 10, 2018. App. 1. The Eleventh Circuit affirmed the decision of the United States District Court for the Northern District of Georgia issued on July 21, 2017, document number 24 in the District Court’s docketed matter number 1:16-CV-01460-ODE (N.D. Ga.). App. 26. The United States District Court adopted in its entirety the Final Report and Recommendation of the United States Magistrate Judge issued on November 3, 2016, document number 16 in the District Court’s docket. App. 5.
---------------------------------  ---------------------------------
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Eleventh Circuit issued its opinion affirming the decision of the United States District Court for the Northern District of Georgia on May 10, 2018, App. 1, after denying the Petitioner’s Petition for Hearing En Banc on May 3, 2018, id. at 4. The jurisdiction of this Honorable Court is invoked pursuant to 28 U.S.C. § 1254(1).
---------------------------------  ---------------------------------
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2.

2
42 U.S.C. § 2000e-2(a) EMPLOYER PRACTICES It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin, or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
The Eleventh Circuit Court of Appeals erroneously affirmed dismissal of Petitioner Gerald Lynn Bostock’s case after refusing to recognize that this Court’s decisions have abrogated old precedents which precluded him from maintaining a claim for sexual orientation discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). This Court must grant the writ of certiorari to correct the Eleventh Circuit’s error, resolve a split between the Circuit Courts of Appeals, and

3
confirm the common sense proposition that discrimination against an employee because of sexual orientation is ipso facto discrimination “because of . . . sex” in violation of Title VII.
The lower federal courts, including the Eleventh Circuit, previously held that Title VII did not prohibit sexual orientation discrimination. But this Court sounded the death knell for that myopic interpretation in Price Waterhouse v. Hopkins, which held that discrimination on the basis of an employee’s failure to act in accordance with gender-based expectations violates Title VII. See 490 U.S. 228, 250-51 (1989) (plurality opinion), superseded by statute on other grounds as stated in Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-95 (2003); 490 U.S. at 258-61 (White, J., concurring); 490 U.S. at 272-73 (O’Connor, J., concurring). The nail in the coffin was this Court’s decision in Oncale v. Sundowner Offshore Srvcs., Inc., which held that Title VII should be interpreted broadly to prohibit the “entire spectrum” of sex-based discrimination, even forms like same-sex sexual harassment which were not the primary concern of Congress when it passed Title VII. 523 U.S. 75, 79 (1998). But because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,” id., and because it is impossible to consider a person’s sexual orientation without also considering that person’s sex, Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015), there is no longer any doubt that Title VII forbids employers from considering an employee’s sexual orientation when making employment decisions.

4
Some lower federal courts have recognized this inescapable truth, but there is a pronounced division among the United States Circuit Courts of Appeals. The Second and Seventh Circuits recently issued en banc opinions overruling their old precedents to hold firmly that sexual orientation discrimination is prohibited as a form of sex discrimination under Title VII. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 131 (2d Cir. 2018); Hively v. Ivy Tech. Comm. Coll. of Indiana, 853 F.3d 339, 351-52 (7th Cir. 2017). But older decisions in the other Circuits still confuse the lower courts, which are unsure whether Zarda, Hively, or the Equal Employment Opportunity Commission’s decision in Baldwin mean that sexual orientation discrimination is actionable under Title VII, or whether they should follow prior conflicting precedents, some decided decades before this Court’s decisions in Price Waterhouse, Oncale, Lawrence v. Texas, 539 U.S. 558 (2003), and Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
Petitioner Bostock is a gay man who was employed as the Child Welfare Services Coordinator for the Clayton County Juvenile Court System. He alleges that his former employer, Respondent Clayton County, Georgia, fired him because of his sexual orientation. App. 26-27. He asserts that, after the County learned of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members, the County falsely accused him of mismanaging public funds as a pretext for terminating his employment because of his

5
sexual orientation. Id. at 27-28. He asserts a single claim for sex discrimination in violation of Title VII, and prays that this Honorable Court will correct the error of the Eleventh Circuit for his sake and the sake of all the gay and lesbian workers across this country.
A. Factual Background
Petitioner Bostock began working for the Respondent Clayton County in January 2003. Id. at 27. For over ten years, he advocated passionately for the interests of at risk children as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County. Id. He received favorable performance evaluations and was given primary responsibility for the Clayton County Court Appointed Special Advocates program (“CASA”). Id. CASA volunteers, also known as guardians ad litem in some jurisdictions, are advocates who help to “assist and protect children whose physical or mental health and welfare is substantially at risk of harm from abuse, neglect, or exploitation and who may be further threatened by the conduct of others by providing for the resolution of dependency proceedings in juvenile court.” See O.C.G.A. § 15-11-100(1), § 15-11-104(d). In Georgia, these men and women must meet certain requirements of the program and are sworn in by a judge of the juvenile court in which they serve. Id. at § 15-11-106(a). Their role is to be “advocate for the best interests of the child” during juvenile court dependency proceedings. Id. at § 1511-106(b).

6
As a result of Mr. Bostock’s leadership, Clayton County CASA flourished. In 2007, it received the Program of Excellence Award from Georgia CASA. App. 27. In 2010, it was the first county in the metropolitan Atlanta, Georgia area to supply a volunteer to every neglected or abused child in the juvenile court system. See Joel Hall, Clayton CASA Welcomes New Volunteers, Clayton News Daily, Mar. 10, 2010, available at http:// www.news-daily.com/news/clayton-casa-welcomes-newvolunteers/article_331a8350-5ab2-5307-9130-2c3b15d0 8666.html (last visited May 15, 2018). Mr. Bostock was also recognized by the National CASA and served on the National CASA Standards and Policy Committee in 2011 and 2012. App. 27. Indeed, Mr. Bostock is a dedicated social services professional who has for many years been committed to ensuring that abused and neglected children have safe homes in which to live and grow.
Mr. Bostock is also gay. Id. Beginning in January 2013, he became involved with a gay recreational softball league called the Hotlanta Softball League. Id. He also actively promoted Clayton County CASA throughout the league as a source of volunteer opportunities for league members. Id. But in the months that followed, Mr. Bostock’s participation in the gay softball league and his sexual orientation were openly criticized by someone with significant influence in the Clayton County court system. Id. In April of 2013, Clayton County advised Mr. Bostock it was conducting an internal audit on the CASA program funds. Id. at 28. Mr. Bostock never engaged in any misconduct with

7
regard to the program funds, and he alleges that Clayton County initiated the “audit” as a pretext for discrimination against him because of his sexual orientation. Id.
In May 2013, during a meeting of the Friends of Clayton County CASA Advisory Board at which Mr. Bostock’s supervisor was present, at least one person disparaged Mr. Bostock’s sexual orientation and his participation in the Hotlanta Softball League. Id. One month later, on June 3, 2013, Mr. Bostock was fired. Id. at 28. The stated reason for his termination was “conduct unbecoming of a county employee.” Id. Mr. Bostock maintains that he never engaged in any misconduct and Clayton County’s representation to the contrary is pretext for discrimination against him on the basis of his sexual orientation. Id.
B. The District Court’s Erroneous Decision Dismissing Mr. Bostock’s Case
Mr. Bostock first filed this lawsuit pro se on May 5, 2016, alleging that he was fired because of his sexual orientation in violation of Title VII. Id. at 8. After securing counsel, he filed a First Amended Complaint on August 6, 2016, and then a Second Amended Complaint on September 12, 2016, including an allegation of unlawful discrimination for failing to conform to a gender stereotype. Id. at 8-9. On September 26, 2016, Clayton County moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that Mr. Bostock could not “state a viable claim for relief under established law because

8
Title VII does not protect [Mr. Bostock] (or anyone else) from discrimination due to his sexual orientation.” Id. at 28, 31. Mr. Bostock filed his Response in Opposition on October 13, 2016, and Clayton County filed its Reply on October 27, 2016. Id. at 28-29.
On November 3, 2016, the United States Magistrate Judge issued a Report and Recommendation that Mr. Bostock’s Second Amended Complaint should be dismissed with prejudice. Id. at 5. The Magistrate Judge agreed that Title VII does not encompass claims of discrimination based on sexual orientation. Id. at 917. The Magistrate Judge further recommended dismissal of Mr. Bostock’s claim for sex discrimination based on a gender stereotype on the grounds that the Second Amended Complaint lacked sufficient factual support for that claim, and that Mr. Bostock failed to exhaust his administrative remedies because he did not reference the claim as such in the charge of sex discrimination he filed with the United States Equal Employment Opportunity Commission. Id. at 17-24.
Pursuant to Fed. R. Civ. P. 72(b), Mr. Bostock filed Objections to the Magistrate Judge’s Report and Recommendation on November 17, 2016. Id. at 29. With respect to the cognizability of a claim for sexual orientation discrimination under Title VII, Mr. Bostock asserted that it was error for the Magistrate Judge to rely on Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979),1 because the case upon which the Blum Court
1 Decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981 remain binding

9
relied, Smith v. Liberty Ins. Co., 569 F.2d 325 (5th Cir. 1978), had been abrogated by Price Waterhouse v. Hopkins. Id. at 31 (citations omitted). Mr. Bostock argued that the entire basis on which Blum based its statement regarding sexual orientation discrimination was abrogated by Price Waterhouse, in which this Court held that Title VII also prohibits discrimination against an employee for failing to conform to the employer’s expectations about how the employee should behave based on the employee’s gender. 490 U.S. at 249-51. Clayton County filed a Response in Opposition on December 1, 2016, and Mr. Bostock filed a Reply on December 15, 2016. Id. at 29. On February 2, 2017, the District Judge deferred ruling on Mr. Bostock’s objections pending the decision of the Eleventh Circuit in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), because that case also presented the question of whether discrimination on the basis of sexual orientation is actionable under Title VII. Id. at 29.
On March 10, 2017, a divided panel of the Eleventh Circuit issued its decision in Evans, with the majority holding that discrimination based on sexual orientation is not actionable under Title VII. 850 F.3d at 1255-57. The majority rested this erroneous conclusion on the determination that it was bound to follow the decision of the former Fifth Circuit in Blum under the prior panel precedent rule, which requires Eleventh Circuit panels to follow a prior panel’s decision
precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

10
unless a later en banc or Supreme Court opinion overrules or undermines it to the point of abrogation. Evans, 850 F.3d at 1255 (citations omitted). The dissent stressed that this Court’s decision in Price Waterhouse had in fact abrogated Blum and urged the Court to rehear the matter en banc. See 850 F.3d at 1270-71 (Rosenbaum, J., dissenting in part). But the Eleventh Circuit denied a petition for rehearing en banc on July 6, 2017. The next day, on July 7, 2017, the District Court in this case followed Evans to refuse to consider whether Price Waterhouse abrogated Blum, and dismissed Mr. Bostock’s Second Amended Complaint with prejudice, holding that, “[a]s a matter of law, the Eleventh Circuit has . . . foreclosed the possibility of a Title VII action alleging discrimination on the basis of sexual orientation as a form of sex discrimination[.]” Id. at 31.
C. The Eleventh Circuit’s Erroneous Refusal to Conclude that this Court’s Decision in Price Waterhouse v. Hopkins Abrogated Blum v. Gulf Oil Corporation
On appeal, Mr. Bostock argued that the District Court’s reliance on Evans was error because Evans conflicted with this Court’s decision in Price Waterhouse. Id. at 45-52.2 Specifically, Mr. Bostock argued
2 Mr. Bostock abandoned his claim for sex discrimination based on a sex stereotype, App. 41 n.1, although as explained below, there is no principled difference between a claim for sex discrimination based on the failure to conform to a sex stereotype and a claim for sexual orientation discrimination, see infra at

11
that the decision in Blum was overruled or undermined to the point of abrogation by this Court’s decision in Price Waterhouse, so that the opinion of the Eleventh Circuit in Evans and the District Court’s reliance on it to dismiss his complaint were erroneous. Id. at 50-52. Aware of the prior panel precedent rule, Mr. Bostock also presented his appeal to the Eleventh Circuit with a petition for initial hearing en banc pursuant to Fed. R. App. P. 35(b)-(c). See id. at 46 n.3, 60. However, on May 3, 2018, the Eleventh Circuit again refused to consider en banc the question of whether Blum was abrogated so as to allow for claims of sexual orientation discrimination in violation of Title VII. Id. at 4.
On May 10, 2018, the Eleventh Circuit issued its opinion reaffirming Evans and upholding the District Court’s erroneous dismissal of Mr. Bostock’s Second Amended Complaint for failure to state a claim upon which relief can be granted. Id. at 1. The Court of Appeals explicitly reaffirmed its holding in Evans and refused again to conclude, as Mr. Bostock argued, that this Court’s decisions in Price Waterhouse and Oncale overruled or undermined the former Fifth Circuit’s decision in Blum to the point of abrogation. Id. at 3. As it was in Evans, this conclusion by the Eleventh Circuit is pure error, and this Court must now act to resolve the Circuit split on this critical question of whether discrimination against an employee on the basis of
pp. 28-29, and in fact, the refusal of the lower courts to recognize the latter has caused evisceration of this Court’s recognition of the latter in Price Waterhouse, see infra at pp. 19-26.

12
sexual orientation constitutes discrimination “because of . . . sex” under Price Waterhouse, Oncale and this Court’s other decisions interpreting Title VII.
---------------------------------  ---------------------------------
REASONS FOR GRANTING THE PETITION
I. This Court Must Resolve the Split Among the Circuits as to Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Employees on the Basis of Sexual Orientation
By reaffirming its conclusion that Price Waterhouse and Oncale did not undermine the former Fifth Circuit’s decision in Blum to the point of abrogation, the Eleventh Circuit has reconfirmed the split among the Circuits on this critical question of whether Title VII prohibits discrimination against an employee on the basis of sexual orientation. The Second and Seventh Circuits, both sitting en banc, have answered the question in the affirmative. See Zarda, 883 F.3d at 13132 (expressly overruling all conflicting prior precedents to hold that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of . . . sex’ ”); Hively, 853 F.3d at 351-52 (holding that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes”).

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Every other Circuit except the Federal Circuit has held that Title VII does not prohibit discrimination against an employee on the basis of sexual orientation. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1252 (11th Cir.), cert. denied, 138 S. Ct. 557 (2017); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006); Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (holding that “an employee’s sexual orientation is irrelevant for purposes of Title VII” and “neither provides nor precludes a cause of action for sexual harassment”); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (noting that “[i]t is clear . . . that Title VII does not prohibit discrimination based on sexual orientation”) (citations omitted); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (holding that “Title VII does not proscribe harassment simply because of sexual orientation”); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996) (noting that “it is true Title VII does not afford a cause of action for discrimination based upon sexual orientation”) (citations omitted); U.S. Dep’t of Hous. & Urban Dev., Washington, D.C. v. Fed. Labor Relations Auth., 964 F.2d 1, 2 (D.C. Cir. 1992) (noting that “Title VII does not cover sexual orientation”) (emphasis in original); Williamson v. A.G. Edwards and Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam) (holding that “Title VII does not prohibit discrimination against homosexuals”).

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There is even division within the federal government. Compare Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641 (July 15, 2015) with Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 153775 (2d Cir. July 26, 2017), 2017 WL 3277292. In Baldwin, the EEOC, acting in its capacity as a tribunal hearing Title VII claims asserted by federal employees, held squarely that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Baldwin, 2015 WL 4397641, at *5. Yet, last year, the United States Department of Justice took the position as amicus curiae in Zarda that “when Congress prohibited sex discrimination [in Title VII], it did not also prohibit sexual orientation discrimination.” 2017 WL 3277292, at *6. Without clarification from this Court, the internal and external guidance from the federal agencies will be contradictory and next to useless.
Not surprisingly, the split of authority in the Circuits and the federal government has produced a cacophony of results throughout the district courts across the country. Compare, e.g., Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F. Supp. 3d 1334, 1346-47 (N.D. Fla. 2016) (rejecting the distinction between gender stereotype discrimination and sexual orientation discrimination and holding that “to treat someone differently based on her attraction is to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily

15
discrimination on the basis of sex”) and Terveer v. Billington, 34 F. Supp. 3d 100, 116 (D.D.C. 2014) (holding that the plaintiff stated a claim for gender stereotyping sex discrimination by alleging he was “a homosexual male whose sexual orientation is not consistent with the Defendant’s perception of acceptable gender roles” and that his “status as a homosexual male did not conform to the Defendant’s gender stereotypes associated with [other] men”) with Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807, 816 (E.D. Va. 2016) (holding that Title VII does not prohibit sexual orientation discrimination and noting that “[d]istrict courts have, however, split on whether to follow the EEOC [in holding that sexual orientation discrimination is necessarily sex discrimination that violates Title VII] or to follow the law of their regional circuits [to the contrary]”), motion to certify appeal denied, No. 3:15CV569, 2016 WL 3922053 (E.D. Va. July 20, 2016) and Clemons v. City of Memphis, Tn., No. 16-CV-02333JPM-CGC, 2016 WL 7471412, at *3 (W.D. Tenn. Dec. 28, 2016) (dismissing the plaintiff ’s sexual orientation discrimination claim despite contrary authorities “[u]ntil the Sixth Circuit or the Supreme Court provides further commentary on this issue”).
Moreover, this question of whether Title VII prohibits discrimination based on sexual orientation also carries repercussions extending far beyond the immediate issue of whether gay and lesbian people occupy a protected class. For example, the “opposition clause” of Title VII protects employees from retaliation based on their opposition to practices made unlawful under

16
Title VII. See Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tn., 555 U.S. 271, 276 (2009) (citing and discussing 42 U.S.C. § 2000e-3(a)). However, in Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001), this Court held that a woman who complained of sexual harassment consisting of only one incident did not engage in protected opposition activity under Title VII because “[n]o reasonable person could have believed that the single incident” violated Title VII. Lower courts have interpreted Breeden to require that employees alleging retaliation under Title VII for protected opposition activity must demonstrate that their belief that they were opposing conduct made unlawful under Title VII was reasonable, which is often measured by the substantive law. See, e.g., Clark v. Cache Valley Elec. Co., 573 Fed. App’x 693, 701 (10th Cir. 2014); Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 549 (8th Cir. 2008); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). To the extent that it is unclear whether Title VII prohibits sexual orientation discrimination, or whether an employee is being lawfully discriminated against because of sexual orientation or unlawfully on the basis of a sex stereotype, the scope of Title VII’s opposition clause also remains unclear.3
3 This problem is not merely an academic one. Compare Grove v. Midwest Airlines, Inc., No. 1:07-CV-1120-HTW-ECS, 2009 WL 10699906, at *7 (N.D. Ga. Jan. 21, 2009) (granting summary judgment for the employer on a plaintiff ’s retaliation claim because the employee’s asserted protected activity was opposition to sexual orientation harassment which could not constitute protected opposition activity given that sexual orientation

17
Likewise, several Circuits recognize that Title VII prohibits discrimination against an employee not only because of his or her own protected class status, but also because of his or her association with someone who is a member of a particular protected class. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (holding that “an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race”); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 998, 994-95 (6th Cir. 1999) (same); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998) (same); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (same). As explained by the Second Circuit in Zarda, the conclusion that Title VII prohibits discrimination against an employee because of his association with another employee of a particular sex – which is a protected class – is reinforced by this Court’s decision in Loving v. Virginia, 388 U.S. 1 (1967), which held that a Virginia statute prohibiting interracial marriage was unconstitutional. Zarda, 883 F.3d at 125-26. Yet, without clarification from this Court,
discrimination is not prohibited by Title VII) and Fox v. Shinseki, No. CV 11-04820 EDL, 2013 WL 4034086, at *7 (N.D. Cal. Aug. 6, 2013) (same) with Centola v. Potter, 183 F. Supp. 2d 403, 412 (D. Mass. 2002) (rejecting the argument that the employee did not engage in protected opposition activity when he complained about sexual orientation harassment only because the plaintiff did not specifically characterize his internal complaint as one for sexual orientation discrimination and he established an issue of material fact as to whether he was subjected to permissible sexual orientation discrimination or actionable sex stereotype discrimination under Price Waterhouse).

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employees in most of the country may be discharged not only because they objected to discrimination against their gay and lesbian coworkers, but merely because they were associated with them as friends, family, or even members of the same church.
The disagreement over whether this Court’s decisions in Price Waterhouse and Oncale abrogated older decisions which precluded sexual orientation discrimination claims under Title VII has ripened into a Circuit split between en banc decisions in the Second and Seventh Circuits and the EEOC and almost all of the other Circuits. Moreover, the derivative and interconnected nature of many Title VII discrimination and retaliation claims means that the split threatens confusion and inconsistency in other areas of the law as well.4
4 Another example is the question of whether a plaintiff has exhausted her administrative remedies before the EEOC as required before bringing a lawsuit in court. See Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004). Generally speaking, “a plaintiff ’s judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination,” which depends on whether the court determines that the charge alleged sufficient facts to put the Commission and the employer on notice of the allegations. See id. (citations omitted). If the court decides that the employee did not provide enough factual information in the charge, then she will be barred from pursuing that claim in the lawsuit. Id. Indeed, the Magistrate Judge in this case decided that Mr. Bostock could not assert his claim for sex discrimination because he did not reference it as such in the charge of discrimination he filed with the EEOC, despite the fact that he checked the only box on the charge applicable to both sexual orientation and sex stereotype discrimination: “sex.” App. 8, 22-24. Mr. Bostock has since abandoned this articulation of his sex discrimination claim, id. at 41 n.1, but the issue highlights the continuing

19
For these reasons and those set forth below, this Court must grant the writ of certiorari in this case to clarify the law and define the scope of Title VII with respect to sexual orientation.
II. The Lower Courts are Eviscerating Price Waterhouse and the Civil Rights Act of 1991 as they Struggle to Observe an Artifical and Unworkable Distinction Between Sex Stereotype Discrimination and Sexual Orientation Discrimination
The Court must also grant certiorari because the efforts of the lower courts to resist recognizing sexual orientation discrimination claims while adhering to Price Waterhouse and Oncale have produced illogical and unpredictable results that threaten to effectively eviscerate both decisions and the Civil Rights Act of 1991. Even the courts have admitted the difficulty of properly applying these decisions. See, e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2009) (noting that “the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw”); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (noting that sex stereotype claims can present problems because “ ‘stereotypical
confusion caused by the unsettled law of how to “properly” allege sex discrimination. See also Norris v. Diakin Drivetrain Components, 46 Fed. App’x 344 (6th Cir. 2002) (holding that the plaintiff did not exhaust his same-sex sexual harassment claim by alleging sexual orientation discrimination in his charge and dismissing the plaintiff ’s case for lack of subject matter jurisdiction).

20
notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality’ ”) (citations omitted), overruled by Zarda, 883 F.3d 100; Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1065 n.5 (7th Cir. 2003) (noting that “distinguishing between failure to adhere to sex stereotypes . . . and discrimination based on sexual orientation . . . may be difficult”), overruled by Hively, 853 F.3d 339.
For example, some courts dismiss claims for sex discrimination where the plaintiff alleges verbal harassment reflecting a perception that he or she is gay, while others do not. Compare, e.g., Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8th Cir. 1999) (permitting a claim for same-sex sexual harassment to proceed where a male plaintiff alleged he was harassed because of his “perceived sexual preference” but the court nevertheless determined that “simply because some of the harassment alleged . . . includes taunts of being homosexual . . . ” did not make the complaint one for sexual orientation discrimination) and E.E.O.C. v. BOH Bros. Const. Co., LLC, 768 F. Supp. 2d 883, 893 (E.D. La. 2011) (denying summary judgment on a sex stereotyping discrimination claim where the alleged harasser said he thought the employee’s use of wet wipes instead of toilet paper was “feminine” or “kind of homo” and supervisor made jokes about the employee being gay) with Kay v. Independence Blue Cross, 142 Fed. App’x 48, 50-51 (3d Cir. 2005) (affirming the dismissal of a complaint for sex discrimination because the epithets directed toward the plaintiff, including “faggot,” “fem,” and suggesting he was not a “real man”

21
indicated permissible sexual orientation discrimination and not sex stereotype discrimination) and E.E.O.C. v. Family Dollar Stores, Inc., No. CIV.A. 1:06CV2569TWT, 2008 WL 4098723, at *1, *16-*20 (N.D. Ga. Aug. 28, 2008) (granting summary judgment for an employer on the ground that the harassment was based on sexual orientation and not sex stereotyping even though the alleged harasser asked why the employee “walk[ed] like that,” said the employee was “half-female,” and stated to him when he was stocking feminine products that he liked sticking things “up his butt” and “now you using tampons”).5
Numerous judges have noted the utterly “unworkable” nature of this approach to analyzing sex discrimination claims. Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 205 (2d Cir. 2017) (Katzman, C.J., concurring); see also Hively, 853 F.3d at 350 (stating
5 Of course, the Oncale Court never instructed lower courts to consider whether the particular epithets directed toward a plaintiff demonstrated sex stereotyping discrimination or sexual orientation discrimination. Another curious distinction, and also one without any basis in Oncale, is the extent to which an employee’s knowledge of the plaintiff ’s sexual orientation purportedly bears on the motivation for discrimination against him. Compare, e.g., Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass 2002) (suggesting that if the plaintiff had disclosed his sexual orientation at work, it may be relevant to whether he was discriminated against for that reason, but should not prohibit him from maintaining a claim for sex stereotype discrimination) with Dandan v. Radisson Hotel Lisle, No. 97 C 8342, 2000 WL 336528, at *4 (N.D. Ill. Mar. 28, 2000) (dismissing the plaintiff ’s claim as one for sexual orientation discrimination despite the fact that his harassers did not know he was gay because “whether [they] knew or only suspected what his sexual orientation is makes no difference”).

22
that “the effort to [remove the ‘sex’ from ‘sexual orientation’] has led to confusing and contradictory results”). Indeed, Judge Posner of the Seventh Circuit wrote a concurrence in Hamm specially for the purpose of “recording [his] conviction that the case law has gone off the tracks in the matter of ‘sex stereotyping[.]’ ” 332 F.3d at 1066. In that opinion, written nearly fifteen years ago, Judge Posner explained how the lower courts had distorted this Court’s decision in Price Waterhouse by trying to avoid recognizing discrimination based on sexual orientation as actionable:
Hostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter, especially the former. Effeminate men often are disliked by other men because they are suspected of being homosexual (though the opposite is also true – effeminate homosexual men may be disliked by heterosexual men because they are effeminate rather than because they are homosexual), while mannish women are disliked by some men because they are suspected of being lesbians and by other men merely because they are not attractive to those men; a further complication is that men are more hostile to male homosexuality than they are to lesbianism. To suppose courts capable of disentangling the motives for disliking the nonstereotypical man or woman is a fantasy.

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Id. at 1067. Moreover, as noted by Judge Posner, the illconceived attempt to determine whether the motive for discrimination is a failure to conform to sex stereotypes or sexual orientation necessarily promotes an investigation of the plaintiff ’s sexual orientation, which was assuredly not the policy of Title VII. Id.
So too have commentators criticized this course of jurisprudence for causing more problems than it purported to solve. See, e.g., William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 343 (2017) (arguing that “[a]s administrators, judges, and legislators have responded to our evolving understanding of the workplace, they have crafted a series of legal rules and precedents that render the exclusion of LGBT employees from Title VII increasingly anomalous and profoundly unworkable”); Zachary R. Herz, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396, 425 (2014) (arguing that the case law developed under Price Waterhouse for analyzing whether sex discrimination claims are permissible sex stereotyping claims or precluded sexual orientation claims is “both doctrinally and descriptively incoherent”); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 754 (2014) (surveying cases); Anthony E. Varona, Jeffrey M. Monks, En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 94-98

24
(2000) (summarizing the judicial conflation of sex and gender in cases decided under Price Waterhouse).
But ultimately, because this lack of workable rules only serves to “saddle the courts with the making of distinctions that are beyond the practical capacity of the litigation process,” Hamm, 332 F.3d at 1067 (Posner, J., concurring), it eviscerates this Court’s decision in Price Waterhouse and subverts the 1991 amendments to the Civil Rights Act. This Court explained in Price Waterhouse that:
The critical inquiry, the one commanded by the words of § 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made. Moreover, since we know that the words “because of ” do not mean “solely because of,” we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of ” sex and the other, legitimate considerations – even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.
490 U.S. at 241 (emphasis supplied). Congress confirmed and codified this lessened “motivating factor” causation standard for Title VII discrimination claims with § 107(a) of the Civil Rights Act of 1991, 105 Stat.

25
1075 (codified at 42 U.S.C. § 2000e-2(m)). See Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347-49 (2013) (citing and discussing Price Waterhouse and the Civil Rights Act of 1991). But in their misguided efforts to determine whether discrimination is motivated by an employee’s failure to conform to a sex-based stereotype or by the employee’s sexual orientation, the lower courts are erroneously throwing out cases where it is motivated by both. See, e.g., Kay, 142 Fed. App’x at 5051 (noting that the harassment included referring to “real men” as opposed to the “fem” plaintiff and assuming that this was evidence of sex stereotyping but nevertheless affirming the district court’s dismissal because other evidence indicated sexual orientation bias); Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483, 488 (E.D.N.Y. 2011) (determining that the plaintiff ’s claim for sex discrimination was really one for sexual orientation discrimination even though the court acknowledged that he was disparaged with terms referring to the “non-conformism of his behavior”); Family Dollar Stores, Inc., 2008 WL 4098723, at *17 (N.D. Ga. Aug. 28, 2008) (granting summary judgment on a sex stereotype discrimination claim because the record “clearly reflect[ed] that the harassment at issue was based primarily” on the plaintiff ’s perceived sexual orientation) (emphasis supplied).
None of this is surprising, since “[h]ostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter.” Hamm, 332 F.2d at 1067 (Posner, J., concurring); see also Evans, 850 F.3d at 1258

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(Pryor, J., concurring) (noting that it is an “unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity”). But the point is that even if Title VII does not prohibit sexual orientation discrimination and only prohibits sex stereotype discrimination, dismissing a case because the evidence suggests both types of discrimination is in direct contravention of this Court’s mandate in Price Waterhouse – codified in the Civil Rights Act of 1991 – that Title VII prohibits all employment decisions “based on a mixture of legitimate and illegitimate considerations.” 490 U.S. at 241 (emphasis supplied); see also 42 U.S.C. § 2000e-2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice”). Thus, this Court must grant certiorari if only to ensure that the lower courts correctly apply the mixed motive framework for sex discrimination claims set forth in Price Waterhouse and codified in § 107 of the Civil Rights Act of 1991.
III. This Court Must End Workplace Discrimination Against Gay and Lesbian Employees Because it is Unjust and Forbidden by Title VII under this Court’s Decisions
The Court must grant the writ of certiorari in this case not only to resolve the Circuit split and prevent further erosion of Price Waterhouse and Oncale by the

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lower courts struggling with how to apply them, but also because justice demands the unequivocal determination that discrimination against an employee because of sexual orientation is discrimination “because of . . . sex” in violation of Title VII. Because a person’s sexual orientation is immutable, Obergefell, 135 S. Ct. at 2596, discrimination against an employee on that basis is at least as “reasonably comparable [an] evil” as discrimination on the basis of biological sex alone, Oncale, 523 U.S. at 79. Accordingly, this Court must act to fulfill the congressional intent behind Title VII “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Oncale, 523 U.S. at 78 (emphasis supplied) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).
In Price Waterhouse, six members of this Court agreed that Title VII prohibits not only discrimination because of one’s biological sex, but also gender stereotyping – that is, discrimination on the basis of an employee’s failure to act and appear according to stereotypical gender expectations. See 490 U.S. at 25051 (plurality opinion); id. at 258-61 (White, J., concurring); id. at 272-73 (O’Connor, J., concurring). The Court stated that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group.” Id. at 251. There is no reason in law, logic, or common sense why Price Waterhouse does not forbid discrimination against a gay person for failing to conform to a stereotype about how he should act in terms of who he should be attracted to or romantically

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involved with. See Evans, 850 F.3d at 1264 (Rosenbaum, J., concurring in part and dissenting in part) (stating that “Price Waterhouse . . . demand[s] the conclusion that discrimination because an employee is gay violates Title VII’s proscription on discrimination ‘because of . . . sex’ ”); Hively, 853 F.3d at 350 (noting that “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation’ ” and that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line”).
That Congress truly intended with Title VII to attack the “entire spectrum” of employment discrimination “because of . . . sex” was confirmed again in Oncale. In that case, this Court specifically authorized a cause of action for same-sex sexual harassment under Title VII. 523 U.S. at 80. This Court noted that while “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII . . . statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils. . . .” Id. at 79 (emphasis supplied). The Court once again rejected the faulty premise that some mistreatment “because of . . . sex” might be outside the reach of Title VII, because “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79-80.

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Additionally, the EEOC – whose interpretations of Title VII are entitled to at least some deference and “respect proportional to [their] power to persuade,” see Vance v. Ball State Univ., 570 U.S. 421, 462 (2013) (citations omitted) – has concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII,” Baldwin, 2015 WL 4397641, at *5. In Baldwin, the Commission explained that:
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action.
2015 WL 4397641, at *4 (July 15, 2015). In discriminating against an employee on the basis of his sexual orientation, the employer has “taken gender into account,” because “ ‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.” Id. That is, “sexual orientation is inseparable from and inescapably linked to sex and, therefore . . . allegations of sexual orientation discrimination [necessarily] involve sex-based considerations.” Id. at *5. See also

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Zarda. This interpretation is not only logical, but is also fully consistent with this Court’s decision in Price Waterhouse.6
Nor does the fact that Title VII has not been specifically amended to expressly include sexual orientation mean that the statute does not already provide protection against such discrimination. This Court has warned against relying on Congressional inaction as an interpretative tool because “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal citations and quotation marks omitted). Indeed, “[i]t is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns, as it does here, a
6 It is also consistent with the Court’s other decisions which recognize that discrimination “because of . . . sex” in violation of Title VII may occur not only when an employer acts on the basis of an employee’s behavior as a person of one gender or the other, but simply on the basis of that employee being one gender or the other. See, e.g., Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 683-85 (1983) (holding that exclusion of pregnant spouses from an employer’s health insurance coverage plan discriminated against male employees in violation of Title VII simply because, as spouses of pregnant women, they would under the law at the time necessarily be male); City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 710-11 (1978) (holding that an employer’s practice of requiring female employees to contribute more than male employees to a pension fund based on actuarial tables indicating the usual life expectancy of women violated Title VII because it “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’ ”) (citation omitted).

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proposal that does not become law.” Id.; accord Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969) (explaining that “[i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law”) (quoting Girouard v. United States, 328 U.S. 61, 69 (1946)); U.S. v. Price, 361 U.S. 304, 310-11 (1960) (noting that “nonaction by Congress affords the most dubious foundation for drawing positive inferences”). The reason is that “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Ben. Guar. Corp., 496 U.S. at 650 (internal quotations omitted) (emphasis supplied).7
Indeed, there are many more reasons to recognize that the purpose and history of Title VII, including its evolution through this Court’s decisions and positive amendments by Congress, compel the conclusion that Title VII prohibits sexual orientation discrimination as a subset of sex discrimination. See generally Eskridge, supra, 127 Yale L.J. 322 (providing a detailed discussion of the various methodological approaches to interpretation of Title VII as it relates to sexual orientation discrimination and arguing, among other things, that the formal evolution of Title VII requires a dynamic
7 And “Congressional inaction frequently betokens unawareness, preoccupation, or paralysis.” Zuber, 396 U.S. at 185 n.21; see also Pension Ben. Guar. Corp., 496 U.S. at 650 (noting that “[e]ven less deference is due silence in the wake of unsuccessful attempts to eliminate an offending interpretation by amendment”).

32
interpretation of the anti-discrimination provision which recognizes that discrimination on the basis of sexual orientation falls within the statute’s prohibition of sex discrimination). Indeed, to ignore these compelling reasons and pretend that the authors of Title VII intended it to protect “effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals,” is “to indulge in a most extravagant legal fiction.” Hamm, 332 F.3d at 1067 (Posner, J., concurring).
Price Waterhouse and Oncale demonstrate that Title VII has become a robust source of protection from all workplace discrimination “because of . . . sex,” regardless of any hypertechnical distinctions as to how sex becomes a factor in an employer’s decision. In other words, the decision of the former Fifth Circuit in Blum has been “overruled or undermined to the point of abrogation” by Price Waterhouse and this Court’s subsequent decisions, and therefore the Eleventh Circuit erred in following Blum. See Tobinick v. Novella, 884 F.3d 1110, 1118 (11th Cir. 2018) (noting that the court is not bound to follow a prior panel precedent if the holding has been overruled or undermined to the point of abrogation by an en banc or Supreme Court decision). This Court must act to correct this error, settle one of the most important questions ever presented under Title VII, and grant Petitioner Bostock his day in court.
---------------------------------  ---------------------------------

33
CONCLUSION
This Honorable Court must grant the writ of certiorari in this case to confirm that discrimination against an employee because of his or her sexual orientation is necessarily discrimination “because of . . . sex” in violation of Title VII of the Civil Rights Act of 1964. The Circuits are irreconcilably split over this critical question, and the Eleventh Circuit has in this case again erroneously refused to recognize that this Court’s decisions in Price Waterhouse and Oncale fatally undermined the old precedents precluding sexual orientation discrimination claims under Title VII. Other lower courts are uncertain whether they are bound by those old precedents, some decided decades before Price Waterhouse, Oncale, Lawrence, and Obergefell, or whether they should recognize sexual orientation discrimination claims based on the sound reasoning of the Second Circuit in Zarda, the Seventh Circuit in Hively, and the EEOC in Foxx.
The Circuit split on this question also threatens consistency and predictability because, in attempting the impossible task of separating discrimination on the basis of an employee’s failure to conform to a sex stereotype from discrimination on the basis of her sexual orientation, the lower courts have distorted this Court’s directives in Price Waterhouse and Oncale and developed unworkable rules leading to absurdly different results in similar cases. This confusion is not only a threat to ensuring the consistency and predictability required for the rule of law and commerce, but it is also eviscerating this Court’s instruction in Price

34
Waterhouse, codified in Section 107(a) of the Civil Rights Act of 1991, that Title VII must be enforced to prohibit “even those [employment] decisions based on a mixture of legitimate and illegitimate considerations.”
The question of whether discrimination “because of . . . sex” within the meaning of Title VII includes discrimination because of sexual orientation is not a difficult one. The formal evolution of Title VII, including the amendments to the statute over the years and this Court’s decisions in cases like Manhart, Newport News Shipbuilding and Dry Dock Co., Price Waterhouse, and Oncale, demand the conclusion reached by the Second Circuit in Zarda, the Seventh Circuit in Hivley, and the EEOC in Baldwin. Especially in light of this Court’s recognition in recent years that gay and lesbian people are entitled to equal treatment and dignity under the Constitution of the United States, the old precedents denying to them protection from workplace discrimination under Title VII simply cannot stand.
Indeed, the words of Senator Everett Dirksen spoken in support of ending the filibuster to pass the Civil Rights Act in 1964 are appropriate to command this Court’s attention in this case:
There is another reason why we dare not temporize with the issue which is before us. It is essentially moral in character. It must be resolved. It will not go away. Its time has come. Nor is it the first time in our history that an issue with moral connotations and implications has swept away the resistance, the

35
fulminations, the legislative speeches, the ardent but dubious arguments, the lamentations and the thought patterns of an earlier generation and pushed forward to fruition.
U.S. Congress, Senate, Cong. Rec. 88th Cong. 2d Sess., pp. 13319-20.
Petitioner Bostock and every gay and lesbian worker in this country urgently need this Court’s answer to the question of whether discrimination against an employee because of that employee’s sexual orientation is discrimination “because of . . . sex” in violation of Title VII of the Civil Rights Act of 1964. This Court must finally determine whether and to what extent Title VII of the Civil Rights Act truly “seeks a workplace where individuals are not discriminated against because of their . . . gender-based status.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973).
Respectfully submitted,
BUCKLEY BEAL, LLP
BRIAN J. SUTHERLAND bsutherland@buckleybeal.com
The Promenade, Suite 900 1230 Peachtree Street, N.E. Atlanta, Georgia 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101 Email: bsutherland@buckleybeal.com
tmew@buckleybeal.com
Counsel for Petitioner Gerald Lynn Bostock

 
 Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, Plaintiff,
v. CLAYTON COUNTY,
Defendant.

CIVIL ACTION FILE NO. 1:16-CV-001460-ODE-WEJ

FINAL REPORT AND RECOMMENDATION Plaintiff, Gerald Lynn Bostock, brought this action against his former employer, Clayton County, Georgia (the “County”), for alleged violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (See Second Am. Compl. [10], Count I.) The County filed a Motion to Dismiss the Second Amended Complaint [13] pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that it fails to state a claim upon which relief may be granted. As discussed below, the undersigned agrees and RECOMMENDS that defendant’s Motion be GRANTED.

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 2 of 21
I. GOVERNING STANDARD When considering a motion to dismiss, a federal court is to accept as true
“all facts set forth in the plaintiff’s complaint.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted). Further, the court must draw all reasonable inferences in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal citations omitted); Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). However, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. The Supreme Court has dispensed with the rule that a complaint may only be dismissed under Rule 12(b)(6) when “‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Twombly, 550 U.S. at 561 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has replaced that rule with the “plausibility standard,” which requires that factual allegations “raise a right to relief above the speculative level.” Id. at 555. The plausibility standard “does not [however,] impose a probability requirement at the pleading stage; it
2

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simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].” Id. at 556. II. PLAINTIFF’S ALLEGATIONS
Mr. Bostock is a gay male. (Sec. Am. Compl. ¶ 12). He began working for defendant on or about January 13, 2003. (Id. ¶ 11.) The County employed plaintiff as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County; he was charged with primary responsibility for the Clayton County Court Appointed Special Advocate (“CASA”). (Id. ¶ 13.) During the over ten years that Mr. Bostock worked for the County, he received good performance evaluations and the program he managed received accolades. (Id. ¶ 14.) For example, in 2007 Georgia CASA awarded Clayton County CASA its Established Program Award of Excellence. (Id.) National CASA also recognized Mr. Bostock for program expansion, and he served on its Standards and Policy Committee in or about 2011-12. (Id.)
Beginning in January 2013, Mr. Bostock became involved with a gay recreational softball league called the Hotlanta Softball League. (Sec. Am. Compl. ¶ 15.) Mr. Bostock actively promoted Clayton County CASA to softball league members as a source for volunteer opportunities. (Id. ¶ 16.) In the months after plaintiff joined the Hotlanta Softball League, he alleges “on information and belief” that his participation in the league and his sexual orientation and identity
3

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were openly criticized by one or more persons who had significant influence on defendant’s decision making. (Id. ¶ 17.)
In or around April 2013, defendant advised Mr. Bostock that it was conducting an internal audit on CASA program funds he managed. (Sec. Am. Compl. ¶ 18.) Mr. Bostock contends that he did not engage in any improper conduct with regard to program funds under his custody or control, and alleges that defendant initiated the audit as a pretext for discrimination based on his sexual orientation and failure to conform to a gender stereotype. (Id. ¶¶ 19-20.) Plaintiff further alleges “on information and belief” that in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where his supervisor was present, at least one individual made disparaging comments about Mr. Bostock’s sexual orientation and identity and participation in the softball league. (Id. ¶ 21.)
On or about June 3, 2013, defendant terminated Mr. Bostock’s employment. (Sec. Am. Compl. ¶ 22.) The stated reason for termination was conduct unbecoming of a County employee. (Id. ¶ 23.) Plaintiff alleges that this purported reason was a pretext for discrimination against him based on his sex and/or sexual orientation. (Id.)
Mr. Bostock filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 5, 2013. (See Ex. A to Pl.’s
4

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 5 of 21
Resp. in Opp’n to Def.’s Mot. to Dismiss [14-1] (“Pl.’s Resp. Br.”).) As reflected on the Charge, Mr. Bostock checked the box for sex discrimination and stated in part as follows: “I believe that I have been discriminated against because of my sex (male/sexual orientation).” (Id.)
On May 5, 2016, Mr. Bostock filed his initial Complaint [1] pro se. This pleading alleged only discrimination on the basis of sexual orientation. After Mr. Bostock secured counsel, he filed his First Amended Complaint [4] on August 2, 2016. This pleading also alleged only discrimination on the basis of sexual orientation. Plaintiff filed his Second Amended Complaint [10] on September 12, 2016, which has been summarized above. III. ANALYSIS
Defendant argues that the Second Amended Complaint should be dismissed because Title VII does not encompass claims of sexual orientation discrimination. Defendant also contends that, while gender stereotyping claims are cognizable under Title VII, because the Second Amended Complaint is devoid of any factual support for such a claim, this claim fails as well. Finally, defendant asserts that, even if plaintiff had properly pled a gender stereotyping claim, it should be dismissed for failure to exhaust administrative remedies. (See Def.’s Mem. [13] 4-12.) The Court incorporates plaintiff’s arguments in response (see Pl.’s Resp. Br. [14] 5-15) as necessary, infra.
5

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 6 of 21
A. A Sexual Orientation Discrimination Claim May Not Be Brought Under Title VII
Title VII prohibits discrimination against any individual because of such
individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). As the Fifth Circuit explained a few years after Title VII’s enactment:
[T]here is little legislative history to guide our interpretation. The amendment adding the word ‘sex’ to ‘race, color, religion and national origin’ was adopted one day before House passage of the Civil Rights Act. It was added on the floor and engendered little relevant debate. In attempting to read Congress’ intent in these circumstances, however, it is reasonable to assume, from a reading of the statute itself, that one of Congress’ main goals was to provide equal access to the job market for both men and women.
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 386 (5th Cir. 1971).1
Four years after Diaz in Willingham v. Macon Telegraph Publishing Co.,
507 F.2d 1084 (5th Cir. 1975) (en banc), the Fifth Circuit again noted the meager
legislative history related to the addition of “sex” to Title VII and stated as
follows:
We find the legislative history inconclusive at best and draw but one conclusion, and that by way of negative inference. Without more extensive consideration, Congress in all probability did not intend for its proscription of sexual discrimination to have significant and sweeping implications. We should not therefore extend the coverage of the Act to situations of questionable application without some stronger Congressional mandate.
1 The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions handed down before the close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
6

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 7 of 21
We perceive the intent of Congress to have been the guarantee of equal job opportunity for males and females. Providing such opportunity is where the emphasis rightly lies.
Id. at 1090-91.
Also in 1975, the EEOC issued a decision which noted the absence of a
definition of the word “sex” in Title VII and the “scant” evidence of what
Congress intended in the statute’s legislative history, but which stated that “the
congressional debates relative to the prohibition against employment
discrimination based on sex which preceded the enactment of Title VII focused
almost exclusively on disparaties [sic] in employment opportunities between
males and females.” EEOC Dec. No. 76-75 (Dec. 4, 1975), 1975 WL 342769, at
*2. The EEOC then cited, inter alia, the Fifth Circuit’s Willingham decision as
support for the statement “that when Congress used the word ‘sex’ in Title VII it
was referring to a person’s gender.” Id. The EEOC then concluded as follows::
Charging Party alleges unlawful employment discrimination based on his homosexuality, a condition which relates to a person’s sexual proclivities or practices, not his or her gender; these two concepts are in no way synonymous. There being no support in either the language or the legislative history of the statute for the proposition that in enacting Title VII Congress intended to include a person’s sexual practices within the meaning of the term sex, and since the evidence in this case, viewed as a whole, indicates that Respondent Employer failed to rehire Charging Party at least in part because of his sexual practices, not his gender, the Commission must conclude that it lacks jurisdiction over the subject matter alleged by Charging Party as the basis for Respondent Employer’s failure to rehire him.
7

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 8 of 21
Id.2 Four years later in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979)
(per curiam), in a case brought by an employee who claimed that he was terminated because of his sexual preference, the Fifth Circuit stated, “Discharge for homosexuality is not prohibited by Title VII.” Id. at 938; see also Davis v. Signius Inv. Corp./Answernet, No. 1:12-CV-04143-TWT, 2013 WL 1339758, at *5 (N.D. Ga. Feb. 26, 2013) (“Title VII does not protect employees from discrimination based on sexual orientation.”), R. & R. adopted, No. 1:12-CV4143-TWT, 2013 WL 1339751 (N.D. Ga. Mar. 29, 2013).
Every Circuit Court of Appeal which has considered the issue agrees with Blum that Title VII does not extend to sexual orientation discrimination. See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764-65 (6th Cir. 2006); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70
2 As discussed infra, the EEOC changed its position in 2015. 8

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 9 of 21
(8th Cir. 1989) (per curiam); DeSantis v. Pac. Tel. & Tel. Co., Inc., 608 F.2d 327, 329-30 (9th Cir. 1979).3
Plaintiff asserts that the “question of whether sexual orientation discrimination claims are cognizable under Title VII is ‘an open one’” in the Eleventh Circuit. (See Pl.’s Resp. Br. 6, quoting Issacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190, 1193 (M.D. Ala. 2015).) Plaintiff accurately quotes Issacs. However, the former Fifth Circuit decision in Blum is binding authority in the Eleventh Circuit. See Bonner, 661 F.2d at 1209 (adopting as binding precedent all decisions of the former Fifth Circuit handed down before the close of business on September 30, 1981). Given the Blum precedent, the statement that plaintiff quotes from the district court’s order in Issacs is clearly wrong. The question is not open in the Eleventh Circuit.4
3 DeSantis was abrogated on other grounds by Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874-75 (9th Cir. 2001). However, that portion of DeSantis holding that “Title VII’s prohibition of ‘sex’ discrimination applies only to discrimination on the basis of gender and should not be judicially extended to include sexual preference such as homosexuality[,]” remains undisturbed. See DeSantis, 608 F.2d at 329-30 (footnotes omitted).
4 Even without Blum, one could argue that the Eleventh Circuit is squarely in line with the weight of authority against application of Title VII to sexual orientation discrimination claims. See Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997) (“We do not hold that discrimination because of sexual orientation is actionable.”).
9

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 10 of 21

In apparent response to the fact that the Circuit Courts have uniformly held

that Title VII’s prohibition against sex discrimination does not extend to sexual

orientation discrimination, supporters of an extension have fought unsuccessfully

in Congress to amend Title VII since the mid-1970s. See Ulane v. E. Airlines,

Inc., 742 F.2d 1081, 1085 & n.11 (7th Cir. 1984) (citing HR. 166, 94th Cong., 1st

Sess. (1975), which sought to add the phrase “affectional or sexual preference” to

Title VII). 1994 saw introduction of The Employment Non-Discrimination Act

(“ENDA”), which would prohibit discrimination in hiring and employment on the

basis of sexual orientation or gender identity. (See ENDA of 1994, H.R. 4636,

103d Cong. (1994).) The ENDA has been before Congress during almost every

session since 1994, but it has failed to pass.

(See

https://www.washingtonpost.com/news/the-fix/wp/2013/11/04/what-is-the-

employment-non-discrimination-act-enda) (last visited Nov. 3, 2016.) The most

recent proposal to amend Title VII to prohibit discrimination on the basis of, inter

alia, sexual orientation and gender identity, is the Equality Act of 2015. See

Equality Act of 2015, S. 1858, 114th Cong. (2015). It too has failed to pass.

As defendant points out, such proposed amendments would be

“superfluous if sexual orientation was already covered by Title VII.” (Def.’s

Reply Br. [15] 4.) “Although congressional inaction subsequent to the enactment

of a statute is not always a helpful guide, Congress’s refusal to expand the reach

10

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 11 of 21
of Title VII is strong evidence of congressional intent in the face of consistent judicial decisions refusing to interpret ‘sex’ to include sexual orientation.” Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).
Although the judicial branch has rejected calls to interpret Title VII broadly to encompass sexual orientation discrimination claims and the legislative branch has not amended Title VII to include such claims, the executive branch recently reversed the position it first took in 1975. In Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015), the EEOC held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII. Id. at *5. Plaintiff asks this Court to follow the EEOC’s Baldwin decision. (Pl.’s Resp. Br. 9.) He argues that the EEOC’s interpretation of Title VII, although not binding, is entitled to respect to the extent that it is persuasive. (Id. at 9 n.2, citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
EEOC interpretations of Title VII are entitled to Skidmore “deference to the extent [that they have] the power to persuade.” Vill. of Freeport v. Barrella, 814 F.3d 594, 607 n.47 (2d Cir. 2016) (internal quotation marks and citation omitted). As held in Skidmore, “[t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all
11

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 12 of 21
those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140.
The Court makes no judgment about the thoroughness evident in Foxx’s consideration or the validity of its reasoning, but notes its inconsistency with the EEOC’s earlier pronouncement (discussed supra in the text preceding note 1). Several federal district courts have considered whether to defer to the EEOC’s interpretation. See, e.g., Hinton v. Va. Union Univ., No. 3:15CV569, 2016 WL 2621967, at *5 (E.D. Va. May 5, 2016); Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598 (S.D.N.Y. 2016); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151 (C.D. Cal. 2015); Isaacs, 143 F. Supp. 3d at 1190; Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344 (E.D.N.Y. 2015); Burrows v. Coll. of Cent. Fla., No. 5:14-CV-197-OC-30PRL, 2015 WL 5257135 (M.D. Fla. Sept. 9, 2015).
These district courts have split on whether to defer to the EEOC’s decision or follow precedent in their own Circuits. For example, Hinton and Christiansen ruled that the EEOC’s decision could not displace contrary holdings of their regional Circuit Courts of Appeal, while Burrows ruled that the EEOC’s decision could not displace contrary holdings of other district courts in its Circuit.5 See Hinton, 2016 WL 2621967, at *5; Christiansen, 167 F. Supp. 3d at 620-21;
5 Burrows surprisingly failed to cite controlling precedent in Blum. 12

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 13 of 21
Burrows, 2015 WL 5257135, at *2. Isaacs and Videckis deferred to the EEOC’s position without addressing binding precedent in their regional Circuits. See Isaacs, 143 F. Supp. 3d at 1193;6 Videckis, 150 F. Supp. 3d at 1159-60. Finally, Roberts recognized binding Second Circuit precedent but chose to disregard it in deferring to the EEOC’s decision. Roberts, 115 F. Supp. 3d at 362.
The undersigned agrees with Hinton that the reasons offered in those decisions which deferred to the EEOC’s position are matters that lie within the purview of the legislative branch, not the judicial branch. Title VII is a creation of Congress and, if Congress is so inclined, it can amend the statute to provide a claim for sexual orientation discrimination. It is not the province of unelected jurists to effect such an amendment. Hinton, 2016 WL 2621967, at *5.
This Court thus will not defer to the EEOC’s decision but will follow the former Fifth Circuit decision in Blum, which is binding precedent binding in the Eleventh Circuit. Therefore, the undersigned RECOMMENDS that plaintiff’s sexual orientation discrimination claim be DISMISSED WITH PREJUDICE.
6 As discussed in the text preceding note 3, Issacs erroneously concluded that the issue of whether a plaintiff could state a claim for sexual orientation discrimination in the Eleventh Circuit was an open one.
13

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B. Plaintiff Has Failed to State a Gender Stereotyping Claim “Title VII bar[s] not just discrimination because of biological sex, but also gender stereotyping—failing to act and appear according to expectations defined by gender.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989)); see also Anderson v. Napolitano, No. 09-60744-CIV, 2010 WL 431898, at *4 (S.D. Fla. Feb. 8, 2010) (“[A] plaintiff can state a Title VII claim for sex or gender stereotyping—a type of sex discrimination based on a person’s failure to comply with gender stereotypes.”). To state such a claim, a plaintiff must allege that he suffered discrimination based on his employer’s belief that he failed “to conform to masculine stereotypes.” E.E.O.C. v. Family Dollar Stores, Inc., No. 1:06-CV-2569-TWT, 2008 WL 4098723, at *14 (N.D. Ga. Aug. 28, 2008) (adopting R. & R.); see also Higgins, 194 F.3d at 261 n.4 (noting that a man can support a Title VII claim “on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity”). “The gender stereotype associated with being a man is masculinity.” Mowery v. Escambia Cty. Utilities Auth., No. 3:04CV382-RS-EMT, 2006 WL 327965, at *7 (N.D. Fla. Feb. 10, 2006). Therefore, in order to state a sexstereotyping claim, a plaintiff is required to “show discrimination based on
14

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 15 of 21
gender non-conforming ‘behavior observed at work or affecting his job performance,’ such as his ‘appearance or mannerisms on the job.’” Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516, 519 (6th Cir. 2011) (quoting Vickers, 453 F.3d at 763); see also E.E.O.C. v. McPherson Cos., 914 F. Supp. 2d 1234, 1244 (N.D. Ala. 2012) (“In the few cases in which actionable harassment based on a male’s nonconformity to gender stereotype has been found, the undisputed evidence unequivocally established that the male ‘harassers’ perceived the employee to show feminine characteristics.”).
The County contends that any gender stereotyping claim must be dismissed because the Second Amended Complaint is devoid of any factual support for such a claim, aside from its single conclusory assertion that “Defendant initiated the audit as a pretext for discrimination against Plaintiff based on his sexual orientation and failure to conform to a gender stereotype.” (Sec. Am. Compl. ¶ 20.) Plaintiff responds that Rule 8 of the Federal Rules of Civil Procedure does not require that he plead a prima facie case of discrimination in order to survive a motion to dismiss, and that all he must do is provide fair notice of his claim. (Pl.’s Resp. Br. 12.) Mr. Bostock asserts that the Second Amended Complaint meets that standard because it details his position with the County, his participation in the softball league, and the ensuring criticism and discriminatory
15

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treatment he allegedly received because of his sexual orientation and identity. (Id. at 12-13.)
A complaint in an employment discrimination case need not contain specific facts establishing a prima facie case under the evidentiary framework for such cases to survive a motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12 (2002). Nevertheless, complaints alleging discrimination still must meet the plausibility standard of Twombly and Iqbal. See Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010) (noting that to state a hostile work environment claim post-Iqbal, recitals of the cause of action do not suffice and that employee “was required to allege” five prima facie elements, including that he was harassed because of his race).
As discussed supra, in order to state a gender stereotyping claim, Mr. Bostock was required to allege facts showing that he was discriminated against based on gender non-conforming behavior observed at work or affecting his job performance, such as his appearance or mannerisms on the job. See Gilbert, 432 F. App’x at 519. However, the Second Amended Complaint contains no allegations that plaintiff suffered discrimination based on his employer’s belief that he failed to conform to masculine stereotypes. See Family Dollar Stores, 2008 WL 4098723, at *14. Like the plaintiff in Mowery, Mr. Bostock “does not allege, nor can an inference be properly drawn, that [he] was perceived by [his
16

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 17 of 21
supervisor] and his co-workers as being feminine rather than masculine.”
Mowery, 2006 WL 327965, at *7. Therefore, the undersigned reports that
plaintiff has failed to allege a plausible gender stereotyping claim under Iqbal and
Twombly.
The Court agrees with defendant that plaintiff is attempting to avoid
dismissal of this case by bootstrapping a conclusory gender stereotyping
allegation to his sexual orientation discrimination claim. The court in Bostick v.
CBOCS, Inc., No. 8:13-CV-1319-T-30TGW, 2014 WL 3809169 (M.D. Fla. Aug.
1, 2014), explained why that cannot be allowed:
In sum, the record is clear that Bostick is not bringing a case based on having been harassed and retaliated against because others perceived him to be homosexual and therefore not adequately masculine. Instead, he alleges he is a gay man who was discriminated and retaliated against based on sexual stereotyping. Bostick’s response seems to imply that all gay men fail to comply with male stereotypes simply because they are gay. However, that would mean that every case of sexual orientation discrimination [would] translate into a triable case of gender stereotyping discrimination, which would contradict Congress’s decision not to make sexual orientation discrimination cognizable under Title VII.
Id. at *6 (internal quotations and citations omitted; bracket in original).
The question arises whether plaintiff could amend the Complaint yet again
to add facts alleging that Clayton County took adverse action against him because
his supervisor or co-workers perceived him to be feminine. “Although plaintiff is
represented by counsel and defendant’s motion to dismiss has been pending . . .,
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Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 18 of 21
[]he has not filed a motion or otherwise requested an opportunity to amend h[is] complaint.” Wells v. W. Ga. Tech. Coll., No. 1:11-CV-3422-JEC, 2012 WL 3150819, at *4 (N.D. Ga. Aug. 2, 2012). Instead of amending his claims to address the problems identified in defendant’s Motion to Dismiss, plaintiff filed a Response Brief. In other words, plaintiff stands by the Second Amended Complaint as drafted. Therefore, the undersigned will not sua sponte recommend that plaintiff be granted leave to amend to salvage a gender stereotyping claim that is deficient under Twombly and Iqbal. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc) (“A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court.”).
Accordingly, the undersigned RECOMMENDS that plaintiff’s gender stereotyping claim be DISMISSED WITH PREJUDICE, because the Second Amended Complaint contains no factual allegations supportive of such any such claim. See Vickers, 453 F.3d at 764 (holding that the plaintiff’s claim failed “because [he] has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work”).
18

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 19 of 21
C. Plaintiff Failed to Exhaust Administrative Remedies With Regard To Any Gender Stereotyping Claim7
A potential claimant who intends to sue for discrimination must first file an administrative charge with the EEOC. See Bost v. Fed. Express Corp., 372 F.3d 1233, 1239 (11th Cir. 2004). “The filing of a charge of discrimination with the EEOC initiates ‘an integrated, multi-step enforcement procedure’ that enables the EEOC to detect and remedy various discriminatory employment practices.” Id. at 1238 (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1984)). This multi-step process includes “(1) prompt notice from the EEOC to the employer that a charge has been filed; and (2) investigation of the charge by the EEOC.” Id. at 1239. The purpose of requiring litigants to first exhaust these administrative remedies is that the EEOC should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts. Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (per curiam). As a result, a plaintiff’s judicial complaint is limited by the allegations of his charge of discrimination or
7 Given the other recommendations, the Court does not address defendant’s alternative argument that plaintiff’s gender stereotyping claim, which first appeared in the Second Amended Complaint, is time barred because he failed to file that pleading within 90 days of receipt of his notice of right to sue, and that claim does not relate back to the filing of the initial Complaint. (Def.’s Mem. [13] 12-14.)
19

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 20 of 21
by “the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Id. at 1280 (internal quotation marks and citation omitted); see also Green v. Elixir Indus., Inc., 407 F.3d 1163, 1168 (11th Cir. 2005) (“The proper inquiry, as these cases make clear, is whether the complaint is ‘like or related to, or grew out of’ the allegations in the EEOC charge.”). Although courts allow claims in litigation that “amplify, clarify, or more clearly focus” allegations in the EEOC charge, Gregory, 355 F.3d at 127980, claims of discrimination not alleged in a charge are not permitted. Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989).
Mr. Bostock’s EEOC charge alleges only sexual orientation discrimination, not gender stereotyping. One would not reasonably expect an EEOC investigation of gender stereotyping to grow out of the charge’s allegation of sexual orientation discrimination. See Norris v. Diakin Drivetrain Components, 46 F. App’x 344, 346 (6th Cir. 2002) (claim for same-sex sexual harassment cannot be reasonably expected to grow out of EEOC charge asserting discrimination based on sexual orientation); Lankford v. BorgWarner Diversified Transmission Prods., Inc., No. 1:02CV1876-SEB-VSS, 2004 WL 540983, at *3 (S.D. Ind. Mar. 12, 2004) (“A claim of discrimination based on sex is not reasonably related to, nor may it be expected to grow out of, a charge of discrimination based on sexual orientation.”). As a result, plaintiff failed to
20

Case 1:16-cv-01460-ODE Document 16 Filed 11/03/16 Page 21 of 21
exhaust administrative remedies as to any alleged gender stereotyping claim. Accordingly, even if the Second Amended Complaint states a gender stereotyping claim, it should be dismissed for lack of exhaustion. IV. CONCLUSION
For the reasons explained above, the undersigned RECOMMENDS that Defendant’s Motion to Dismiss [13] be GRANTED, and that the Second Amended Complaint be DISMISSED WITH PREJUDICE.
SO RECOMMENDED, this 3rd day of November, 2016.
__________________________ WALTER E. JOHNSON UNITED STATES MAGISTRATE JUDGE
21

 
 Case 1:16-cv-01460-ODE Document 24 Filed 07/21/17 Page 1 of 6

I NS>•antEEA8 -~

IN THE UNITED STATES DISTRICT [~-OURTU&O.o "Atlalfa .·. ~j

FOR

THE

NORTHERN DISTRICT OF ATLANTA DIVISION

G:tiORGI~Ul
t; J

2 I

2017

°'~
._::-~

.,.,_ta. ;

Hana\ aae .:-t,1~

GERALD LYNN BOSTOCK,

&,:/JJJ:1.~

Plaintiff

v.

CIVIL ACTION NO.

1:16-CV-1460-0DE

CLAYTON COUNTY, Defendant

ORDER

This employment discrimination case is before the Court on

United States Magistrate Judge Walter E. Johnson's Final Report and

Recommendation [Doc. 16] .

Plaintiff Gerald Lynn Bostock

("Plaintiff") has filed objections [Doc. 18], to which Defendant

Clayton County ("Clayton County") has responded in opposition [Doc.

19] and Plaintiff has replied [Doc. 20]. For the reasons stated

below, the R&R is adopted in full and Clayton County's underlying

motion to dismiss [Doc. 13] thereby granted.

I. Background1

On September 12, 2016, Plaintiff filed his Second Amended

Complaint, the operative document before the Court, 2 in which he

alleges violation of Title VII of the Civil Rights Act of 1964

("Title VII"), as amended by the Civil Rights Act of 1991, 42 U.S.C.

§ 2000e et~ [Doc. 10]. Plaintiff, a gay male, began working for

Clayton County on or about January 13, 2003. Clayton County employed

1Plaintiff has objected only to Judge Johnson's conclusions of law and not his findings of fact. Therefore, the following facts are taken from the R&R, unless otherwise noted.
2See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219-20 (11th Cir. 2007).

Case 1:16-cv-01460-ODE Document 24 Filed 07/21/17 Page 2 of 6
Plaintiff as the Child Welfare Services Coordinator assigned to its Juvenile Court; he had primary responsibility for the Clayton County Court Appointed Special Advocate ("CASA") . During his ten-year career with Clayton County, Plaintiff received good performance evaluations and the program he managed received accolades. For example, in 2007, Georgia CASA awarded Clayton County CASA its Established Program Award of Excellence. National CASA also recognized Plaintiff for his program expansion efforts, and he served on its Standards and Policy Committee in or about 2011-2012.
Beginning in January 2013, Plaintiff became involved with a gay recreational softball league, the Hotlanta Softball League. Plaintiff actively promoted Clayton County CASA to league members as a good volunteer opportunity. In the subsequent months, Plaintiff alleges that his participation in the league and his sexual orientation and identity were openly criticized by one or more persons with significant influence on Clayton County's decisionmaking. For example, in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board at which Plaintiff's supervisor was present, Plaintiff alleges that at least one individual made disparaging comments about his sexual orientation and identity and participation in the league.
In or around April 2013, Clayton County advised Plaintiff that it would be conducting an internal audit on the CASA program funds that he managed. Plaintiff contends that he engaged in no improper conduct as to funds under his custody or control and that this audit was a pretext for discrimination. On or about June 3, 2013, Clayton County terminated Plaintiff, allegedly for conduct unbecoming one of
2

Case 1:16-cv-01460-ODE Document 24 Filed 07/21/17 Page 3 of 6
its employees. Plaintiff alleges that this reason was pretext for discrimination based on his sexual orientation.
On September 5, 2013, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). In that document, Plaintiff checked the box for sex discrimination and stated: "I believe I have been discriminated against because of my sex (male/sexual orientation)" [Doc. 14-1).
On May 5, 2016, Plaintiff pro se filed his initial Complaint in which he alleged only discrimination based on sexual orientation [Doc. 1). After securing counsel, Plaintiff filed his First Amended Complaint on August 2, 2016 [Doc. 4). Plaintiff's Second Amended Complaint was the first to explicitly add allegations of discrimination for failure to conform to a gender stereotype [Doc. 10). On September 26, 2016, Clayton County filed a motion to dismiss for failure to state a claim [Doc. 13), to which Plaintiff responded in opposition on October 13, 2016 [Doc. 14) and Defendant replied on October 27, 2016 [Doc. 15).
On November 3, 2016, Judge Johnson issued his R&R recommending dismissal with prejudice on three grounds: (1) Title VII does not encompass claims of sexual orientation discrimination, (2) the Second Amended Complaint contains no factual allegations supporting a gender stereotyping claim, and (3) the gender stereotyping claim was not referenced in Plaintiff's EEOC charge and thus he failed to exhaust his administrative remedies [Doc. 16) . On November 17, 2016, Plaintiff filed objections to each of these conclusions of law [Doc. 18), on December 1, 2016, Clayton County responded in opposition [Doc. 19), and on December 15, 2016, Plaintiff replied [Doc. 20). On February 2, 2017, the Court deferred ruling on this case pending a
3

Case 1:16-cv-01460-ODE Document 24 Filed 07/21/17 Page 4 of 6
decision from the United States Court of Appeals for the Eleventh Circuit in the related case of Evans v. Ga. Regional Hospital. The Eleventh Circuit has now issued its decision, and this Court may now rule with the benefit of that precedent. II. Legal Standard
In reviewing an R&R, the Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636 (b) (1). Absent objection, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Because Plaintiff objects to each of Judge Johnson's conclusions of law, the Court will review de novo Clayton County's motion to dismiss.
To survive a Rule 12 (b) (6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are "enough to raise a right to relief above the speculative level," and "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. While all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011), the Court need not
4

Case 1:16-cv-01460-ODE Document 24 Filed 07/21/17 Page 5 of 6

accept as true the plaintiff's legal conclusions, including those

couched as factual allegations, Igbal, 556 U.S. at 678. Particularly

important is the requirement that a complaint contain enough factual

allegations to provide "'fair notice' of the nature of the claim" and

the "'grounds' on which the claim rests." Twombly, 550 U.S. at 555

n.3.

~ Sexual Orientation Discrimination

In his Second Amended Complaint, Plaintiff alleges

discrimination in violation of Title VII based on his sex, sexual

orientation, and failure to conform to gender stereotypes [Doc. 10].

Clayton County objected because "Plaintiff cannot state a viable

claim for relief under established law because Title VII does not

protect Plaintiff (or anyone else) from discrimination due to his

sexual orientation" [Doc. 13 at 14] Judge Johnson agreed on the

basis of precedent that the Eleventh Circuit has recently affirmed.

See Evans v. Ga. Reg'l Hosp., 850 F.3d 1248, 1255 (11th Cir. 2017)

("[Plaintiff] next argues that she has stated a claim under Title VII

by alleging that she endured workplace discrimination because of her

sexual orientation. She has not. Our binding precedent foreclosed

such an action.") (citing Blum v. Gulf Oil Corp., 597 F.2d 936, 938

(5th Cir. 1979) ("Discharge for homosexuality is not prohibited by

Title VII

.")). As a matter of law, the Eleventh Circuit has

thus foreclosed the possibility of a Title VII action alleging

discrimination on the basis of sexual orientation as a form of sex

discrimination protected by that Act. Plaintiff's objection on this

point is overruled.

5

Case 1:16-cv-01460-ODE Document 24 Filed 07/21/17 Page 6 of 6

JL.. Gender Stereotyping

In his Second Amended Complaint, Plaintiff also explicitly

alleges for the first time that he was fired for "failure to conform

to a gender stereotype" [Doc. 10 ~ 20).

Other than sexual

orientation, however, there is not a single mention of or fact

supporting gender stereotype discrimination in this case. 3 The Court

agrees with Judge Johnson that Plaintiff has failed to state any

facts to facially support this claim standing alone. See Igbal, 556

U.S. at 678; Twombly, 550 U.S. at 555-56. Plaintiff's objection on

this point is also overruled.

Because the Court finds that Plaintiff has failed to meet the

pleading standard for a gender stereotype discrimination claim, it

need not address the parties' dispute as to exhaustion of

administrative remedies and timeliness.

III. Conclusion

For the reasons stated above, Plaintiff's Objections [Doc. 18)

are OVERRULED and Judge Johnson's R&R [Doc. 16) is ADOPTED IN FULL.

Clayton County's Motion to Dismiss [Doc. 13) is GRANTED. Plaintiff's

case is hereby DISMISSED WITH PREJUDICE. Costs taxed to Plaintiff.

so ORDERED, this ;lo day of July, 2017.

ORINDA D. EVANS UNITED STATES DISTRICT JUDGE
3Examples of proper pleading on this issue include refusing to promote a woman perceived as "aggressive," Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), or declining to hire a qualified applicant because he was "effeminate," Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978).
6

 
 Case 1:16-cv-01460-ODE Document 30 Filed 05/10/18 Page 1 of 4 Case: 17-13801 Date Filed: 05/10/2018 Page: 1 of 3
[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13801 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-01460-ODE

GERALD LYNN BOSTOCK,

Plaintiff-Appellant,

versus

CLAYTON COUNTY BOARD OF COMMISSIONERS,

Defendant,

CLAYTON COUNTY,

________________________

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia ________________________
(May 10, 2018)

Case 1:16-cv-01460-ODE Document 30 Filed 05/10/18 Page 2 of 4 Case: 17-13801 Date Filed: 05/10/2018 Page: 2 of 3
Before TJOFLAT, WILSON, and NEWSOM, Circuit Judges. PER CURIAM:
Gerald Lynn Bostock appeals the district court’s dismissal of his employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1), against Clayton County, Georgia, for failure to state a claim. On appeal, Bostock argues that the County discriminated against him based on sexual orientation and gender stereotyping. After a careful review of the record and the parties’ briefs, we affirm.
“We review de novo the district court’s grant of a motion to dismiss under [Fed. R. Civ. P. ] 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) (per curiam). Issues not briefed on appeal are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).
Title VII prohibits employers from discriminating against employees on the basis of their sex. 42 U.S.C. §2000e-2(a). This circuit has previously held that “[d]ischarge for homosexuality is not prohibited by Title VII.” Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)1 (per curiam) (emphasis added). And we
1 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all decisions of the “old Fifth” Circuit handed down prior to the close of business on September 30, 1981, are binding precedent in the Eleventh Circuit).
2

Case 1:16-cv-01460-ODE Document 30 Filed 05/10/18 Page 3 of 4 Case: 17-13801 Date Filed: 05/10/2018 Page: 3 of 3
recently confirmed that Blum remains binding precedent in this circuit. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017). In Evans, we specifically rejected the argument that Supreme Court precedent in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998), and Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989), supported a cause of action for sexual orientation discrimination under Title VII.
As an initial matter, Bostock has abandoned any challenge to the district court’s dismissal of his gender stereotyping claim under Glenn2 because he does not specifically appeal the dismissal of this claim. See Timson, 518 F.3d at 874. Moreover, the district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans forecloses Bostock’s claim. And under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued. United States v. Kaley, 579 F.3d 1246, 1255–56 (11th Cir. 2009); United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc).
AFFIRMED.
2 In analyzing an equal protection claim, rather than a Title VII claim, we held that discrimination based on gender nonconformity was sex discrimination. Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011).
3

Case 1:16-cv-01460-ODE Document 30 Filed 05/10/18 Page 4 of 4 Case: 17-13801 Date Filed: 05/10/2018 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

David J. Smith Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
May 10, 2018

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 17-13801-BB Case Style: Gerald Bostock v. Clayton County, Georgia District Court Docket No: 1:16-cv-01460-ODE

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
Pursuant to Fed.R.App.P. 39, costs taxed against appellant.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Carol R. Lewis, BB at (404) 335-6179.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
BOSTOCK v. CLAYTON COUNTY, GEORGIA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33. (a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord
—————— * Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda
et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.

2

BOSTOCK v. CLAYTON COUNTY

Syllabus
with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups.

Cite as: 590 U. S. ____ (2020)

3

Syllabus

And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.
(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference

4

BOSTOCK v. CLAYTON COUNTY

Syllabus
that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

Cite as: 590 U. S. ____ (2020)

1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107

_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE GORSUCH delivered the opinion of the Court.

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Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.
I
Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the

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county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired.
Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “ live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”
While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1). In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed. Appx. 964 (2018). Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F. 3d 100 (2018). Ms. Stephens’s case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of

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their transgender status. 884 F. 3d 560 (2018). During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs. And we granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. 587 U. S. ___ (2019).
II
This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7).
With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents.

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A
The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female.
Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176 (2009); quotation altered). In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident

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occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States, 571 U. S. 204, 211–212 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. See ibid.; Nassar, 570 U. S., at 350.
No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law. Cf. 11 U. S. C. §525; 16 U. S. C. §511. Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688. But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice. Civil Rights Act of 1991, §107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision. Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. §2000e–2(a)(1).
As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens “because of ” sex. The statute imposes liability on

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employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone because of a statutorily protected characteristic like sex. Ibid. The employers acknowledge that they discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: “otherwise . . . discriminate against.” By virtue of the word otherwise, the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination.
Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.
At first glance, another interpretation might seem possible. Discrimination sometimes involves “the act, practice, or an instance of discriminating categorically rather than individually.” Webster’s New Collegiate Dictionary 326 (1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting). On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal

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too. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. So how can we tell which sense, individual or group, “discriminate” carries in Title VII?
The statute answers that question directly. It tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: 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.” §2000e–2(a)(1) (emphasis added). And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being as distinguished from a class, species, or collection.” Webster’s New International Dictionary, at 1267. Here, again, Congress could have written the law differently. It might have said that “it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment.” It might have said that there should be no “sex discrimination,” perhaps implying a focus on differential treatment between the two sexes as groups. More narrowly still, it could have forbidden only “sexist policies” against women as a class. But, once again, that is not the law we have.
The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so

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equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.
B
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. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, 490 U. S. 228, 239 (1989) (plurality opinion).
The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the

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male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.
Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here.

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When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.
Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.
An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is

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not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment).
C
If more support for our conclusion were required, there’s no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider three of our leading precedents.
In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too, that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. Unsurprisingly by now,

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these submissions did not sway the Court. That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class.
In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time. By everyone’s admission, the employer was not guilty of animosity against women or a “purely habitual assumptio[n] about a woman’s inability to perform certain kinds of work”; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id., at 707–708. Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men as a class. But “[t]he statute’s focus on the individual is unambiguous,” and any individual woman might make the larger pension contributions and still die as early as a man. Id., at 708. Likewise, the Court dismissed as irrelevant the employer’s insistence that its actions were motivated by a wish to achieve classwide equality between the sexes: An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables. Ibid. The employer violated Title VII because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the same regardless of her sex. Id., at 711.
In Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court

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held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII.” Id., at 79. But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Ibid. Because the plaintiff alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed.
The lessons these cases hold for ours are by now familiar. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer called its rule requiring women to pay more into the pension fund a “life expectancy” adjustment necessary to achieve sex equality. In Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips, they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed to some other, nonprotected trait and insisted it was the

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more important factor in the adverse employment outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision.
Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.
III
What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII.
The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected. In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes

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in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is.
A
Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. Cf. post, at 3 (ALITO, J., dissenting); post, at 8–13 (KAVANAUGH, J., dissenting).
But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. In Phillips, for example, a woman who was not hired under the employer’s policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex. Sex

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wasn’t the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough. You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law.
Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. See post, at 9–12 (ALITO, J., dissenting); post, at 12–13 (KAVANAUGH, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women.
What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination. In Manhart, the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. In Phillips, the employer may have perceived itself as discriminating based on motherhood, not sex, given that its hiring policies as a whole favored women. But in both cases, the Court set all this aside as irrelevant. The employers’ policies involved intentional discrimination

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because of sex, and Title VII liability necessarily followed. Aren’t these cases different, the employers ask, given
that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination?
No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.
The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes

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men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.
Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 7–8 (ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dissenting).
But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however

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they may manifest themselves or whatever other labels might attach to them.
The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has become law. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation. This postenactment legislative history, they urge, should tell us something. Cf. post, at 2, 42–43 (ALITO, J., dissenting); post, at 4, 15–16 (KAVANAUGH, J., dissenting).
But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990); see also United States v. Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote”).
That leaves the employers to seek a different sort of exception. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. The test is too blunt to capture the nuances here. The employers illustrate their concern with an example. When we apply the simple test to Mr.

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Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman— we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred.
While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. Just cast a glance back to Manhart, where it was no defense that the employer sought to equalize pension contributions based on life expectancy. Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s employer might have decided to fire him only because of the confluence of two factors, his sex and the sex to which he is attracted. But exactly the same might have been said in Phillips, where motherhood was the added variable.
Still, the employers insist, something seems different here. Unlike certain other employment policies this Court has addressed that harmed only women or only men, the employers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be

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necessary to the result if a member of the opposite sex might face the same outcome from the same policy?
What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open “because of ” the outside temperature. Our cases are much the same. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role.
At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute. Consider an employer eager to revive the workplace gender roles of the 1950s. He enforces a policy that he will hire only men as mechanics and only women as secretaries. When a qualified woman applies for a mechanic position and is denied, the “simple test” immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly

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changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that jobseeker would be refused too, this must not be sex discrimination.
No one thinks that, so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly. Employer hires based on sexual stereotypes? Simple test. Employer sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when that same employer discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men, we suddenly roll out a new and more rigorous standard? Why are these reasons for taking sex into account different from all the rest? Title VII’s text can offer no answer.
B
Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability?
It might be tempting to reject this argument out of hand.

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This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration. See, e.g., Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992); Rubin v. United States, 449 U. S. 424, 430 (1981). Of course, some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. Cf. post, at 40 (ALITO, J., dissenting). But that has no bearing here. “Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Department of Navy, 562 U. S. 562, 574 (2011). And as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us. To be sure, the statute’s application in these cases reaches “beyond the principal evil” legislators may have intended or expected to address. Oncale, 523 U. S., at 79. But “ ‘the fact that [a statute] has been applied in situations not expressly anticipated by Congress’ ” does not demonstrate ambiguity; instead, it simply “ ‘demonstrates [the] breadth’ ” of a legislative command. Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 499 (1985). And “it is ultimately the provisions of ” those legislative commands “rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U. S., at 79; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (noting that unexpected applications of broad language reflect only Congress’s “presumed point [to] produce general coverage— not to leave room for courts to recognize ad hoc exceptions”).
Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing

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today or in one context might have meant something else at the time of its adoption or might mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. For example, in the context of the National Motor Vehicle Theft Act, this Court admitted that the term “vehicle” in 1931 could literally mean “a conveyance working on land, water or air.” McBoyle v. United States, 283 U. S. 25, 26 (1931). But given contextual clues and “everyday speech” at the time of the Act’s adoption in 1919, this Court concluded that “vehicles” in that statute included only things “moving on land,” not airplanes too. Ibid. Similarly, in New Prime, we held that, while the term “contracts of employment” today might seem to encompass only contracts with employees, at the time of the statute’s adoption the phrase was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op., at 6–9). Cf. post, at 7–8 (KAVANAUGH, J., dissenting) (providing additional examples).
The employers, however, advocate nothing like that here. They do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message we have missed. To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—“discriminate against any individual . . . because of such individual’s . . . sex.” Nor do the competing dissents offer an alternative account about what these terms mean either when viewed individually or in the ag-

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gregate. Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime.
That is exactly the sort of reasoning this Court has long rejected. Admittedly, the employers take pains to couch their argument in terms of seeking to honor the statute’s “expected applications” rather than vindicate its “legislative intent.” But the concepts are closely related. One could easily contend that legislators only intended expected applications or that a statute’s purpose is limited to achieving applications foreseen at the time of enactment. However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it.
If anything, the employers’ new framing may only add new problems. 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).

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Why isn’t that enough to demonstrate that today’s result isn’t totally unexpected? How many people have to foresee the application for it to qualify as “expected”? Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? Should we consider the expectations of those who had no reason to give a particular application any thought or only those with reason to think about the question? How do we account for those who change their minds over time, after learning new facts or hearing a new argument? How specifically or generally should we frame the “application” at issue? None of these questions have obvious answers, and the employers don’t propose any.
One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no “ ‘public entity’ ” can discriminate against any “ ‘qualified individual with a disability.’ ” Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 208 (1998). Congress, of course, didn’t list every public entity the statute would apply to. And no one batted an eye at its application to, say, post offices. But when the statute was applied to prisons, curiously, some demanded a closer look: Pennsylvania argued that “Congress did not ‘envisio[n] that the ADA would be applied to state prisoners.’ ” Id., at 211–212. This Court emphatically rejected that view, explaining that, “in the context of an unambiguous statutory text,” whether a specific application was anticipated by Congress “is irrelevant.” Id., at 212. As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees

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in the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms. Cf. post, at 28–35 (ALITO, J., dissenting); post, at 21–22 (KAVANAUGH, J., dissenting).
The employer’s position also proves too much. If we applied Title VII’s plain text only to applications some (yet-tobe-determined) group expected in 1964, we’d have more than a little law to overturn. Start with Oncale. How many people in 1964 could have expected that the law would turn out to protect male employees? Let alone to protect them from harassment by other male employees? As we acknowledged at the time, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” 523 U. S., at 79. Yet the Court did not hesitate to recognize that Title VII’s plain terms forbade it. Under the employer’s logic, it would seem this was a mistake.
That’s just the beginning of the law we would have to unravel. As one Equal Employment Opportunity Commission (EEOC) Commissioner observed shortly after the law’s passage, the words of “ ‘the sex provision of Title VII [are] difficult to . . . control.’ ” Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1338 (2012) (quoting Federal Mediation Service To Play Role in Implementing Title VII, [1965–1968 Transfer Binder] CCH Employment Practices ¶8046, p. 6074). The “difficult[y]” may owe something to the initial proponent of the sex discrimination rule in Title VII, Representative Howard Smith. On some accounts, the congressman may have wanted (or at least was indifferent to the possibility

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of ) broad language with wide-ranging effect. Not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill. See C. Whalen & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115–118 (1985). Certainly nothing in the meager legislative history of this provision suggests it was meant to be read narrowly.
Whatever his reasons, thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were “unanticipated” at the time of the law’s adoption. In fact, many now-obvious applications met with heated opposition early on, even among those tasked with enforcing the law. In the years immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather than discriminatory. Franklin, 125 Harv. L. Rev., at 1340 (citing Press Release, EEOC (Sept. 22, 1965)). Some courts held that Title VII did not prevent an employer from firing an employee for refusing his sexual advances. See, e.g., Barnes v. Train, 1974 WL 10628, *1 (D DC, Aug. 9, 1974). And courts held that a policy against hiring mothers but not fathers of young children wasn’t discrimination because of sex. See Phillips v. Martin Marietta Corp., 411 F. 2d 1 (CA5 1969), rev’d, 400 U. S. 542 (1971) (per curiam).
Over time, though, the breadth of the statutory language proved too difficult to deny. By the end of the 1960s, the EEOC reversed its stance on sex-segregated job advertising. See Franklin, 125 Harv. L. Rev., at 1345. In 1971, this Court held that treating women with children differently from men with children violated Title VII. Phillips, 400 U. S., at 544. And by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex discrimination. See, e.g., Barnes v. Costle, 561 F. 2d 983,

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990 (CADC 1977). While to the modern eye each of these examples may seem “plainly [to] constitut[e] discrimination because of biological sex,” post, at 38 (ALITO, J., dissenting), all were hotly contested for years following Title VII’s enactment. And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. Cf. post, at 21–22 (KAVANAUGH, J., dissenting) (highlighting that certain lower courts have rejected Title VII claims based on homosexuality and transgender status). Would the employers have us undo every one of these unexpected applications too?
The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). But it has no relevance here. We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries— virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.
With that, the employers are left to abandon their concern for expected applications and fall back to the last line

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of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Cf. post, at 44–54 (ALITO, J., dissenting). Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.
What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ ” refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices

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might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now

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before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
*
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

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1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107
_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE ALITO, with whom JUSTICE THOMAS joins, dissenting.
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.

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ALITO, J., dissenting
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included “gender identity” as well.2 But to date, none has passed both Houses.
Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of

—————— 1 E.g., H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong.,
1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R. 655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5 (1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311, 106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2 (2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th Cong., 1st Sess., §2 (2005).
2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., §7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th Cong., 1st Sess. (2019).
3 H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019).

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discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.4 A more brazen abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22

—————— 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2
and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).”

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(1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.5
Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964.
It indisputably did not.
I A
Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”6 Ante, at 2. (Appendix A, infra, to

—————— 5 That is what Judge Posner did in the Seventh Circuit case holding
that Title VII prohibits discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (en banc). Judge Posner agreed with that result but wrote:
“I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-centuryold statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Id., at 357 (concurring opinion) (emphasis added).
6 The Court does not define what it means by “transgender status,” but the American Psychological Association describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were assigned at birth.” A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/cecorner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspond

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this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.)
In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”).
The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant definition. Ante, at 5. (I address alternative definitions below. See Part I–B–3, infra.) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Ante, at 5.
If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender.
How then does the Court claim to avoid that conclusion?
—————— to an individual’s sex assigned at birth or sex characteristics.” Ibid. Under these definitions, there is no apparent difference between discrimination because of transgender status and discrimination because of gender identity.

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The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court observes that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante, at 5– 9, 11.
All that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U. S. C. §2000e– 2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for example, is that enough to establish that the employer discriminated “because of . . . sex”? Or, to put the same question in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer necessarily discriminated because of biological sex?
The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way. According to the Court, the text is unambiguous. See ante, at 24, 27, 30.
The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means.

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Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 357 (CA7 2017) (Posner, J., concurring). The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra. And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of . . . sex” unambiguously means. See Part III–C, infra.
The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante, at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.8 And individuals who are born with
—————— 7 The EEOC first held that “discrimination against a transgender indi-
vidual because that person is transgender” violates Title VII in 2012 in Macy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015 WL 4397641 (July 15, 2015).
8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 B.

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the genes and organs of either biological sex may identify with a different gender.9
Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrimination because of sex. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . . . inescapably intends to rely on sex in its decisionmaking”); ante, at 12 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex”); ante, at 14 (“When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex”); ante, at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated assertion is demonstrably untrue.
Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in
—————— Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry 2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sexual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 1036 (3d ed. 2008) (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”).
9 See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”).

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and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of refusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosexual.” Appendix D, infra, at 88, 101.
At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination.10 And she was right.
The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. Contra, ante, at 19. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of
—————— 10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there
was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex”); see also id., at 69 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”).

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sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent—i.e., that the employee’s sex motivated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argument collapses.
Trying to escape the consequences of the attorney’s concession, the Court offers its own hypothetical:
“Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” Ante, at 18.
How this hypothetical proves the Court’s point is a mystery. A person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Rejecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female.
The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant

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could not answer the question whether he or she is homosexual without knowing something about sex. If the applicant was unfamiliar with the term “homosexual,” the applicant would have to look it up or ask what the term means. And because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this applicant without taking the applicant’s sex into account. See ante, at 18–19.
This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex.
While the Court’s imagined application form proves nothing, another hypothetical case offered by the Court is telling. But what it proves is not what the Court thinks. The Court posits:
“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.” Ante, at 11.
This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex

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against her, rated her a “model employee.” At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge. So this is another example showing that discrimination because of sexual orientation does not inherently involve discrimination because of sex.
In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextricably bound up with sex,” ante, at 10, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. All these variants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ” Hively, 853 F. 3d, at 350.11 The Second Circuit wrote that sex is necessarily “a factor in sexual orientation” and further concluded that “sexual orientation is a function of sex.” 883 F. 3d 100, 112–113 (CA2 2018) (en banc). Bostock’s brief and those of amici supporting his position contend that sexual orientation is “a sexbased consideration.”12 Other briefs state that sexual orientation is “a function of sex”13 or is “intrinsically related to

—————— 11 See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2
(“[T]here is no reasonable way to disentangle sex from same-sex attraction or transgender status”).
12 Brief for Petitioner in No. 17–1618, at 14; see also Brief for Southern Poverty Law Center et al. as Amici Curiae 7–8.
13 Brief for Scholars Who Study the LGB Population as Amici Curiae in Nos. 17–1618, 17–1623, p. 10.

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sex.”14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”15
It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and “sexual content.”
Does the Court really think that Title VII prohibits discrimination on all these grounds? Is it unlawful for an employer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence?
To be fair, the Court does not claim that Title VII prohibits discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” Ante, at 10. Apparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.16 And it would do this in the name of high textualism.
—————— 14 Brief for American Psychological Association et al. as Amici Curiae
11. 15 Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5. 16 Notably, Title VII itself already suggests a line, which the Court ig-
nores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex,

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An additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court proclaims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” Ante, at 9. That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment decisions.” Ibid. By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as 2020 values.
The Court’s remaining argument is based on a hypothetical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “to the employer’s mind” the two employees are “materially identical” except that one is a man and the other is a woman. Ante, at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. Ante, at 9–10. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be?
The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to
—————— namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U. S. C. §2000e(k). This definition should inform the meaning of “because of sex” in Title VII more generally. Unlike pregnancy, neither sexual orientation nor gender identity is biologically linked to women or men.

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members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals.
Once this is recognized, what we have in the Court’s hypothetical case are two employees who differ in two ways–– sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a prohibited ground need not be the sole motivation for an adverse employment action, see ante, at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking.
The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” Ante, at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of

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labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex.
The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante, at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Ante, at 9–10. Rather, the Court needs to show that its label is the correct one.
And a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further.
As it turns out, however, there is no standoff. It can easily be shown that the employer’s real objection is not “attract[ion] to men” but homosexual orientation.
In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out:

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Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women
The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive.
In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is entirely possible for an employer to do just that. “[H]omosexuality and transgender status are distinct concepts from sex,” ante, at 19, and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text.
But even if the words of Title VII did not definitively refute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. And to say that the Court’s interpretation is the only possible reading is indefensible.
B
Although the Court relies solely on the arguments discussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted

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by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly.
1
One argument, which relies on our decision in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes prohibited discrimination on the basis of sex stereotypes. See 883 F. 3d, at 119–123; Hively, 853 F. 3d, at 346; 884 F. 3d 560, 576–577 (CA6 2018). The argument goes like this. Title VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; therefore, discrimination on either of these grounds is unlawful.
This argument fails because it is based on a faulty premise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination because of “sex,” and the two concepts are not the same. See Price Waterhouse, 490 U. S., at 251. That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See ibid.
Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” Id., at 235–236.

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The main issue in Price Waterhouse––the proper allocation of the burdens of proof in a so-called mixed motives Title VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a particular employment decision” but “can certainly be evidence that gender played a part.” Id., at 251.17 And the plurality made it clear that “[t]he plaintiff must show that the employer actually relied on her gender in making its decision.” Ibid.
Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Waterhouse. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sexspecific stereotype at all.” Hively, 853 F. 3d, at 370 (Sykes, J., dissenting).
To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a
—————— 17 Two other Justices concurred in the judgment but did not comment
on the issue of stereotypes. See id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” Id., at 294.

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different matter.
2
A second prominent argument made in support of the result that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a person who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g., Holcomb v. Iona College, 521 F. 3d 130 (CA2 2008); Parr v. Woodmen of World Life Ins. Co., 791 F. 2d 888 (CA11 1986). And the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavorably because he or she is married to, or has an intimate relationship with, a person of the same sex.
This argument totally ignores the historically rooted reason why discrimination on the basis of an interracial relationship constitutes race discrimination. And without taking history into account, it is not easy to see how the decisions in question fit the terms of Title VII.
Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such individual’s race.” 42 U. S. C. §2000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race.
The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimination.18 “It would require absolute blindness to the history

—————— 18 Notably, Title VII recognizes that in light of history distinctions on
the basis of race are always disadvantageous, but it permits certain dis-

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of racial discrimination in this country not to understand what is at stake in such cases . . . . A prohibition on ‘racemixing’ was . . . grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites.” 883 F. 3d, at 158–159 (Lynch, J., dissenting).
Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips 66 Co., 915 F. 3d 328, 338 (CA5 2019) (Ho, J., concurring).
3
The opinion of the Court intimates that the term “sex” was not universally understood in 1964 to refer just to the categories of male and female, see ante, at 5, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject.
As previously noted, the definitions of “sex” in the unabridged dictionaries in use in the 1960s are reproduced in Appendix A, infra. Anyone who examines those definitions can see that the primary definition in every one of them refers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addition, some definitions refer to heterosexual sex acts. See

—————— tinctions based on sex. Title 42 U. S. C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” Race is wholly absent from this list.

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Random House Dictionary 1307 (“coitus,” “sexual intercourse” (defs. 5–6)); American Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).19
Aside from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), refers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking? And even if Title VII had that effect, that is not what is at issue in cases like those before us.
That brings us to the two remaining subsidiary definitions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the American Heritage Dictionary, at 1187 (“the sexual urge or instinct as it manifests itself in behavior”), and the fourth definition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 2296 (2d ed.); Webster’s Third New International Dictionary 2081 (1966)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape?
Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in Appendix B, infra.) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just
—————— 19 See American Heritage Dictionary 1188 (1969) (defining “sexual in-
tercourse”); Webster’s Third New International Dictionary 2082 (1966) (same); Random House Dictionary of the English Language 1308 (1966) (same).

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discussed.
II A
So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. Ibid. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment?
Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 16 (emphasis added).20
Leading proponents of Justice Scalia’s school of textualism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textualists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context,” id., at 79–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic
—————— 20 See also Chisom v. Roemer, 501 U. S. 380, 405 (1991) (Scalia, J., dis-
senting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them . . . and apply the meaning so determined”).

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community apply shared background conventions for understanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore, judges should ascribe to the words of a statute “what a reasonable person conversant with applicable social conventions would have understood them to be adopting.” Manning, 106 Colum. L. Rev., at 77. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” Manning, 116 Harv. L. Rev., at 2397– 2398.
Judge Frank Easterbrook has made the same points:
“Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. . . . Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” Herrmann v. Cencom Cable Assocs., Inc., 978 F. 2d 978, 982 (CA7 1992).
Consequently, “[s]licing a statute into phrases while ignoring . . . the setting of the enactment . . . is a formula for disaster.” Ibid.; see also Continental Can Co. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund, 916 F. 2d 1154, 1157 (CA7 1990) (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”).
Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a

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distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.
For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity?
B
The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds.
1
In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and wellunderstood concept, and what it meant was equal treatment for men and women.

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Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” Art. XX, §18 (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” Art. IX, §9; accord, Mont. Const., Art. XI, §9 (1889).
Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” Art. VI, §1 (1890), and then provided specifically that “[i]n none of the public schools . . . shall distinction or discrimination be made on account of sex,” Art. VII, §10 (emphasis added); see also §16 (the “university shall be equally open to students of both sexes”). Washington’s Constitution likewise required “ample provision for the education of all children . . . without distinction or preference on account of . . . sex.” Art. IX, §1 (1889) (emphasis added).
The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex.” Art. IV, §1 (emphasis added). And in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens . . . shall enjoy equally all civil, political and religious rights and privileges.” Ibid.
The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., Amdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights Amendment. As framed in 1921, this proposal forbade all “political, civil or legal disabilities or inequalities on account of sex, [o]r on account of marriage.”

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Women Lawyers Meet: Representatives of 20 States Endorse Proposed Equal Rights Amendment, N. Y. Times, Sept. 16, 1921, p. 10.
Similar terms were used in the precursor to the Equal Pay Act. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against employees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 5056, 78th Cong., 2d Sess.
In 1952, the new Constitution for Puerto Rico, which was approved by Congress, 66 Stat. 327, prohibited all “discrimination . . . on account of . . . sex,” Art. II, Bill of Rights §1 (emphasis added), and in the landmark Immigration and Nationality Act of 1952, Congress outlawed discrimination in naturalization “because of . . . sex.” 8 U. S. C. §1422 (emphasis added).
In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of . . . sex.” Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, Art. 1(a), June 25, 1958, 362 U. N. T. S. 32 (emphasis added).
In 1961, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to assure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex.”21 He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in government and private employment on the basis of sex.” Exec. Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis
—————— 21 J. Kennedy, Statement by the President on the Establishment of
the President’s Commission on the Status of Women 3 (Dec. 14, 1961) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/ JFKPOF/093/JFKPOF-093-004.

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added). In short, the concept of discrimination “because of,” “on
account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.22
2
Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day.
For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment.

—————— 22 Analysis of the way Title VII’s key language was used in books and
articles during the relevant time period supports this conclusion. A study searched a vast database of documents from that time to determine how the phrase “discriminate against . . . because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (manuscript, at 3) (May 11, 2020) (brackets in original), https://ssrn.com/ abstract=3585940. The study found that the phrase was used to denote discrimination against “someone . . . motivated by prejudice, or biased ideas or attitudes . . . directed at people with that trait in particular.” Id., at 7 (emphasis deleted). In other words, “discriminate against” was “associated with negative treatment directed at members of a discrete group.” Id., at 5. Thus, as used in 1964, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that particular sex. Id., at 7.

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In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the American Psychiatric Association (APA) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic personality disturbance,” id., at 38–39, and the next edition, issued in 1968, similarly classified homosexuality as a “sexual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.23
Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 (2008), and in the District of Columbia, a law enacted by Congress made sodomy a felony punishable by imprisonment for up to 10 years and permitted the indefinite civil commitment of “sexual psychopath[s],” Act of June 9, 1948, §§104, 201–207, 62 Stat. 347– 349.24

—————— 23 APA, Homosexuality and Sexual Orientation Disturbance: Proposed
Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by . . . or wish to change their sexual orientation,” and explaining that “homosexuality . . . by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. 1980) (DSM–III) (similarly creating category of “Ego-dystonic Homosexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not considered a mental disorder”); Obergefell v. Hodges, 576 U. S. 644, 661 (2015).
24 In 1981, after achieving home rule, the District attempted to decriminalize sodomy, see D. C. Act No. 4–69, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 22764–22779 (1981). Sodomy was not decriminalized in the District until 1995. See Anti-Sexual Abuse Act of 1994, §501(b), 41 D. C. Reg. 53 (1995), enacted as D. C. Law 10–257.

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This view of homosexuality was reflected in the rules governing the federal work force. In 1964, federal “[a]gencies could deny homosexual men and women employment because of their sexual orientation,” and this practice continued until 1975. GAO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Process 2 (GAO/NSIAD–95–21, 1995). See, e.g., Anonymous v. Macy, 398 F. 2d 317, 318 (CA5 1968) (affirming dismissal of postal employee for homosexual acts).
In 1964, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. A 1953 Executive Order provided that background investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.). “Until about 1991, when agencies began to change their security policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GAO, Security Clearances, at 2. See, e.g., Adams v. Laird, 420 F. 2d 230, 240 (CADC 1969) (upholding denial of security clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Webster v. Doe, 486 U. S. 592, 595, 601 (1988) (concluding that decision to fire a particular individual because he was homosexual fell within the “discretion” of the Director of Central Intelligence under the National Security Act of 1947 and thus was unreviewable under the APA).
The picture in state employment was similar. In 1964, it was common for States to bar homosexuals from serving as teachers. An article summarizing the situation 15 years after Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates

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(or credentials) for immorality, moral turpitude, or unprofessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”25
The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code Ann. §§13202, 13207, 13209, 13218, 13255 (West 1960). The teaching certificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249 Cal. App. 2d 58, 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (upholding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual conduct on public beach), overruled in part, Morrison v. State Bd. of Ed., 1 Cal. 3d 214, 461 P. 2d 375 (1969).
In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. Ann. §229.08(16) (1961), and this law was used to target homosexual conduct. In 1964, a legislative committee was wrapping up a 6-year campaign to remove homosexual teachers from public schools and state universities. As a result of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103.
Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”26 See, e.g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in
—————— 25 Rivera, Our Straight-Laced Judges: The Legal Position of Homosex-
ual Persons in the United States, 30 Hastings L. J. 799, 861 (1979). 26 Eskridge, Challenging the Apartheid of the Closet: Establishing
Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981, 25 Hofstra L. Rev. 817, 819 (1997).

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public bathroom). In 1964 and for many years thereafter, homosexuals were
barred from the military. See, e.g., Army Reg. 635–89, §I(2) (a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt separation is mandatory”); Army Reg. 600–443, §I(2) (April 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515 (repealing 10 U. S. C. §654, which required members of the Armed Forces to be separated for engaging in homosexual conduct).
Homosexuals were also excluded from entry into the United States. The Immigration and Nationality Act of 1952 (INA) excluded aliens “afflicted with psychopathic personality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v. INS, 387 U. S. 118, 120–123 (1967), this Court, relying on the INA’s legislative history, interpreted that term to encompass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”27 But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the INA’s express prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimination because of sexual orientation were viewed as two entirely different concepts.
To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our
—————— 27 Justices Douglas and Fortas thought that a homosexual is merely
“one, who by some freak, is the product of an arrested development.” Boutilier, 387 U. S., at 127 (Douglas, J., dissenting); see also id., at 125 (Brennan, J., dissenting) (based on lower court dissent).

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duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment.
The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity. Chisom v. Roemer, 501 U. S. 380, 410 (1991) (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the statute. Ibid. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity.
The Court makes a tiny effort to suggest that at least some people in 1964 might have seen what Title VII really means. Ante, at 26. What evidence does it adduce? One complaint filed in 1969, another filed in 1974, and arguments made in the mid-1970s about the meaning of the Equal Rights Amendment. Ibid. To call this evidence

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merely feeble would be generous.
C
While Americans in 1964 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewildered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 1970s,’ ”28 and the term “gender identity,” now understood to mean “[a]n internal sense of being male, female or something else,”29 apparently first appeared in an academic article in 1964.30 Certainly, neither term was in common parlance; indeed, dictionaries of the time still primarily defined the word “gender” by reference to grammatical classifications. See, e.g., American Heritage Dictionary, at 548 (def. 1(a)) (“Any set of two or more categories, such as masculine, feminine, and neuter, into which words are divided . . . and that determine agreement with or the

—————— 28 Drescher, Transsexualism, Gender Identity Disorder and the DSM,
14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 American Psychological Association, 49 Monitor on Psychology, at
32. 30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 Archives
Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (1964). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-Analytical Congress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCLA in 1962). In his book, Sex and Gender, published in 1968, Robert Stoller referred to “gender identity” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii.

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selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been indi-
viduals who experience what is now termed “gender dysphoria,” i.e., “[d]iscomfort or distress related to an incongruence between an individual’s gender identity and the gender assigned at birth,”31 the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults.32 DSM–III, at 261–266.
The first widely publicized sex reassignment surgeries in the United States were not performed until 1966,33 and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was either “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34
It defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.
D 1
The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is
—————— 31 American Psychological Association, 49 Monitor on Psychology, at
32. 32 See Drescher, supra, at 112. 33 Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins,
N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002).
34 Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsexualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 1969)).

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clear, and therefore it simply does not matter whether people in 1964 were “smart enough to realize” what its language means. Hively, 853 F. 3d, at 357 (Posner, J., concurring). According to the Court, an argument that looks to the societal norms of those times represents an impermissible attempt to displace the statutory language. Ante, at 25–26.
The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted.
In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 (1998). But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project.
The Court’s unanimous decision in Oncale was thoroughly unremarkable. The Court held that a male employee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. Although the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would immediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986). Given these premises, syllogistic reasoning dictated the holding.

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What today’s decision latches onto are Oncale’s comments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. Ante, at 28 (quoting 523 U. S., at 79). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory 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.” 523 U. S., at 79 (emphasis added).
It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules. These comments are better understood as stating mundane and uncontroversial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “purposivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”?
Properly understood, Oncale does not provide the slightest support for what the Court has done today. For one thing, it would be a wild understatement to say that discrimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 1964. Whether we like to admit it now or not, in the thinking of Congress and the public at that time, such discrimination would not have been evil at all.
But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the statutory text as it would have been understood in 1964. To

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decide for the defendants in Oncale, it would have been necessary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 1964, the text of Title VII does not support the Court’s holding. And the reasoning of Oncale does not preclude or counsel against our taking those norms into account. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been understood at the time.
2
The Court argues that two other decisions––Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), and Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips, the employer treated women with young children less favorably than men with young children. In Manhart, the employer required women to make larger pension contributions than men. It is hard to see how these holdings assist the Court.
The Court extracts three “lessons” from Phillips, Manhart, and Oncale, but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Ante, at 14. This lesson is obviously true but proves nothing. As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an employer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s

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conduct is not sex discrimination, the statute does not apply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of biological sex. For reasons already discussed, see Part I–A, supra, it is not.
It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that discrimination on a prohibited ground was not its sole motivation. So long as a prohibited ground was a motivating factor, the existence of other motivating factors does not defeat liability.
The Court makes much of the argument that “[i]n Phillips, the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” Ante, at 14; see also ante, at 16. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distinguishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children.
Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante, at 14—is similarly unhelpful. The standard of causation in these cases is whether sex is necessarily a “motivating factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U. S. C. §2000e– 2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what causation standard applied. The Court’s extensive discussion of causation standards is so much smoke.
Lesson number three––“an employer cannot escape liability by demonstrating that it treats males and females comparably as groups,” ante, at 15, is also irrelevant. There

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is no dispute that discrimination against an individual employee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average employee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it matter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips. That is not the issue here. An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–A, supra.
III A
Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history.
So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court’s interpretation.
B
As the Court explained in General Elec. Co. v. Gilbert, 429 U. S. 125, 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the

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House of Representatives,” Meritor Savings Bank, 477 U. S., at 63, by Representative Howard Smith, the Chairman of the Rules Committee. See 110 Cong. Rec. 2577 (1964). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g., Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1085 (CA7 1984). On this theory, Representative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.35 But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representative Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex.36 See 110 Cong. Rec. 2577–2584.
Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they

—————— 35 See Osterman, Origins of a Myth: Why Courts, Scholars, and the
Public Think Title VII’s Ban on Sex Discrimination Was an Accident, 20 Yale J. L. & Feminism 409, 409–410 (2009).
36 Recent scholarship has linked the adoption of the Smith Amendment to the broader campaign for women’s rights that was underway at the time. E.g., Osterman, supra; Freeman, How Sex Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163 (1991); Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity.

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were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id., at 140. “Discrimination against gay women and men, by contrast, was not on the table for public debate . . . [i]n those dark, preStonewall days.” Ibid.
For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s legislative history cannot be missed.
C
Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra, at 2, and two such bills were before Congress in 199137 when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation,38 two other Circuits had endorsed that interpretation in dicta,39 and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument

—————— 37 H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House
on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the Senate on Mar. 6, 1991).
38 See Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam), cert. denied, 493 U. S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam).
39 Ruth v. Children’s Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084– 1085 (CA7 1984), cert. denied, 471 U. S. 1017 (1985).

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that it covered discrimination on this basis.40 These were also the positions of the EEOC.41 In enacting substantial changes to Title VII, the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also disagreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.42
After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001), cert. denied, 534 U. S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F. 3d 138, 143 (CA4 1996); Hamm v. Weyauwega Milk Products, Inc., 332 F. 3d 1058, 1062 (CA7 2003); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005); Evans v. Georgia Regional Hospital, 850 F. 3d 1248, 1255 (CA11), cert. denied, 583 U. S. ___ (2017). Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit Authority, 502 F. 3d 1215, 1220–1221 (CA10
—————— 40 See Ulane, 742 F. 2d, at 1084–1085; Sommers v. Budget Mktg., Inc.,
667 F. 2d 748, 750 (CA8 1982) (per curiam); Holloway v. Arthur Andersen & Co., 566 F. 2d 659, 661–663 (CA9 1977).
41 Dillon v. Frank, 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990); LaBate v. USPS, 1987 WL 774785, *2 (EEOC, Feb. 11, 1987).
42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has referred to those grounds by name. See, e.g., 18 U. S. C. §249(a)(2)(A) (hate crimes) (enacted 2009); 34 U. S. C. §12291(b)(13)(A) (certain federally funded programs) (enacted 2013).

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2007). The Court observes that “[t]he people are entitled to rely
on the law as written, without fearing that courts might disregard its plain terms,” ante, at 24, but it has no qualms about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” Ante, at 31. Is it humble to maintain, not only that Congress did not understand the terms it enacted in 1964, but that all the Circuit Judges on all the pre2017 cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.
IV
What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante, at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s.
The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least

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some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead.
As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty.
I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.43
“[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.44
Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the
—————— 43 Contrary to the implication in the Court’s opinion, I do not label
these potential consequences “undesirable.” Ante, at 31. I mention them only as possible implications of the Court’s reasoning.
44 Brief for Defend My Privacy et al. as Amici Curiae 7–10.

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sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time.45 Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed.
A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.46 In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,47 and some lower court decisions have agreed. See Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Ed., 858 F. 3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. School Bd., 822 F. 3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. of St. Johns Cty., 318 F. Supp. 3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area

—————— 45 See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (ex-
plaining that “gender is now often regarded as more fluid” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”).
46 Title IX makes it unlawful to discriminate on the basis of sex in education: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U. S. C. §1681(a).
47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 2016 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-titleix-transgender.pdf.

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School Dist., 897 F. 3d 518, 533 (CA3 2018), cert. denied, 587 U. S. ___ (2019).
Women’s sports. Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex.48 This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. See, e.g., Complaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv– 00201 (D Conn., Apr. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little, No. 1:20– cv–00184 (D Idaho, Apr. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic competitions reserved for females.49

—————— 48 A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but
the statute itself would of course take precedence. 49 “[S]ince 2017, two biological males [in Connecticut] have collectively
won 15 women’s state championship titles (previously held by ten different Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as Amici Curiae in No. 18–107, pp. 14–15.
At the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Division II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles the

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The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgender status, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson, 433 U. S. 321, 334 (1977).
Housing. The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.50 Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604.
Employment by religious organizations. Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith-

—————— year before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” Id., at 15.
A transgender male—i.e., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in 2017. Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017, p. A1, col. 1.
50 Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4.

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based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”51 They argue that “[r]eligious organizations need employees who actually live the faith,”52 and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.
This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”53 Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.
At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.”54 But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for

—————— 51 Brief for National Association of Evangelicals et al. as Amici Curiae
3; see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, pp. 8–18.
52 Brief for National Association of Evangelicals et al. as Amici Curiae 7.
53 McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).
54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–267; St. James School v. Biel, No. 19–348.

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the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.55
Healthcare. Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.56 Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.57
—————— 55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F. 2d
458, 460 (CA9 1993); EEOC v. Fremont Christian School, 781 F. 2d 1362, 1365–1367 (CA9 1986); Rayburn v. General Conference of Seventh-day Adventists, 772 F. 2d 1164, 1166 (CA4 1985); EEOC v. Mississippi College, 626 F. 2d 477, 484–486 (CA5 1980); see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U. S. C. §2000e– 2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See supra, at 48.
56 See, e.g., Amended Complaint in Toomey v. Arizona, No. 4:19–cv– 00035 (D Ariz., Mar. 2, 2020). At least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. Alaska, ___ F. Supp. 3d ___, ___, 2020 WL 2487060, *5 (D Alaska, Mar. 6, 2020).
57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System, No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimination under the ACA because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). And multiple District Courts have already concluded that the ACA requires health insurance coverage for sex reassignment surgery and treatment. Kadel v. Folwell, ___ F. Supp. 3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11, 2020) (allowing

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Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs.
Freedom of speech. The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.58 Some jurisdictions, such as
—————— claims of discrimination under ACA, Title IX, and Equal Protection Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 952–954 (D Minn. 2018) (allowing ACA claim).
Section 1557 of the ACA, 42 U. S. C. §18116, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U. S. C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U. S. C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U. S. C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” (Footnote omitted.) 58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns (2020), https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers;

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New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,59 and some colleges have similar rules.60 After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination. See Prescott v. Rady Children’s Hospital San Diego, 265 F. Supp. 3d 1090, 1098–1100 (SD Cal. 2017) (hospital staff ’s refusal to use preferred pronoun violates ACA).61
The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear
—————— ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs).
59 See 47 N. Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate refusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. Code §8–107 “where the refusal is motivated by the individual’s gender”); see also N. Y. C. Admin. Code §§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the basis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, §801.1 (2020) (making it “unlawful . . . to discriminate . . . on the basis of . . . actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educational institutions” and further proscribing “engaging in verbal . . . harassment”).
60 See University of Minn., Equity and Access: Gender Identity, Gender Expression, Names, and Pronouns, Administrative Policy (Dec. 11, 2019), https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as legally required”); Meriwether v. Trustees of Shawnee State Univ., 2020 WL 704615, *1 (SD Ohio, Feb. 12, 2020) (rejecting First Amendment challenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns).
61 Cf. Notice of Removal in Vlaming v. West Point School Board, No. 3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX).

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that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims.
Constitutional claims. Finally, despite the important differences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 8); United States v. Virginia, 518 U. S. 515, 532–534 (1996). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review.
Under this logic, today’s decision may have effects that extend well beyond the domain of federal antidiscrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g., Complaint in Hecox, No. 1: 20–CV–00184 (state law prohibiting transgender students from competing in school sports in accordance with their gender identity); Second Amended Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (WD Wash., July 31, 2019) (military’s ban on transgender members); Kadel v. Folwell, ___ F. Supp. 3d ___, ___–___, 2020 WL 1169271, *10–*11 (MDNC, Mar. 11, 2020) (state health plan’s exclusion of coverage for sex reassignment procedures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (MD Tenn., Mar. 3, 2020) (change of gender on birth certificates); Brief for Appellee in Grimm v. Gloucester Cty. School Bd., No. 19–1952 (CA4, Nov. 18, 2019) (transgender student forced to use gender neutral bathrooms at school); Complaint in Corbitt v. Taylor, No. 2:18–cv–00091 (MD Ala.,

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ALITO, J., dissenting
July 25, 2018) (change of gender on driver’s licenses); Whitaker, 858 F. 3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. of Corrections Secretary, 952 F. 3d 1257, 1262–1265 (CA11 2020) (transgender prisoner denied hormone therapy and ability to dress and groom as a female); Edmo v. Corizon, Inc., 935 F. 3d 757, 767 (CA9 2019) (transgender prisoner requested sex reassignment surgery); cf. Glenn v. Brumby, 663 F. 3d 1312, 1320 (CA11 2011) (transgender individual fired for gender non-conformity).
Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.
* * *
The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is.
The Court itself recognizes this:
“The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” Ante, at 31.
It is easy to utter such words. If only the Court would live by them.
I respectfully dissent.

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Appendix A to opinion of ALITO, J.
APPENDIXES A

Webster’s New International Dictionary 2296 (2d ed. 1953):
sex (sĕks), n. [F. sexe, fr. L. sexus; prob. orig., division, and akin to L. secare to cut. See SECTION.] 1. One of the two divisions of organisms formed on the distinction of male and female; males or females collectively. 2. The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctive function of the male or female in reproduction. Conjugation, or fertilization (union of germplasm of two individuals), a process evidently of great but not readily explainable importance in the perpetuation of most organisms, seems to be the function of differentiation of sex, which occurs in nearly all organisms at least at some stage in their life history. Sex is manifested in the conjugating cells by the larger size, abundant food material, and immobility of the female gamete (egg, egg cell, or ovum), and the small size and the locomotive power of the male gamete (spermatozoon or spermatozoid), and in the adult organisms often by many structural, physiological, and (in higher forms) psychological characters, aside from the necessary modification of the reproductive apparatus. Cf. , HERMAPHRODITE 1. In botany the term sex is often extended to the distinguishing peculiarities of staminate and pistillate flowers, and hence in dioecious plants to the individuals bearing them. In many animals and plants the body and germ cells have been shown to contain one or more chromosomes of a special kind (called sex chromosomes; idiochromosomes; accessory chromosomes) in addition to the ordinary paired autosomes. These special chromosomes serve to

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Appendix A to opinion of ALITO, J.
determine sex. In the simplest case, the male germ cells are of two types, one with and one without a single extra chromosome (X chromosome, or monosome). The egg cells in this case all possess an X chromosome, and on fertilization by the two types of sperm, male and female zygotes result, of respective constitution X, and XX. In many other animals and plants (probably including man) the male organism produces two types of gametes, one possessing an X chromosome, the other a Y chromosome, these being visibly different members of a pair of chromosomes present in the diploid state. In this case also, the female organism is XX, the eggs X, and the zygotes respectively male (XY) and female (XX). In another type of sex determination, as in certain moths and possibly in the fowl, the female produces two kinds of eggs, the male only one kind of sperm. Each type of egg contains one member of a pair of differentiated chromosomes, called respectively Z chromosomes and W chromosomes, while all the sperm cells contain a Z chromosome. In fertilization, union of a Z with a W gives rise to a female, while union of two Z chromosomes produces a male. Cf. SECONDARY SEX CHARACTER. 3. a The sphere of behavior dominated by the relations between male and female. b Psychoanalysis. By extension, the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct. 4. Phenomena of sexual instincts and their manifestations. 5. Sect;—a confused use. Syn.—SEX, GENDER. SEX refers to physiological distinctions; GENDER, to distinctions in grammar. —the sex. The female sex; women, in general. sex, adj. Based on or appealing to sex. sex, v. t. To determine the sex of, as skeletal remains.

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Webster’s Third New International Dictionary 2081 (1966):

1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akin
to L secare to cut–more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated
male or female <a member of the opposite ~> 2: the sum of the morphological, physiological, and behavioral pecu-
liarities 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 chromo-
somes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the
same individual in many plants and some invertebrates and though no such distinction can be made in many
lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in
sexual reproduction are indistinguishable—compare HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE,
INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with,
leading up to, substituting for, or resulting from genital union <agree that the Christian’s attitude toward ~
should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combina-
tion of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying
and assembling what modern scientists have discovered about ~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William

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Empson> 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic
being) <it is difficult to ~ the animals at a distance—E. A. Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

9 Oxford English Dictionary 577–578 (1933):

Sex (seks), sb. Also 6–7 sexe, (6 seex, 7 pl. sexe, 8 poss. sexe’s). [ad. L. sexus (u-stem), whence also F. sexe (12th c.), Sp., Pg. sexo, It. sesso. Latin had also a form secus neut. (indeclinable).]
1. Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (of a species, etc., esp. of the human race) viewed collectively.
1382 WYCLIF Gen. vi. 19 Of alle thingis hauynge sowle of ony flehs, two thow shalt brynge
into the ark, that maal sex and femaal lyuen with thee. 1532 MORE Confut. Tindale II. 152, I
had as leue he bare them both a bare cheryte, as wyth the frayle feminyne sexe fall to far in
loue. 1559 ALYMER Harborowe E 4 b, Neither of them debarred the heires female .. as though
it had ben .. vnnatural for that sexe to gouern. 1576 GASCOIGNE Philomene xcviii, I speake
against my sex. a 1586 SIDNEY Arcadia II. (1912) 158 The sexe of womankind of all other is
most bound to have regardfull eie to mens judgements. 1600 NASHE Summer’s Last Will F 3
b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 1615
CROOKE Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male is
sooner perfected .. in the wombe. 1634 SIR T. HERBERT Trav. 19 Both sexe goe naked. 1667
MILTON P. L. IX, 822 To add what wants In Femal Sex. 1671—Samson 774 It was a weakness
In me, but incident to all our sex. 1679 DRYDEN Troilus & Cr. I. ii, A strange dissembling sex
we women are. 1711 ADDISON Spect. No. 10 ¶ 6 Their Amusements .. are more adapted to the
Sex than to the Species. 1730 SWIFT Let. to Mrs. Whiteway 28 Dec., You have neither the
scrawl nor the spelling of your sex. 1742 GRAY Propertius II. 73 She .. Condemns her fickle
Sexe’s fond Mistake. 1763 G. WILLIAMS in Jesse Selwyn & Contemp. (1843) I. 265 It would

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Appendix A to opinion of ALITO, J.
astonish you to see the mixture of sexes at this place. 1780 BENTHAM Princ. Legisl. VI. §35 The sensibility of the female sex appears .. to be greater than that of the male. 1814 SCOTT Ld. of Isles VI. iii, Her sex’s dress regain’d. 1836 THIRLWALL Greece xi. II. 51 Solon also made regulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety and necessity of dividing the sexes during the publick offices of the Church. 1848 THACKERAY Van. Fair xxv, She was by no means so far superior to her sex as to be above jealousy. 1865 DICKENS Mut. Fr. II. i, It was a school for both sexes. 1886 MABEL COLLINS Prettiest Woman ii, Zadwiga had not yet given any serious attention to the other sex.
b. collect. followed by plural verb. rare.
1768 GOLDSM. Good. n. Man IV. (Globe) 632/2 Our sex are like poor tradesmen. 1839 MALCOM Trav. (1840) 40/I Neither sex tattoo any part of their bodies.
c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout sex; the second sex; † the woman sex: the female sex, women. The † better, sterner sex: the male sex, men.
[1583 STUBBES Anat. Abus. E vij b, Ye magnificency & liberalitie of that gentle sex. 1613 PURCHAS Pilgrimage (1614) 38 Strong Sampson and wise Solomon are witnesses, that the strong men are slaine by this weaker sexe.]
1641 BROME Jovial Crew III. (1652) H 4, I am bound by a strong vow to kisse all of the woman sex I meet this morning. 1648 J. BEAUMONT Psyche XIV. I, The softer sex, attending Him And his still-growing woes. 1665 SIR T. HERBERT Trav. (1677) 22 Whiles the better sex seek prey abroad, the women (therein like themselves) keep home and spin. 1665 BOYLE Occas. Refl. v. ix. 176 Persons of the fairer Sex. a 1700 EVELYN Diary 12 Nov. an. 1644, The Pillar .. at which the devout sex are always rubbing their chaplets. 1701 STANHOPE St. Aug. Medit. I. xxxv. (1704) 82, I may .. not suffer my self to be outdone by the weaker Sex. 1732 [see FAIR a. I b]. 1753 HOGARTH Anal. Beauty x. 65 An elegant degree of plumpness peculiar to the skin of the softer sex. 1820 BYRON Juan IV. cviii, Benign Ceruleans of the second sex! Who advertise new poems by your looks. 1838 Murray’s Hand-bk. N. Germ. 430 It is much frequented by the fair sex. 1894 C. D. TYLER in Geog. Jrnl. III. 479 They are beardless, and usually wear a shock of unkempt hair, which is somewhat finer in the gentler sex.
¶d. Used occas. with extended notion. The third sex: eunuchs. Also sarcastically (see quot. 1873).
1820 BYRON Juan IV. lxxxvi, From all the Pope makes yearly, ‘twould perplex To find three perfect pipes of the third sex. Ibid. V. xxvi, A black old neutral personage Of the third sex stept up. [1873 LD. HOUGHTON Monogr. 280 Sydney Smith .. often spoke with much bitterness of the growing belief in three Sexes of Humanity—Men, Women, and Clergymen.]
e. The sex: the female sex. [F. le sexe.] Now rare.

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1589 PUTTENHAM Eng. Poesie III. xix. (Arb.) 235 As he that had tolde a long tale before certaine noble women, of a matter somewhat in honour touching the Sex. 1608 D. T[UVILL] Ess. Pol. & Mor. 101 b, Not yet weighing with himselfe, the weaknesse and imbecillitie of the sex. 1631 MASSINGER Emperor East I. ii, I am called The Squire of Dames, or Servant of the Sex. 1697 VANBRUGH Prov. Wife II. ii, He has a strange penchant to grow fond of me, in spite of his aversion to the sex. 1760-2 GOLDSM. Cit. W. xcix, The men of Asia behave with more deference to the sex than you seem to imagine. 1792 A. YOUNG Trav. France I. 220 The sex of Venice are undoubtedly of a distinguished beauty. 1823 BYRON Juan XIII. lxxix, We give the sex the pas. 1863 R. F. BURTON W. Africa I. 22 Going ‘up stairs’, as the sex says, at 5 a.m. on the day after arrival, I cast the first glance at Funchal.
f. Without the, in predicative quasi-adj. use=feminine. rare.
a 1700 DRYDEN Cymon & Iph. 368 She hugg’d th’ Offender, and forgave th’ Offence, Sex to the last!
2. Quality in respect of being male or female. a. With regard to persons or animals.
1526 Pilgr. Perf. (W. de. W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of his kynde, nor yet hath ony distinct sex. 1577 T. KENDALL Flowers of Epigr. 71 b, If by corps supposd may be her seex, then sure a virgin she. 1616 T. SCOTT Philomythie I. (ed. 2) A 3 Euen as Hares change shape and sex, some say Once euery yeare. 1658 SIR T. BROWNE Hydriot. iii. 18 A critical view of bones makes a good distinction of sexes. a 1665 DIGBY Chym. Secrets (1682) II. 225 Persons of all Ages and Sexes. 1667 MILTON P. L. I. 424 For Spirits when they please can either Sex assume, or both. 1710-11 SWIFT Jrnl. to Stella 7 Mar., I find I was mistaken in the sex, ‘tis a boy. 1757 SMOLLETT Reprisal IV. v, As for me, my sex protects me. 1825 SCOTT Betrothed xiii, I am but a poor and neglected woman, feeble both from sex and age. 1841 ELPHINSTONE Hist. India I. 349 When persons of different sexes walk together, the woman always follows the man. 1882 TENSION-WOODS Fish N. S. Wales 116 Oysters are of distinct sexes.
b. with regard to plants (see FEMALE a. 2, MALE a. 2).
1567 MAPLET Gr. Forest 28 Some seeme to haue both sexes and kindes: as the Oke, the Lawrell and such others. 1631 WIDDOWES Nat. Philos. (ed. 2) 49 There be sexes of hearbes .. namely, the Male or Female. 1720 P. BLAIR Bot. Ess. iv. 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. 1790 SMELLIE Philos. Nat. Hist. I. 245 There is not a notion more generally adopted, that that vegetables have the distinction of sexes. 1848 LINDLEY Introd. Bot. (ed. 4) II. 80 Change of Sex under the influence of external causes.

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Appendix A to opinion of ALITO, J.
3. The distinction between male and female in general. In recent use often with more explicit notion: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned.
Organs of sex: the reproductive organs in sexed animals or plants.
a 1631 DONNE Songs & Sonn., The Printrose Poems 1912 I. 61 Should she Be more then
woman, she would get above All thought of sexe, and think to move My heart to study her,
and not to love. a 1643 CARTWRIGHT Siedge III. vi, My Soul’s As Male as yours; there’s no Sex
in the mind. 1748 MELMOTH Fitzosborne Lett. lxii. (1749) II. 119 There may be a kind of sex
in the very soul. 1751 HARRIS Hermes Wks. (1841) 129 Besides number, another characteris-
tic, visible in substances, is that of sex. 1878 GLADSTONE Prim. Homer 68 Athenè .. has noth-
ing of sex except the gender, nothing of the woman except the form. 1887 K. PEARSON Eth.
Freethought xv. (1888) 429 What is the true type of social (moral) action in matters of sex?
1895 CRACKANTHORPE in 19th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The
writers and readers who have strenuously refused to allow to sex its place in creative art.
1912 H. G. WELLS Marriage ii. § 6. 72 The young need .. to be told .. all we know of three
fundamental things; the first of which is God, .. and the third Sex.
¶ 4. Used, by confusion, in senses of SECT (q. v. I, 4 b, 7, and cf. I d note).
1575-85 ABP. SANDYS Serm. xx. 358 So are all sexes and sorts of people called vpon. 1583
MELBANCKE Philotimus L iij b, Whether thinkest thou better sporte & more absurd, to see an
Asse play on an harpe contrary to his sex, or heare [etc.]. 1586 J. HOOKER Hist. Irel. 180/2 in
Holinshed, The whole sex of the Oconhours. 1586 T. B. La Primaud. Fr. Acad. I. 359 O de-
testable furie, not to be found in most cruell beasts, which spare the blood of their sexe. a
1704 T BROWN Dial. Dead, Friendship Wks. 1711 IV. 56 We have had enough of these Chris-
tians, and sure there can be no worse among the other Sex of Mankind [i.e. Jews and Turks]?
1707 ATTERBURY Large Vind. Doctr. 47 Much less can I imagine, why a Jewish Sex (whether
of Pharisees or Saducees) should be represented, as [etc.].
5. attrib. and Comb., as sex-distinction, function, etc.; sexabusing, transforming adjs.; sex-cell, a reproductive cell, with either male or female function; a sperm-cell or an eggcell.
1642 H. MORE Song of Soul I. III. lxxi, Mad-making waters, sex trans-forming springs.

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1781 COWPER Expost. 415 Sin, that in old time Brought fire from heav’n, the sex-abusing crime. 1876 HARDY Ethelberta xxxvii, You cannot have celebrity and sex-privilege both. 1887 Jrnl. Educ. No. 210. 29 If this examination craze is to prevail, and the sex-abolitionists are to have their way. 1889 GEDDES & THOMSON Evol. Sex 91 Very commonly the sex-cells originate in the ectoderm and ripen there. 1894 H. DRUMMOND Ascent of Man 317 The sex-distinction slowly gathers definition. 1897 J. HUTCHINSON in Arch. Surg. VIII. 230 Loss of Sex Function.
Sex (seks), v. [f. SEX sb.] trans. To determine the sex of, by anatomical examination; to label as male or female.
1884 GURNEY Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex noted on the drawing. 1888 A. NEWTON in Zoologist Ser. 111. XII. 101 The .. barbarous phrase of ‘collecting a specimen’ and then of ‘sexing’ it.

Concise Oxford Dictionary of Current English 1164 (5th ed. 1964):

sĕx, n. Being male or female or hermaphrodite (what is its ~?; ~ does not matter; without distinction of age or ~),
whence ~’LESS a., ~’lėssNESS n., ~’Y2 a., immoderately concerned with ~; males or females collectively (all ranks &
both ~es; the fair, gentle, softer, weaker, ~, & joc. the ~, women; the sterner ~, men; is the fairest of her ~); (attrib.)
arising from difference, or consciousness, of ~ (~ antagonism, ~ instinct, ~ urge); ~ appeal, attractiveness arising
from difference of ~. [f. L sexus –ūs; partly thr. F]

Random House Dictionary of the English Language 1307 (1966):

sex (seks), n. 1. The fact or character of being either male or female: persons of different sex. 2. either of the two
groups of persons exhibiting this character: the stronger sex; the gentle sex. 3. the sum of the structural and func-
tional differences by which the male and female are distinguished, or the phenomena or behavior dependent on
these differences. 4. the instinct or attraction drawing one sex toward another, or its manifestation in life and

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63

Appendix B to opinion of ALITO, J.
conduct. 5. coitus. 6. to have sex, Informal. to engage in sexual intercourse. –v.t. 7. to ascertain the sex of, esp. of newly hatched chicks. 8. sex it up, Slang. to neck passionately: They were really sexing it up last night. 9. sex up, Informal. a. to arouse sexually: She certainly knows how to sex up the men. b. to increase the appeal of; to make more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [ME < L sex(us), akin to secus, deriv. of secāre to cut, divide; see SECTION]

American Heritage Dictionary 1187 (1969):

sex (sĕks) n. 1. a. The property or quality by which organ-
isms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification. 2. Males or females collec-
tively. 3. The condition or character of being male or female; the physiological, functional, and psychological
differences that distinguish the male and the female. 4. The sexual urge or instinct as it manifests itself in behav-
ior. 5. Sexual intercourse. –tr.v. sexed, sexing, sexes. To determine the sex of (young chickens). [Middle Eng-
lish, from Old French sexe, from Latin sexus†.]

B
Webster’s Third New International Dictionary 2081 (2002):
1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akin to L secare to cut—more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated male or female <a member of the opposite ~> 2: the sum of the morphological, physiological, and behavioral

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Appendix B to opinion of ALITO, J.
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 chromosomes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the same individual in many plants and some invertebrates and though no such distinction can be made in many lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in sexual reproduction are indistinguishable—compare HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE, INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with, leading up to, substituting for, or resulting from genital union <agree that the Christian’s attitude toward ~ should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combination of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying and assembling what modern scientists have discovered about ~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William Empson> 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic being) <it is difficult to ~ the animals at a distance—E. A. Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

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Appendix B to opinion of ALITO, J.
Random House Webster’s Unabridged Dictionary 1754 (2d ed. 2001):

Sex (seks), n. 1. either the male or female division of a spe-
cies, esp. as differentiated with reference to the reproductive functions. 2. the sum of the structural and functional
differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences. 3. the instinct or attraction drawing
one sex toward another, or its manifestation in life and conduct. 4. coitus. 5. genitalia. 6. to have sex, to engage
in sexual intercourse. – v.t. 7. to ascertain the sex of, esp. of newly-hatched chicks. 8. sex up, Informal. a. to arouse
sexually: The only intent of that show was to sex up the audience. b. to increase the appeal of; to make more in-
teresting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [1350–1400; ME < L
Sexus, perh. akin to secāre to divide (see SECTION)]

American Heritage Dictionary 1605 (5th ed. 2011):

Sex (seks) n. 1a. Sexual activity, especially sexual inter-
course: hasn’t had sex in months. b. The sexual urge or instinct as it manifests itself in behavior: motivated by sex.
2a. Either of the two divisions, designated female and male, by which most organisms are classified on the basis of their
reproductive organs and functions: How do you determine the sex of a lobster? b. The fact or condition of existing in
these two divisions, especially the collection of characteristics that distinguish female and male: the evolution of sex
in plants; a study that takes sex into account. See Usage Note at gender. 3. Females or males considered as a group:
dormitories that house only one sex. 4. One’s identity as ei-
ther female or male. 5. The genitals. ⸭ tr.v. sexed, sex-ing, sex-es 1. To determine the sex of (an organism). 2. Slang a. To arouse sexually. Often used with up. b. To increase the

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Appendix C to opinion of ALITO, J.
appeal or attractiveness of. Often used with up [Middle English < Latin sexus.]

C
Statutes Prohibiting Sex Discrimination
 2 U. S. C. §658a(2) (Congressional Budget and Fiscal Operations; Federal Mandates)
 2 U. S. C. §1311(a)(1) (Congressional Accountability; Extension of Rights and Protections)
 2 U. S. C. §1503(2) (Unfunded Mandates Reform)
 3 U. S. C. §411(a)(1) (Presidential Offices; Employment Discrimination)
 5 U. S. C. §2301(b)(2) (Merit System Principles)  5 U. S. C. §2302(b)(1) (Prohibited Personnel
Practices)  5 U. S. C. §7103(a)(4)(A) (Labor-Management
Relations; Definitions)  5 U. S. C. §7116(b)(4) (Labor-Management Re-
lations; Unfair Labor Practices)  5 U. S. C. §7201(b) (Antidiscrimination Policy;
Minority Recruitment Program)

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Appendix C to opinion of ALITO, J.
 5 U. S. C. §7204(b) (Antidiscrimination; Other Prohibitions)

 6 U. S. C. §488f(b) (Secure Handling of Ammonium Nitrate; Protection From Civil Liability)

 7 U. S. C. §2020(c)(1) (Supplemental Nutrition Assistance Program)

 8 U. S. C. §1152(a)(1)(A) (Immigration; Numerical Limitations on Individual Foreign States)

 8 U. S. C. §1187(c)(6) (Visa Waiver Program for Certain Visitors)

 8 U. S. C. §1522(a)(5) (Authorization for Programs for Domestic Resettlement of and Assistance to Refugees)

 10 U. S. C. §932(b)(4) (Uniform Code of Military Justice; Article 132 Retaliation)

 10 U. S. C. §1034(j)(3) (Protected Communications; Prohibition of Retaliatory Personnel Actions)

 12 U. S. C. §302 (Directors of Federal Reserve Banks; Number of Members; Classes)

 12 U. S. C. §1735f–5(a) (Prohibition Against Discrimination on Account of Sex in Extension of Mortgage Assistance)

68

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 12 U. S. C. §1821(d)(13)(E)(iv) (Federal Deposit Insurance Corporation; Insurance Funds)

 12 U. S. C. §1823(d)(3)(D)(iv) (Federal Deposit Insurance Corporation; Corporation Moneys)

 12 U. S. C. §2277a–10c(b)(13)(E)(iv) (Farm Credit System Insurance Corporation; Corporation as Conservator or Receiver; Certain Other Powers)

 12 U. S. C. §3015(a)(4) (National Consumer Cooperative Bank; Eligibility of Cooperatives)

 12 U. S. C. §§3106a(1)(B) and (2)(B) (Foreign Bank Participation in Domestic Markets)

 12 U. S. C. §4545(1) (Fair Housing)

 12 U. S. C. §5390(a)(9)(E)(v) (Wall Street Reform and Consumer Protection; Powers and Duties of the Corporation)

 15 U. S. C. §631(h) (Aid to Small Business)

 15 U. S. C. §633(b)(1) (Small Business Administration)

 15 U. S. C. §719 (Alaska Natural Gas Transportation; Civil Rights)

 15 U. S. C. §775 (Federal Energy Administration; Sex Discrimination; Enforcement; Other Legal Remedies)

Cite as: 590 U. S. ____ (2020)

69

Appendix C to opinion of ALITO, J.
 15 U. S. C. §1691(a)(1) (Equal Credit Opportunity Act)

 15 U. S. C. §1691d(a) (Equal Credit Opportunity Act)

 15 U. S. C. §3151(a) (Full Employment and Balanced Growth; Nondiscrimination)

 18 U. S. C. §246 (Deprivation of Relief Benefits)

 18 U. S. C. §3593(f ) (Special Hearing To Determine Whether a Sentence of Death Is Justified)

 20 U. S. C. §1011(a) (Higher Education Resources and Student Assistance; Antidiscrimination)

 20 U. S. C. §1011f(h)(5)(D) (Disclosures of Foreign Gifts)

 20 U. S. C. §1066c(d) (Historically Black College and University Capital Financing; Limitations on Federal Insurance Bonds Issued by Designated Bonding Authority)

 20 U. S. C. §1071(a)(2) (Federal Family Education Loan Program)

 20 U. S. C. §1078(c)(2)(F) (Federal Payments To Reduce Student Interest Costs)

 20 U. S. C. §1087–1(e) (Federal Family Education Loan Program; Special Allowances)

70

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 20 U. S. C. §1087–2(e) (Student Loan Marketing Association)

 20 U. S. C. §1087–4 (Discrimination in Secondary Markets Prohibited)

 20 U. S. C. §1087tt(c) (Discretion of Student Financial Aid Administrators)

 20 U. S. C. §1231e(b)(2) (Education Programs; Use of Funds Withheld)

 20 U. S. C. §1681 (Title IX of the Education Amendments of 1972)

 20 U. S. C. §1701(a)(1) (Equal Educational Opportunities; Congressional Declaration of Policy)

 20 U. S. C. §1702(a)(1) (Equal Educational Opportunities; Congressional Findings)

 20 U. S. C. §1703 (Denial of Equal Educational Opportunity Prohibited)

 20 U. S. C. §1705 (Assignment on Neighborhood Basis Not a Denial of Equal Educational Opportunity)

 20 U. S. C. §1715 (District Lines)

 20 U. S. C. §1720 (Equal Educational Opportunities; Definitions)

Cite as: 590 U. S. ____ (2020)

71

Appendix C to opinion of ALITO, J.
 20 U. S. C. §1756 (Remedies With Respect to School District Lines)

 20 U. S. C. §2396 (Career and Technical Education; Federal Laws Guaranteeing Civil Rights)

 20 U. S. C. §3401(2) (Department of Education; Congressional Findings)

 20 U. S. C. §7231d(b)(2)(C) (Magnet Schools Assistance; Applications and Requirements)

 20 U. S. C. §7914 (Strengthening and Improvement of Elementary and Secondary Schools; Civil Rights)

 22 U. S. C. §262p–4n (Foreign Relations and Intercourse; Equal Employment Opportunities)

 22 U. S. C. §2304(a)(1) (Human Rights and Security Assistance)

 22 U. S. C. §2314(g) (Furnishing of Defense Articles or Related Training or Other Defense Service on Grant Basis)

 22 U. S. C. §2426 (Discrimination Against United States Personnel)

 22 U. S. C. §2504(a) (Peace Corps Volunteers)

 22 U. S. C. §2661a (Foreign Contracts or Arrangements; Discrimination)

72

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 22 U. S. C. §2755 (Discrimination Prohibited if Based on Race, Religion, National Origin, or Sex)

 22 U. S. C. §3901(b)(2) (Foreign Service; Congressional Findings and Objectives)

 22 U. S. C. §3905(b)(1) (Foreign Service; Personnel Actions)

 22 U. S. C. §4102(11)(A) (Foreign Service; Definitions)

 22 U. S. C. §4115(b)(4) (Foreign Service; Unfair Labor Practices)

 22 U. S. C. §6401(a)(3) (International Religious Freedom; Findings; Policy)

 22 U. S. C. §8303(c)(2) (Office of Volunteers for Prosperity)

 23 U. S. C. §140(a) (Federal-Aid Highways; Nondiscrimination)

 23 U. S. C. §324 (Highways; Prohibition of Discrimination on the Basis of Sex)

 25 U. S. C. §4223(d)(2) (Housing Assistance for Native Hawaiians)

 26 U. S. C. §7471(a)(6)(A) (Tax Court; Employees)

Cite as: 590 U. S. ____ (2020)

73

Appendix C to opinion of ALITO, J.
 28 U. S. C. §994(d) (Duties of the United States Sentencing Commission)

 28 U. S. C. §1862 (Trial by Jury; Discrimination Prohibited)

 28 U. S. C. §1867(e) (Trial by Jury; Challenging Compliance With Selection Procedures)

 29 U. S. C. §206(d)(1) (Equal Pay Act of 1963)

 29 U. S. C. §§2601(a)(6) and (b)(4) (Family and Medical Leave; Findings and Purposes)

 29 U. S. C. §2651(a) (Family and Medical Leave; Effect on Other Laws)

 29 U. S. C. §3248 (Workforce Development Opportunities; Nondiscrimination)

 30 U. S. C. §1222(c) (Research Funds to Institutes)

 31 U. S. C. §732(f ) (Government Accountability Office; Personnel Management System)

 31 U. S. C. §6711 (Federal Payments; Prohibited Discrimination)

 31 U. S. C. §6720(a)(8) (Federal Payments; Definitions, Application, and Administration)

74

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 34 U. S. C. §10228(c) (Prohibition of Federal Control Over State and Local Criminal Justice Agencies; Prohibition of Discrimination)

 34 U. S. C. §11133(a)(16) (Juvenile Justice and Delinquency Prevention; State Plans)

 34 U. S. C. §12161(g) (Community Schools Youth Services and Supervision Grant Program)

 34 U. S. C. §12361 (Violent Crime Control and Law Enforcement; Civil Rights for Women)

 34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions)

 34 U. S. C. §50104(a) (Emergency Federal Law Enforcement Assistance)

 36 U. S. C. §20204(b) (Air Force Sergeants Association; Membership)

 36 U. S. C. §20205(c) (Air Force Sergeants Association; Governing Body)

 36 U. S. C. §21003(a)(4) (American GI Forum of the United States; Purposes)

 36 U. S. C. §21004(b) (American GI Forum of the United States; Membership)

 36 U. S. C. §21005(c) (American GI Forum of the United States; Governing Body)

Cite as: 590 U. S. ____ (2020)

75

Appendix C to opinion of ALITO, J.
 36 U. S. C. §21704A (The American Legion)

 36 U. S. C. §22703(c) (Amvets; Membership)

 36 U. S. C. §22704(d) (Amvets; Governing Body)

 36 U. S. C. §60104(b) (82nd Airborne Division Association, Incorporated; Membership)

 36 U. S. C. §60105(c) (82nd Airborne Division Association, Incorporated; Governing Body)

 36 U. S. C. §70104(b) (Fleet Reserve Association; Membership)

 36 U. S. C. §70105(c) (Fleet Reserve Association; Governing Body)

 36 U. S. C. §140704(b) (Military Order of the World Wars; Membership)

 36 U. S. C. §140705(c) (Military Order of the World Wars; Governing Body)

 36 U. S. C. §154704(b) (Non Commissioned Officers Association of the United States of America, Incorporated; Membership)

 36 U. S. C. §154705(c) (Non Commissioned Officers Association of the United States of America, Incorporated; Governing Body)

 36 U. S. C. §190304(b) (Retired Enlisted Association, Incorporated; Membership)

76

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 36 U. S. C. §190305(c) (Retired Enlisted Association, Incorporated; Governing Body)

 36 U. S. C. §220522(a)(8) and (9) (United States Olympic Committee; Eligibility Requirements)

 36 U. S. C. §230504(b) (Vietnam Veterans of America, Inc.; Membership)

 36 U. S. C. §230505(c) (Vietnam Veterans of America, Inc.; Governing Body)

 40 U. S. C. §122(a) (Federal Property and Administrative Services; Prohibition on Sex Discrimination)

 40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination)

 42 U. S. C. §213(f ) (Military Benefits)

 42 U. S. C. §290cc–33(a) (Projects for Assistance in Transition From Homelessness)

 42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements With Respect to Carrying Out Purpose of Grants)

 42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex)

Cite as: 590 U. S. ____ (2020)

77

Appendix C to opinion of ALITO, J.
 42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex)

 42 U. S. C. §300w–7(a)(2) (Preventive Health and Health Services Block Grants; Nondiscrimination Provisions)

 42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse; Nondiscrimination)

 42 U. S. C. §603(a)(5)(I)(iii) (Block Grants to States for Temporary Assistance for Needy Families)

 42 U. S. C. §708(a)(2) (Maternal and Child Health Services Block Grant; Nondiscrimination Provisions)

 42 U. S. C. §1975a(a) (Duties of Civil Rights Commission)

 42 U. S. C. §2000c(b) (Civil Rights; Public Education; Definitions)

 42 U. S. C. §2000c–6(a)(2) (Civil Rights; Public Education; Civil Actions by the Attorney General)

 42 U. S. C. §2000e–2 (Equal Employment Opportunities; Unlawful Employment Practices)

78

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 42 U. S. C. §2000e–3(b) (Equal Employment Opportunities; Other Unlawful Employment Practices)

 42 U. S. C. §2000e–16(a) (Employment by Federal Government)

 42 U. S. C. §2000e–16a(b) (Government Employee Rights Act of 1991)

 42 U. S. C. §2000e–16b(a)(1) (Discriminatory Practices Prohibited)

 42 U. S. C. §2000h–2 (Intervention by Attorney General; Denial of Equal Protection on Account of Race, Color, Religion, Sex or National Origin)

 42 U. S. C. §3123 (Discrimination on Basis of Sex Prohibited in Federally Assisted Programs)

 42 U. S. C. §3604 (Fair Housing Act; Discrimination in the Sale or Rental of Housing and Other Prohibited Practices)

 42 U. S. C. §3605 (Fair Housing Act; Discrimination in Residential Real Estate-Related Transactions)

 42 U. S. C. §3606 (Fair Housing Act; Discrimination in the Provision of Brokerage Services)

 42 U. S. C. §3631 (Fair Housing Act; Violations; Penalties)

Cite as: 590 U. S. ____ (2020)

79

Appendix C to opinion of ALITO, J.
 42 U. S. C. §4701 (Intergovernmental Personnel Program; Congressional Findings and Declaration of Policy)

 42 U. S. C. §5057(a)(1) (Domestic Volunteer Services; Nondiscrimination Provisions)

 42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance)

 42 U. S. C. §5309(a) (Community Development; Nondiscrimination in Programs and Activities)

 42 U. S. C. §5891 (Development of Energy Sources; Sex Discrimination Prohibited)

 42 U. S. C. §6709 (Public Works Employment; Sex Discrimination; Prohibition; Enforcement)

 42 U. S. C. §6727(a)(1) (Public Works Employment; Nondiscrimination)

 42 U. S. C. §6870(a) (Weatherization Assistance for Low-Income Persons)

 42 U. S. C. §8625(a) (Low-Income Home Energy Assistance; Nondiscrimination Provisions)

 42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions)

 42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions)

80

BOSTOCK v. CLAYTON COUNTY

Appendix C to opinion of ALITO, J.
 42 U. S. C. §9918(c)(1) (Community Services Block Grant Program; Limitations on Use of Funds)

 42 U. S. C. §10406(c)(2)(B)(i) (Family Violence Prevention and Services; Formula Grants to States)

 42 U. S. C. §11504(b) (Enterprise Zone Development; Waiver of Modification of Housing and Community Development Rules in Enterprise Zones)

 42 U. S. C. §12635(a)(1) (National and Community Service State Grant Program; Nondiscrimination)

 42 U. S. C. §12832 (Investment in Affordable Housing; Nondiscrimination)

 43 U. S. C. §1747(10) (Loans to States and Political Subdivisions; Discrimination Prohibited)

 43 U. S. C. §1863 (Outer Continental Shelf Resource Management; Unlawful Employment Practices; Regulations)

 47 U. S. C. §151 (Federal Communications Commission)

 47 U. S. C. §398(b)(1) (Public Broadcasting; Equal Opportunity Employment)

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81

Appendix C to opinion of ALITO, J.
 47 U. S. C. §§554(b) and (c) (Cable Communications; Equal Employment Opportunity)

 47 U. S. C. §555a(c) (Cable Communications; Limitation of Franchising Authority Liability)

 48 U. S. C. §1542(a) (Virgin Islands; Voting Franchise; Discrimination Prohibited)

 48 U. S. C. §1708 (Discrimination Prohibited in Rights of Access to, and Benefits From, Conveyed Lands)

 49 U. S. C. §306(b) (Duties of the Secretary of Transportation; Prohibited Discrimination)

 49 U. S. C. §5332(b) (Public Transportation; Nondiscrimination)

 49 U. S. C. §40127 (Air Commerce and Safety; Prohibitions on Discrimination)

 49 U. S. C. §47123(a) (Airport Improvement; Nondiscrimination)

 50 U. S. C. §3809(b)(3) (Selective Service System)

 50 U. S. C. §4842(a)(1)(B) (Anti-Boycott Act of 2018)

82

APPLICA T ION FOR ENL ISTMENT - ARMED FORCES OF THE UNITED STATES

I Fo...,, App,ou1d O.iUD1/2-R 0331.

DAlA REOU1RED BV THE PR'JVACV.ACT OF 1974

AUT-flORITV:

Title 10, United! States Code, Sections 604, 505, 508, lllld 510', aud Executive Otder 9397 .

PRINCl?A IL PURPOSE: To detemiin .e your eligibility for <!nlistmcnt.

ROUT,IIIIE uses:
DISCLOSURE:

ll you are enli5ted, this form becomes the principal SOlllCe document for, and a part of, yow w..ilital'y persollJlel recotd.s which

:'.INused to make decisions related to yoUI ttainin ,g, ptomotion, reassignment, .and other ~rsotlllel mao3iemec.t ,actio0s.

Voluntary; failure eoanswer all questions on tbis form except 12, 26, 32,. and 35 may result in denial of yoW' enlislmea ,t

I

'WARNING
Wormation. provjded by you on ebis form is FOR OFFICIAL USE 01','L Y and will be maintained and wietl in strict compliance 'Witb Federal law and r@gualtion. The information provide d by you becomes the p:roperty of the United States Govemmcot ~nd it may be consulted throughout your m ilit :lrJ' service career, particulady whenever cither favorab le or adverse administra•
tive or di,cipl:inary actions related to you are involved.

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.
D

YOU CAN BE PUNISHED B.YFINE, IM1'RISONMENTOR BOTH lF YOU ARE fOUND CUJ!LTY OF MAKING A KNOWING AND WILLFUL FALSE STATEMENT ON THIS APPLICATION.

INSTRUCTION S (Read carefully BEFORE filling out this form)

1. Type or print LEGIBLY al.Ianswers ; if the answer is ''None" or "Not Applicable.'' so state. 2. Questions 12, 26, and 32 are optional and may be left blank. Question 35 may be auswered orall1.
3. lf additio nal snace is needed for anyanswer, continue it in ftem 37, "REMARKS."

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Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

DO NOT WRITE IN THIS SECTION ;';'·

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84

LAST NAME

S~SN·;·

Ill. VERIF ICATION OF PERSONAL DATA
23. If Preferred Enlistment Name (name given in block 11 is not the same as on your birth certificate ond has oat been changed by legal pr ocedure prescr ibed by state law , complete the following :

a. NAME AS SHOWN ON BIRTH CERTIFICATE

I hereby state tha t I have not changed my name through any court proc edure; and that I prefer to use the nome by wh ich I am k nown
in the community as a matter of convenience and wjth no cr;minal or frauduren1 intent. I further stat e tha t I am th e same person as
the one whose name is st,own in block 1 .

b. WITNESS (Name, grade, 3nd signatureI

c. SIGNATURE OF APPLICANT

24. EDUCATION

YEAR&M ONT H

FROM

TO

NAME AND LOCA TION OF SCHOOL

GRADUATE YES NO

DEGREE RECEI VED

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

25 . CITIZENSHIP VERIFICATION {To be completed In presence of your recruiter! .

a. PLACE OF Bl RTH (City , State and (i f not in USA ! Country)

b. BIRTH CERTIFICATE ISSUED BY (County and State)

c:. BIRTH CERTIFICATE FILE NUMBER

Id. IF NATURA LIZ ED, cERTI FICATE NO.

f . IF DERIVED , PARENTS' CE RT IF ICATE NO (SJ. OAT E, PLACE ANO COURT

f . IF ALIEN.ALIEN REGISTRATION NUMBER

g. NATIVECOUNTRY

,h. DATEANDPORTOFENTRY

- .... - .-..---·"·-

26. Ml LITARY SERVICE
a. Ar e you now or have ever been in 1he Regular. Reserve or National Guard of th e United State s? D No D Yes. If "yes", comple te the follow ing:

b . PAY GRADE AND c. SERVICE AND

SERVICE NUMBER

COMPONENT

d . DA TE OF ENTRY

e. DA TE OF DISCH

f . TYPE DISCH/ REL

g. TIME LOST (NO . OF DA VS)

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

n. If you nra now a member of a US Re•erve or National Guard orgoni ,atlo n, fill in or93nl2atlon name and unit address:

27a. PREVIOUSMILITARYSERVICE

I Years I Months I

DO NOT WRITE

Total Active Military Service I

I

I

IN THIS BLOCK

I Tota l Inactive Military Service

I

I

IV. OTHER BACKGROUND DATA

28a. RELATIVES

b . DA TE AND PLACE OF Bl RTH

.FATl:i.ER

Days b. PESO c. PRESENT ADDRESS

MOTHER (Maidf!fl•na"12!

SPOUSE (Maiden-namel

CHI LO REN fShow Relationship)

_,,_.,.,._,,,.~

c. AOSD
d. CITIZENS HIP

~~~";!5 00

196612 REPLACES DD FOAM 1966 , 1 JUN 75, WHICH WI LL BE USED

1

PAGE 2

85

86

LAST NAME :_______________

_ _____

_ ___,N :__________

_

29. COMMERCIAL LI FE INSURANCE POLICIES YOU OINN ON YOUA t.ll=E - Omional entry: u5ed to assist your survivors in filing claims should you die WYhileon active duty.

&1. NAME Of=COMPANY ISSUING POLICY

b. POL.ICY NlJMBER

30. FIELATIV 1ES AND ALIEN FR I ENDS LIVING IN FOREIGN COUNTRIES in e fcweign co untry.

a. NAME ANO RELATIONSHIP

b. AGE c. OCCUPATI ION

Ust at1yone w,ith whom you had or have a c!ose re!ati onsi'lip , who lil,es

d. ADDRESS

~. CIT FZENSHIP

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

31, RESID:ENCE:S-List all from 10th birthday.

YEAR & MONTH

FIIOM

TO

NUMBER AND STREET
..

CITY

I

32. EMPLOYMENT-Show every employment you have· t-.adand all periods of unemplovrnen t.

a.YEAR & MONT I-I b. Company n~me a_!ll~a~ (~~e~ f .!.rt..fil9te.J[)VipCode)

c. JOB T"ITLE

FROM

TO

STATE ZIP CODE
I
I
d. SUPERVISOR NAME

I

e. HAVE YOU EVER WORKED FOA A FOREIGN GOVERNMENT? □ NO □ YES (If "yu" yo u wo~ked fn,, 10,·ariori and noti,r .~ of yo1 u d11tif I}

;:,ivt dat<-s of cmplo ,i· mrnr . .(iu ,·r,·11111,·111

33. ME M BE RSHIP I N YOUT H PRO GR AMS-O ptio nal en1ry; you ma y b• eligible fOf o highff paygrode, based on membership and par r,eipa tion ,n

0 No me mbershi p

t he y o ut h pr ogram s listed below .

ORGANIZA TIO N

MEMBERSHIP HEL D

FROM

TO

CO NDU CTE D BY (SPONSO RI

L OCAT ION (SCHOOL A ND A D D RESS !

Y EARS COMPLE T EO O R LE VE L REA CHED

ROT C

IYEARSI

JRO TC

!YEA RS)

CAP

A I R FORC E

(L EVEL)

SEA CA DET OT HER ISpecifvl

NAV Y

IL EVE LI

34 . FORE IGN TRAV EL- Other t hon os a direct result of mi litary servtC.a.

YEAR &MO NT H

~RO M

,a

COU N TRY VISI TED

PURPOSE O F T RA VEL

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

3 5. DECLAR ATIO NS-E xpla in "Y es" enswers in it em 4 1.

a. HAVE YOIJ EVER BEo N REJECTED FOR ENLISTMENT. REENUSTMENT .

d. A.RE YOU N OW ORA.1.NtNG. OR 00 YOU HAVE AN APPLI CAT ION PEND ING

QA I NO ucr 10 N INTO AN Y BRANCH OF THE ARMEOFO RCES0 ~ THE UNITED STAT ES?

0 NO

DY ES

OR APPROVAL FOR. RETIRED PAY, O•SABILIT Y ALLOWANCE.OR SEVERANCE PA Y OR A PENSION F"ROMTHE COVERN MEM T OF THE

b. ARE YOU A CONSC I ENT IOUS OBJE CTOR ?

UNITEOSTATES1

0 NO 0 YES O NO 0 YES

< A RE YOU N OW OR HAVE YOU EV ER BEEN A DESERTER FROM ANY BRANCH e. ARE YO U T HE ONLY L IVI NG CHI L D OF YOU R PARENTS!

OF THs ARMs O FORCESOF THS ur, Ir e oS TATESl

0 NO 0 VCS 0 NO 0 YES

..36. UNDERSTANDINGS. I understand that if I am rejected for enlis1ment bscause of a disqualificati on I haiJeconcealed. I may not be p, ovided return tu nspon ation fron, the placeof exami~t tOn to my home.
b . (For male applicants o nly }. I un d ersrand that if I have no t reached my 261h b ir1hday 1hata n o,igi nal enlistment obl igates me to serve in the Armed F0<c es fo r a peri o d of si>c (8:Jyears lact il/e-and reserve) unlesssooner d ischarged.

IIN I TIALS I (INI TI ALS )

DD FOAM 1 AUO 'J~

1966/ 3

FIE P1-AC'E S OD F O AM 1966 , 1 J UN 7 5, WHICH ·WILL ee: us eo

PA CE 3

87

88

BOSTOCK v. CLAYTON COUNTY

AppendAixLIDTOt,oJo.,pdinisisoennotifnAgLITO, J.

LAST NAME :____________

__ ______

SSN :_ _____

__ _____________

_ _

:··:p ,:•·p. :IARACTER AND SOCIA L ADJUS TM ENT: Read and consider the fo llowing instructions caref ully BEFORE answering questions a through I.

1. If your answer to every question is truthfu lly · 'NO ' ", please indicate in the appro pr iate space.

2 . If your answe r to any quest ions in th is item is ..YES.., or you have reservatio ns abou t answering questions of th is nature. you are not

requi red to answ er, or explain any cl · th ese questions i n wr iti ng . Instead, you may request a personal interview in which you may provide

the requ i red informatio n for each quest ion orally .

;;

·

.

3 . If you choose the personal interview, the inf ormati on you give moy b3 inves tigated; however, any written record of the in terview itself wi ll not be retained mo re th an six mon ths after entry upon active duty , and it will not become a pan of your permanent m il itary personnel service record .

4 . If you enlist , th is information may be requested fro m you again at some future date and may become a part of your secur ity investigative file at that time . This coul d occur as a resu lt of your being conside red fer duties invo lving access to classified info rmation or other types of duty requ iring a personnel security i nvestigation .

5. A "YES" ' answe r wi ll net necessarily disqual ify you for e.nlistmcnt . It wi ll depend on the ci rcums tances surrounding the situat ion involved .

INITIAL HERE IF YOU PREFER A PERSONAL INTERVIEW:

I □ □ APPLICANT HAS BEEN INTERVIEWED AND IS

DATE OF INTERVIEW

NAME, ORGANIZATION & TITLE

ELIGIBLE FOR ENLISTMENT,

IN ELIGIBLE FOR ENLISTMENT

., SIGNATUREOF INTERVIEWER

EXPLAIN "YES ' · ANSWERS IN ITEM 41 :
a. HAVE YOU EVER TAKEN ANY NARCOTIC SUBSTANCE. SEDATIVE, ST IMULANT, OR TRANQUI LIZER DRUGS EXCEPT AS PRESCRIBED BY A LICENSED PHYSICIAN ?
b . HAVE YOU EVER INTENT IONALLY SNIFFED GLUE, PAINT, HA IRSPRAY. OR OTHER CHEMICAL FUMES?
c. HAVE YOU EVER BEEN INVOLVED IN THE USE, PURCHASE, POSSESSION OR SALE OF MARI J UANA, LSD, OR ANY HARMFUL OR HA BIT-FORM ING DRUGS AND / OR CHEMICALS EXCEPT AS PRESCRIBED BY A LICENSED PHYSICIAN?

d . HAS YOUR USE OF ALCOHOLI C BEVERAGES (SUCH AS LIQUOR, BEER, WIN£') EVER RESULTED IN THE LOSS OF A JOB, ARREST BY POLICE, or TREATMENT FOR ALCOHOLISM?

e. HAVE YOU EVER BEEN A PATIENT (WHETHE,'? OR NOT FORMALLY COMMIITED) IN ANY INST ITUTION PRIMAR ILY DEVOTED TO THE TREATMENT OF MENTAL , NERVOUS, EMOT IONA L, PSYCHOLOGICAL. OR PERSONALITY DISORDERS?

t HAVE YOU EVER ENGAGED IN HOM OSEXUAL ACTIVITY (SEXUAL RElATIONS W ITH ANOTHER PERSON OF THE

SAME SEX)?

-

NO YES
. --

--

·-

38. MAR ITAL STATUS AND DEPENDENCY

a. ARE YOU NOW, OR HAVE YOU EVER BEEN MARR IED?

b . IF YOU HAVE BEEN MARRIED. ARE YOU NOW LIVING WITH YOUR SPOUSE?

c. HAVE YOU EVER BEEN DIVORCED? (If yes, enter date, place and court wh ich granted divorce or legal separation)

d . IS ANY COUR T ORDER OR J UDGEMENT DIRECTING SUPPORT FOR CHILDREN OF ALIMON Y IN EFFECD (Enter date, place, and coun which granted alimony decree, or suppon as the resul t of a paternity suit)

NO YES

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

e. IS A NYON E OTHER THAN YOUR SPOUSE ANO/O R CHllOREN SOLELY OR PART IALLY DEPENDENT UPON YOU? (list name & address)

39. Do you now have. or w ithi n the past ten years, have you had know ing members hip wit h the specitic intent of furthe ring the aims of. or adherence to and active participation in any foreign or domestic organizations, association, movement, group, or combinat ion of persons (hereinafter referred to as organiza ti ons) w hich unlawfully advocates or pract ices the comm ission of acts of force or vio lence to preven.t others from exercising their rig hts under the Constitu tion or laws of the United States or of any Stale, or whic h seeks to overthrow the Governmen t of tho Un ited States or any Slate or subd ivision thereof by unlawful mea ns?
If you answered "yes", give the names of the organizations and inclusive dates (month and year) of your membership; descri be the nature of your activit ies as a member of the organ ization(s) in the " Remarks" section, Item 41 .

INO i YES

40 . INVOLVEMENT WITH POLICE OR JUDIC IAL AUTHORI TIES

YOUR ANSWERS TO THE FOU OWING QUESTIONS Will BE VERIFIED WITH THE FEDERAL BUREAU OF INVESTIGATION (fBI), AND OTHER A GENCIES TO D5TERMINI: A NY PREVIOUS RECORDS OF ARRESTOR CONVICTIONS OR JUVENILE COURT ADJUDICAT IONS. IF YOU CON· CEAL SUCH R~CORDS AT THIS TIME, YOU MAY , UPON ENLISTMENT, BE SUBJECT TO DISCIPLINARY ACTION UND ER THE UNIFORM CODE OF MI Lli ARY JUSTICEA ND/ OR OISCHARG!: FROM THE M ILITARY SERVICE WITH OTHER THAN AN HONORABLE DISCHARG E.
NO YES

a. Have you ever been arrested , charged . cited , or held by Federal. Slate, or other law enforcement or juven ile authori ties regard less of whether the citation or charg e was dropped or d ismissed or you we re fou nd not g uilty?
b. As a result of being arr ested , Charged. cited, or held by law enforcement or juvenile author,ues, nave you ever been convicted , lined by or forfe ited bond to a Federal, State, or oth~r judicia l author ity or adjudicated a yout hful offender or j uveni le dclinouent lreoardless of whe ther the reco rd in vour case has been "sea led" or other w ise stricken from the court record)?

c . Have you ever been detained, held in, or served time in. any jail or prison, or reform or industrial school or any j uveni le faci lity or institut ion under the ju risdictio n of any City , County . State, Feder.al or foreign country?

d . Have you ever been awarded, or are yo u now under suspende d sentence. parole , or pro bation o r awai1ing any action on

charges agains1 you?

•

• ·DD ·t ~~~M 751966/ 4 · ~!~;,Atc;il.o;}/~~~c~9!~e:

~C~i-:HICH 10J8u5

wtl.l. ,BE USE~ A N.D o .D .f.ORf?I 373 , 1 J,1AR 74 : o o FORM

PA GE 4

89

90

LAST NAME·

SSN.·..

40. Continued

NO

e. HAVE YOU BEEN RELEASED FROM PAROLE, PROBATION , JUVE NI LE SUPERVISION, OR GI VEN A SUSPENDED SENTENCE

OR RELIEVED OF CHARGES PENDING ON CONDITION THAT YOU APPLY FOR OR ENLIST ' IN THE US ARMED FORCES?

f . ARE YOU NOW INVOLVED IN OR A PARTY TO OR CONNECTED WITH ANY COURT ACTION OR CIV IL SUIT? (EXPLAIN "YES" ANSWER IN ITEM 411

g. EXPLAIN BELOW " YES" ANSWERS IN "a" THROUGH "e", BE CAREFUL TO INCLUDE All INCIDENTS WITH LAW ENFORCEMENT AUTHORITIES THAT YOU DISCUSSED WITH YOUR RECRUITER .

OFFENSE

DATE/PLACE

AGE

DISPOSITION

COURT

YES

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

41. REMARKS

I I
I am interested in the following opti ,ons or prog, .ams:

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

V. CERTIF ICATION

42, BY APPLICANT : I UINOERSTAN IO THAT THE ARMED FORCES REPReSENTATIVE WHO WILL ACCEPT MY ENLISTMENT DOES SO IIN

RELIA NCE ON THE INifOAMATION PROVIDED BY ME IN THIIS DOCUMENT; .THATIF ANY OF Tf-tE INFORMATION IS KNOWING L Y FALSE

OR 'INCOAREC T, I MAY BE PROSECuno , UNDER FEDERAL CIVILIAN OR Ml LITA AV LAW OR SUBJECT T 01 ADMIN ISTRATIVE SIEPARATIION

PROCEEDINGS ANO, IN EITHER INSTANCE, I MAY 'RECEIVE A LESS THAN HONORABLE DISCHARGE WHICH COULD AFFECT MY FUTURE

EMPLOYMENT OPPORTUNITIES. I CERTIFY THAT THE 1,NFOAMATION GIVEN BY ME IIN THIS DOCUMENT IS TRUE, COMPL ET1E, AND

I CORRECT TO THE 6ESi OF MY KNOWLEDG E ANO BEL.IEF,

a. ,r.:1.0.,:i;-

b. ~~vDStOQlm,tt,I,.-

Ic. SIGNATURE OF APPLICANT

,o 43. DATA VE RI FlrCATI ON : To be ,comple ·ted by the recrui ter who enters a description of the actua'I documerrts re\licvved by him/her

/AGE I NAME

CITIZENS HI p

verify:

EOUCA.TION

IPA.I.ORJIIULITAAYSERVICE

OTHER (Specifyl

75 00 \ ~~~ 1966/5 REIP~CSS OD FORM 1966 ., 1 JUN 75 , WHICH WILL e re, USl::Cl1

PAG ,E 5

91

92

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

LAST NAME: __ _

_ ___

______

____

__ _ SSN :_ _,.,,_____________________

_

I 44, RECRUITER: I certify that I have w itnessed applicant's sigmnure above and further certify that I have verified the data In Sections I, 111,

and IV of this documen t, and the documents l1sited above as proscribed by my directives . I understand my liability to tr ia! by co,uru-martial

under the Uniform Code of MHitary Justice should I effect or cause to be effected the enl istment of anyone known by me to be ine ligible

for enlistment. a.. DATE

rb. NAME, GRADE, SSN, .AND RECRUITER ID NO . ffype or Print)

,c . SIGNATURE OF RECRUITER

VI. PARENTAL/GUARDIAN CONSENT FOIRE:NLISTMENT

1 45. I/we cert ify that the applicant named here in hz~ no other legal guardian than rne/us and I/we consent (O his/her

enlistment in the

.

.

.

subject to all the requliements and lawfu l

commands of th e officers who ,may, from t ime to ti'me., be placed o,ver him/her; and I/we certif 'y that no premise ·of any kind has

be1in made to m,;/us concerning assignment to duty, or promot ion dur ing his/he r enli:stment ,as an indu cement to me/us: to

iig n th is consent . I/we hereby authorized the Arme<ilForces representat ives concerned to administer med ical examinations ,

I

mental ond/or aptitude test ing, and conduct rec,ords checks to determine applicant's enlistment eligibil ity. I/we relinquish all

cla im to his-/lilerservice and to any wage or compensat ion i ,or such service .

46. For enlistment in a Reserve Componenr: I/we understand that as a member of a, Reserve Component, he (she muSt serve m inimum periods of active duty unless ex-cuse<b:Iy compe te nt authority . In ·the evant he/she fails to fulfiU the obligations of hls/ her Reserve commitment, he/she may be reca lled to active duty as prescribed by law.
I/we further understand that wh ile the -applicant is in the •Ready Reser11,e, he/she may be ordered to extended act ive duty in time of war or national emergency declared by the Cong ress or the President or when otherwi5e :authoriied by law.

47. I/we cert ify thot the applicant's birth date is: NAM E1 AND SIGNATURE OF WITNESSl ·NG OFFICIAL

SIGNATURE OF PARENT 0A LEGAL GUARDIAN

NAME AND SIGNATURE OF WITNESSING OFFICIAL

S IGNATURE OF PAREN T OR LE.GAL GUARD IAN

,I

VER IF ICATION OF S INGLE SIGNATURE CONSENT

VII. ENLISTMENITOPTIONS - Completed by guidance counsellor. career counsellor, recruiter, AFEES Liaison NCO,

etc., as specified by sponsoring service. ENL. COMP. IGRADE/RA TE.I0A TE OF RAI\JK 'TERM ENL. 1T-EMOS/AFS IPMOSl'AFS

j 'WAIVER INFO,0PT ANAL PROG ENL FOR

- .. .. . -· .. --·- ---

SPECIF IC OPTIONS ENLISTED FOR

I c,ertify that I ha"e re'liewed all information contained in t.hft document and, to the beit of my judgment and be'lief', applicant fulfills all leg.al and poltcy req u irements for enlistment . I acc,ept. his/her enl istment on behalf of the I furrher certify that service regulations governing such enlislment ha'le been strictly complied with and 111nwyaivers required to eHec t applicant's enlistment have been secured and .are attached to this doc:umem.

DATE

NAME, GR.ADE,ANO SSN, ORGANIZATION OR RECRUITERID I SIGN ATlJAE
rrvpe or pr,r,f)

~ECEATIFICATION

BY APPLICANT, AND CORRcCTION OF ·DATA AT TIME OF ENLISTMENT

11 HAVE REVIEWED ALL INFORMATION CONTAI N ED IN TH IS DOCUMENT; THAT 'INFORMATION IS STILL CORRECT AND TRUE TO
THE BEST OF MY KNOWLEDGE ANO BELIEF. IF CHANGES WERE REQU I RED. THE OR IGINAL ENT IAY l!-IASBEEN MARKED . "SEE VIII " AND THE CORRECTED I NFORMATION IS PROVIDED BELOW. KEYE □ TO THE APPROPR IATE QUESTION.

QUESTION

CHANGE REOU IFIED

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

!

I

DATE

NAME , GRADE. SSN ANO SIGNAi llRE OF WIITNESS

SIGNATURE OF. APPLICANT

171"ypoer Prind
I

- DD .............1966/ ,6

-

-

_ _,__ ....

·- · -

-.

1 AUG , 75

93

94

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

Cite as: 590 U. S. ____ (2020)

95

Appendix D to opinion of ALITO, J.

I

'

t

I

~
§j

-0

►
i:-C• I ~·

I
I

fl:

0

!..

' i
i
i
I

•1ft
d :I C

96

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

DD Form 1966 RECORDOF MILITARY PROCESSING ARMEDFORCESOF THE UNITED STATES

&Y,JHQ!W:

Prlv•t:Ar.ctSt•t•m•nt
'Title 10, Unit4'd St atts coo. SKIIOM so, , 505, SOI, 510. and :s2,o. •.nd Titl• 50 use Apr:,and11451 ,no fOll-•t19 ~ l• Ofl.

mNCJrA'!t\11?9$:1 IIOUTIIUNSE:S

·····- -- - - TOdftflmi ... your el igibility for mil,uiry Mf\l lH . -

1W1 fOfffl IN<O'Mi the princip,,I t0urc. documen t fo, , ~ INI" of , vovr m lUta,y

Pt~

,·tco,Clf w hi ch art uMCIto mak• dac.,lion, rel1Wd to -,o.,r v,in,110 , PtOfflObon.

nt.1gnmenu•,nd ot her panonrvl m•~ment ffl •on••- . _ ·-

QS~IU! : - - ·· · • Voh,1nta"1; ._., . l11lu•• ,~ --

ail ~uinltoM on th 11 farm, e■ciept • optoon.1 •

,cano) -, - • ·· ~ter11.1""~ rwult ln d.n ial of ~r • ~l nm~ . :_ 7 __ _ .•

· ·- -

-~ fSrlrfllwe Sffltl~ - DitdUll,IT'f oi ,.q\Jffl<M in'fon,11'1ionIf ffllndl\o,y ltMCtPt • OO\ICINll 0 itffill, dillCJQIUl'W

Rlt{lllll.-l'tb)J

of wN<h ,, 'IOlt,1nwy , . -

•• •- - - ·-. -

~

WARNING
_ lnfo'!"ation provided by you on th is farm is FOR OFFICIAi. US£ O"IL't 411\dwill b• mainQinm and ust'd in strict ,campliane4 with Fedtrel l•W$and ~ulations. The into,matlon provid~ by you b•comat th• t,roperty of tht United States Governm~nt , •nd it m•y bt cont.Yli.d throughout your milltlry servlct ar~er. part icularly wl:'ttne-nr either fi1110ralbe or a~~rw ~~in isuatl.,. or dlkiplinary actions relat~ to yo'-!are involved.

·-· _· - YOU CAN 8£ PUNISM8(VOFINE.IMPRISONMENTOR BOTH IF YOUARE FOUN·p

tiUJlT'{OF MAKING A KNOWING AND WILLFUL FALSE STATEMENTON TH!SOOCUMENT.

-- ---------- ·--- ···- ·---- -

·- - · ··

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

INSTRUC110N1
this~-> (ltffd(A,.fully ,t,ORt fillittgOllf

.1.R•.•d P:!jvacyAct S~t•'!'~nt ~bov~.befo~t c:ompletln~ form..

2. Type or print LEGIBLYall answt~ ; If the answer is •Nane• or ·Not Applicable,• $0 statt .

•o'P'TIONAL • questions may be left blonk.

•

-

··· 3. list all responses requlrit'lg d•tes (schools, •mployment/residences) in c:hronological order '

bt11inning with present or the most recent 1nd work backwards. Show all (employers/

reJ,dtnCfl) ior tht last five yon or since 13th birthdo1y. Give inclusil1t d•tt1 for Heh ptriod of

residence/ employmentlschool. If ~d•t ional SP•" is nttdtd for any answer, continue it in Item

39, •R,marks. • ·

•

4. Unless otherwise specified , wr ltt all dat~ I\ 6 digiti (with no spaces or marlcs) in YYMMOO fash ion . Ftbruo1ry 13, 198Sis written 8S0213.

DO form 1"6/1R, AU(; 15

~v10w1 .Ohont, .,._ ~ft

'14,•iwot ,,.,. ,

97

98

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

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Cite as: 590 U. S. ____ (2020)

99

Appendix D to opinion of ALITO, J.

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100

~Aloi(

I SOCIAL SECURITY NUIIIIBER

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

H . •r• you now o, ~you~ Nationa t G_,.,d , fC.- __

tt,• -.n '" an, ,-.,ua., o, ,..,. , .. r,r•n ch ot '""• Af'~ed Jorce, o, ,n'"• A rmtt ~ • t1on.a1Gua rd or A,r

,,_ ~-,.,•

OOlo,lft }14 •- o, 00Form115 o,NGllo,m 12 to r n-• I

YES 1110

21. ., .y ou"°""°' ~you...,

.... nowo, ceo o, 199• 11r wcw, ,,. o., 14 · yEs .· lff\t. , tn ltlftt\ 19 .REMARKS .· tft • o•tt . OIA( f a na ((k,,jft

wn teft Qre,nN Otworce or ...,,_1WOilr•tlioift

I

<"'~•'" JO. tt •n,court o,o., o, ~ ,neffKt th.It 011.cu you to oro v,o• ,uooo,i ro,

o, a i1"'on,. , tf • VES"'ent• • ,n tt•m 39,

-.1..e ·R EMARKS.· the>

pt,ac:e, Mid <aurt wfh(ft 9,.tn t .o Attfflony or l1t,,tOPOt•'t"<1ua,n9 oro • r, , .,un 1n9 fro,., o •t• rruty 1u1ti

~.a., .. J1. .,• .,.. ,ou ..,. , ._.,. .,.,...., , •OPte"-"oeo . en., ~ . <•teid o• "•10by

State . "''"'•' Yor otn• r ••• •M orc•rn•n t o,

.......,.~.t•aat .,,,.'"., ,.,..n, .. •vtt'IOrft .. . ,...,.,...

of~

cou,u...m•rt1,1,1o,

, 'UW <flat.on wu cr oooeo or o ,1m,11ed or you ..-.,. touno "ot 9u 11tyl 1nc 1uo e a ll
m, 1,ary w rw,c• 1f • YES• • :"'I•t, oet• ••' '" "•"' 35

._,_...,ldw_ rd Jl . A.J• , et,utt ot tlletft9arN"Md .

<,..,.rtea . '" " or n« tCIbv f f'Of'' • '· ~"-' • · ,,.,uu ,y o, ouw , 1.aw•111ot,cement or ,uw•nu•

• uthOl'lt ... . ,.. .. J101~ 1 ...,, UlftWtC'led . t,iwa by Or'tor1•1t.a ttono to • .,..,. ,a 1 Sta t • or ot ,... , tlld•C• I a "'t"O"rt wo, •o •ud1c•t.C

• ,outhful otf-

or ,...,._ _,._

t•~•CI-

of "'" • '" • ' tll• ••co, CItn }'011•C... IIH -n • 1t• •ed• or OU>erwtM

n,.c_ttn trom 1,- CIDlll'1:,.,.... ); or MM ~ tliN'" , .... MCI hOffl o,arol• . Ot<>Nt •Of't. 11,1w9,n.,. ,uo.rw~on OI C•Jftf'I • 1usoencte<:1

M nt..-c e o, , .. _ •n t • • _,., .,._

ot
35

Cftaf'9B~

OIi

<Olldl1,o,t

,,,.,

yo.. • ooir to, o, enun ,n ,,,. Un11e<S1tatttl A1m.o fo« e1'

If ·YES:

Jl . Ha_.. "°".,.,~ . ~

.hatd "' • o, •~

t•m• tn • ny ,.,.. or o ri t,0n , ' • form or 1noun, .. 1 IChOO'. or • Juw«noe fe ulrty o,

,nn11ut__

,,_,un11t~of...,,aty

. 1t11te.~..,••• • o, to1e,9n co..nt,y> 11 •y [s .· •"•• • csei.11,,,, 11em 3S

" •yn: J&. ., • .,. ,.ou -• - • -rd . o, - ,ou - u-

cnm1MIICMl~....-,aw

f

-•NU

• 11110.noed,.,.,ence . p.,o,. , o, prooet111S111tem35

o• •"'•""'9 ar, y •cuo n 011

•II JS. I.AW YIOI.AnoltS. E--

..._ ·vts· __ ,. 9,...., '" ttems ) I ' "•OU9n3• •DOft (Inc l ude • II ,nctdenu w,tt, i.w ento, ce,.,..,,

__,._ •-

- tf - -

..- ......- wa cirOONGo, d11ffl1lMCI o, yo.. ..,.,. to..ftd not 91111')o', yo., 11•,re - told by rec111tt"'9

0.-

Ot -

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. .,,..,.._ • ...-... ""°°'°'...... 4

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IA CMCA\.I

.

.

JI. CNAIIAC'fla AIID ~ AIMUS1Mlllff : If "°" ' ·-to_,,.

)'GI" -

a •YES." ~ IO _, 11-. __

..,. -

•-00.<. OUffllOn II t r"'"'" 'IY"ltfO." ,r,o,cat• 10 '" tN

ft -

If

encl 9 1w cMU1b 11• 11.... H . •1t(MA IU(S." A "Y(S" •-r

wi ll ftOt

_,,,

•---"'Y ,-, far ■ 11~; It W\11daCl■ ncl 1111- CIR-ll"'IUftC■'I 14,1rt0Uncl111-CJ Situation

YU NO

• A.,,_..•-• '· 0-

(1) . (2) • ..., 01 N'- -

~

-wl!Clly. 11WwitllOII'- • -,,pt,on

of ,,..,.,.,..,, • . l\,lrtotlCl. LSDor ott1e r d.a"9■rous drugs .

•O> "-t11>--. on ,our -4191111,1ty1 10 ■nlort o r be a,,,,"'ISIIOMCI but 11_,n,. 1to accur•tit JOI>claUtfotlOI\ . Addrt- •

._,,..,...,.. _,,.,,...-..c ~ or officertta,n,nv KIIOOI

(1 1... ,,...,.._

.._. __

_LSOoroo,,., oa..a. rouutruos >

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

(2) H_ _,_....,.

• ..,.....,otnarcotlG . LSDor Ot"■ r oan~rous oruo1orffla r.1uana >

(] ) H __

_,,...,.....a1.,..,_ontl,eD8flto•"'°"""

'

t:b Ha• ,ow,,_ of llr"9I or -.oic --~

,,__otal,

IOI•?

IIUCfl at ltQIIO. f- •· w , r,e). ..,. , re14,11te,d,. ~• 1011of a ,ot, . arrett oy P04« . or

Are you a homosexual or a bisexual?("Homosexual" is defined as: sexualdesire or oenav1oar ireCleeal t a person(s) ot ones own

sex. "Bisexual"is definedas: a person sexually responsive to both sexes.)

,t: Do you intendto engage in homosexualacts (sexual relationswith another personof the same sex)?

·

.. An ,ou • ~ •• ....,,

T1'ifl• · Clo,ow- · or...,,,. ,ou .,,. , "80 . 1 t,,..,_fond , and s,ftff,. Ollf■CI'°" to pert1C11Nb0fl

on-•"'.,,,,_,,...,.,._....,..

of-• Nea,.. of 1'911910Utt1a ,n•nv or twllef '

I

'· H_ ,ou _.....,._.....,•••~,_,.___or

of,,,. ...ouniort by •l'tJo' ,anch o♦ -A,..,l'd fc,,w,

UM:ed Sta'"'

- ·or._,..._-... .•...,,.. g. An ,ou

frofll •"Y lltal'ICIoIf - Armae forcet of - unrtN Statn 1

'°"- ....o,•,,f.f.......,._-,~--_ .,.__ " Are ,ou - -

J'III - ...., , •_.,.,al

- Co,,,"'""il"'a'r,y or • ny (omfflwn11t or9ar, 1rat10n' Ar• you "°"'·o r ..., .. m-me nt . 9•0..11 or co"'o.,..,_ 01 ~,_, wh ich eowocatn -

--

of - ---•

..~ 10 ...., --

.,.._

.,...,.,_, ot- Ufl"9d \-..,

DD Fon,, 1""3, AUG as

ton'""'•'" t,o,w, of

or wh ,ch h•1 ..iool.O t n• P()4t<yo l •0-..1 ,ng the COfflffl •-

_t, •It•- - "'"" ..no.. - (o,,fl it 11t0n o t ,,.. ur11ttd Statn or Wllt(h

10

~- ..-.fa . unconfflWtlOna l m..... I ,,, "YES, · v,...···"' '",..,..Jt . ""fM,AIIICS .,

o1 am of lo,lft of

,&OE~

101

102

BOSTOCK v. CLAYTON COUNTY

/IIAME

I~Q(IA L SECVl\lfV NUMIUI

Tl OTHla t"'CIUJIIOUND DAta

• rq,v,,•.,•,..,.,. "'""'Nf ..... ,OU ... 1 b-led to , Of l'ftOdeclon, • I01•'9"

da~t

trav•II ~"91'"''"9ott,c111Ovt.- 1 (If • '1'£j, • -Olll•lh

tJ I

~ th• Vn'1.a ~t.tft

"'Mm jp , •11fM.61NC, "S)

Arll!«I ►- \1ncludl"9

..u ..0

I, , ,.,. .,..., _ anty 1......9 d\~d ot >'OIPi' f'"""'

-••nu- ( , Alt ,ou - d•-•nQ , ..,. Ila yau h• ... an .pp1 .... ,,o,, Nf1Gln9 , o• tDO•O•II far : iwtorad pay, DIUDdlty allaw•nc•.

IY1 ,

o, 1 ~ fl'O'!' fflt oo,,.,11mt1tt of,,_ uno1w ~t.'-"'

-,~----,a--"'"-" · °"" d, M.,.. ,- -

"''OIINonAOTC.IIINOI' ROTC.Su CNf~ "•OV••m, o, flaw -,ov
"llfM.61tl(S .,

a "'•"'"' qt.,._. C:,vo.l,, Pa~? (" "'l'H . •

M , UNOt•P,UU)IIIIG
•• I wncMntand that an on91n.al.nhnment 00119Jt.S ""• to WNe 1ntha ~nned Forc:n for II penod of eioht (81years (olCtlveanc, 1n.l('t1ve Ch,,ty1l 1rilt1U00l"ter di:tene,ved .

b. "'l'LICANn INITLAU,

Appendix D to opinion of ALITO, J.

SECTION IV • Allil•IIKS

Jt . 1(111.HIU (E-rhlftill ___

.l

Cite as: 590 U. S. ____ (2020)

103

Appendix D to opinion of ALITO, J.

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104

,,..,....

~·

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

'" ,o,,..,.. •• I C:M"I,,., rr.a, ,,... 1n•otll'Jlc,o.-. O•~ " 1,f "~ ,,\ \l'l•S OO<v'""''" ,c ,,.,,. , f('IPT\1)11,'1111'1\1C1'O'N'-('I

H'('I o l ffll'

a, -.niw.l1111•u •nd ~... . I .,,.o.r, :M(l 111~1I or•, l<(-•1'1')..'(ftj'lll'fl 10• . ,,. ,.,_ ..., ft,'114,11n'olf'ltm • 1"tn1t11 ;11o()tl ,iro v, OPO l'I,· -
n 1n, 1aor,1m"" t O\ll 1•' "" Cf\t'" '°"""-'~•"0•Ja.ncw,,nnof 1,11o.,r ,nco,r,c, , , r0111dtw mN ,n ,. r,11111.tn or m,hury

.,........... '°''°,.,_.. 10 1.n1 in c could 1n11w , 11~ 1t,1n nono,-•01• 011r11Hq• w11icn , o~ lo 1 U ..: 1 ff'l'f l11w1 1 9!Tlpl0¥fflrl l oppof'\11n111n , • loor'I

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a," '' w•tl'~wd llw •Ph c ■nt·, ~

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w -•l•■!J \h t O•w ,,, t.>,.Ov<1.1~fl'U

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,,_I\ DQl'• ~• C •M ■ lllt.41Pl ~

1n ft • ll"I 4J .1 •oaH • IIG M!Mlft • l Md lo m

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JUlk.)fflHII ■nd

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on .-hlllt al

Md Ct' rl ll )' lhol l

-- · _ ___ pionuM\ or q.1ar • l\1H\ CfflWf U,an VlDN h\\i,d In Ill ,., ~J
iuu, • ntntml'llln NH ~ uru:, ~ camol1410w 1U111'1d, n, V-Mwn t ( u1N -"d .,. 1tucn 1d to1.'t " D~V-,Ot' l'l

l.'lr cm •f1 lML _._.. ...

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flld

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

,-.,......
"--ii&-.... ~ .. . _ ... ,.,_ A.II
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DOP.0tM ,,Mt..•'1uCin

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PAI i I

105

106

BOSTOCK v. CLAYTON COUNTY

Appendix D to opinion of ALITO, J.

N&Ml

I 10( .... 1,(i,1A1T\' "'"MUii

NOTE VSf TMri00 IOIM '"' .. or o,nv IP r"""' nrn011 ~ TO '"r Ai.llC,Uo1r\ lrCOIID o• Ml~ITH\' 1111ocrH1111c;

SECTION \'II • ,AAENTAI.I (;UAAOIAN C:ONS(NTf0~ INUST't,t.l. T

.itii 1.PA•tlfT , ~UA•Ouu•~ ~lol TtlatfNff S) ''-'Mou, OOl"f,ornnar ,11J1J<u•01• 1

,..--.c... ~ 11w• <•ndy th.ar ""'~' ,.._ ol

11

b ~QR ENIISTMfNT IN A_MSt$YCtO: MPO!:;ffNT

I"" hu no oth,r 1,011 oueroI1n other 1n.an m•, 11\ fr'IO I /

we c0111e,,t to h11

tnlrnffl•n1 ,11 ,,,. Ul'l•lfll St119'

llrt .. , llrMfffl al ~,c• /

llwl!' Ctr'\1fy\hit "'9 prom•lf) o• .1ny ~,no 1'1<1vaOHn 1!'110• 10 m•lu \ (On(eln1r1e,1•IO\JQnm,nt to OUW, tr<11ntn9, or promo,,o" ourinq h1Slhtr tn11nmtnt it f" •MYS""'!"~ 10 m♦/111 to \AQnth•s tonMnt . llw• ner,ov .au1no11u tnt Armed F0t<tt lll)f♦~~\ll•V«\ C0'1Clmed lo perlor,.. m,01til l ,x.aminu10"' · 011~, ea,1m,n,11r011irtourrN . ,,,d
to tOnd11(t rittor1h th«cu to ae1«rm1n1 n111ne111,9,b,h1>1, Uwe ,a1,nQ11tn •II Cl.l,fflto 1'11\/hittr,rv,c, ilnd to any 111119•
or como«nYIJon for ,uch wn,1ca .

,.,w VW• unotr1una t1,.a1, •• 1 ffllll'lblr of • "'"""•

C0"1DOnfflt, he/\h• must

fflllllfflUffl p•1100, of

1ct1v, duty lor tr,111nin9un1en •~cu,ect by comc>,tteM

au1/'lor1w. In the e11ent h&11he flill to fulfill In.

ot>l•Qai10111of h1llh«r ffl411"i'a enhrtment, h-1sh• .m•y

be ,,called to act,11e duty lK prl'Cribed bV law . 11-

1111'\h,1undff11and tNlt while hel1h« II 1n tM IHdy

r.-ttrvt , h«Jtt,e may be order.CS to Ht«noed 1cll11e

d11W,n 1,me of war or l'lat1or,1Iemergency d,clareo by

the Co119,.,1 o, tf\t P...,.dtnt ,,,, w,,.,, olhtl"W!'M'

olU1:hon11tdby ltw

C PA~CNT
C!I nlllllD DIIII....,,D ..... ......,,~

....._,.......

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ttt ~'1000-110-11-.P_

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r-·-

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r·-·.... r--·~

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CJ)O•tC we-lCJ ~

Cite as: 590 U. S. ____ (2020)

Appendix D to opinion of ALITO, J.

SIECTIOtiVl III• SU. T!MENT 0~ N,t.MI JOII OP,tQAI. MILJTAll'IU' COll:DS

.. . IIA"'I UIANQI, II trte pre1e,r-o •1111wl'ltl'II "•mt tl'leme 9,ver, l l'I ntm 2) 111'10i\nt W,Mt ei 01'1yo11rc,,,tt, ce!'\1f1ca\e ,

er,d •t t,e1 not ~" ch1nQ~ bV 119•1prO(eaur• ore,<rib,ect by 11.111I.•aw, el'ICI11 11'lh• t:am• ,H OIi ,.ovr toeitl M<11"tr

n..,mc,e, caret, comalete 'lht IOllow,n; :
• NAMl .U lMOWN ON IIR TM CEATIF•~Tl

., • Nill~ AJ 5'!0¥¥N ON iO<W. itCU~lfT NY... U~ (.&N)

C, I lltr•t>y IUlf 1ll•t I "'•"" '1ot Ch■"94"1 my neme U1r0\l9h eny coun or otMr 199el pn,ced..,re ; that I prefer to use

IMl'llffleof

by which I em known in the community n • metter of

cam.er,1-nct •"Cl w,111no cnm,net inwnt.
"'°""'""llem 2,
d WlfNfS\
-·- "' "..,oa,..,,o.att
"'

I ful'Vlltr ne-. that I am the -

11• ,1u...,.

- ·- • &" ll( ANT
Il l

penon a the per,ot1 whow n■l'M it
Wl Mn~t
'"-

DD Fnrm 1c1&,1i , AU(; I'}

.,...,.,out•o ,r,n"'I ,,. fli,t,,.,.,.

~..,.'

107

Cite as: 590 U. S. ____ (2020)

1

KAVANAUGH, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 17–1618, 17–1623 and 18–107
_________________

GERALD LYNN BOSTOCK, PETITIONER

17–1618

v.

CLAYTON COUNTY, GEORGIA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS

17–1623

v.

MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,

CO-INDEPENDENT EXECUTORS OF THE ESTATE OF

DONALD ZARDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

PETITIONER

18–107

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[June 15, 2020]

JUSTICE KAVANAUGH, dissenting.
Like many cases in this Court, this case boils down to one fundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII

2

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.
The political branches are well aware of this issue. In 2007, the U. S. House of Representatives voted 235 to 184 to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 in favor of a similar ban. In 2019, the House again voted 236 to 173 to outlaw employment discrimination on the basis of sexual orientation. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law.
The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.1

—————— 1 Although this opinion does not separately analyze discrimination on
the basis of gender identity, this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity.

Cite as: 590 U. S. ____ (2020)

3

KAVANAUGH, J., dissenting
I
Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).2 As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination.
Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 81 Stat. 602. In 1973, Congress passed and President Nixon signed the Rehabilitation Act, which in substance prohibited disability discrimination against federal and certain other employees. 87 Stat. 355. In 1990, Congress passed and President George H. W. Bush signed the comprehensive Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the

—————— 2 In full, the statute provides: “It shall be an unlawful employment practice for an employer— “(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) (emphasis added).
As the Court today recognizes, Title VII contains an important exemption for religious organizations. §2000e–1(a); see also §2000e–2(e). The First Amendment also safeguards the employment decisions of religious employers. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188–195 (2012). So too, the Religious Freedom Restoration Act of 1993 exempts employers from federal laws that substantially burden the exercise of religion, subject to limited exceptions. §2000bb–1.

4

BOSTOCK v. CLAYTON COUNTY

KAVANAUGH, J., dissenting
law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of powers.
For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line.
In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.
If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty. As James Madison stated: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.” The Federalist No. 47, at 326 (citing Montesquieu). If judges could, for example, rewrite or update securities laws or healthcare laws or gun laws or environmental laws simply based on their own policy views, the Judiciary would become a democratically illegitimate super-legislature—unelected, and hijacking the important policy decisions reserved by the Constitution to the people’s elected representatives.
Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges

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considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30.
But in the last few years, a new theory has emerged. To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex.
Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. Surprisingly, the Court today buys into this approach. Ante, at 9–12.
For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. The plaintiffs fall short on both counts.

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KAVANAUGH, J., dissenting
First, courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, “the good textualist is not a literalist.” A. Scalia, A Matter of Interpretation 24 (1997). Or as Professor Eskridge stated: The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,” so that “for hard cases as well as easy ones, the ordinary meaning (or the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation.” W. Eskridge, Interpreting Law 33, 34–35 (2016) (footnote omitted). Or as Professor Manning put it, proper statutory interpretation asks “how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context. This approach recognizes that the literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as Professor Nelson wrote: No “mainstream judge is interested solely in the literal definitions of a statute’s words.” Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The ordinary meaning that counts is the ordinary public meaning at the time of enactment—although in this case, that temporal principle matters little because the ordinary meaning of “discriminate because of sex” was the same in 1964 as it is now.
Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to

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ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning.
Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on “vehicles in the park” would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word “vehicle,” in its ordinary meaning, does not encompass baby strollers.
The ordinary meaning principle is longstanding and well settled. Time and again, this Court has rejected literalism in favor of ordinary meaning. Take a few examples:
 The Court recognized that beans may be seeds “in the language of botany or natural history,” but concluded that beans are not seeds “in commerce” or “in common parlance.” Robertson v. Salomon, 130 U. S. 412, 414 (1889).
 The Court explained that tomatoes are literally “the fruit of a vine,” but “in the common language of the people,” tomatoes are vegetables. Nix v. Hedden, 149 U. S. 304, 307 (1893).
 The Court stated that the statutory term “vehicle” does not cover an aircraft: “No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air . . . . But in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” McBoyle v. United States, 283 U. S. 25, 26 (1931).
 The Court pointed out that “this Court’s interpretation of the three-judge-court statutes has frequently deviated from the path of literalism.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 96 (1974).

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 The Court refused a reading of “mineral deposits” that would include water, even if “water is a ‘mineral,’ in the broadest sense of that word,” because it would bring about a “major . . . alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.” Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 610, 616 (1978).
 The Court declined to interpret “facilitating” a drug distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” Abuelhawa v. United States, 556 U. S. 816, 820 (2009).
 The Court rebuffed a literal reading of “personnel rules” that would encompass any rules that personnel must follow (as opposed to human resources rules about personnel), and stated that no one “using ordinary language would describe” personnel rules “in this manner.” Milner v. Department of Navy, 562 U. S. 562, 578 (2011).
 The Court explained that, when construing statutory phrases such as “arising from,” it avoids “uncritical literalism leading to results that no sensible person could have intended.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 9–10) (internal quotation marks omitted).
Those cases exemplify a deeply rooted principle: When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning.
Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when—as in this case—judges consider phrases in statutes. (Recall that the shorthand version of the phrase at issue here is “discriminate because of sex.”)3
—————— 3 The full phrasing of the statute is provided above in footnote 2. This

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Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase. Examples abound. An “American flag” could literally encompass a flag made in America, but in common parlance it denotes the Stars and Stripes. A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict short of open warfare. A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes.
This Court has often emphasized the importance of sticking to the ordinary meaning of a phrase, rather than the meaning of words in the phrase. In FCC v. AT&T Inc., 562 U. S. 397 (2011), for example, the Court explained:
“AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person. . . . But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.” Id., at 406.

—————— opinion uses “discriminate because of sex” as shorthand for “discriminate . . . because of . . . sex.” Also, the plaintiffs do not dispute that the ordinary meaning of the statutory phrase “discriminate” because of sex is the same as the statutory phrase “to fail or refuse to hire or to discharge any individual” because of sex.

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Exactly right and exactly on point in this case. Justice Scalia explained the extraordinary importance of
hewing to the ordinary meaning of a phrase: “Adhering to the fair meaning of the text (the textualist’s touchstone) does not limit one to the hyperliteral meaning of each word in the text. In the words of Learned Hand: ‘a sterile literalism . . . loses sight of the forest for the trees.’ The full body of a text contains implications that can alter the literal meaning of individual words.” A. Scalia & B. Garner, Reading Law 356 (2012) (footnote omitted). Put another way, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory, 69 F. 2d 809, 810–811 (CA2 1934) (L. Hand, J.). Judges must take care to follow ordinary meaning “when two words combine to produce a meaning that is not the mechanical composition of the two words separately.” Eskridge, Interpreting Law, at 62. Dictionaries are not “always useful for determining the ordinary meaning of word clusters (like ‘driving a vehicle’) or phrases and clauses or entire sentences.” Id., at 44. And we must recognize that a phrase can cover a “dramatically smaller category than either component term.” Id., at 62.
If the usual evidence indicates that a statutory phrase bears an ordinary meaning different from the literal strung-together definitions of the individual words in the phrase, we may not ignore or gloss over that discrepancy. “Legislation cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming that, if the right example of the meaning of each is selected, the ‘plain meaning’ of the statute leads to a particular result. No theory of interpretation, including textualism itself, is premised on such an approach.” 883 F. 3d 100, 144, n. 7 (CA2 2018) (Lynch, J., dissenting).4

—————— 4 Another longstanding canon of statutory interpretation—the absurd-
ity canon—similarly reflects the law’s focus on ordinary meaning rather

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In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does. See ante, at 5–9. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees.
A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is. It destabilizes the rule of law and thwarts democratic accountability. For phrases as well as terms, the “linchpin of statutory interpretation is ordinary meaning, for that is going to be most accessible to the citizenry desirous of following the law and to the legislators and their staffs drafting the legal terms of the plans launched by statutes and to the administrators and judges implementing the statutory plan.” Eskridge, Interpreting Law, at 81; see Scalia, A Matter of Interpretation, at 17.
Bottom line: Statutory Interpretation 101 instructs courts to follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.
Second, in light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question in this case boils down to the ordinary meaning of the phrase “discriminate because of sex.” Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no.

—————— than literal meaning. That canon tells courts to avoid construing a statute in a way that would lead to absurd consequences. The absurdity canon, properly understood, is “an implementation of (rather than . . . an exception to) the ordinary meaning rule.” W. Eskridge, Interpreting Law 72 (2016). “What the rule of absurdity seeks to do is what all rules of interpretation seek to do: make sense of the text.” A. Scalia & B. Garner, Reading Law 235 (2012).

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KAVANAUGH, J., dissenting
On occasion, it can be difficult for judges to assess ordinary meaning. Not here. Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today.
As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. Ante, at 16. That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.
Contrary to the majority opinion’s approach today, this Court has repeatedly emphasized that common parlance matters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted. New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7); see Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 4) (using a conversation between friends to demonstrate ordinary meaning); see also Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___–___ (2018) (slip op., at 2–3) (similar); AT&T, 562 U. S., at 403– 404 (similar).
Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of

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the other—as the majority opinion does—misapprehends common language, human psychology, and real life. See Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339, 363 (CA7 2017) (Sykes, J., dissenting).
It also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.
Importantly, an overwhelming body of federal law reflects and reinforces the ordinary meaning and demonstrates that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Since enacting Title VII in 1964, Congress has never treated sexual orientation discrimination the same as, or as a form of, sex discrimination. Instead, Congress has consistently treated sex discrimination and sexual orientation discrimination as legally distinct categories of discrimination.
Many federal statutes prohibit sex discrimination, and many federal statutes also prohibit sexual orientation discrimination. But those sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. Every single one. To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination, Congress explicitly refers to sexual orientation discrimination.5
—————— 5 See 18 U. S. C. §249(a)(2)(A) (criminalizing violence because of “gen-
der, sexual orientation”); 20 U. S. C. §1092(f )(1)(F)(ii) (requiring funding recipients to collect statistics on crimes motivated by the victim’s “gender, . . . sexual orientation”); 34 U. S. C. §12291(b)(13)(A) (prohibiting discrimination on the basis of “sex, . . . sexual orientation”); §30501(1)

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That longstanding and widespread congressional practice matters. When interpreting statutes, as the Court has often said, we “usually presume differences in language” convey “differences in meaning.” Wisconsin Central, 585 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. As Justice Scalia explained for the Court, “it is not our function” to “treat alike subjects that different Congresses have chosen to treat differently.” West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991); see id., at 92.
And the Court has likewise stressed that we may not read “a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” Eskridge, Interpreting Law, at 415; see University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 357 (2013); Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 297–298 (2006); Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 341–342 (2005); Custis v. United States, 511 U. S. 485, 491–493 (1994); West Virginia Univ. Hospitals, 499 U. S., at 99.

—————— (identifying violence motivated by “gender, sexual orientation” as national problem); §30503(a)(1)(C) (authorizing Attorney General to assist state, local, and tribal investigations of crimes motivated by the victim’s “gender, sexual orientation”); §§41305(b)(1), (3) (requiring Attorney General to acquire data on crimes motivated by “gender . . . , sexual orientation,” but disclaiming any cause of action including one “based on discrimination due to sexual orientation”); 42 U. S. C. §294e–1(b)(2) (conditioning funding on institution’s inclusion of persons of “different genders and sexual orientations”); see also United States Sentencing Commission, Guidelines Manual §3A1.1(a) (Nov. 2018) (authorizing increased offense level if the crime was motivated by the victim’s “gender . . . or sexual orientation”); 2E Guide to Judiciary Policy §320 (2019) (prohibiting judicial discrimination because of “sex, . . . sexual orientation”).

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So it is here. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination. So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two distinct categories.
Where possible, we also strive to interpret statutes so as not to create undue surplusage. It is not uncommon to find some scattered redundancies in statutes. But reading sex discrimination to encompass sexual orientation discrimination would cast aside as surplusage the numerous references to sexual orientation discrimination sprinkled throughout the U. S. Code in laws enacted over the last 25 years.
In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
The story is the same with bills proposed in Congress. Since the 1970s, Members of Congress have introduced many bills to prohibit sexual orientation discrimination in the workplace. Until very recently, all of those bills would have expressly established sexual orientation as a separately proscribed category of discrimination. The bills did not define sex discrimination to encompass sexual orientation discrimination.6
—————— 6 See, e.g., H. R. 14752, 93d Cong., 2d Sess., §§6, 11 (1974) (amending
Title VII “by adding after the word ‘sex’ ” the words “ ‘sexual orientation,’ ” defined as “choice of sexual partner according to gender”); H. R. 451, 95th Cong., 1st Sess., §§6, 11 (1977) (“adding after the word ‘sex,’ . . . ‘affectional or sexual preference,’ ” defined as “having or manifesting an emotional or physical attachment to another consenting person or persons of either gender, or having or manifesting a preference for such

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KAVANAUGH, J., dissenting
The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 186–188 (1994). Rather, the proposed bills are telling because they, like the enacted laws, further demonstrate the widespread usage of the English language in the United States: Sexual orientation discrimination is distinct from, and not a form of, sex discrimination.
Presidential Executive Orders reflect that same common understanding. In 1967, President Johnson signed an Executive Order prohibiting sex discrimination in federal employment. In 1969, President Nixon issued a new order that did the same. Exec. Order No. 11375, 3 CFR 684 (1966– 1970 Comp.); Exec. Order No. 11478, id., at 803. In 1998, President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discrimination in federal employment. Exec. Order No. 13087, 3 CFR 191 (1999). The Nixon and Clinton Executive Orders remain in effect today.

—————— attachment”); S. 1708, 97th Cong., 1st Sess., §§1, 2 (1981) (“inserting after ‘sex’ . . . ‘sexual orientation,’ ” defined as “ ‘homosexuality, heterosexuality, and bisexuality’ ”); H. R. 230, 99th Cong., 1st Sess., §§4, 8 (1985) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); S. 47, 101st Cong., 1st Sess., §§5, 9 (1989) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); H. R. 431, 103d Cong., 1st Sess., §2 (1993) (prohibiting discrimination “on account of . . . sexual orientation” without definition); H. R. 1858, 105th Cong., 1st Sess., §§3, 4 (1997) (prohibiting discrimination “on the basis of sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2692, 107th Cong., 1st Sess., §§3, 4 (2001) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2015, 110th Cong., 1st Sess., §§3, 4 (2007) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, heterosexuality, or bisexuality”); S. 811, 112th Cong., 1st Sess., §§3, 4 (2011) (same).

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Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new, separately prohibited form of discrimination. As Judge Lynch cogently spelled out, “the Clinton Administration did not argue that the prohibition of sex discrimination in” the prior 1969 Executive Order “already banned, or henceforth would be deemed to ban, sexual orientation discrimination.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short, President Clinton’s 1998 Executive Order indicates that the Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not a form of, sex discrimination.
Federal regulations likewise reflect that same understanding. The Office of Personnel Management is the federal agency that administers and enforces personnel rules across the Federal Government. OPM has issued regulations that “govern . . . the employment practices of the Federal Government generally, and of individual agencies.” 5 CFR §§300.101, 300.102 (2019). Like the federal statutes and the Presidential Executive Orders, those OPM regulations separately prohibit sex discrimination and sexual orientation discrimination.
The States have proceeded in the same fashion. A majority of States prohibit sexual orientation discrimination in

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employment, either by legislation applying to most workers,7 an executive order applying to public employees,8 or
—————— 7 See Cal. Govt. Code Ann. §12940(a) (West 2020 Cum. Supp.) (prohib-
iting discrimination because of “sex, . . . sexual orientation,” etc.); Colo. Rev. Stat. §24–34–402(1)(a) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Conn. Gen. Stat. §46a–81c (2017) (prohibiting discrimination because of “sexual orientation”); Del. Code Ann., Tit. 19, §711 (2018 Cum. Supp.) (prohibiting discrimination because of “sex (including pregnancy), sexual orientation,” etc.); D. C. Code §2– 1402.11(a)(1) (2019 Cum. Supp.) (prohibiting discrimination based on “sex, . . . sexual orientation,” etc.); Haw. Rev. Stat. §378–2(a)(1)(A) (2018 Cum. Supp.) (prohibiting discrimination because of “sex[,] . . . sexual orientation,” etc.); Ill. Comp. Stat., ch. 775, §§5/1–103(Q), 5/2–102(A) (West 2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Iowa Code §216.6(1)(a) (2018) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Me. Rev. Stat. Ann., Tit. 5, §4572(1)(A) (2013) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Md. State Govt. Code Ann. §20–606(a)(1)(i) (Supp. 2019) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Gen. Laws, ch. 151B, §4 (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Minn. Stat. §363A.08(2) (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Nev. Rev. Stat. §613.330(1) (2017) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. H. Rev. Stat. Ann. §354–A:7(I) (2018 Cum. Supp.) (prohibiting discrimination because of “sex,” “sexual orientation,” etc.); N. J. Stat. Ann. §10:5–12(a) (West Supp. 2019) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); N. M. Stat. Ann. §28–1–7(A) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. Y. Exec. Law Ann. §296(1)(a) (West Supp. 2020) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); Ore. Rev. Stat. §659A.030(1) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); R. I. Gen. Laws §28–5– 7(1) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Utah Code §34A–5–106(1) (2019) (prohibiting discrimination because of “sex; . . . sexual orientation,” etc.); Vt. Stat. Ann., Tit. 21, §495(a)(1) (2019 Cum. Supp.) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Wash. Rev. Code §49.60.180 (2008) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.).
8 See, e.g., Alaska Admin. Order No. 195 (2002) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ariz. Exec. Order No. 2003–22 (2003) (prohibiting public-employment discrimination because of “sexual orientation”); Cal. Exec. Order No. B–

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both. Almost every state statute or executive order proscribing sexual orientation discrimination expressly prohibits sexual orientation discrimination separately from the State’s ban on sex discrimination.
—————— 54–79 (1979) (prohibiting public-employment discrimination because of “sexual preference”); Colo. Exec. Order (Dec. 10, 1990) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Del. Exec. Order No. 8 (2009) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ind. Governor’s Pol’y Statement (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Kan. Exec. Order No. 19–02 (2019) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Ky. Exec. Order No. 2008–473 (2008) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Exec. Order No. 526 (2011) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Minn. Exec. Order No. 86–14 (1986) (prohibiting publicemployment discrimination because of “sexual orientation”); Mo. Exec. Order No. 10–24 (2010) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mont. Exec. Order No. 04– 2016 (2016) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); N. H. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “sex, sexual orientation,” etc.); N. J. Exec. Order No. 39 (1991) (prohibiting publicemployment discrimination because of “sexual orientation”); N. C. Exec. Order No. 24 (2017) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ohio Exec. Order No. 2019– 05D (2019) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ore. Exec. Order No. 19–08 (2019) (prohibiting public-employment discrimination because of “sexual orientation”); Pa. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); R. I. Exec. Order No. 93–1 (1993) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Va. Exec. Order No. 1 (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Wis. Exec. Order No. 1 (2019) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); cf. Wis. Stat. §§111.36(1)(d)(1), 111.321 (2016) (prohibiting employment discrimination because of sex, defined as including discrimination because of “sexual orientation”); Mich. Exec. Directive No. 2019– 9 (2019) (prohibiting public-employment discrimination because of “sex,” defined as including “sexual orientation”).

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KAVANAUGH, J., dissenting
That common usage in the States underscores that sexual orientation discrimination is commonly understood as a legal concept distinct from sex discrimination.
And it is the common understanding in this Court as well. Since 1971, the Court has employed rigorous or heightened constitutional scrutiny of laws that classify on the basis of sex. See United States v. Virginia, 518 U. S. 515, 531–533 (1996); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136– 137 (1994); Craig v. Boren, 429 U. S. 190, 197–199 (1976); Frontiero v. Richardson, 411 U. S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, 404 U. S. 71, 75–77 (1971). Over the last several decades, the Court has also decided many cases involving sexual orientation. But in those cases, the Court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause. See Bowers v. Hardwick, 478 U. S. 186 (1986); Romer v. Evans, 517 U. S. 620 (1996); Lawrence v. Texas, 539 U. S. 558 (2003); United States v. Windsor, 570 U. S. 744 (2013); Obergefell v. Hodges, 576 U. S. 644 (2015).
Did the Court in all of those sexual orientation cases just miss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? That seems implausible. Nineteen Justices have participated in those cases. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. The opinions in those five cases contain no trace of such reasoning. That is presumably because everyone on this Court, too, has long understood that sexual orientation

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discrimination is distinct from, and not a form of, sex discrimination.
In sum, all of the usual indicators of ordinary meaning— common parlance, common usage by Congress, the practice in the Executive Branch, the laws in the States, and the decisions of this Court—overwhelmingly establish that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The usage has been consistent across decades, in both the federal and state contexts.
Judge Sykes summarized the law and language this way: “To a fluent speaker of the English language—then and now—. . . discrimination ‘because of sex’ is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here.” Hively, 853 F. 3d, at 363 (dissenting opinion).
To tie it all together, the plaintiffs have only two routes to succeed here. Either they can say that literal meaning overrides ordinary meaning when the two conflict. Or they can say that the ordinary meaning of the phrase “discriminate because of sex” encompasses sexual orientation discrimination. But the first flouts long-settled principles of statutory interpretation. And the second contradicts the widespread ordinary use of the English language in America.
II
Until the last few years, every U. S. Court of Appeals to address this question concluded that Title VII does not prohibit discrimination because of sexual orientation. As noted above, in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination. 30 out of 30

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KAVANAUGH, J., dissenting
judges.9 The unanimity of those 30 federal judges shows that the
question as a matter of law, as compared to as a matter of policy, was not deemed close. Those 30 judges realized a seemingly obvious point: Title VII is not a general grant of authority for judges to fashion an evolving common law of equal treatment in the workplace. Rather, Title VII identifies certain specific categories of prohibited discrimination. And under the separation of powers, Congress—not the courts—possesses the authority to amend or update the law, as Congress has done with age discrimination and disability discrimination, for example.
So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII. The law has not changed. Rather, the judges’ decisions have evolved.
To be sure, the majority opinion today does not openly profess that it is judicially updating or amending Title VII. Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But the majority opinion achieves the same outcome by seizing on literal meaning and overlooking the ordinary meaning of the phrase “discriminate because of sex.” Although the majority opinion acknowledges that the meaning of a phrase and the meaning of a phrase’s individual words could differ, it dismisses phrasal meaning for purposes of this case. The majority opinion repeatedly seizes on the meaning of the
—————— 9 See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–
259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001); Wrightson v. Pizza Hut of America, Inc., 99 F. 3d 138, 143 (CA4 1996); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam); Ruth v. Children’s Medical Center, 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085 (CA7 1984); Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Medina v. Income Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005).

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statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. See ante, at 5–9, 17, 24–26. But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination.
The majority opinion deflects that critique by saying that courts should base their interpretation of statutes on the text as written, not on the legislators’ subjective intentions. Ante, at 20, 23–30. Of course that is true. No one disagrees. It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998).
But in my respectful view, the majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. To briefly explain: In the early years after Title VII was enacted, some may have wondered whether Title VII’s prohibition on sex discrimination protected male employees. After all, covering male employees may not have been the intent of some who voted for the statute. Nonetheless, discrimination on the basis of sex against women and discrimination on the basis of sex against men are both understood as discrimination because of sex (back in 1964 and now) and are therefore encompassed within Title VII. Cf. id., at 78–79; see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685 (1983). So too, regardless of what the intentions of the drafters might have been, the ordinary meaning of the law demonstrates that harassing an employee because of her sex is discriminating against the employee because of her sex with respect

24

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KAVANAUGH, J., dissenting
to the “terms, conditions, or privileges of employment,” as this Court rightly concluded. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64 (1986) (internal quotation marks omitted).10
By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.

—————— 10 An amicus brief supporting the plaintiffs suggests that the plaintiffs’
interpretive approach is supported by the interpretive approach employed by the Court in its landmark decision in Brown v. Board of Education, 347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars as Amici Curiae 4. That suggestion is incorrect. Brown is a correct decision as a matter of original public meaning. There were two analytical components of Brown. One issue was the meaning of “equal protection.” The Court determined that black Americans—like all Americans—have an individual equal protection right against state discrimination on the basis of race. (That point is also directly made in Bolling v. Sharpe, 347 U. S. 497, 499–500 (1954).) Separate but equal is not equal. The other issue was whether that racial nondiscrimination principle applied to public schools, even though public schools did not exist in any comparable form in 1868. The answer was yes. The Court applied the equal protection principle to public schools in the same way that the Court applies, for example, the First Amendment to the Internet and the Fourth Amendment to cars.
This case raises the same kind of inquiry as the first question in Brown. There, the question was what equal protection meant. Here, the question is what “discriminate because of sex” means. If this case raised the question whether the sex discrimination principle in Title VII applied to some category of employers unknown in 1964, such as to social media companies, it might be a case in Brown’s second category, akin to the question whether the racial nondiscrimination principle applied to public schools. But that is not this case.

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To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting opinion).
The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two.
As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today. Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). Some will surmise that the Court succumbed to “the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others.”

26

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Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist, J., dissenting).
I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.
* * *
In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. After all, even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation— the House voted 235 to 184 to prohibit sexual orientation discrimination in employment. H. R. 3685, 110th Cong., 1st Sess. In 2013, the Senate overwhelmingly approved a similar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. H. R. 5, 116th Cong., 1st Sess. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn.
It is true that meaningful legislative action takes time— often too much time, especially in the unwieldy morass on

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Capitol Hill. But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” Henson, 582 U. S., at ___–___ (slip op., at 10–11).
Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court’s ruling “comes at a great cost to representative self-government.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come.
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the

28

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KAVANAUGH, J., dissenting
Court’s judgment.

 
 No. 17-1618 ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
GERALD LYNN BOSTOCK,
Petitioner, v.
CLAYTON COUNTY, GEORGIA,
Respondent.
---------------------------------  ---------------------------------
On Writ Of Certiorari To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------  ---------------------------------
BRIEF FOR PETITIONER
---------------------------------  ---------------------------------
BRIAN J. SUTHERLAND Counsel of Record
THOMAS J. MEW IV BUCKLEY BEAL, LLP 600 Peachtree St., N.E. Suite 3900 Atlanta, Georgia 30308 (404) 781-1100 bsutherland@buckleybeal.com tmew@buckleybeal.com Counsel for Petitioner
Gerald Lynn Bostock
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i
QUESTION PRESENTED
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

ii
PARTIES TO THE PROCEEDING
Petitioner is Mr. Gerald Lynn Bostock, the Plaintiff in the United States District Court for the Northern District of Georgia and the Appellant in the United States Court of Appeals for the Eleventh Circuit.
Respondent is the government of Clayton County, Georgia, the Defendant in the United States District Court for the Northern District of Georgia and the Appellee in the United States Court of Appeals for the Eleventh Circuit.

iii
TABLE OF CONTENTS Page
Question Presented ................................................ i Parties to the Proceeding ....................................... ii Table of Contents .................................................... iii
Table of Authorities ................................................ vi Opinions Below ....................................................... 1 Statement of Jurisdiction ....................................... 1
Constitutional and Statutory Provisions Involved .... 2 Statement of the Case ............................................ 3
A. Factual Background..................................... 4 B. The District Court’s Dismissal of Mr. Bostock’s
Case .............................................................. 6 C. The Eleventh Circuit’s Affirmance of the Dis-
missal............................................................ 8 Summary of Argument ........................................... 10 Argument ................................................................ 12
I. The Plain Language of Title VII Forbids Sexual Orientation Discrimination Because it is a Form of Sex Discrimination .............. 12 A. Sexual Orientation Discrimination is Sex Discrimination Because Sexual Orientation is a Sex-Based Classification ..... 13 B. Sexual Orientation Discrimination is Associational Sex Discrimination ......... 18 C. Sexual Orientation Discrimination is Sex Stereotype Discrimination Under Price Waterhouse v. Hopkins ................. 23

iv
TABLE OF CONTENTS – Continued
Page
D. The Court Clearly Held in Oncale that Title VII Prohibits “Any Kind” of SexBased Discrimination ............................ 29
II. The Statutory History of Title VII Confirms that it Forbids Sexual Orientation Discrimination as a Form of Sex Discrimination .... 32
A. Congress Rejected Limitations on the Sex Discrimination Prohibition in Title VII and Confirmed the ClassificationBased Approach with the 1978 Pregnancy Discrimination Act...................... 34
B. Congress Incorporated into Title VII an Expansive Definition of Sex-Based Discrimination from Newport News, Meritor, and Price Waterhouse with the Civil Rights Act of 1991 ................................. 37
C. The Court Unanimously Recognized in Oncale that Title VII Must be Read to Prohibit Forms of Sex Discrimination not Contemplated by Congress in 1964 ........ 44
III. Title VII Must be Interpreted to Prohibit Sexual Orientation Discrimination Because the Contrary Interpretation Would Place Different Parts of the Statute in Conflict and is Profoundly Unworkable.................... 47
A. Title VII Must Be Interpreted to Prohibit Sexual Orientation Discrimination to Give Effect to all the Anti-Discrimination Provisions of the Statute ........................ 48

v
TABLE OF CONTENTS – Continued Page
B. The Attempt to Distinguish Between Sex Stereotype Discrimination Based on Gay or Lesbian “Traits” and Sexual Orientation Discrimination is Profoundly Unworkable ................................................. 51
Conclusion............................................................... 57

vi
TABLE OF AUTHORITIES Page
CASES:
Abramski v. United States, 573 U.S. 169 (2014) ........32
Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995) ..........................................46
Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000) ........................................................................26
Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) .....................................26
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) .............................................................. 3, 6, 7, 9
BNSF Ry. Co. v. Loos, 139 S. Ct. 893 (2019)...............43
Bob Jones Univ. v. United States, 461 U.S. 574 (1983) .......................................................................18
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ...................................................................6
Bostock v. Clayton County, Ga., 723 F. App’x 964 (11th Cir. 2018)..........................................................1
Bostock v. Clayton County, Ga., 894 F.3d 1335 (11th Cir. 2018)..........................................................1
Bostock v. Clayton County, Ga., 139 S. Ct. 1599 (2019) .........................................................................2
Brannum v. Mo. Dep’t of Corr., 518 F.3d 542 (8th Cir. 2008) .................................................................56
Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).......40
Carter v. United States, 530 U.S. 255 (2000)..............34

vii
TABLE OF AUTHORITIES – Continued Page
CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) .......................................................................47
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ........................................................................27
Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009) ........................................................................26
Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) ..............................................26, 54
City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978) ......................... passim
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999)........................................................56
Connecticut v. Teal, 457 U.S. 440 (1982)...............16, 17
Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262 (3d Cir. 1995).....................35
Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tn., 555 U.S. 271 (2009) ....................56
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................................................51
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998)....................................19
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)..........13
E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013) ..........................................31
E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 689 F.3d 444 (5th Cir. 2012) ..........................................26

viii
TABLE OF AUTHORITIES – Continued Page
E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 768 F. Supp. 2d 883 (E.D. La. 2011) ..............................52
E.E.O.C. v. Family Dollar Stores, Inc., No. CIV.A. 1:06-CV-2569-TWT, 2008 WL 4098723 (N.D. Ga. Aug. 28, 2008) ...................................................53
E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000)........................................................26
Evans v. Ga. Reg’l Hospital, 850 F.3d 1248 (11th Cir. 2017) ..................................................... 7, 8, 9, 26
Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .........................50
Food Mktg. Inst. v. Argus Leader Media, 588 U.S. ___ (2019), No. 18-481, 2019 WL 2570624 (June 24, 2019) ........................................................43
Forest Grove Sch. Dist. v. T.A., 557 U.S. 239 (2009) .................................................................39, 42
Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641 (1990) ...........................................43, 45
Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018) .................................................................26
Gen. Elec. Co. v. Gilbert, 425 U.S. 125 (1976) .......34, 36
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277 (11th Cir. 2004).........................................56, 57
Gutierrez v. Ada, 528 U.S. 250 (2000).........................43
Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003)............................... 52, 53, 54, 55

ix
TABLE OF AUTHORITIES – Continued Page
Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017)................................... passim
Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)...........................16, 41
Jam v. Int’l Fin. Corp., 139 S. Ct. 759 (2019) .............46
Kay v. Independence Blue Cross, 142 F. App’x 48 (3d Cir. 2005) .....................................................49, 52
Kimble v. Marvel Entm’t, L.L.C., 135 S. Ct. 2401 (2015) .................................................................40, 46
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .......41
Lawrence v. Texas, 539 U.S. 558 (2003) ......................46
Lewis v. City of Chicago, Ill., 560 U.S. 205 (2010) ......... 44
Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033 (8th Cir. 2010).................................................26
Loving v. Virginia, 388 U.S. 1 (1967) .................. passim
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .......................................................................21
McLaughlin v. Florida, 379 U.S. 184 (1964) ........18, 20
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) ............................................................... passim
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983).......................... passim
Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721 (2003) .......................................................................22

x
TABLE OF AUTHORITIES – Continued Page
Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864 (9th Cir. 2001)....................................................26, 53
Norris v. Diakin Drivetrain Components, 46 F. App’x 344 (6th Cir. 2002) ........................................57
North Star Steel Co. v. Thomas, 515 U.S. 29 (1995) .......................................................................40
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..............46 Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75 (1998) .................................................. passim
Parker v. Reema Consulting Servs., Inc., 915 F.3d 297 (4th Cir. 2019)...................................................26
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986)...................................19, 20
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ................................................................42
Perrin v. United States, 444 U.S. 37 (1979) ................32 Petition of Pub. Nat. Bank of New York, 278 U.S.
101 (1928) ................................................................51
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) .......................................................................16
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) ...........................................................26, 51
Ricci v. DeStefano, 557 U.S. 557 (2009) .......... 19, 21, 46
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)...........13 Romer v. Evans, 517 U.S. 620 (1996)..........................46

xi
TABLE OF AUTHORITIES – Continued Page
Schmedding v. Tnemec Co., Inc., 187 F.3d 862 (8th Cir. 1999)..........................................................52
Shapiro v. United States, 335 U.S. 1 (1948) ...............40
Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) .................................................................26
Sutton v. United Air Lines, 527 U.S. 471 (1999) ........36
Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483 (E.D.N.Y. 2011)..............................49
Swift & Co. v. Wickham, 382 U.S. 111 (1965).............57
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 998 (6th Cir. 1999) ..................................................................19, 20
Texas Dep’t of Hous. and Comm. Affairs v. Inclusive Cmty’s Project, Inc., 135 S. Ct. 2507 (2015) .................................................................40, 41
Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431 (1973)..........................................18
United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009) ..........................................................................9
United States v. Powell, 469 U.S. 57 (1984)................57
United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) ..........................................................................9
Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) .................................................................25, 49
Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973) ...........................................48, 51

xii
TABLE OF AUTHORITIES – Continued Page
West v. Gibson, 527 U.S. 212 (1999)......................33, 46 Williams v. Wal-Mart Stores, Inc., 182 F.3d 333
(5th Cir. 1999)..........................................................19 Wisconsin Central Ltd. v. United States, 138
S. Ct. 2067 (2018) ....................................................33 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d
Cir. 2018) ......................................................... passim Zuber v. Allen, 396 U.S. 168 (1969).............................43
FEDERAL STATUTES: 28 U.S.C. § 1254(1)........................................................2 42 U.S.C. § 2000e et seq. ..................................... passim 42 U.S.C. § 2000e(k) ....................................................35 42 U.S.C. § 2000e-2 ............................................. passim 42 U.S.C. § 2000e-2(k).................................................35 42 U.S.C. § 2000e-2(m)........................................passim Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 ................................................. passim Pregnancy Discrimination Act of 1978, Pub. L.
No. 95-555, 92 Stat. 2076 ................................ passim
STATE STATUTES: O.C.G.A. § 15-11-104(d) ................................................4

xiii
TABLE OF AUTHORITIES – Continued Page
LEGISLATIVE HISTORY: S. Rep. No. 92-415 (Oct. 28, 1971) ..............................34 S. Rep. No. 95-331 .................................................35, 36 H.R. Rep. No. 95-948...................................................35 H.R. Rep. No. 102-40...................................................41 1991 U.S.C.C.A.N. 549 ................................................41
OTHER AUTHORITIES: Brief of Anti-Discrimination Scholars as Amicus
Curiae in Support of the Employees ......................23 Brief for GLBTQ Advocates and Defenders and
the National Center for Lesbian Rights as Amici Curiae in Support of the Petitioner in Case 17-1618 and Respondents in Cases 171623 and 18-107 ......................................................53 Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. July 26, 2017), 2017 WL 3277292.....................20, 40 Brief of Resp. in Opp. to Cert., Bostock v. Clayton County, Ga. (No. 17-1618) .......................................43 Dec. No. 71-969, 1973 EEOC Dec. (CCH) ¶ 6193 (Dec. 24, 1970) .........................................................19 Dec. No. 71-1902, 1973 EEOC Dec. (CCH) ¶ 6281 (April 28, 1971)............................................19 Dec. No. 76-23, 1983 EEOC Dec. (CCH) ¶ 6615 (Aug. 25, 1975).........................................................19

xiv
TABLE OF AUTHORITIES – Continued
Page
Dec. No. 79-03, 1983 EEOC Dec. (CCH) ¶ 6734 (Oct. 6, 1978) ...........................................................19
I. Bennett Capers, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158 (1991).................23
CNN Newsroom, Transcript of Nov. 14, 2013 Broadcast, available at http://transcripts.cnn.com/ TRANSCRIPTS/1311/14/cnr.06.html (last visited June 22, 2019) ..................................................42
William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322 (2017) .................................................... 22, 34, 55
Ed O’Keefe, Senate passes job-bias bill for gays, WASH. POST, Nov. 8, 2013 ........................................42
Oxford Dictionary of Current English (5th ed. 1964) ........................................................................13
Oxford English Dictionary (2d ed. 1989) ...................27
Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715 (2014) .......................................................................55
Joel Hall, Clayton CASA Welcomes New Volunteers, CLAYTON NEWS DAILY, Mar. 10, 2010, available at http://www.news-daily.com/news/ clayton-casa-welcomes-new-volunteers/article_ 331a8350-5ab2-5307-9130-2c3b15d08666.html (last visited June 22, 2019).......................................5
Zachary R. Herz, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396 (2014) .................................55

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TABLE OF AUTHORITIES – Continued Page
Anthony E. Varona, Jeffrey M. Monks, En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 94-98 (2000)...............................................55
Webster’s New International Dictionary (3d ed. 1961) ........................................................................13
Webster’s New International Dictionary of the English Language (2d unabridged ed. 1961) .........33
COURT RULES: Fed. R. App. Proc. 35(b)-(c)............................................8 Fed. R. Civ. P. 12(b)(6) ...................................................6 Fed. R. Civ. P. 72(b) .......................................................7

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OPINIONS BELOW
The opinion of the United States Court of Appeals for the Eleventh Circuit was issued on May 10, 2018, and is reproduced in the appendix to the petition at App. 1. On July 18, 2018, the Court of Appeals sua sponte issued an order denying rehearing en banc, and Judge Rosenbaum issued an opinion dissenting from that order in which Judge Jill Pryor joined. That order and opinion are reported at 894 F.3d 1335 (11th Cir. 2018), and reproduced in the appendix to Petitioner’s Supplemental Brief filed in this Court on August 2, 2018, Supp. App. 1, as well as in the Joint Appendix at J.A. 168.
The Eleventh Circuit’s panel decision affirmed the order of the United States District Court for the Northern District of Georgia dated July 21, 2017, entered as document number 24 in the District Court’s docketed case number 1:16-CV-01460-ODE, and reproduced in the appendix to the petition at App. 26. The District Court’s order adopted in its entirety the Final Report and Recommendation of the United States Magistrate Judge entered on November 3, 2016 and reproduced in the appendix to the petition at App. 5.
---------------------------------  ---------------------------------
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Eleventh Circuit entered judgment on May 10, 2018. 723 F. App’x 964. The Petition for Writ of Certiorari was timely filed on May 25, 2018, and granted on April 22,

2
2019, 139 S. Ct. 1599 (2019). The jurisdiction of this Honorable Court is invoked pursuant to 28 U.S.C. § 1254(1).
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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2, including:
(a) EMPLOYER PRACTICES It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin, or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. . . .

3
(m) IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN IN EMPLOYMENT PRACTICES
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
Petitioner Gerald Lynn Bostock seeks the judgment of this Honorable Court that workplace discrimination against an employee on the basis of sexual orientation falls within the statutory prohibition of discrimination “because of sex” set forth in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (“Title VII”).1 In holding that it does not, the United States Court of Appeals for the Eleventh Circuit below erroneously relied on Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), which predates this Court’s expansive interpretation of the statutory language in several cases, including Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as well as Congress’s ratification of those decisions and the interpretative principles upon which they relied with the Civil Rights Act
1 For ease of reference throughout this brief, ellipses are omitted from quotations of the statutory language prohibiting discrimination “because of . . . sex.”

4
of 1991, Pub. L. No. 102-166, 105 Stat. 1071. That the Eleventh Circuit was wrong in refusing to conclude that Blum was undermined to the point of abrogation by these developments in the law is confirmed by the en banc decisions to the contrary in both the Second and Seventh Circuits. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). The plain language of Title VII, its statutory history, and this Court’s precedents concerning the interpretation of the statute all compel the conclusion that sexual orientation discrimination constitutes unlawful discrimination “because of sex” within the meaning of Title VII.
A. Factual Background
For over ten years beginning in 2003, Petitioner Bostock advocated ardently for the interests of at risk children in the juvenile court system of Respondent Clayton County, Georgia. App. 27. During that time, he received favorable performance reviews as the County’s Child Welfare Services Coordinator, and was given primary responsibility for the Court Appointed Special Advocates program (“CASA”). Id. CASA volunteers, also known as guardians ad litem in some jurisdictions, are advocates sworn by the judge of the juvenile court in which they serve to “advocate for the best interests of the child” during juvenile court dependency proceedings in Georgia. O.C.G.A. § 15-11104(d).
Clayton County’s CASA program flourished under Mr. Bostock’s leadership. In 2007, it received the

5
Program of Excellence Award from Georgia CASA. App. 27. In 2010, it was the first county in the metropolitan Atlanta, Georgia area to provide a volunteer for every neglected or abused child in the juvenile court system. See Joel Hall, Clayton CASA Welcomes New Volunteers, CLAYTON NEWS DAILY, Mar. 10, 2010, available at http://www.news-daily.com/news/claytoncasa-welcomes-newvolunteers/article_331a8350-5ab25307-9130-2c3b15d08666.html (last visited June 22, 2019). In 2011 and 2012, Mr. Bostock was asked to serve on the National CASA Standards and Policy Committee. App. 27. He is a dedicated social services professional who has for many years been committed to ensuring that abused and neglected children have safe homes in which to live, grow, and thrive.
Mr. Bostock is also gay. Id. In January 2013, he began participating in a gay recreational softball league called the Hotlanta Softball League. Id. He also actively promoted the Clayton County CASA program as a volunteer opportunity for league members. Id. But in the months that followed, his participation in the league and his sexual orientation were openly criticized by one or more individuals with significant influence in the County’s decisionmaking. Id. In April of 2013, Clayton County initiated an unwarranted “audit” of the CASA program funds managed by Mr. Bostock. Id. In May, his sexual orientation and participation in the softball league were the subject of disparaging comments at a meeting of the Friends of Clayton County CASA Advisory Board. Id. One month later, on June 3, 2013, he was fired. Id. at 28. Clayton

6
County falsely claimed that he mismanaged the CASA program funds, but stated that the reason for his termination was “conduct unbecoming of a county employee.” Id. Mr. Bostock maintains that he never engaged in any misconduct or mismanagement of funds, and that Clayton County’s “audit” and its representations to the contrary are mere pretext for discrimination against him on the basis of his sexual orientation.
B. The District Court’s Dismissal of Mr. Bostock’s Case
Mr. Bostock filed this lawsuit pro se on May 5, 2016, alleging that he was fired because of his sexual orientation in violation of Title VII. Id. at 8. After securing counsel, he amended his complaint to include a claim for sex discrimination based on his failure to conform to a sex stereotype. Id. at 8-9. Clayton County moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing, among other things, that Mr. Bostock could not “state a viable claim for relief under established law because Title VII does not protect [Mr. Bostock] (or anyone else) from discrimination due to his sexual orientation.” Id. at 28, 31. The Magistrate Judge agreed, relying on Blum v. Gulf Oil Corp., which had held that “discharge for homosexuality is not prohibited by Title VII,” 597 F.2d 936, 938 (5th Cir. 1979).2 Id. at 9-17. The
2 Decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981 remain binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

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Magistrate Judge also rejected Mr. Bostock’s sex stereotype claim on the ground that he was “bootstrapping a conclusory gender stereotyping allegation to his sexual orientation discrimination claim.” Id. at 9-20. Accordingly, the Magistrate Judge recommended dismissal of Mr. Bostock’s claims for sex discrimination based on sexual orientation and failure to conform to a sex stereotype. Id. at 17-22.3
Pursuant to Fed. R. Civ. P. 72(b), Mr. Bostock timely filed Objections to the Magistrate Judge’s Report and Recommendation on November 17, 2016. App. 29. The District Judge deferred ruling on Mr. Bostock’s objections pending the decision of the Eleventh Circuit in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), because that case also presented the question of whether discrimination on the basis of sexual orientation is actionable under Title VII. App. 29. On March 10, 2017, a divided panel of the Eleventh Circuit issued its decision in Evans, answering that question in the negative. 850 F.3d at 1255-57. The Evans majority rested its erroneous conclusion on the determination that it was bound to follow the former Fifth Circuit’s decision in Blum under the prior panel precedent rule, which requires Eleventh Circuit panels to follow a prior panel’s decision unless a later en banc or Supreme Court decision overrules or undermines the
3 The Magistrate Judge also recommended dismissal of Mr. Bostock’s claim for sex stereotype discrimination because he did not reference the claim as such in the charge of discrimination he filed with the United States Equal Employment Opportunity Commission, and therefore did not properly exhaust his administrative remedies. App. 22-24.

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prior panel decision to the point of abrogation. Id. at 1255 (citations omitted). The Evans panel rejected the argument that Blum was undermined to the point of abrogation by this Court’s decisions in Price Waterhouse, 490 U.S. 228 (1989), superseded on other grounds by statute, Pub. L. No. 102-166, 105 Stat. 1071 (1991) and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). 850 F.3d at 1255-56. On July 7, 2017, after the Eleventh Circuit denied a petition for rehearing en banc in Evans, the District Court in this case followed the Evans panel opinion and dismissed Mr. Bostock’s second amended complaint with prejudice, holding in part that, “[a]s a matter of law, the Eleventh Circuit has . . . foreclosed the possibility of a Title VII action alleging discrimination on the basis of sexual orientation as a form of sex discrimination[.]” Id. at 31.
C. The Eleventh Circuit’s Affirmance of the Dismissal
Because of the prior panel precedent rule, Mr. Bostock presented his appeal of the District Court’s dismissal of his sexual orientation discrimination claim to the Eleventh Circuit along with a petition for initial hearing en banc pursuant to Fed. R. App. P. 35(b)-(c). App. 46 n.3, 60.4 On May 3, 2018, the Eleventh Circuit
4 On appeal, Mr. Bostock abandoned his separately pleaded claim for sex discrimination based on a sex stereotype, App. 3, although as explained below, a claim for sexual orientation discrimination is a claim for discrimination based on the failure to conform to a gender stereotype – the failure to conform to the

9
again refused to consider en banc the question of whether discrimination on the basis of sexual orientation is discrimination “because of sex” within the meaning of Title VII. Id. at 1. The Eleventh Circuit held that:
[T]he district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans forecloses Bostock’s claim. And under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued. United States v. Kaley, 579 F.3d 1246, 1255-56 (11th Cir. 2009); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc).
App. 3. Having already unsuccessfully petitioned the Eleventh Circuit for initial hearing en banc, id. at 46 n.3, Mr. Bostock timely filed his Petition for Writ of Certiorari in this Court on May 25, 2018. However, on July 18, 2018, the Eleventh Circuit sua sponte issued an order yet again denying rehearing en banc. Circuit Judge Rosenbaum issued an opinion dissenting from that denial in which Circuit Judge Jill Pryor joined. J.A. 168. As explained in Petitioner’s Supplemental Brief filed on August 2, 2018, the dissent explained succinctly how the Eleventh Circuit’s continued adherence to Blum despite the changes brought about by this Court’s post-Blum decisions constituted reliance
sex-based stereotype that men should be attracted only to women, see infra, pp. 23-29.

10
on the “precedential equivalent of an Edsel with a missing engine[.]” Supp. Br. 3 (quotation omitted).
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SUMMARY OF ARGUMENT
The plain language of Title VII itself establishes that sexual orientation discrimination is prohibited discrimination “because of sex.” Sexual orientation discrimination is discrimination “because of sex” because sexual orientation is a sex-based classification within the meaning of Title VII, and it is disparate treatment of an employee that would not occur “but for” his sex. Sexual orientation discrimination is also impermissible associational discrimination, and discrimination on the basis of a failure to conform to a sex-based stereotype under Price Waterhouse. This Court explicitly held in Oncale that Title VII prohibits “any kind” of sexbased discrimination if it meets the statutory requirements, 523 U.S. at 80, and for all these reasons, sexual orientation discrimination does.
The statutory history strongly supports Mr. Bostock’s position and fatally undermines Respondent’s primary argument that Congress did not intend to forbid sexual orientation discrimination when it enacted Title VII. Congress specifically and unequivocally mandated a broad classification-based application of the ban on sex discrimination with the Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076. It went even further in passing the Civil Rights Act of 1991, which ratified and incorporated this

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Court’s expansive interpretations of what constitutes discrimination “because of sex” under Title VII in Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983) (“Newport News”), Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (“Meritor”), and Price Waterhouse, 490 U.S. 228. Not surprisingly, in holding that same-sex sexual harassment is actionable under Title VII, the Court in Oncale confirmed that the statute prohibits forms of sex discrimination that Congress may not have envisioned in 1964, and instead goes beyond what was contemplated to cover “reasonably comparable evils.” 523 U.S. at 75. Sexual orientation discrimination is clearly such a “reasonably comparable evil,” and is therefore also prohibited.
The interpretation of Title VII advanced by Mr. Bostock is also necessary to harmonize and give effect to different parts of the statute. In passing the Civil Rights Act of 1991, Congress also chose to codify a lessened causation standard for claims of workplace discrimination, providing that unlawful sex discrimination can be established by proof that sex was one motivating factor for a challenged employment practice, even if another legitimate factor also motivated the practice. Pub. L. No. 102-166, § 107(a) (codified at 42 U.S.C. § 2000e-2(m)). Because sexual orientation is defined in part by a person’s sex, the statutory prohibition of discrimination “because of sex” must be interpreted to include sexual orientation discrimination, or it will conflict with 42 U.S.C. § 2000e-2(m). Finally, Title VII must be read to prohibit sexual orientation discrimination because the contrary interpretation is

12
profoundly unworkable. The raft of conflicting lower court decisions in cases with similar facts but markedly different outcomes threatens the consistency and predictability necessary for the rule of law.
The question before the Court is a simple one – whether “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79. Both Congress and the Court have clearly determined that the prohibition of discrimination “because of sex” in Title VII must be interpreted broadly, and discrimination against an employee on the basis of sexual orientation – whether gay or straight – is fundamentally a form of discrimination based on sex. Old cases decided before Newport News, Meritor, Price Waterhouse, Oncale, and the passage of the Civil Rights Act of 1991 have been undermined to the point of abrogation by these developments in the law, and the judgment of the Eleventh Circuit to the contrary is in error. Mr. Bostock prays that the Court reverse that judgment and permit him the opportunity to prove that the termination of his employment because of his sexual orientation was discrimination “because of sex” in violation of Title VII.
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ARGUMENT
I. The Plain Language of Title VII Forbids Sexual Orientation Discrimination Because it is a Form of Sex Discrimination
This Court’s “precedents make clear that the starting point for [its] analysis is the statutory text” of

13
Title VII. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003); see also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The plain language of Title VII requires the conclusion that sexual orientation discrimination is discrimination “because of sex” because (1) sexual orientation is necessarily a sex-based classification; (2) sexual orientation discrimination is associational sex discrimination; (3) sexual orientation discrimination is discrimination because of a failure to conform to a sex stereotype under Price Waterhouse, 490 U.S. 228; and (4) the Court explicitly held in Oncale, 523 U.S. 75 (1998), that the statutory language prohibits “any kind” of sex discrimination, even forms not contemplated by Congress when Title VII was first enacted.
A. Sexual Orientation Discrimination is Sex Discrimination Because Sexual Orientation is a Sex-Based Classification
Sexual orientation discrimination constitutes sex discrimination under the plain language of Title VII because one simply cannot consider an individual’s sexual orientation without first considering his sex. A “homosexual” person is one “[h]aving a sexual propensity for one’s own sex,” Homosexual, Oxford Dictionary of Current English (5th ed. 1964) (emphasis supplied), or “of, relating to, or characterized by a tendency to direct sexual desire toward another of the same sex,” Homosexual, Webster’s New International Dictionary (3d ed. 1961) (emphasis supplied). Because a person’s sex is a necessary element of his sexual orientation, it

14
follows without question that one cannot define a person’s sexual orientation without first taking his sex into account. See Zarda, 883 F.3d 100, 113 (2d Cir. 2018); Hively, 853 F.3d 339, 350 (7th Cir. 2017) (noting that “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation’ ”); Hively, 853 F.3d at 358 (Flaum, J., concurring) (“[o]ne cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ [in the dictionary definition of ‘homosexuality’] meaningless”). But the prohibition of discrimination “because of sex” in Title VII forbids employers from relying on sex-based considerations in making employment decisions. See, e.g., Price Waterhouse, 490 U.S. at 241-42, 250-51 (plurality) (holding that an employer that makes decisions in reliance on sex-based stereotypes “has acted on the basis of gender” in violation of Title VII); id. at 258-61 (White, J., concurring); id. at 261 (O’Connor, J., concurring); City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 71112 (1978). Accordingly, Title VII prohibits sexual orientation discrimination because it necessarily rests on a sex-based consideration.
The Court has adhered to this common sense interpretation of Title VII for decades. In Manhart, the Court struck down a rule that required female employees to make higher pension fund contributions than male employees because actuarial tables showed that women usually live longer than men. 435 U.S. at 71113. The employer argued that the rule was justified in part because it was based on the expected longevity of

15
the employees, not their sex. Id. But the Court was not fooled. It held that the City’s rule was “in direct conflict with both the language and the policy” of Title VII because it did 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.’ ” Id. at 711 (citations omitted). The Court reaffirmed this “simple test” five years later when it held that an employer’s insurance policy discriminated against male employees in violation of Title VII because it provided more limited benefits to their pregnant wives than it did to the male husbands of female employees. Newport News, 462 U.S. at 681-85.
Discrimination on the basis of sexual orientation fails the “simple test.” When an employer fires a female employee because she is a lesbian – i.e., because she is a woman who is sexually attracted to other women – the employer has treated that female employee differently than it would treat a male employee who was sexually attracted to women. The employer has acted “in a manner which but for that person’s sex would be different,” and has therefore violated Title VII. Manhart, 435 U.S. at 711. Respondent and others may argue that the “simple test” does not apply to sexual orientation because it is limited to cases like Manhart where the disparate treatment was based on a trait that is inextricably linked with sex. See Zarda, 883 F.3d at 151-52 (Lynch, J., dissenting). According to this argument, only traits that are truly sex-dependent like longevity or childbearing capacity are subject to the “simple test,” and because men and women can be gay or

16
lesbian, same-sex attraction is not linked with sex and the “simple test” does not apply. Id. But the difficulty with this argument – that only truly class-based disparate treatment is actionable under Title VII – is that it has no basis in the text of Title VII or the Court’s decisions. Rather, the Court has consistently upheld a classification-based, rather than a class-based, approach in applying the statute. As the Manhart Court explained, Title VII requires “a focus on fairness to individuals rather than classes” and that focus is “unambiguous.” 435 U.S. at 708-09 (emphasis supplied); see also, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam); Manhart, 435 U.S. 702; Connecticut v. Teal, 457 U.S. 440, 455 (1982); Price Waterhouse, 490 U.S. 228; Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 192, 197 (1991) (“Johnson Controls”); Oncale, 523 U.S. 75.
Indeed, the Court in Phillips was not concerned that the employer refused to hire only that subset of women with pre-school aged children while its policy did not evince “bias against women as such,” and instead readily concluded that the policy violated Title VII. 400 U.S. at 543. In Manhart, Newport News, and Johnson Controls, too, the Court found violations of Title VII where only certain subgroups of each gender were adversely affected by the policies at issue. Manhart, 435 U.S. at 709-10; Newport News, 462 U.S. at 681-85; Johnson Controls, 499 U.S. at 192, 197-200 (holding that the exclusion of only those women with childbearing capacity from jobs which exposed them to

17
lead violated Title VII); see also Teal, 457 U.S. at 455 (noting that “[i]t is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group”). The Price Waterhouse Court likewise never asked whether all women always avoid profanity and wear jewelry, but instead held that the employer’s belief that Ann Hopkins should do so was impermissibly sex-based. 490 U.S. at 241-42, 250-51 (plurality); id. at 258-61 (White, J.); id. at 261 (O’Connor, J.). And in Oncale, the fact that other men working on the offshore oil platform with the plaintiff were not also sexually harassed did not undercut the inescapable conclusion that he was discriminated against “because of sex.” 523 U.S. at 80-82.
The Court has refused time and again to narrow Title VII to prohibit only discrimination against men or women based on biological traits linked exclusively to them as such. The argument that sexual orientation discrimination is not sex discrimination because it targets only gay men and not all men, or because both men and women can be gay or lesbian, is therefore meritless. This Court “need not leave [its] common sense at the doorstep when [it] interprets a statute.” Price Waterhouse, 490 U.S. at 241. Discrimination against a gay or lesbian employee on the basis of sexual orientation is plainly discrimination “because of sex” under Title VII because an employer must consider the employee’s sex in order to consider his or her sexual orientation, and because the employer

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necessarily treats the employee differently than it would if she or he were a member of the opposite sex.
B. Sexual Orientation Discrimination is Associational Sex Discrimination
Sexual orientation discrimination is also discrimination “because of sex” because it is discrimination on the basis of an employee’s association with another person of the same sex. The Court has recognized since at least 1964 that discrimination against a person because of his or her racial association is a form of unconstitutional race discrimination. See McLaughlin v. Florida, 379 U.S. 184, 192-95 (1964) (striking down a statute that criminalized unmarried interracial cohabitation). And it has upheld that basic logic in various constitutional and statutory contexts ever since. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (holding that a statute prohibiting interracial marriage amounted to unconstitutional discrimination on the basis of race); Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 440 (1973) (rejecting the argument that a white couple could not maintain a race discrimination claim under 42 U.S.C. § 1981 against a swimming pool association that denied admission to the couple’s black guest); Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983) (upholding the determination of the Internal Revenue Service that a private university’s policy of denying admission to individuals who were married to persons of a different race was racially discriminatory and the university was therefore not a

19
“charitable” organization entitled to tax-exempt status under 26 U.S.C. § 501(c)(3)).
All five Circuits to consider the issue have held that the Loving rationale is equally applicable in the Title VII context. See Zarda, 883 F.3d at 124 (holding that “the prohibition on associational discrimination applies with equal force to all the classes protected by Title VII, including sex”); Hively, 853 F.3d at 349 (same); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998) (holding that Title VII prohibits employment discrimination based upon an interracial relationship), vacated in part on other grounds by Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994-95 (6th Cir. 1999) (holding that Title VII prohibits discrimination against a person because of his association with his child of a different race); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (holding that Title VII prohibits discrimination against a person because of his marriage to or association with a person of a different race).5
Because Constitutional cases like Loving “can provide helpful guidance in this statutory context,” Ricci
5 The EEOC has likewise held that an adverse employment action taken on the basis of an interracial association constitutes unlawful race discrimination under Title VII. See, e.g., Dec. No. 71-969, 1973 EEOC Dec. (CCH) ¶ 6193 (Dec. 24, 1970); Dec. No. 71-1902, 1973 EEOC Dec. (CCH) ¶ 6281 (April 28, 1971); Dec. No. 76-23, 1983 EEOC Dec. (CCH) ¶ 6615 (Aug. 25, 1975); Dec. No. 79-03, 1983 EEOC Dec. (CCH) ¶ 6734 (Oct. 6, 1978).

20
v. DeStefano, 557 U.S. 557, 582 (2009), and because the principles of non-discrimination embodied in Title VII “apply with equal force” to all of the protected classes enumerated in the statute, Price Waterhouse, 490 U.S. at 243 n.9, there is no principled reason why the associational theory of discrimination should not also apply to sex discrimination under Title VII, cf. Meritor, 477 U.S. at 66 (holding that “[n]othing in Title VII” suggests that sex-based harassment should not be prohibited to the same extent as harassment based on race, religion, and national origin). To discriminate against a person because of the sex of another person with whom he is associated is, ipso facto, to discriminate against him because of his sex. See Newport News, 462 U.S. at 684; cf. Tetro, 173 F.3d at 994-95; Parr, 791 F.2d at 892.
Respondent and others may resist the associational theory of discrimination by arguing, as the United States did before the Second Circuit in Zarda, that an employer who discriminates on the basis of sexual orientation is not discriminating against a man or woman on the basis of his or her sex, “but rather is engaged in sex-neutral treatment of homosexual men and women alike.” Br. for the U.S. as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. July 26, 2017), 2017 WL 3277292, *6, 22. But “mere equal application” to members of both races could not save the statutory prohibition on interracial marriage in Loving, because even an equally applicable classification must have a legitimate basis. 388 U.S. at 8; see also McLaughlin,

21
379 U.S. at 190-91 (citing cases). Employment discrimination against a person because of his association with another person of the same sex decidedly does not.6
The dissenting judges in Zarda and Hively also suggested that the Loving rationale cannot apply to discrimination based on sexual orientation because prohibitions of interracial marriage were based on animus toward the associated black Americans and founded on the odious doctrine of white supremacy, while discrimination against gay and lesbian people is not premised on sex-based animus toward the associated persons or an infamous ideology of hate and oppression. Zarda, 883 F.3d at 159-60 (Lynch, J.); Hively, 853 F.3d at 367-69 (Sykes, J.). But this argument lacks merit for at least three reasons. First, it begs the question of whether the animus is “sex-based” or not. See supra, pp. 13-18. Second, there is no requirement of animus to show a violation of Title VII. Ricci, 557 U.S. at 579-80 (noting that even “well intentioned” or “benevolent” motivations cannot justify disparate treatment under Title VII). See also Loving, 388 U.S. at 11 n.11 (noting that interracial marriage bans constituted
6 Indeed, there is no conceivable reason why an individual’s sexual orientation could ever be relevant to her ability to perform her job. Given that Title VII was meant to “assure equality of employment opportunities,” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973), and “drive employers to focus on qualifications rather than on . . . sex,” Price Waterhouse, 490 U.S. at 243, an interpretation of Title VII that permits sexual orientation discrimination would flatly contradict the very purpose of the statute.

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unlawful racial classifications “even assuming an even-handed state purpose to protect the ‘integrity’ of all races” rather than the invidious purpose of promoting white supremacy).
The third reason why this argument lacks merit is that, while Title VII was obviously aimed at eradicating the scourge of race discrimination in American employment, it was equally intended to “strike at the entire spectrum of disparate treatment of men and women in employment.” Oncale, 523 U.S. at 78 (citing Meritor, 477 U.S. at 64). The ambitious goal of Title VII was to destroy not only the barriers to merit-based equal employment opportunity posed by racism, but also those posed by sexism and insistence on traditional gender roles. See William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 347-57 (2017) (“LGBT Workplace Protections”) (setting forth how the legislative history of the 1972 amendments to Title VII and the Pregnancy Discrimination Act of 1978 demonstrate congressional focus on attacking sexism). Sexism is undeniably reinforced by insistence on sex-based familial and social roles for men and women. See Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 736 (2003) (explaining that stereotypes about the roles of men and women are “mutually reinforcing” and have created a “selffulfilling cycle of discrimination” against women in the workplace). Gay and lesbian people, by the simple fact of their intimate association with a member of the same sex, necessarily defy these stereotypical roles.

23
See I. Bennett Capers, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158, 1159-70 (1991); Br. of AntiDiscrimination Scholars as Amicus Curiae in Support of the Employees, pp. 8-12. The recognition of sexual orientation discrimination as associational sex discrimination thus enjoys not only the logic but also the laudable policy justification of Loving: to confront and dismantle a long-established obstacle to social freedom and equal protection of the law.
C. Sexual Orientation Discrimination is Sex Stereotype Discrimination Under Price Waterhouse v. Hopkins
Title VII also forbids sexual orientation discrimination because it constitutes discrimination on the basis of a failure to conform to a sex-based stereotype. In Price Waterhouse, the Court explained the scope of the sex discrimination prohibition through its review of the case of Ann Hopkins, a woman who was denied partnership at the Price Waterhouse accounting firm. Id. at 231-34. The evidence showed that some of the partners who voted to pass Ms. Hopkins up for partnership did so because she was too aggressive, “macho,” and needed to “take a course at charm school.” Id. at 235. The man who informed Ms. Hopkins of the decision specifically told her that, to advance, she should “walk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. Six members of this Court agreed that these facts proved Ms. Hopkins’s sex was a motivating factor in the decision to deny her partnership in violation of

24
Title VII. Id. at 241-42, 250-51 (plurality); id. at 25861 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment).
The Price Waterhouse Court clearly held that sex stereotyping constitutes sex discrimination under Title VII. Indeed, it was unequivocal in rejecting the argument that sex stereotyping lacks “legal relevance,” explaining that:
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’
490 U.S. at 250-51 (quoting Manhart, 435 U.S. at 707 n.13). Four members of the Court joined this description in the plurality opinion, id. at 228-58, and Justices White and O’Connor joined the judgment with concurring language that leaves no doubt that acting on the basis of a sex stereotype constitutes discrimination “because of sex” in violation of Title VII. See id. at 25960 (White, J.) (agreeing that the record supported the finding that gender was shown to be a substantial factor in the denial of partnership to Hopkins); id. at 261, 275 (O’Connor, J.) (concurring in the judgment and stating that the case was one “where [the] employee [had] demonstrated by direct evidence that

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[sex] played a substantial role in a particular employment decision”).7
Almost every Circuit has since recognized that, under Price Waterhouse, discrimination against an employee for his or her failure to conform to a sex
7 Even the dissenting Justices did not appear to dispute that sex stereotyping can constitute sex discrimination, agreeing that “Hopkins plainly presented a strong case both of her own professional qualifications and of the presence of discrimination in Price Waterhouse’s partnership process,” and doubting that it would have been reversible error if the “District Court found on this record that sex discrimination caused the adverse decision.” Id. at 294-95. Notably, the dissenting Justices also reaffirmed the “simple test” of Manhart. Id. at 282 (citing Newport News, 462 U.S. at 683). Instead, the disagreement in Price Waterhouse had to do with the burdens of proof for the employee’s claim and the employer’s defense. The plurality and concurring Justices agreed that an employee need only show that her protected class status was one motivating or substantial factor in the employment decision (and that Ms. Hopkins had done so), and that the lower court erroneously required the employer to satisfy a clear and convincing evidence standard to establish its affirmative defense that it would have made the same employment decision in the absence of the unlawful motive. 490 U.S. 254-55, 260, 261. The dissenting Justices disagreed that a violation was shown because the District Court did not find intentional discrimination was a “but for” cause of the denial of partnership. Id. at 295.
Two years after Price Waterhouse, Congress passed the Civil Rights Act of 1991, in part to codify the lessened causation standard upon which the plurality and concurrence agreed, but it also went further to remove the employer’s ability to completely defeat liability with the affirmative defense. See Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348-50 (2013) (citing and discussing 490 U.S. 228 and Pub. L. No. 102-166). As explained in more detail below, the 1991 amendments strongly support Petitioner’s position that sexual orientation discrimination is prohibited sex discrimination under Title VII. Infra, pp. 23-26.

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stereotype is discrimination “because of sex” that violates Title VII. See, e.g., Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 200-01 (2d Cir. 2017); E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 689 F.3d 444, 453-56 (5th Cir. 2012); Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1037-42 (8th Cir. 2010); Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009); Smith v. City of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874 (9th Cir. 2001); E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1284 n.20 (11th Cir. 2000); Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000). See also Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 303 (4th Cir. 2019) (holding that an employee could state a claim under Price Waterhouse for discrimination on the basis of conformity to a negative gender stereotype).8
8 Some courts have even expressly recognized that gay and lesbian employees may avail themselves of the sex stereotype theory of sex discrimination, so long as they observe what Petitioner contends is a legal fiction that the discrimination they allege is based strictly on the failure to conform to masculine or feminine stereotypes rather than sexual orientation. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017) (remanding with instruction to grant a lesbian plaintiff leave to amend her complaint to include a Price Waterhouse sex stereotype claim); Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 290-93 (3d Cir. 2009) (remanding to the district court for trial on the question of whether discrimination against the gay male employee was harassed because of his effeminacy or his sexual orientation). But see Franchina v. City of Providence, 881 F.3d 32, 54 (1st Cir. 2018) (upholding a verdict for the lesbian plaintiff under Price Waterhouse and rejecting the argument that the jury should have been

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Though the Court had already held in Manhart that Title VII forbids employment decisions “predicated on mere ‘stereotyped’ impressions about the characteristics of males or females,” 435 U.S. at 707 n.13 (citation omitted), Price Waterhouse was an evolution in the legal understanding of sex as gender, or “ . . . the social or cultural, as opposed to the biological, distinctions between the sexes.” Gender, 3.b., Oxford English Dictionary (2d ed. 1989). Thus, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender” in violation of Title VII. Price Waterhouse, 490 U.S. at 250. This understanding of sex as gender, including a person’s conformity or non-conformity with social roles typically associated with one sex or the other, must necessarily protect gay and lesbian employees from discrimination under Title VII, because “an employer who acts on the basis of a belief that a woman cannot be [attracted to other women] or that that she must not be, has acted on the basis of gender.” Zarda, 883 F.3d at 120-21 (citation omitted); Hively, 853 F.3d at 346; Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“the gender stereotype at work here is that ‘real’ men should date women, and not other men”).
Respondent and others may argue that sexual orientation discrimination is not sex stereotype discrimination
instructed that it could not find for the plaintiff if the harassment was based on her sexual orientation because it could be based on her sexual orientation and her sex). As explained below, this is an untenable and unworkable distinction. Infra, pp. 51-57.

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because “heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all.” Hively, 853 F.3d at 370 (Sykes, J., dissenting). But this implies a requirement for the sex stereotype theory of discrimination that does not exist – that the stereotype must be sex-specific to men or women as such, rather than sex-based as to the individual employee. As explained above, the Court has adhered to a classification-based approach under Title VII which is “unambiguous” and “focuses on fairness to individuals rather than classes.” See supra, p. 16 (citing Manhart, 435 U.S. at 708-09). “Mere equal application,” Loving, 388 U.S. at 8, of a sex stereotype against members of both sexes – that people of one sex should be attracted to members of the opposite sex – cannot prevent it from constituting an impermissible sexbased stereotype when applied to an individual of either sex.
One need only examine the array of opinions in Price Waterhouse, including the dissent, to understand why the classification-based approach obtains in the sex stereotype context as well. Every member of this Court agreed that it would not have been a violation of Title VII if Price Waterhouse could prove it denied Ms. Hopkins partnership because she was aggressive and curt. 490 U.S. at 258 (plurality); id. at 259-60 (White, J., concurring); id. at 279-80 (O’Connor, J., concurring); id. at 295 (Kennedy, J., dissenting). The problem arose because Price Waterhouse held those traits – which can be exhibited by men or women – against Ms. Hopkins because she was a woman. Id. at 258 (plurality)

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(“[w]e sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman”). Sex stereotype discrimination against a male employee is actionable sex discrimination not because he lacks traits that are “specific” or “exclusive” to men, but because the employer is dissatisfied with him lacking those traits, whatever they are, because he is a man. Cf. Oncale, 523 U.S. at 80-81. It follows that sexual orientation discrimination against a man is sex stereotype discrimination because it is discrimination against him for failing to have the trait of being attracted to women because he is a man. The employer has acted “on the basis of a belief that [the man] cannot be [attracted to other men] or that [he] must not be,” because he is a man, and so has acted on the basis of his gender in violation of Title VII. Price Waterhouse, 490 U.S. at 250.
D. The Court Clearly Held in Oncale that Title VII Prohibits “Any Kind” of SexBased Discrimination
The Court’s decision in Oncale also requires the conclusion that Title VII prohibits sexual orientation discrimination. In Oncale, the Court addressed egregious sexual harassment perpetrated against a male employee on an offshore oil platform by several of the men with whom he worked. 523 U.S. at 76-77. The harassment included being “forcibly subjected to sexrelated, humiliating actions,” physically assaulted, and threatened with rape. Id. The Fifth Circuit upheld

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dismissal of Mr. Oncale’s claim for sex discrimination in violation of Title VII, holding that the statute did not prohibit same-sex sexual harassment. Id. But this Court reversed in a unanimous decision explaining the broad scope of the ban on sex discrimination in Title VII.
The Court specifically rejected any “categorical rule excluding same-sex harassment claims from the coverage of Title VII,” because there was “no justification in the statutory language” or the Court’s precedents for such a rule. Id. at 79. Critically, the Court went further to explicitly hold that the statutory language “because of sex” encompasses forms of discrimination that Congress might not have contemplated when it passed Title VII. Id. at 79-80. Noting that same-sex sexual harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII,” the Court nevertheless held that the statutory language goes beyond the forms of discrimination expressly contemplated to cover “reasonably comparable evils,” and “any kind” of sex-based discrimination that meets the statutory requirements. Id. This holding, faithful to the plain language of Title VII, should be dispositive in this case. It confirms yet again that the ban on sex discrimination in the statute is broad enough to cover not only sex discrimination against women, but “reasonably comparable evils” of “any kind” too, of which sexual orientation discrimination is surely one.

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The Oncale Court’s discussion about how samesex harassment can be proved under Title VII bolsters the conclusion that sexual orientation discrimination is a covered form of sex discrimination. The Court specifically rejected any requirement for the particular motive or reasoning behind the intent to discriminate against a person because of sex. Id. at 80-81. Rather, the Court explained that discrimination “because of sex” can be shown with credible evidence that the harasser is gay or lesbian, “but harassing conduct need not be motivated by sexual desire” to support a claim for sex discrimination. Id. at 80. It might just as easily be shown by evidence that a female harasser harbored hostility toward other women in the workplace because they are women, or the plaintiff can “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Id. The last approach is, of course, the Manhart “simple test.” 435 U.S. at 711. But all six Circuits to consider the issue have held that the categories in Oncale are illustrative, not exhaustive. See E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 455-56 n.6 (5th Cir. 2013). It is clear after Oncale, if not before, that any discrimination “because of sex,” whether based on animus, sexual desire, a comparative analysis, or any other reason – such as sexual orientation – violates Title VII.

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II. The Statutory History of Title VII Confirms that it Forbids Sexual Orientation Discrimination as a Form of Sex Discrimination
While it is clear from the text of Title VII that it prohibits sexual orientation discrimination as a form of discrimination “because of sex,” the Court should “interpret the relevant words not in a vacuum, but with reference to the statutory context, structure, history, and purpose.” Abramski v. United States, 573 U.S. 169, 179 (2014) (quotation omitted). That context, including the amendments in 1978 and 1991 and this Court’s interpretations in Manhart, Newport News, Meritor, Price Waterhouse, and Oncale, further compels the conclusion that Title VII must be understood to prohibit sexual orientation discrimination.
Indeed, the statutory history fatally undermines Respondent’s primary argument that recognizing sexual orientation discrimination to be within the scope of Title VII does violence to the “original public meaning” of the statute, Hively, 853 F.3d at 362-63 (Sykes, J., dissenting), and betrays a failure to interpret the words “as taking their ordinary, contemporary, and common meaning . . . at the time Congress enacted the statute,” Zarda, 883 F.3d at 167 (Livingston, J., dissenting) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). This argument fails at the outset because it ignores the fact that a broad definition of “sex” was already understood in 1964 to include “[t]he sphere of behavior dominated by the relations between male and female,” and “[t]he whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate

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and pleasure-seeking conduct.” Sex, 2., 3., Webster’s New International Dictionary of the English Language 2296 (2d unabridged ed. 1961). But just as importantly, it ignores the evolution of Title VII that has been taking place in Congress and this Court’s decisions for over fifty years.
The Court has expressly recognized that “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U.S. 212, 218 (1999) (citing cases); see also Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018) (“[w]hile every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world”) (emphasis in original). The conclusion that Title VII must be interpreted broadly to prohibit sexual orientation discrimination follows inexorably from such changes, including (1) the expansion of Title VII in 1978 to reject limitations on the sex discrimination prohibition and codify the classification-based approach to sex discrimination; (2) the Court’s expansive interpretations of the statutory language in Manhart, Newport News, Meritor and Price Waterhouse and the fact Congress ratified and incorporated these in Title VII with the Civil Rights Act of 1991; and (3) the Court’s holding in Oncale that the prohibition of sex discrimination in Title VII “go[es] beyond the principal evils” contemplated by Congress in 1964 to forbid “reasonably comparable evils” and “any kind” of sex-based discrimination, 523 U.S. at 79.

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A. Congress Rejected Limitations on the Sex Discrimination Prohibition in Title VII and Confirmed the ClassificationBased Approach with the 1978 Pregnancy Discrimination Act
The Court has previously noted the “somewhat bizarre path” by which “sex” came to be included in the enumeration of protected groups in Title VII – it may have been included as an attempt to thwart passage of the bill. Price Waterhouse, 490 U.S. at 243 n.9 (citation omitted). But see Eskridge, LGBT Workplace Protections, 127 Yale L.J. at 347. Because it was a last minute addition, “we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’ ” Meritor, 477 U.S. at 63-64. This is undoubtedly why “[i]n analyzing a statute, [the Court must] begin by examining the text . . . , not by psychoanalyzing those who enacted it,” Carter v. United States, 530 U.S. 255, 270-71 (2000) (citation omitted), though we do know that during the hearings on the 1972 amendments, congressional reports reflect the view that sex discrimination was “no less serious than other prohibited forms of discrimination, and that it is to be accorded the same degree of concern given to any type of similarly unlawful conduct.” S. Rep. No. 92-415, p. 7 (Oct. 28, 1971).
And we also know that, after the Court narrowly interpreted Title VII to permit discrimination on the basis of pregnancy even though only women can become pregnant, Gen. Elec. Co. v. Gilbert, 425 U.S. 125, 136-40 (1976), Congress responded by passing the

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Pregnancy Discrimination Act of 1978, Pub. L. No. 95555, 92 Stat. 2076. The Act amended Title VII to provide that:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title, 42 U.S.C. 2000e-2, shall be interpreted to permit otherwise.
Id. (codified at 42 U.S.C. § 2000e-2(k)). The House and Senate Reports made clear that the purpose of the Pregnancy Discrimination Act was a broader understanding of the definition of sex discrimination in the statute, and to ensure that Title VII protected “against all forms of employment discrimination based on sex,” including pregnancy and related medical conditions. S. Rep. No. 95-331, pp. 2-3; H.R. Rep. No. 95-948, pp. 34.9
9 In defining discrimination “because of sex” to “include, but not be limited to,” discrimination because of “pregnancy, childbirth, or related medical conditions,” the language of § 2000e(k) reflects the intent to expand the definition of “sex” discrimination even beyond these enumerated types of sex-based discrimination. See Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 280 (3d Cir. 1995) (Alito, J.) (explaining that the rule of

36
As Justice Stevens, who dissented in Gilbert, 429 U.S. at 160-62, later explained, Gilbert had been the “one notable exception” to the Court’s usual textualist approach to analyzing the sometimes broaderthan-expected scope of statutory prohibitions, Sutton v. United Air Lines, 527 U.S. 471, 506 (1999) (Stevens, J., dissenting). And Congress definitely saw it that way. The Senate specifically endorsed the classificationbased approach to sex discrimination with the Pregnancy Discrimination Act, quoting with approval as “correctly express[ing] both the principle and the meaning of Title VII” the words of Justice Brennan in Gilbert that “[s]urely it offends commonsense to suggest . . . that a classification revolving around pregnancy is not, at the minimum, strongly ‘sex related.’ ” S. Rep. No. 95-331, p. 3; see also Newport News, 462 U.S. at 681 (noting that “[p]roponents of the legislation stressed throughout the debates that Congress had always intended to protect all individuals from sex discrimination in employment – including but not limited to pregnant women workers.”) (emphasis supplied). The Pregnancy Discrimination Act of 1978, along with Manhart, thus confirms that the statutory ban on sex discrimination in Title VII must be read broadly to prohibit discrimination on account of any sex-based classifications, even those not enumerated in the statute.
ejusdem generis does not apply to limit the scope of a statute when the language expresses a contrary intent by using the phrase “including, but not limited to”).

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B. Congress Incorporated into Title VII an Expansive Definition of Sex-Based Discrimination from Newport News, Meritor, and Price Waterhouse with the Civil Rights Act of 1991
After the 1978 amendment, the Court began to interpret the sex discrimination prohibition in Title VII more broadly. In 1983, the Court held that male employees were discriminated against “because of sex” in violation of Title VII when their employer denied insurance coverage for pregnancy to their wives while providing full coverage to the husbands of female employees. Newport News, 462 U.S. at 685. The Court rejected the argument that the male employees could not maintain claims for sex discrimination because Congress was focused on protecting women, not men, when it passed Title VII. Id. at 679. This, the Court said, did not “create a ‘negative inference’ limiting the scope of the act to the specific problem that motivated its enactment.” 462 U.S. at 679-80. Instead, the Court applied the “simple test” of Manhart and found that the pregnancy limitation in the case discriminated against male employees. Id. at 683, 685.10
The Court again interpreted the sex discrimination prohibition expansively in Meritor, 477 U.S. 57 (1986). The employee in that case alleged that she was
10 In finding that sex-based discrimination against only male employees with pregnant spouses violated the statute, the Court also confirmed again the classification-based approach to Title VII that recognizes unlawful sex-based discrimination even when the target is only a subgroup of men or women.

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discriminated against because of her sex when her supervisor subjected her to unwanted touching and sexual advances in the workplace over a period of years. Id. at 59-60. In attempting to determine whether sexual harassment fell within the statutory language, the Court noted first that there was little legislative history from 1964 to guide the inquiry as to what constitutes “discrimination based on ‘sex,’ ” but concluded that, “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminates’ on the basis of sex.” Id. at 64-65. The Court also rejected the employer’s argument that only “economic” or “tangible” discrimination was actionable under Title VII. Id. at 66-67. Instead, the Court noted that the EEOC Guidelines took the position that “sexual harassment” was a form of sex discrimination and lower courts agreed. Id. Accordingly, the Court held that a “hostile or abusive work environment” based on sex falls within the statutory prohibition. Id. at 66-67.
The Court further expounded the meaning of the statutory language in Price Waterhouse as discussed above, explaining that because Title VII “even forbids employers to make gender an indirect stumbling block to employment opportunities,” discrimination against an employee for failing to conform to a gender stereotype constitutes unlawful sex discrimination. See supra, pp. 23-29 (citations omitted). The Court also recognized the possibility of other forms of sex discrimination arising from a combination of sex-based considerations and other legitimate considerations. Specifically, the

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Court held that “Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations,” so that the statute is violated when an employer considers “both gender and legitimate factors at the time of making a decision.” 490 U.S. at 241 (emphasis supplied). Congress confirmed and codified this lessened causation standard for Title VII discrimination claims with § 107(a) of the Civil Rights Act of 1991, providing that a violation of the Act is shown by proof that sex or another protected characteristic “was also a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).
These holdings – that the language of Title VII is not limited to forms of sex discrimination “that motivated its enactment,” Newport News, 462 U.S. at 679-80, includes “sexual harassment” without economic impact, Meritor, 477 U.S. at 64-67, and encompasses “sex stereotype” discrimination and reliance on sex-based considerations alongside legitimate considerations despite the statutory silence on these points, Price Waterhouse, 490 U.S. at 240-42 – were all effectively incorporated into Title VII by the Civil Rights Act of 1991. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 239-40 (2009) (noting that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change” and concluding that Congress approved of the Court’s prior interpretations of the Individuals with Disabilities in Education Act because it did not abrogate them or repeal those parts

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of the statute in a subsequent amendment of another part); see also North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [the Court’s] precedents . . . and that it expect[s] its enactment[s] to be interpreted in conformity with them”) (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 699 (1979)); Shapiro v. United States, 335 U.S. 1, 16 (1948) (“[i]n adopting the language used in the earlier act, Congress ‘must’ be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment”). As a result, while the holdings of Newport News, Meritor, and Price Waterhouse already carried “enhanced force” because they are precedents interpreting a statute, Kimble v. Marvel Entm’t, L.L.C., 135 S. Ct. 2401, 2409 (2015), they by now form the foundation of a congressional mandate that the statutory language of Title VII be interpreted broadly to prohibit forms of sex discrimination not explicitly set forth in the statute.
Respondent and others may argue to the contrary that when Congress passed the Civil Rights Act of 1991, it implicitly ratified the interpretation of a handful of lower courts that Title VII does not prohibit sexual orientation discrimination. See Br. for the U.S. as Amicus Curiae, Zarda, 2017 WL 3277292, *8-10. But while Congress can express its intent by reference to the decisions of lower courts, the record must be clear that it did. Cf. Texas Dep’t of Hous. and Comm. Affairs v. Inclusive Cmty’s Project, Inc., 135 S. Ct. 2507, 2520 (2015) (holding that Congress adopted the scope of

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disparate impact liability for the Fair Housing Act set forth in unanimous holdings of the Circuit Courts where several committee reports and congressional testimony explicitly addressed them). There is no evidence that Congress had any “background understanding,” id. at 2520, of lower court rulings on sexual orientation discrimination under Title VII in 1991, see Zarda, 883 F.3d at 129. Rather, the congressional remarks concern this Court’s interpretations of Title VII. See H.R. Rep. No. 102-40, 45, 1991 U.S.C.C.A.N. 549, 583 n.39 (noting that the holding in Price Waterhouse that “evidence of sex stereotyping is sufficient to prove gender discrimination” would not be affected by the Act), 638 (discussing Manhart, Newport News, and Johnson Controls with approval). There is no basis to assume Congress adopted the rulings of a few lower courts that Title VII did not prohibit sexual orientation discrimination. Zarda, 883 F.3d at 129. Instead, it must be presumed that Congress ratified this Court’s decisions in Manhart, Newport News, Meritor, and Price Waterhouse.11 It is these decisions, including the guidance they provide about how to interpret Title VII – that there is no “negative inference” that limits the language, Newport News, 462 U.S. at 679-80, and that it covers discrimination built on sex-based assumptions about behavior, Price Waterhouse, 490 U.S. at 240-42 – that Congress
11 As well as some others. See Landgraf v. USI Film Prods., 511 U.S. 244, 250-51 (1994) (noting that “[o]ther sections of the [Civil Rights] Act [of 1991] were obviously drafted with ‘recent decisions of the Supreme Court’ in mind” and citing other cases and provisions).

42
incorporated in Title VII in 1991. Cf. Forest Grove Sch. Dist., 557 U.S. at 239-40.
Respondent also argues that Title VII cannot be understood to cover sexual orientation discrimination because legislation that would have amended the statute to specifically include it has failed to pass Congress many times. Br. of Resp. in Opp. to Cert., p. 21 n.4. Respondent concedes that “[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction,” id. at p. 23 (citing Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990)), yet maintains no one could have thought that Title VII prohibited sexual orientation discrimination because lower courts held that it did not, id. at pp. 23-24. But that is exactly what the then-Speaker of the House of Representatives John Boehner said about one such bill in 2013. See Ed O’Keefe, Senate passes job-bias bill for gays, WASH. POST, Nov. 8, 2013; CNN Newsroom, Transcript of Nov. 14, 2013 Broadcast, available at http://transcripts. cnn.com/TRANSCRIPTS/1311/14/cnr.06.html (reporting Mr. Boehner’s statement in response to a question concerning the Employment Discrimination Act, which would have prohibited sexual orientation discrimination in employment, that “as someone who has worked in this employment law area for all of my years in the state house and all of my years here, I see no basis or no need for this” because “people are already protected”) (last visited June 22, 2019). Regardless, “the verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible.”

43
Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969). The Court simply cannot read as much from what Congress did not do over the years as it can from what Congress did do with the Civil Rights Act of 1991. See BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (noting that the “statutory history” of “enacted changes Congress made to the relevant statutory text over time” is “the sort of textual evidence everyone agrees can sometimes shed light on meaning” as opposed to the “sort of unenacted legislative history that often is neither truly legislative . . . nor historical”).12
12 Similarly, Respondent argues that the prohibition of sexual orientation discrimination in other statutes means that “sex” as used in Title VII cannot include sexual orientation. Br. of Resp. in Opp. to Cert., pp. 17-18 (citations omitted). To begin with, these statutes cannot be read in pari materia with Title VII because they deal with sex discrimination “in entirely different” fields, and there is no indication that Title VII was intended to be read with them. Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641, 647-48 (1990). Moreover, all of these statutes were enacted after Title VII, and “Congress’s use of similar language in other statutes . . . tells us nothing about Congress’s understanding of the language it enacted” in Title VII. Food Mktg. Inst. v. Argus Leader Media, 588 U.S. ___ (2019), No. 18-481, 2019 WL 2570624, *6 (June 24, 2019); see also Gutierrez v. Ada, 528 U.S. 250, 25758 (2000) (“later laws that do not seek to clarify an earlier enacted general term and do not depend for their effectiveness upon clarification, or a change in the meaning of an earlier statute, are beside the point in reading the first enactment”) (quotations and citation omitted).

44
C. The Court Unanimously Recognized in Oncale that Title VII Must be Read to Prohibit Forms of Sex Discrimination not Contemplated by Congress in 1964
Just as Newport News verified that Congress confirmed a broad application of the sex discrimination prohibition with the Pregnancy Discrimination Act, Oncale reflected that Congress codified expansive interpretation of the statutory language with the Civil Rights Act of 1991. Accordingly, the unanimous Oncale Court squarely held that the statutory language reaches further than the particular types of discrimination Congress was concerned with in 1964:
As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory 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.
523 U.S. at 79; see also Lewis v. City of Chicago, Ill., 560 U.S. 205, 215 (2010) (Scalia, J.) (“[i]t is not for us to rewrite [Title VII] so that it covers only what we think is necessary to achieve what we think Congress really intended”).13
13 No doubt this is because any indications in the legislative history which are contrary to the plain language of the statute “may reflect nothing more than the speakers’ incomplete

45
The Court has thus already rejected the argument that the scope of the ban on sex discrimination in Title VII is limited by the “ordinary, contemporary, common” meaning of “sex” at the time the statute was passed. See Zarda, 883 F.3d at 137 (Lohier, J., concurring and explaining that “[t]ime and time again, the Supreme Court has told us that the cart of legislative history is pulled by the plain text, not the other way around”). And for good reason: the statutory history makes clear that the prohibition must “extend to . . . [discrimination] of any kind that meets the statutory requirements,” which are simply that the discrimination be “because of sex,” Oncale, 523 U.S. at 75 (emphasis supplied). It extends to sex-based discrimination of “any kind” regardless of whether all members of one sex are targeted, Newport News, 462 U.S. at 679-80, whether the precise form of discrimination appears in the statute, Meritor, 477 U.S. at 65, whether the sex-related consideration is based on biology or behavior, Price Waterhouse, 490 U.S. at 240-42, or whether Congress contemplated it in 1964, Oncale, 523 U.S. at 75. Accordingly, Title VII extends to sexual orientation discrimination because it meets the statutory requirements, see supra, pp. 12-31, and there is no difficulty in interpreting the statute to reach more broadly than Congress may have expected in 1964.
Indeed, the Court has often interpreted statutory language more broadly than it might have been interpreted at the time the statute was passed. See, e.g.,
understanding of the world upon which the statute will operate.” Fort Stewart Sch., 495 U.S. at 650 (Scalia, J.) (citation omitted).

46
West, 527 U.S. at 218 (interpreting the original language of Title VII permitting “appropriate” relief against the federal government to allow the award of compensatory damages even though such damages were not available until the 1991 amendments); Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 768-70 (2019) (interpreting the International Organizations Immunities Act of 1945 to provide immunity consistent with the restrictive theory of foreign sovereign immunity adopted by the Foreign Sovereign Immunities Act of 1976); Kimble, 135 S. Ct. at 2412-14 (2015) (noting that the Sherman Act has been interpreted dynamically); Oncale, 523 U.S. at 79-80; Allied-Bruce Terminix Co.’s, Inc. v. Dobson, 513 U.S. 265, 273-76 (1995) (interpreting the Federal Arbitration Act to incorporate the definition of commerce as expanded by the Court’s decisions since the Act was passed in 1925);14 Meritor, 477 U.S.
14 Because constitutional cases “can provide helpful guidance in this statutory context,” Ricci, 557 U.S. at 582, the Court’s decisions concerning the constitutional rights of gay and lesbian people decided since Title VII was enacted should also be understood as changes “in law or in the world,” West, 527 U.S. at 218, which require a broader reading of Title VII. These include Romer v. Evans, 517 U.S. 620, 631-35 (1996) (holding that a state constitutional prohibition of governmental action to protect gay and lesbian people was a violation of the Equal Protection Clause of the Fourteenth Amendment), Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (holding that a statute prohibiting same-sex sexual intercourse was an unconstitutional deprivation of substantive due process), and Obergefell v. Hodges, 135 S. Ct. 2584, 2603-05 (2015) (holding that the Equal Protection Clause protects the right of gay and lesbian persons to marry a member of the same sex). It would be anachronistic, to say the least, to read Title VII to permit a form of discrimination that the Court has held to violate the Constitution.

47
at 63-67. There is no difficulty in doing so where, as here, the proposed interpretation is completely consistent with the statutory text and there are exceedingly strong indications in the statutory history and the Court’s decisions that the statutory language should be read broadly in conformity with certain subsequent developments in the law. Indeed, in this context – where Congress has ratified and incorporated the Court’s expansive interpretations of the language into the statute, considerations of stare decisis impose a “considerable burden upon those who would seek a different interpretation that would necessarily unsettle many Court precedents.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 451-52 (2008).
III. Title VII Must be Interpreted to Prohibit Sexual Orientation Discrimination Because the Contrary Interpretation Would Place Different Parts of the Statute in Conflict and is Profoundly Unworkable
There are at least two other reasons why the Court must conclude that Title VII prohibits sexual orientation discrimination as a form of sex discrimination. First, refusal to recognize that Title VII prohibits sexual orientation discrimination would place 42 U.S.C. § 2000e-2(m) at odds with the other antidiscrimination provisions of § 2000e-2 and render it meaningless. Second, it is profoundly unworkable as demonstrated by contradictory lower court decisions which have tried unsuccessfully to distinguish

48
between sex-based stereotype discrimination and sexual orientation discrimination.
A. Title VII Must Be Interpreted to Prohibit Sexual Orientation Discrimination to Give Effect to all the Anti-Discrimination Provisions of the Statute
Interpreting Title VII to prohibit sexual orientation discrimination is necessary to harmonize and give effect to all the anti-discrimination provisions of 42 U.S.C. § 2000e-2. It is well established that the Court’s task “in interpreting [these] separate provisions of a single Act is to give the Act ‘the most harmonious, comprehensive meaning possible’ in light of the legislative policy and purpose.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-32 (1973) (quotation omitted). Reading Title VII to prohibit sexual orientation discrimination is necessary to avoid placing the anti-discrimination provisions of § 2000e-2 in conflict with the ban on employment practices motivated even in part by sex, § 2000e-2(m), and rendering the latter meaningless.
The Court explained in Price Waterhouse that “[t]he critical inquiry, the one commanded by the words of 42 U.S.C. § 2000e-2(a)(1),” is whether:
gender was a factor in the employment decision at the moment it was made. Moreover, since we know that the words “because of ” do not mean “solely because of,” we also know that Title VII meant to condemn even

49
those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of ” sex and the other, legitimate considerations – even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.
490 U.S. at 241 (emphasis supplied). As discussed above, Congress explicitly approved this lessened “motivating factor” causation standard for Title VII discrimination claims and codified it at 42 U.S.C. § 2000e-2(m) with § 107(a) of the Civil Rights Act of 1991. See Nassar, 570 U.S. at 347-49 (citing and discussing Price Waterhouse and Pub. L. No. 102-166). The Court must interpret Title VII to prohibit sexual orientation discrimination for consistency between § 2000e-2(m) and the other anti-discrimination provisions of § 2000e-2 in the first place because, in their misguided efforts to determine whether discrimination is motivated by an employee’s failure to conform to a sex-based stereotype or her sexual orientation, the lower courts are erroneously throwing out cases where it is motivated by both. See, e.g., Kay v. Independence Blue Cross, 142 F. App’x 48, 50-51 (3d Cir. 2005) (noting that the harassment included referring to “real men” as opposed to the “fem” plaintiff and assuming that this was evidence of sex stereotyping but nevertheless affirming the district court’s dismissal because other evidence indicated sexual orientation bias); Swift v.

50
Countrywide Home Loans, Inc., 770 F. Supp. 2d 483, 488 (E.D.N.Y. 2011) (determining that the plaintiff ’s claim for sex discrimination was really one for sexual orientation discrimination even though the court acknowledged that he was disparaged with terms referring to the “non-conformism of his behavior”).
But the Court must also interpret Title VII to prohibit sexual orientation for consistency between 42 U.S.C. § 2000e-2(m) and the other anti-discrimination provisions for a more fundamental reason. As explained above, a person’s sex is a necessary element of his sexual orientation because a gay or lesbian sexual orientation is defined as experiencing sexual desire for a person of one’s “own” or same sex. Supra, pp. 13-14. This means that sexual orientation is a sex-based classification under Title VII. Id. But it also means that sexual orientation is discrimination “because of sex” under Price Waterhouse and § 2000e-2(m). Specifically, even if sexual orientation was a “legitimate consideration” for an employment decision (which it is not), an employment decision on that basis would still be “ ‘because of ’ sex and the other, legitimate consideration[,]” Price Waterhouse, 490 U.S. at 241, because sexual orientation is dependent on the sex of the employee. As a result, such an employment decision would still violate Title VII under 42 U.S.C. § 2000e-2(m). The Court must therefore conclude that sexual orientation discrimination is discrimination “because of sex” to harmonize the anti-discrimination provisions of § 2000e-2 with § 2000e-2(m) and avoid rendering the latter meaningless. See, e.g., Food and Drug Admin. v. Brown &

51
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (holding that, where possible, the Court must interpret a statute “as a symmetrical and coherent regulatory scheme,” fitting “all parts into an harmonious whole”); Weinberger, 412 U.S. at 631-32; Petition of Pub. Nat. Bank of New York, 278 U.S. 101, 104 (1928) (noting that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”) (quotation omitted).
B. The Attempt to Distinguish Between Sex Stereotype Discrimination Based on Gay or Lesbian “Traits” and Sexual Orientation Discrimination is Profoundly Unworkable
The Court must also recognize that Title VII prohibits sexual orientation discrimination because a refusal to do so would perpetuate the puzzling morass of conflicting lower court decisions. Even the courts have admitted the difficulty of properly applying Price Waterhouse and Oncale to claims brought by gay and lesbian employees. See, e.g., Prowel, 579 F.3d at 291 (noting that “the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw”); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (explaining that sex stereotype claims can present problems because “ ‘stereotypical notices about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality’ ”) (citations omitted),

52
overruled by Zarda, 883 F.3d 100; Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1065 n.5 (7th Cir. 2003) (conceding that “distinguishing between failure to adhere to sex stereotypes . . . and discrimination based on sexual orientation . . . may be difficult”) overruled by Hively, 853 F.3d 339, 350 (en banc) (noting that “the effort to [remove the ‘sex’ from ‘sexual orientation’] has led to confusing and contradictory results”).
For example, some courts dismiss claims for sex discrimination where the plaintiff alleges verbal harassment reflecting a perception that he or she is gay, while others do not. Compare, e.g., Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8th Cir. 1999) (permitting a claim for same-sex sexual harassment to proceed where a male plaintiff alleged he was harassed because of his “perceived sexual preference,” because the fact that “some of the harassment alleged . . . includes taunts of being homosexual . . . ” did not make the complaint one for sexual orientation discrimination) and E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 768 F. Supp. 2d 883, 893 (E.D. La. 2011) (denying summary judgment on a sex stereotyping discrimination claim where the alleged harasser said he thought the employee’s use of wet wipes instead of toilet paper was “feminine” or “kind of homo” and the supervisor made jokes about the employee being gay) with Kay, 142 F. App’x at 50-51 (affirming the dismissal of a complaint because the epithets directed toward the plaintiff, including “faggot,” “fem,” and suggesting he was not a

53
“real man” indicated sexual orientation discrimination and not sex stereotype discrimination).
Other courts seek to divine whether the employer is motivated to discriminate because of the employee’s sexual orientation or his failure to conform to a sex stereotype by tabulating and comparing the “relative frequency” of comments reflecting either type of bias. See Zarda, 883 F.3d at 121 (citing and discussing cases). As might be expected, these efforts are inconsistent in their outcomes. Compare, e.g., Hamm, 332 F.3d at 1062-65 n.4 (upholding summary judgment against a plaintiff who was called “girl scout” and mocked for having a “high-pitched” voice because the evidence pointed to the conclusion that he was being discriminated against because of sexual orientation) and E.E.O.C. v. Family Dollar Stores, Inc., No. CIV.A. 1:06CV-2569-TWT, 2008 WL 4098723, at *1, *16-20 (N.D. Ga. Aug. 28, 2008) (granting summary judgment on a sex stereotype claim even though the alleged harasser said the employee was “half-female,” and told him “now you using tampons,” because the record “clearly reflect[ed] that the harassment at issue was based primarily” on the plaintiff ’s perceived sexual orientation) (emphasis supplied) with Nichols, 256 F.3d at 870, 87475 (holding that an employee proved a sex-based hostile work environment even though the harasser called him a “faggot” because “the most vulgar name-calling directed at [the plaintiff ] was cast in female terms”). Cases are all over the map with varying analytical approaches. See generally Br. for GLBTQ Advocates and Defenders and the National Center for Lesbian Rights

54
as Amici Curiae in Support of the Petitioner in Case 17-1618 and Respondents in Cases 17-1623 and 18107, pp. 4-12.
Some judges have actually admitted that attempting to apply Price Waterhouse and Oncale while precluding sexual orientation discrimination claims is simply “unworkable.” Christiansen, 852 F.3d at 205 (Katzman, C.J., concurring). Judge Posner of the Seventh Circuit wrote a concurrence in Hamm specially for the purpose of “recording [his] conviction that the case law has gone off the tracks in the matter of ‘sex stereotyping[.]’ ” 332 F.3d at 1066. In that opinion, written fifteen years ago, he explained how the lower courts had distorted this Court’s decision in Price Waterhouse by trying to avoid recognizing discrimination based on sexual orientation as actionable:
Hostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter, especially the former. Effeminate men often are disliked by other men because they are suspected of being homosexual (though the opposite is also true – effeminate homosexual men may be disliked by heterosexual men because they are effeminate rather than because they are homosexual), while mannish women are disliked by some men because they are suspected of being lesbians and by other men merely because they are not attractive to those men; a further complication is that men are more hostile to male homosexuality than they are to lesbianism.

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To suppose courts capable of disentangling the motives for disliking the nonstereotypical man or woman is a fantasy.
Id. at 1067 (emphasis supplied). Moreover, the ill-conceived attempt to determine whether the motive for discrimination is a failure to conform to sex stereotypes or sexual orientation necessarily promotes an investigation of the plaintiff ’s sexual orientation, which was assuredly not the policy of Title VII. Id.
Numerous commentators have also rightly criticized this course of jurisprudence for causing more problems than it purported to solve. See, e.g., Eskridge, LGBT Workplace Protections, 127 Yale L.J. at 343 (arguing that “[a]s administrators, judges, and legislators have responded to our evolving understanding of the workplace, they have crafted a series of legal rules and precedents that render the exclusion of LGBT employees from Title VII increasingly anomalous and profoundly unworkable”); Zachary R. Herz, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396, 425 (2014); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 754 (2014) (surveying cases); Anthony E. Varona, Jeffrey M. Monks, En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 94-98 (2000). Importantly, the fact that discrimination based on a person’s failure to conform to a sex stereotype is so often indistinguishable from discrimination on the basis of sexual orientation further reinforces the

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common sense conclusion that a heterosexual orientation is a sex-based stereotype.
Ultimately, a refusal to recognize that Title VII prohibits sexual orientation discrimination invites judicial speculation into whether and to what extent sexbased discrimination is based on sex stereotypes rather than sexual orientation, and leads to confusing and contradictory results.15 The Court must therefore
15 This infects other areas of Title VII jurisprudence as well. For example, the “opposition clause” of Title VII protects employees from retaliation based on their opposition to practices made unlawful under Title VII, Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tn., 555 U.S. 271, 276 (2009), but many lower courts require employees alleging retaliation for protected opposition activity must demonstrate that their belief that they were opposing conduct made unlawful under Title VII was reasonable, which is often measured by the substantive law, see, e.g., Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 549 (8th Cir. 2008); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). To the extent that it is unclear whether Title VII prohibits sexual orientation discrimination, and whether an employee is being lawfully discriminated against because of sexual orientation or unlawfully on the basis of a sex stereotype, the scope of the opposition clause of Title VII also remains unclear, and the remedial policy of the statute is undermined.
Another example is the question of whether a plaintiff has exhausted his administrative remedies before the Equal Employment Opportunity Commission as required before bringing a lawsuit in court. See Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004). Generally speaking, “a plaintiff ’s judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination,” which depends on whether the court determines that the charge alleged sufficient facts to put the Commission and the employer on notice of the allegations. See id. (citations omitted). If the court decides that the employee did not provide enough factual information in the charge, then she will

57
recognize that Title VII prohibits sexual orientation discrimination because the alternative is a continuation of the confusing mess that threatens the consistency and predictability required for the rule of law in this area. See, e.g., United States v. Powell, 469 U.S. 57, 66 (1984) (rejecting as “imprudent and unworkable” a rule that invited judicial speculation or inquiries into the jury’s deliberations in criminal cases); Swift & Co. v. Wickham, 382 U.S. 111, 124-25 (1965) (rejecting a rule for determining the scope of the three-judge court statute because it was “in practice unworkable,” uniformly criticized by commentators, and lower courts avoided dealing with it or interpreted it with uncertainty).
---------------------------------  ---------------------------------
CONCLUSION
For all the reasons set forth above, Petitioner prays that this Honorable Court reverse the erroneous
be barred from pursuing that claim in the lawsuit. Id. Indeed, the Magistrate Judge below decided that Mr. Bostock could not assert his claim for sex discrimination because he did not reference it as such in the charge of discrimination he filed with the Commission, despite the fact that he checked the only box on the charge applicable to both sexual orientation and sex stereotype discrimination: “sex.” App. 8, 22-24. Mr. Bostock has since abandoned this articulation of his sex discrimination claim, id. at 41 n.1, but the issue highlights the continuing confusion caused by the unsettled law of how to “properly” allege the various forms of sex discrimination. See also Norris v. Diakin Drivetrain Components, 46 F. App’x 344 (6th Cir. 2002) (holding that the plaintiff did not exhaust his same-sex sexual harassment claim by alleging sexual orientation discrimination in his charge and dismissing the case).

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judgment of the Eleventh Circuit Court of Appeals that he cannot state a claim for relief under Title VII on the theory that he was subjected to discrimination “because of sex” when he was fired for being gay. That Title VII so protects him and every other employee, whether gay or straight, is the best reading of the statute and the one that comports with the congressional intent to “strike at the entire spectrum of disparate treatment of men and women in employment.” Oncale, 523 U.S. at 78 (citing Meritor, 477 U.S. at 64).
Respectfully submitted,
BRIAN J. SUTHERLAND Counsel of Record
THOMAS J. MEW IV BUCKLEY BEAL, LLP 600 Peachtree St., N.E. Suite 3900 Atlanta, Georgia 30308 (404) 781-1100 bsutherland@buckleybeal.com tmew@buckleybeal.com Counsel for Petitioner
Gerald Lynn Bostock

 
 No. 17-1618 ================================================================
In The
Supreme Court of the United States

---------------------------------  ---------------------------------

GERALD LYNN BOSTOCK,
Petitioner, v.

CLAYTON COUNTY, GEORGIA, Respondent.

---------------------------------  ---------------------------------

On Writ Of Certiorari To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------  ---------------------------------

JOINT APPENDIX

---------------------------------  ---------------------------------

BRIAN J. SUTHERLAND Counsel of Record
THOMAS J. MEW IV BUCKLEY BEAL, LLP 600 Peachtree St., N.E. Suite 3900 Atlanta, Georgia 30308 (404) 781-1100 bsutherland@buckleybeal.com tmew@buckleybeal.com Counsel for Petitioner
Gerald Lynn Bostock

JACK R. HANCOCK Counsel of Record
WILLIAM H. BUECHNER, JR. FREEMAN MATHIS &
GARY, LLP 661 Forest Parkway, Suite E Forest Park, Georgia 30297 (404) 366-1000 jhancock@fmglaw.com Counsel for Respondent
Clayton County, Georgia

================================================================
Petition For Certiorari Filed May 25, 2018 Certiorari Granted April 22, 2019
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i
TABLE OF CONTENTS
Page
Relevant Docket Entries, United States District Court for the Northern District of Georgia..............1
Relevant Docket Entries, United States Court of Appeals for the Eleventh Circuit..............................5
Second Amended Complaint, filed in the United States District Court for the Northern District of Georgia, September 12, 2016........................7
Renewed Motion to Dismiss, filed in the United States District Court for the Northern District of Georgia, September 26, 2016......................16
Exhibit 1: Equal Employment Opportunity Commission Charge of Discrimination ..........................31
Exhibit 2: Equal Employment Opportunity Commission Dismissal and Notice of Rights .................39
Response in Opposition to Renewed Motion to Dismiss, filed in the United States District Court for the Northern District of Georgia, October 13, 2016......................................................46
Exhibit A: Equal Employment Opportunity Commission Charge of Discrimination ..................63
Exhibit B: Denial of Rehearing, Hively v. Ivy Tech Community College, United States Court of Appeals for the Seventh Circuit .........................65
Reply to Response to Renewed Motion to Dismiss, filed in the United States District Court for the Northern District of Georgia, October 27, 2016 ...................................................................66

ii
TABLE OF CONTENTS – Continued
Page
Objections to Report and Recommendation, filed in the United States District Court for the Northern District of Georgia, November 17, 2016 .........................................................................80
Exhibit: Equal Employment Opportunity Commission Charge of Discrimination..........................99
Response to Objections, filed in the United States District Court for the Northern District of Georgia, December 1, 2016 .......................101
Reply in Support of Objections, filed in the United States District Court for the Northern District of Georgia, December 15, 2016................119
Notice of Appeal, filed in the United States District Court for the Northern District of Georgia, August 21, 2017..............................................129
Appellee’s Brief, filed in the United States Court of Appeals for the Eleventh Circuit (December 22, 2017) ................................................................131
Order on Denial of Rehearing En Banc, filed in the United States Court of Appeals for the Eleventh Circuit (July 18, 2018) ..........................168

iii
TABLE OF CONTENTS – Continued Page
The following documents were printed in the Petition for a Writ of Certiorari and are not reproduced in this Joint Appendix. They can be found at the following pages:
United States Court of Appeals for the Eleventh Circuit, Opinion, May 10, 2018........................ App. 1
United States Court of Appeals for the Eleventh Circuit, Order on Petition for Hearing En Banc, May 3, 2018 ............................................ App. 4
United States District Court for the Northern District of Georgia, Magistrate’s Final Report and Recommendation, November 3, 2016 ....... App. 5
United States District Court for the Northern District of Georgia, Order, July 21, 2017....... App. 26
United States District Court for the Northern District of Georgia, Judgment, July 21, 2017........ App. 34
Initial Brief of Appellant, filed in the United States Court of Appeals, November 13, 2017 ........... App. 36
Petition for Hearing En Banc, filed in the United States Court of Appeals, November 13, 2017..... App. 60

1

U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:16-cv-01460-ODE

Bostock v. Clayton County Board of Commissioners

10 Filed & Entered:
09/12/2016

Amended Complaint
SECOND AMENDED COMPLAINT against Clayton County with Jury Demand, filed by Gerald Lynn Bostock.(klb) Please visit our website at http://www.gand. uscourts.gov/commonly-used-forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form.

13 Filed & Entered:

Motion to Dismiss for Failure to State a Claim

09/26/2016 Terminated: 07/21/2017

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Clayton County. (Attachments: # (1) Exhibit 1 - EEOC Charge of Discrimination, # (2) Exhibit 2 EEOC Dismissal and Notice of Rights)(Heller, Martin)

Exhibit 1 - EEOC Charge of Discrimination

Exhibit 2 - EEOC Dismissal and Notice of Rights

2

14 Filed & Entered:
10/13/2016

Response in Opposition to Motion
RESPONSE in Opposition re [13] MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Gerald Lynn Bostock. (Attachments: # (1) Exhibit A, # (2) Exhibit B)(Mew, Thomas)

Exhibit A

Exhibit B

15 Filed & Entered:
10/27/2016

Reply Brief
REPLY BRIEF re [13] MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Clayton County. (Heller, Martin)

16 Filed & Entered: 11/03/2016 Terminated: 07/21/2017

Final Report and Recommendation
FINAL REPORT AND RECOMMENDATION re [10] Amended Complaint, filed by Gerald Lynn Bostock. Signed by Magistrate Judge Walter E. Johnson on 11/3/16. (klb)

18 Filed & Entered:

Objections to Report and Recommendation

11/17/2016

OBJECTIONS to [16] Report and Recommendation filed by Gerald Lynn Bostock. (Attachments: # (1) Exhibit)(Mew, Thomas)

Exhibit

3

19 Filed & Entered: 12/01/2016
20 Filed & Entered: 12/15/2016
24 Filed & Entered: 07/21/2017

Reply to Objection to Report and Recommendation
REPLY to Objection to Report and Recommendation re [18] Objections to Report and Recommendation filed by Clayton County. (Heller, Martin)
Reply to Objection to Report and Recommendation
REPLY to Objection to Report and Recommendation re [18] Objections to Report and Recommendation filed by Gerald Lynn Bostock. (Mew, Thomas)
Order on Motion to Dismiss for Failure to State a Claim
ORDER OVERRULING Plaintiff ’s [18] Objections and ADOPTING IN FULL the [16] Final Report and Recommendation. Defendant’s [13] Motion to Dismiss for Failure to State a Claim is GRANTED and this case is hereby DISMISSED with prejudice. Costs are taxed to the Plaintiff. Signed by Judge Orinda D. Evans on 7/20/2017. (sap)

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25 Filed & Entered:
07/21/2017

Clerk’s Judgment
CLERK’S JUDGMENT in favor of Defendant against Plaintiff for the costs of this action. (sap)--Please refer to http://www.ca11.uscourts. gov to obtain an appeals jurisdiction checklist--

26 Filed & Entered: 08/21/2017 Terminated: 07/26/2018

Notice of Appeal
NOTICE OF APPEAL as to [25] Clerk’s Judgment, [24] Order on Motion to Dismiss for Failure to State a Claim, Order on Final Report and Recommendation,, by Gerald Lynn Bostock. Filing fee $ 505, receipt number 113E7338353. Transcript Order Form due on 9/5/2017 (Mew, Thomas)

5

General Docket United States Court of Appeals
for the Eleventh Circuit

Court of Appeals Docket #: 17-13801 Gerald Bostock v. Clayton County, Georgia

GERALD LYNN BOSTOCK

Plaintiff - Appellant

versus

CLAYTON COUNTY, GEORGIA

Defendant - Appellee

11/13/2017 Appellant’s brief filed by Gerald Lynn Bostock. (ECF: Brian Sutherland) [Entered: 11/13/2017 04:12 PM]

11/13/2017 MOTION for initial hearing en banc filed by Gerald Lynn Bostock. Opposition to Motion is Unknown. [8297379-1] (ECF: Brian Sutherland) [Entered: 11/13/2017 04:36 PM]

12/22/2017 Appellee’s Brief filed by Appellee Clayton County, Georgia. (ECF: Jack Hancock) [Entered: 12/22/2017 10:46 AM]

5/3/18

ORDER: Motion for initial hearing en banc filed by Appellant Gerald Lynn Bostock is DENIED. [8297379-2] is DENIED. CRW [Entered: 05/03/2018 02:20 PM]

5/10/18
5/10/18 7/18/18

6
Opinion issued by court as to Appellant Gerald Lynn Bostock. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court’s Opinions page at this link http://www.ca11. uscourts.gov/opinions. (Opinion corrected on 5/10/2018. Typo on p. 2.)-[Edited 05/10/2018 by JRP] [Entered: 05/10/2018 02:04 PM]
Judgment entered as to Appellant Gerald Lynn Bostock. [Entered: 05/10/2018 02:06 PM]
PUBLISHED ORDER: On it’s [sic] own motion, the Court DENIES en banc rehearing. A member of this Court in active service having requested a poll on the suggestions of rehearing en banc, the majority of the judges in this Court in active service voted not to grant en banc rehearing.. [8513547-1] (Published Order Corrected on 7/19/2018. Judge Jill Pryor joined dissent)--[Edited 07/19/2018 by DLT] [Entered: 07/18/2018 03:11 PM]

7

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, Plaintiff,
v. CLAYTON COUNTY,
Defendant.

) ) CIVIL ACTION ) File No. 1:16-CV-1460 ) ) JURY TRIAL DEMANDED )

SECOND AMENDED COMPLAINT
(Filed Sep. 12, 2016)
Plaintiff Gerald Lynn Bostock (“Plaintiff ’) files this Second Amended Complaint against Defendant Clayton County (“Defendant”) for violations of Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. (“Title VII”).

PARTIES 1.
At all times relevant to this action, Defendant employed Plaintiff.

2.
Plaintiff submits himself to the jurisdiction of this Court.

8
3. Defendant is a political division of the state of Georgia and is subject to the jurisdiction and venue of this Court.
4. Defendant may be served with process by delivering a copy of Summons and Complaint to Jeffrey E. Turner, Chairman, Clayton County Administration 112 Smith Street, Jonesboro, GA 30236 for service of process.
5. Defendant is an “employer” as defined by Title VII.
ADMINSTRATIVE [sic] 6.
Mr. Bostock timely filed a charge for sex and sexual orientation discrimination with the Equal Employment Opportunity Commission.
7. Mr. Bostock filed this lawsuit within 90 days of the receipt of his Notice of Right to Sue.

9
JURISDICTION AND VENUE 8.
Jurisdiction of this Court is proper pursuant to 28 U.S.C. § 1331 (federal question).
9. Venue is proper in this district and division pursuant to 28 U.S.C. § 1391(b)(1) because Defendant resides within the Northern District of Georgia.
10. Venue is also proper in this district and division pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to this Complaint occurred within the Northern District of Georgia.
STATEMENT OF FACTS 11.
Plaintiff began working for the Defendant on or about January 13, 2003.
12. Plaintiff is a gay male.

10
13.
Plaintiff was employed by Defendant as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County. Plaintiff was charged with the primary responsibility of Clayton County CASA (Court Appointed Special Advocate).
14.
During the over ten (10) years Plaintiff was employed by the Defendant, he received good performance evaluations and the program received accolades. Clayton County CASA was awarded the Established Program Award of Excellence by Georgia CASA in 2007. Plaintiff was recognized by National CASA for program expansion and served on the National CASA Standards and Policy committee in or around 20112012 .
15.
Beginning in January 2013, Plaintiff became involved with a gay recreational softball league called the Hotlanta Softball League.
16.
Plaintiff actively promoted the Clayton County CASA organization to the softball league as a source of volunteer opportunities for league members.

11
17. In the months after Plaintiff joined the Hotlanta Softball League, Plaintiff ’s participation in the league and his sexual orientation and identity were, on information and belief, openly criticized by one or more persons who had significant influence on the decisionmaking of the Defendant.
18. In or around April 2013, Defendant advised Plaintiff that it was conducting an internal audit on program funds Plaintiff managed.
19. Plaintiff did not engage in any improper conduct with regard to program funds under his custody or control.
20. Defendant initiated the audit as a pretext for discrimination against Plaintiff based on his sexual orientation and failure to conform to a gender stereotype.
21. On information and belief, in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where Plaintiff ’s supervisor was present, at least one individual made disparaging comments

12
about Plaintiff ’s sexual orientation and identity and participation in the league.
22. On or about June 3, 2013, Defendant terminated Plaintiff ’s employment.
23. Defendant stated that Plaintiff was terminated for Conduct Unbecoming of a Clayton County Employee. That purported reason, however, was a pretext for discrimination against Plaintiff based on his sex and/or sexual orientation.
COUNT I Sex Discrimination in Violation of Title VII of The Civil Rights Act of 1964, as Amended
24. Plaintiff incorporates by reference the preceding Paragraphs as if fully restated herein.
25. Plaintiff is a gay male.
26. Plaintiff is an “employee” as defined by Title VII, 42 U.S.C. § 2000e et seq.

13
27. Defendant is an “employer” as defined by Title VII, 42 U.S.C. § 2000e et seq.
28. Having worked in his position previously, Plaintiff was qualified for the position of Child Welfare Services Coordinator.
29. Defendant discriminated against Plaintiff in the terms and conditions of Plaintiff ’s employment when it terminated Plaintiff ’s employment.
30. As a direct and proximate result of the Defendant’s actions, Plaintiff has suffered damages including emotional distress, inconvenience, loss of income and benefits, humiliation, and other indignities.
31. Plaintiff is entitled to an award of back pay and benefits, compensatory damages, reinstatement or front pay, attorney’s fees, and all other appropriate damages, remedies, and other relief available under Title VII and all federal statutes providing remedies for violations of Title VII.

14
32.
Defendant acted intentionally and maliciously with respect to Plaintiff, entitling Plaintiff to recover punitive damages against Defendant.
33.
Additionally, or in the alternative, Defendant undertook its unlawful conduct recklessly with respect to Plaintiff and his federally protected rights, entitling Plaintiff to recover punitive damages against Defendant.
PRAYER FOR RELIEF WHEREFORE, Plaintiff demands a TRIAL BY JURY and requests the following relief:
a. a declaratory judgment that Defendant violated Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e et seq.;
b. a permanent injunction, prohibiting Defendant from engaging in unlawful employment practices in violation of Title VII;
c. full back pay from the date of Plaintiff ’s termination, taking into account all raises to which Plaintiff would have been entitled but for his unlawful termination, and all fringe and pension benefits of employment, with prejudgment interest thereon;
d. reinstatement to Plaintiffs’ former position with Defendant at the same pay grade, or in the alternative, front pay to compensate Plaintiff for lost future wages, benefits and pension;

15
e. compensatory damages in an amount to be determined by the enlightened conscience of the jury, for Plaintiff ’s emotional distress, suffering, inconvenience, mental anguish, loss of enjoyment of life and special damages;
f. punitive damages;
g. attorneys’ fees and costs; and
h. all other and further relief as this Court deems just and proper.
Respectfully submitted,
BUCKLEY BEAL LLP
By: s/ Thomas J. Mew IV Thomas J. Mew IV tmew@buckleybeal.com Georgia Bar No. 503447 Brian J. Sutherland bsutherland@buckleybeal.com Georgia Bar No. 105408 T. Brian Green bgreen@buckleybeal.com Georgia Bar No. 801098
Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101
[Certificate Of Service Omitted]

16

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

Plaintiff, v. CLAYTON COUNTY,

)

) )

CIVIL ACTION NO. 1:16-cv-01460ODE-WEJ

)

Defendant.

)

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
AND MEMORANDUM OF LAW IN SUPPORT
COMES NOW, Clayton County, the Defendant in the above-referenced matter, and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, moves to dismiss Plaintiff ’s Second Amended Complaint for failure to state a claim upon which relief may be granted.
In his Second Amended Complaint, Plaintiff alleges that he was terminated because of “gender stereotyping,” and his sexual orientation, which he claims are both sex discrimination claims. Plaintiff ’s claims fail, however, because Title VII does not encompass discrimination on the basis of sexual orientation, and Plaintiff has not and cannot plead any facts to support a gender stereotyping claim. In addition, Plaintiff did not exhaust his administrative remedies with respect to his gender stereotyping claim, and even if he did, his gender stereotyping claim is time-barred. For these

17
reasons, Clayton County requests that its Motion be GRANTED and that Plaintiff ’s Second Amended Complaint be DISMISSED, with prejudice, in its entirety.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initially filed this action pro se on May 5, 2016. [Doc. 2]. On or about August 1, 2016, this Court entered an Order recognizing that Plaintiff had not timely served his Complaint, and instructing Plaintiff to show cause as to why his Complaint should not be dismissed. Plaintiff never responded to the show cause order, but instead, the next day, Plaintiff (through counsel) filed his First Amended Complaint. [Doc. 4]. The Clayton County Board of Commissioners filed a Motion to Dismiss, arguing both that the Complaint failed to state a claim and that it was not a proper Defendant. [Doc. 7]. After consulting with Plaintiff ’s counsel, Defendant consented to the filing of Plaintiff ’s Second Amended Complaint, without prejudice to its right to move for its dismissal. [Doc. 8].
In the Second Amended Complaint, Plaintiff alleges that he is a gay male and that he worked for Clayton County as the Child Welfare Services Coordinator. Plaintiff claims that, beginning in January 2013, he began playing in a gay recreational softball league. [Doc. 10, ¶¶ 12-13, 15]. Plaintiff alleges that his participation in the league and his sexual orientation and “identity” were criticized by one or more (unnamed) persons, and that Clayton County subjected him to an internal audit of the funds he managed. [Doc. 10, ¶ 17].

18
Plaintiff claims that the audit was a pretext for discrimination against him based upon his sexual orientation and his failure to conform to a gender stereotype, and that his subsequent termination was actually due to his sex/sexual orientation, rather than due to the findings of the audit. [Doc. 10, ¶¶ 18-23].
Based solely upon these allegations, Plaintiff alleges that he was discriminated against due to his sex in violation of Title VII of the Civil Rights Act of 1964. [Doc. 10, Count I, ¶ 24-33].
II. ARGUMENT AND CITATION OF AUTHORITY
A. Motion To Dismiss Standard
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint is subject to dismissal if it fails to state a claim upon which relief may be granted. The tenet that a court must accept a complaint’s allegations as true is inapplicable to legal conclusions and threadbare recitals of a cause of action’s elements, supported by mere conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to dismiss, a complaint must allege facts, and those facts must show “more than a sheer possibility that a defendant has acted unlawfully,” but instead must state a claim to relief that is “plausible on its face.” Id. at 678. If the complaint only pleads facts that are merely consistent with a defendant’s liability, it “stops short of the line between

19
possibility and plausibility of entitlement to relief ” and is subject to dismissal for failure to state a claim upon which relief can be granted. Id.; Holland v. Pilot Travel Centers, LLC, No. 5:09-CV-262 (CAR), 2010 WL 2732047, at *3 (M.D. Ga. July 8, 2010) (quoting Iqbal, 556 U.S. at 679).
B. Plaintiff Cannot Assert A Viable Claim For “Sex Discrimination” Based Upon His Sexual Orientation
Plaintiff alleges a Title VII sex discrimination claim based upon his claim that he was discriminated against and terminated because of his sexual orientation..
Plaintiff cannot state a viable claim for relief under established law because Title VII does not protect Plaintiff (or anyone else) from discrimination due to his sexual orientation. To this end, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) prohibits discrimination on the basis of an individual’s “race, color, religion, sex, or national origin.” Sexual orientation is not an enumerated protected class within the statute, and case law throughout the district courts within the Eleventh Circuit consistently holds that sexual orientation claims are not covered by Title VII. Evans v. Georgia Regional Hosp., No. CV415-103, 2015 WL 5316694, at *2 (S.D. Ga. Sept. 9, 2015) (granting motion to dismiss claim for sexual orientation discrimination); Davis v. Signius Invest. Corp./Answernet, No. 1:12-cv-04143-TWT-AJB,

20
2013 WL 1339758, at *5 (N.D. Ga. Feb. 26, 2013) (Baverman, J.) (“Title VII does not protect employees from discrimination based on sexual orientation.”); Espinosa v. Burger King Corp., No. 11-62503-CIV, 2012 WL 4344323, at *5 (S.D. Fla. Sept. 21, 2012) (“[C]ourts in this circuit and across the country have consistently held that Title VII does not apply to discrimination claims based on sexual orientation.”); Anderson v. Napolitano, No. 09-60744-CIV, 2010 WL 431898, at *4 (S.D. Fla. Feb. 8, 2010) (“The law is clear that Title VII does not prohibit discrimination based on sexual orientation.”); Mowery v. Escambia Cnty. Utils. Auth., No. 3:04CV382-RSEMT, 2006 WL 327965, at *9 (N.D. Fla. Feb. 10, 2006) (“[C]ase law throughout the circuits consistently holds that Title VII provides no protection for discrimination based on sexual orientation.”); Hudson v. Norfolk S. Ry. Co., 209 F. Supp.2d 1301, 1315 (N.D. Ga. 2001) (“[S]exual orientation is not a classification protected under Title VII.”) (Carnes, J.).
This is consistent with case law from other circuit courts around the country. See e.g. Hively v. Ivy Tech Community College, 2016 WL 4039703, at *2, ___ F.3d ___ (7th Cir. July 28, 2016) (“our precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination. That holding is in line with all other circuit courts to have decided or opined about the matter”); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012) (“[U]nder Title VII, sexual orientation is not a protected classification.”); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005) (“To the extent that [the Plaintiff ] is

21
alleging discrimination based upon her Lesbianism, [the Plaintiff ] cannot satisfy the first element of a prima facie case under Title VII because the statute does not recognize homosexuals as a protected class.”); Hamner v. St. Vincent Hosp. & Health Care Center, Inc., 224 F.3d 701, 704 (7th Cir. 2000) (“[H]arassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.”).
Because Plaintiff ’s Second Amended Complaint alleges that he was discriminated against and terminated because of his sexual orientation, he cannot state a cognizable claim for relief. Accordingly, Clayton County respectfully requests that the Court dismiss Plaintiff ’s Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
C. Plaintiff Has Failed To State A Claim For Gender Stereotyping
Plaintiff ’s gender stereotyping claim must be dismissed because the Second Amended Complaint is void of any factual support for this claim, aside from a single conclusory assertion that “Defendant initiated the audit as a pretext for discrimination against Plaintiff based upon his sexual orientation and failure to conform to a gender stereotype.” [Doc. 10, ¶ 20]. This bare allegation is nothing more than a legal conclusion to be disregarded, and falls well short of alleging facts that plausibly support a sex discrimination gender stereotyping claim.

22
In reality, Plaintiff is attempting to avoid dismissal of his entire Second Amended Complaint by bootstrapping a “gender stereotyping” conclusory allegation to his sexual orientation claim. This simply is insufficient to state a claim and amounts to nothing more than alleging sexual orientation discrimination. See Vickers v. Fairfield Medical Center, 453 F.3d 757, 763764 (6th Cir. 2006) (recognizing “faulty logic” in viewing a claim for sexual orientation as a claim for gender stereotyping, and finding that the plaintiff ’s “claim fails because Vickers has failed to allege that he did not conform to traditional gender stereotypes in any observable way at work,” because accepting such a claim “would have the effect of de facto amending Title VII to encompass sexual orientation as a prohibited basis for discrimination”).
Courts within this Circuit have ruled that a discrimination complaint should be dismissed when, as here, the plaintiff fails to allege sufficient facts supporting such claims. See Patel v. Georgia Dept. BHDD, 485 Fed. Appx. 982, 983 (11th Cir. 2012) (affirming dismissal of various discrimination and retaliation claims for failing to plead sufficient facts to support these claims); Evans v. Georgia Regional Hospital, 2015 WL 5316694, at *2-3 (S.D. Ga. Sept. 10, 2015) (allegations of gender non-conformity or gender stereotyping are subject to dismissal under Iqbal and 12(b)(6) when they are based solely upon an individuals’ sexual orientation); Anderson v. Napolitano, 2010 WL 431898 (S.D. Fla. Feb. 8, 2010) (granting motion to dismiss gender stereotyping claim because the plaintiff did not

23
identify himself as effeminate and did not allege that he was discriminated or harassed because of the way he walked, talked, or acted; sexual orientation allegations alone simply cannot support a gender stereotyping claim).
Here, the Plaintiff ’s third version of his Complaint alleges for the first time that he was subjected to “gender stereotyping.” However, the Second Amended Complaint does not contain a single fact that could support such a claim. Based upon Iqbal, this conclusory assertion is insufficient to state a claim, and without factual support of any kind, this claim is ripe for dismissal. Accordingly, Clayton County respectfully requests that this Court grant its Motion and dismiss Plaintiff ’s “gender stereotyping” claim.
D. Plaintiff Failed To Exhaust His Administrative Remedies With Respect To His Gender Stereotyping Claim
Although Plaintiff ’s third iteration of his Complaint attempts to plead a claim for “gender stereotyping” on account of his sex in violation of Title VII, this claim should be dismissed because Plaintiff never included any such claim in a charge of discrimination.
Before a potential claimant may sue for discrimination or retaliation under Title VII, he must first file a timely charge of discrimination. Duble v. FedEx Ground Package Sys., Inc., 572 F. App’x 889, 892-93 (11th Cir. 2014); 42 U.S.C. §§ 2000e-5(e)(1), 12117(a). The scope of a federal lawsuit is limited strictly to

24
those claims listed in the EEOC charge, with the only exception to this rule being that a plaintiff also can sue over those claims that reasonably can be expected to grow out of the charge of discrimination. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000); Waldemar v. American Cancer Soc., 971 F. Supp. 547, 553 (N.D. Ga. 1996) (granting summary judgment for defendant on plaintiff ’s claim for discrimination based on unfavorable treatment because plaintiff did not raise claims of such discrimination in her EEOC charge).
Courts have noted that such a rule of law serves to enhance the administrative enforcement process by ensuring that the EEOC has the opportunity to investigate and attempt conciliation of all claims before litigation is brought. It also provides the employer advance notice of the claim and an opportunity to resolve the dispute. See Selman v. Kendall/Hunt Publishing Co., 20 FEP 1712, 1713 (N.D. Ga. 1979) (holding that core of Title VII is private settlement and elimination of unfair practices without litigation).
Federal courts routinely dismiss claims when they are outside the scope of a plaintiff ’s EEOC charge. See, e.g., Hillemann v. University of Cent. Fla., 167 Fed. Appx. 747, 749-750 (11th Cir. 2006); Williams v. WalMart Associates, Inc., 2013 WL 979103, at *3 (N.D. Ala. Mar. 8, 2013); Swindle v. Hale, No. 2:09-CV-1458-SLB, 2012 WL 4725579, at *20 (N.D. Ala. Sept. 30, 2012), aff ’d sub nom, Swindle v. Jefferson Cnty. Comm’n, 593 F. App’x 919 (11th Cir. 2014); Hernandez v. Mohawk Indus., Inc., 2009 WL 3790369, at *4 (M.D. Fla. 2009).

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Here, Plaintiff ’s Charge of Discrimination, attached as Exhibit 11, states in its entirety:
I was hired by the above named employer on January 13, 2003, as a Court Appointed Special Advocate Program Coordinator. Around October 2007, I was promoted to Child Welfare Services Coordinator. On June 3, 2013, I was notified by the Director of Juvenile Court Services and Chief of Staff of Juvenile Court Services that I was being discharged. The reason given for my discharge was “Violation of Clayton County Civil Service Rules.” I believe that I have been discriminated against because of my sex (male/sexual orientation), in violation of Title VII of the Civil Rights Act of 1964, as amended.
Thus, Plaintiff ’s charge mentioned only discrimination due to his sexual orientation, and did not mention or include any facts that possibly could have led
1 Documents referenced in the Complaint, explicitly relied upon by the Plaintiff, or otherwise incorporated into the Complaint can be attached to a Motion to Dismiss without converting the Motion into one for Summary Judgment. See Horsley v. Feldt, 2002 WL 2023463, at *5-6 (11th Cir. 2002) (adopting “incorporation by reference” doctrine for motions for judgment on the pleadings and noting that document attached to motion to dismiss may be considered by court without converting motion into one for summary judgment if document is central to plaintiff ’s claim and is undisputed); see also Harris v. Ivax Corp., 182 F.3d 799, 802, n.2 (11th Cir. 1999.) Here, Plaintiff repeatedly referenced his EEOC charge and his right-to-sue letters, which are attached as Exhibit 1 and Exhibit 2 and are incorporated into the Complaint and may be used as an exhibit for the purposes of this Motion to Dismiss.

26
to an investigation into a potential claim of gender stereotyping. As a result, Plaintiff failed to exhaust his administrative remedies as to gender stereotyping, because an EEOC charge that complains only of sexual orientation does not exhaust administrative remedies for other types of sex discrimination. Norris v. Hiakin Drivetrain Components, 46 Fed.Appx. 344, 346 (6th Cir. 2002) (claim for same-sex sexual harassment cannot be reasonably expected to grow out of EEOC charge asserting discrimination based on sexual orientation); Lankford v. BorgWarner Diversified Transmission Products, Inc., 2004 WL 540983, at *3 (S.D. Indiana Mar. 12, 2004) (“a claim of discrimination based on sex is not reasonably related to, nor may it be expected to grow out of, a charge of discrimination based on sexual orientation.”) Because Plaintiff’s EEOC charge claims that he was discriminated against on the basis of his sexual orientation, he has failed to exhaust his administrative remedies as to his gender stereotyping claim, and this Court should dismiss that claim.
E. Plaintiff ’s Gender Stereotyping Claim Is Time-Barred
Even assuming, arguendo, that Plaintiff properly pled a gender stereotyping claim and that such a claim was exhausted by his EEOC charge, this claim still should be dismissed because he did not bring it within 90 days after receiving his right-to-sue letter. In this regard, Plaintiff alleges that he received a right-to-sue letter (attached as Exhibit 2) and that he filed his original lawsuit within 90 days of his receipt of the letter.

27
[Doc. 10, ¶ 7]. The right-to-sue letter was issued on February 10, 2016. Plaintiff then filed his initial Complaint on May 5, 2016, and his First Amended Complaint on August 2, 2016. [Docs. 1, 4].
Both of Plaintiff ’s Complaints alleged only sexual orientation discrimination. Id. Now, for the first time, in his Second Amended Complaint filed on September 12, 2016, Plaintiff alleges a new and distinct claim – gender stereotyping. [Doc. 10]. This claim was not brought within 90 days of his receipt of his right-to-sue letter, as it was not filed until 215 days after his rightto-sue letter was issued.
Presumably, Plaintiff will claim that his gender stereotyping claim should “relate back” to the time he filed his original Complaint. However, any such contention would be meritless because neither the original Complaint nor the First Amended Complaint contained any facts that support, let alone gave Clayton County notice of, Plaintiff ’s gender stereotyping claim. Under Federal Rule of Civil Procedure 15(c), an amended pleading relates back to the date of the original pleading when it “asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B); Brown v. Montgomery Surgical Center, 2013 WL 1163427, at *7 (M.D. Ala. Mar. 20, 2013). This means the original complaint must have given defendant notice of the claim asserted, and “[w]hen new or distinct conduct, transactions, or occurrences are alleged as grounds for recovery, there is no relation back, and recovery under the amended

28
complaint is barred by limitations if it was untimely filed.” Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993).
In his present Second Amended Complaint, Plaintiff pleads a sexual orientation claim masquerading as a gender stereotyping claim as well. There are no allegations in any of the previous pleadings indicating that Plaintiff was discriminated against in any way because he failed to act as a traditional male. The allegations in the original Complaint and First Amended Complaint do not allege that Plaintiff walked, talked or acted in any way different than the typical male, let alone that he was discriminated against for such activities. Accord Anderson v. Napolitano, 2010 WL 431898 (S.D. Fla. Feb. 8, 2010) (granting motion to dismiss gender stereotyping claim because sexual orientation allegations alone cannot support a gender stereotyping claim).
As a result, because the original Complaint and the First Amended Complaint failed to plead any facts to support a gender stereotyping claim, Plaintiff ’s gender stereotyping claim cannot relate back to the original Complaint. Thus, even if the Second Amended Complaint contained sufficient facts to support a gender stereotyping claim (which it does not for the reasons discussed in Section C above), Plaintiff ’s gender stereotyping claim is time-barred and should be dismissed. See Brown, 2013 WL 1163427, at * 8 (denying relation back to failure-to-accommodate claim pled for first time in amended complaint when initial

29
complaint did not contain facts that put defendant no [sic] notice of the claim asserted).2
III. CONCLUSION
For the reasons stated herein, Clayton County respectfully requests that the Court GRANT the instant Motion to Dismiss and DISMISS Plaintiff ’s Second Amended Complaint, with prejudice, in its entirety.
This 23rd day of September, 2016.
/s/Martin B. Heller Jack Hancock Georgia Bar No. 322450 Martin B. Heller Georgia Bar No. 360538 William H. Buechner Georgia Bar No. 086392 Attorneys for Clayton County
2 In his Second Amended Complaint, Plaintiff makes passing references to his “identity”, which presumably is a reference to his gender identity. (Doc. 10, ¶¶ 17, 21). Plaintiff, however, does not allege that he was terminated because of his gender identity. (Id. at ¶ 20). Even if he did, the Second Amended Complaint does not include any supporting facts relating to Plaintiff ’s gender identity or relating to any purported claim of discrimination based on Plaintiff ’s gender identity. Moreover, to the extent that any such claim is encompassed by Title VII, Plaintiff failed to exhaust his administrative remedies with respect to any such claim, and any attempt by Plaintiff to assert such a claim in his Second Amended Complaint also is time-barred.

30
FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway, Suite 1600 Atlanta, Georgia 30339 Telephone: (770) 818-0000 Facsimile: (770) 937-9960 jhancock@fmglaw.com mheller@fmglaw.com bbuechner@fmglaw.com
[Certificate of Compliance Omitted]

EXHIBIT “1”

31

CHARGE OF DISCRIMINATION

Charge Presented To:

This form is affected by the Privacy Act of 1974. ☐ FEPA See enclosed Privacy Act Statement and other ☒ EEOC

information before completing this form.

Agency(ies) Charge No(s).: 410-2013-06136

State or local Agency, if any

and EEOC

Name (indicate Mr., Ms., Mrs.) Gerald L. Bostock

Home Phone (Incl. Area Code) XXXXXXXXXXX

Date of Birth XXXXXXXXX

Street Address

City, State and ZIP Code

XXXXXXXXXXXXXXXXXXXXXXXXXXXX

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.)

Name

No. Employees, Members Phone No. (Include Area Code)

CLAYTON COUNTY BOARD OF COMMISSIONERS - JUVENILE COURT

500 or More

(770) 477-3208

Street Address 112 Smith Street, Jonesboro, GA 30236

City, State and ZIP Code

Name

No. Employees, Members Phone No. (Include Area Code)

Street Address

City, State and ZIP Code

DISCRIMINATION BASED ON (Check appropriate box(es).)
☐ RACE ☐ COLOR ☒ SEX ☐ RELIGION ☐ NATIONAL ORIGIN ☐ RETALIATION ☐ AGE ☐ DISABILITY ☐ GENETIC INFORMATION ☐ OTHER (Specify)

DATE(S) DISCRIMINATION TOOK PLACE

Earliest

Latest

06-03-2013

06-03-2013

☐ CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I was hired by the above named employer on January 13, 2003, as a Court Appointed Special Advocate Program Coordinator. Around October 2007, I was promoted to Child Welfare Services Coordinator. On June 3, 2013, I was notified by the Director of Juvenile Court Services and Chief of Staff of Juvenile Court Services that I was being discharged.

The reason given for my discharge was “Violation of Clayton County Civil Services Rules.”

I believe that I have been discriminated against because of my sex (male/sexual orientation), in violation of Title VII of the Civil Rights Act of 1964, as amended.

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.

NOTARY – When necessary for State and Local Agency Requirements

I declare under penalty of perjury that the above is true and correct.

I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.
SIGNATURE OF COMPLAINANT

Sep 05, 2013 Date

[Illegible] Charging Party Signature

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year)

32

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PRIVACY ACT STATEMENT: Under the Privacy Act of 1974, Pub. Law 93-579, authority to request personal data and its uses are:
1. FORM NUMBER/TITLE/DATE. EEOC Form 5, Charge of Discrimination (5/01).
2. AUTHORITY. 42 U.S.C. 2000e-5(b), 29 U.S.C. 211, 29 U.S.C. 626, 42 U.S.C. 12117.
3. PRINCIPAL PURPOSES. The purposes of a charge, taken on this form or otherwise reduced to writing (whether later recorded on this form or not) are, as applicable under the EEOC antidiscrimination statutes (EEOC statutes), to preserve private suit rights under the EEOC statutes, to invoke the EEOC’s jurisdiction and, where dual-filing or referral arrangements exist, to begin state or local proceedings.
4. ROUTINE USES. This form is used to provide facts that may establish the existence of matters covered by the EEOC statutes (and as applicable, other federal, state or local laws). Information given will be used by staff to guide its mediation and investigation efforts and, as applicable, to determine, conciliate and litigate claims of unlawful discrimination. This form may be presented to or disclosed to other federal, state or local agencies as appropriate or necessary in carrying out EEOC’s functions. A copy of this charge will ordinarily be sent to the respondent organization against which the charge is made.
5. WHETHER DISCLOSURE IS MANDATORY; EFFECT OF NOT GIVING INFORMATION. Charges must be reduced

34
to writing and should identify the charging and responding parties and the actions or policies complained of. Without a written charge, EEOC will ordinarily not act on the complaint. Charges under Title VII or the ADA must be sworn to or affirmed (either by using this form or by presenting a notarized statement or unsworn declaration under penalty of perjury); charges under the ADEA should ordinarily be signed. Charges may be clarified or amplified later by amendment. It is not mandatory that this form be used to make a charge.
NOTICE OF RIGHT TO REQUEST SUBSTANTIAL WEIGHT REVIEW
Charges filed at a state or local Fair Employment Practices Agency (FEPA) that dual-files charges with EEOC will ordinarily be handled first by the FEPA. Some charges filed at EEOC may also be first handled by a FEPA under worksharing agreements. You will be told which agency will handle your charge. When the FEPA is the first to handle the charge, it will notify you of its final resolution of the matter. Then, if you wish EEOC to give Substantial Weight Review to the FEPA’s final findings, you must ask us in writing to do so within 15 days of your receipt of its findings. Otherwise, we will ordinarily adopt the FEPA’s finding and close our file on the charge.

35
NOTICE OF NON-RETALIATION REQUIREMENTS
Please notify EEOC or the state or local agency where you filed your charge if retaliation is taken against you or others who oppose discrimination or cooperate in any investigation or lawsuit concerning this charge. Under Section 704(a) of Title VII, Section 4(d) of the ADEA, and Section 503(a) of the ADA, it is unlawful for an employer to discriminate against present or former employees or job applicants, for an employment agency to discriminate against anyone, or for a union to discriminate against its members or membership applicants, because they have opposed any practice made unlawful by the statutes, or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the laws. The Equal Pay Act has similar provisions and Section 503(b) of the ADA prohibits coercion, intimidation, threats or interference with anyone for exercising or enjoying, or aiding or encouraging others in their exercise or enjoyment of, rights under the Act.

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[SEAL]

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Atlanta District Office
100 Alabama Street, SW, Suite 4R30 Atlanta, GA 30303 (404) 562-6800
TTY (404) 562-6801 FAX (404) 562-6909/6910

REQUEST FOR INFORMATION
The EEOC is authorized by Section 710 of Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act of 1990, as amended, Section 626(a) of the Age Discrimination in Employment Act of 1967, as amended, 29 CFR Sections 1620.30 & 31 of the Equal Pay Act of 1963, as amended and Title II of The Genetic Information Nondiscrimination Act of 2008, Section 29 CFR 1635.3(c) to issue a subpoena compelling the production of the information in the event of non-compliance by a Respondent. However, your cooperation in timely providing the requested information will facilitate the prompt resolution of this charge and will avoid delays created by compulsory subpoena activity.
Submit a written position statement on each of the allegations of the charge, accompanied by documentary evidence and/or written statements, where appropriate. Also include any additional information and explanation you deem relevant to the charge. The position statement should also include, at least, the following information:

37
1. The correct name and address of the facility named in the charge, and a statement or document indicating how many employees are employed at the location.
2. Submit a copy of your facilities most recently submitted EEO-1 Report. If not required to submit an EEO-1 Report, please explain.
3. A true and accurate copy of all documents in the Charging Party’s personnel file, to include all evaluations/appraisals/performance reviews, and all job action documents which indicate all increases in pay, promotions, reassignments, demotions and if no longer employed, submit copies of all termination documents.
4. Submit copies of and/or explain all written rules relating to employees’ duties, conduct, and use of discipline for Charging Party’s job classification during the relevant time period. Explain how an employee learns the contents of the rules. If the disciplinary system is progressive, explain its structure, penalties, and mode of operation.
5. Did the Charging Party complain to a supervisor or manager regarding the conduct described in the charge of discrimination? If your answer is yes, identify the person or persons with whom the complaint was registered and describe each action taken by your organization in response to that complaint. Provide a copy or any written document which reflects the complaint and the action taken as a result.
We believe the information sought is relevant to the investigation and is not unduly burdensome to produce.

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If we do not receive the requested information by the date specified, we may proceed to subpoena the requested information.

EXHIBIT “2”

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
-----------------------------------------------------------------------
DISMISSAL AND NOTICE OF RIGHTS

To: Gerald L. Bostock

From: Atlanta District Office

XXXXXXXXXXX

100 Alabama Street,

XXXXXXXXXXXXX

S.W.

☒ On behalf of person(s)

Suite 4R30 Atlanta, GA 30303

aggrieved whose identity

is CONFIDENTIAL (29

CFR §1601.7(a))

EEOC

EEOC

Telephone No.

Charge No.

Representative

Larry E. Satterwhite,Sr.

410-2013-06136 Investigator

(404) 562-6855

THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE FOLLOWING REASON:
☐ The facts alleged in the charge fail to state a claim
under any of the statutes enforced by the EEOC.
☐ Your allegations did not involve a disability as
defined by the Americans With Disabilities Act.
☐ The Respondent employs less than the required
number of employees or is not otherwise covered by the statutes.
☐ Your charge was not timely filed with EEOC; in
other words, you waited too long after the date(s) of the alleged discrimination to file your charge
☒ The EEOC issues the following determination:
Based upon its investigation, the EEOC is unable to conclude that the information obtained

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establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.
☐ The EEOC has adopted the findings of the state
or local fair employment practices agency that investigated this charge.
☐ Other (briefly state)
- NOTICE OF SUIT RIGHTS (See the additional information attached to this form.)
Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination In Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.)
Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred

41

more than 2 years (3 years) before you file suit may not be collectible.

On behalf of the Commission

Bernice Williams-Kimbrough FEB 10 2016

Enclosure(s)

[illegible initials]

(Date Mailed)

Bernice Williams-Kimbrough,

District Director

cc: Jack R. Hancock Attorney FREEMAN, MATHIS & GARY, LLP. 661 Forest Parkway Suite E Jonesboro, GA 30297

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INFORMATION RELATED TO FILING SUIT UNDER THE LAWS ENFORCED BY THE EEOC
(This information relates to filing suit in Federal or State court under Federal law. If you also plan to sue claiming violations of State law, please be aware that time limits and other provisions of State law may be shorter or more limited than those described below.)
Private Suit Rights – Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or the Age Discrimination in Employment Act (ADEA):
In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within 90 days of the date you receive this Notice. Therefore, you should keep a record of this date. Once this 90-day period is over, your right to sue based on the charge referred to in this Notice will be lost. If you intend to consult an attorney, you should do so promptly. Give your attorney a copy of this Notice, and its envelope, and tell him or her the date you received it. Furthermore, in order to avoid any question that you did not act in a timely manner, it is prudent that your suit be filed within 90 days of the date this Notice was mailed to you (as indicated where the Notice is signed) or the date of the postmark, if later.
Your lawsuit may be filed in U.S. District Court or a State court of competent jurisdiction. (Usually, the

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appropriate State court is the general civil trial court.) Whether you file in Federal or State court is a matter for you to decide after talking to your attorney. Filing this Notice is not enough. You must file a “complaint” that contains a short statement of the facts of your case which shows that you are entitled to relief. Your suit may include any matter alleged in the charge or, to the extent permitted by court decisions, matters like or related to the matters alleged in the charge. Generally, suits are brought in the State where the alleged unlawful practice occurred, but in some cases can be brought where relevant employment records are kept, where the employment would have been, or where the respondent has its main office. If you have simple questions, you usually can get answers from the office of the clerk of the court where you are bringing suit, but do not expect that office to write your complaint or make legal strategy decisions for you.
PRIVATE SUIT RIGHTS – Equal Pay Act (EPA):
EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA underpayment: back pay due for violations that occurred more than 2 years (3 years) before you file suit may not be collectible. For example, if you were underpaid under the EPA for work performed from 7/1/08 to 12/1/08, you should file suit before 7/1/10 – not 12/1/10 – in order to recover unpaid wages due for July 2008. This time limit for filing an EPA suit is separate from the 90-day filing period under Title VII, the ADA, GINA or the ADEA referred to above. Therefore, if you also plan

44
to sue under Title VII, the ADA, GINA or the ADEA, in addition to suing on the EPA claim, suit must be filed within 90 days of this Notice and within the 2- or 3year EPA back pay recovery period.
ATTORNEY REPRESENTATION – Title VII, the ADA or GINA:
If you cannot afford or have been unable to obtain a lawyer to represent you, the U.S. District Court having jurisdiction in your case may, in limited circumstances, assist you in obtaining a lawyer. Requests for such assistance must be made to the U.S. District Court in the form and manner it requires (you should be prepared to explain in detail your efforts to retain an attorney). Requests should be made well before the end of the 90day period mentioned above, because such requests do not relieve you of the requirement to bring suit within 90 days.
ATTORNEY REFERRAL AND EEOC ASSISTANCE – All Statutes:
You may contact the EEOC representative shown on your Notice if you need help in finding a lawyer or if you have any questions about your legal rights, including advice on which U.S. District Court can hear your case. If you need to inspect or obtain a copy of information in EEOC’s file on the charge, please request it promptly in writing and provide your charge number (as shown on your Notice). While EEOC destroys charge files after a certain time, all charge files are kept for at

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least 6 months after our last action on the case. Therefore, if you file suit and want to review the charge file, please make your review request within 6 months of this Notice. (Before filing suit, any request should be made within the next 90 days.)
IF YOU FILE SUIT, PLEASE SEND A COPY OF YOUR COURT COMPLAINT TO THIS OFFICE.

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

Plaintiff,

) ) CIVIL ACTION

v.

) File No. 1:16-CV-

CLAYTON COUNTY,

) 01460-ODE-WEJ )

Defendant.

)

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT
(Filed Oct. 13, 2016)
Plaintiff Gerald Bostock hereby submits his response to the Motion to Dismiss filed by Defendant Clayton County.

I. INTRODUCTION
Mr. Bostock has pleaded claims of sexual orientation discrimination and gender stereotype discrimination. Defendant argues, however, that Mr. Bostock’s Complaint should be dismissed because (1) sexual orientation discrimination is not a cognizable legal claim; (2) Mr. Bostock failed to state a claim for gender stereotyping; (3) Mr. Bostock failed to exhaust his administrative remedies with respect to the gender stereotyping claim; and (4) Mr. Bostock’s gender

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stereotyping claim is time-barred. As set forth in more detail below, none of these arguments has merit.
With respect to the sexual orientation discrimination claim, the better view is that such a claim is legally cognizable. As to the gender stereotyping claim, Mr. Bostock has alleged more than sufficient factual allegations concerning discriminatory treatment on the basis of gender non-conformity. With respect to the exhaustion claim, Mr. Bostock properly exhausted his remedies at the EEOC by filing a charge for sex discrimination, which covers all claims asserted in this lawsuit. Finally, Mr. Bostock’s gender stereotype discrimination claim is timely because it relates back to the same conduct alleged in his original complaint and First Amended Complaint. Defendant’s motion is without merit and should be denied.
II. FACTUAL AND PROCEDURAL HISTORY
The facts, as alleged in Mr. Bostock’s Second Amended Complaint and which must be taken as true for purposes of the Motion to Dismiss are as follows. Mr. Bostock is a gay male. (Sec. Am. Compl. ¶ 12). Mr. Bostock began working for defendant on or about January 13, 2003. (Id. ¶ 11.) Mr. Bostock worked as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County and was charged with the primary responsibility of Clayton County CASA (Court Appointed Special Advocate). (Id. ¶ 13.) During the over 10 years Mr. Bostock worked for defendant, he received favorable performance evaluations and the

48
program received accolades. (Id. ¶ 14.) Clayton County CASA was awarded the established Program Award of Excellence by Georgia CASA in 2007. (Id.) Mr. Bostock received recognition from National CASA for his work and served on the National CASA Standards and Policy Committee in or about 2011 through 2012. (Id.)
Beginning in January 2013, Mr. Bostock became involved with a gay recreational softball league called the Hotlanta Softball League. (Sec. Am. Compl. ¶ 15.) Mr. Bostock actively promoted Clayton County CASA to the softball league as a source of volunteer opportunities for league members. (Id. ¶ 16.)
In the months after Mr. Bostock joined the softball league, his participation in the league and his sexual orientation and identity were openly criticized by one or more persons who had significant influence on the decision making of defendant. (Id. ¶ 17.) Shortly thereafter, in or around April 2013, defendant advised Mr. Bostock it was conducting an internal audit on the CASA program funds that Mr. Bostock managed. (Id. ¶ 18.) Mr. Bostock did not engage in any improper conduct with regard to program funds under his custody or control and alleges the Defendant initiated the audit as a pretext for discrimination based on his sexual orientation and failure to conform to gender stereotype. (Id. ¶¶ 19-20.) In fact, in May 2013, during a meeting with the Friends of Clayton County CASA Advisory Board, where Mr. Bostock’s supervisor was present, at least one individual made disparaging comments about Mr. Bostock’s sexual orientation and identity and his participation in the softball league.

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(Id. ¶ 21.) On or about June 3, 2013, Defendant terminated Mr. Bostock. (Id. ¶ 22.) The stated reason for Mr. Bostock’s termination was conduct unbecoming of a county employee. (Id. ¶ 23.) That purported reason however, was a pretext for discrimination against Mr. Bostock based on his sex and/or sexual orientation. (Id.)
Mr. Bostock timely filed his charge of discrimination (copy attached as Ex. A) with the EEOC. As noted on the charge, Mr. Bostock checked the box for sex discrimination and stated, in part, “I believe that I have been discriminated against because of my sex (male/sexual orientation).” (Ex. A.)
On May 5, 2016, Mr. Bostock filed his initial Complaint, pro se. [Doc. No. 1.] After Mr. Bostock secured counsel, he filed his First Amended Complaint on August 2, 2016 and his Second Amended Complaint on September 12, 2016. (Doc. Nos. 4 and 10.]
III. ARGUMENT AND CITATION OF AUTHORITY
A. Standard of Review
When deciding a motion to dismiss, courts must “accept[ ] the allegations in the complaint as true and constru[e] them in the light most favorable to the plaintiff.” McCone v. Pitney Bowes, Inc., 582 Fed. Appx. 798, 799 (11th Cir.2014) (quoting Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir. 2004)). To survive a motion to dismiss, a complaint’s

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“[f ]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must also contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (internal quotation marks omitted). “A claim is facially plausible when the court can draw the reasonable inference that the defendant is liable for the misconduct alleged.” McCone, 582 Fed. Appx. at 799-800 (emphasis added) (quoting Iqbal, 556 U.S. at 662) (internal quotation marks omitted). In this case, and as set forth below, Mr. Bostock’s Second Amended Complaint clearly meets this standard.
B. Sexual Orientation Discrimination Claims are Cognizable Under Title VII
Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to 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). In the Eleventh Circuit, the question of whether sexual orientation discrimination claims are cognizable under Title VII is “an open one.”1 Isaacs v. Felder Servs., LLC, 143 F. Supp.3d
1 Additionally, there is no definitive authority in the U.S. Supreme Court or the Fifth and District of Columbia Circuits regarding Title VII coverage of sexual orientation discrimination claims. See, e.g., Espinosa v. Burger King Corp., No. 11-62503-CIV, 2012

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1190, 1193 (M.D. Ala. 2016) (holding in part that claims of sexual orientation-based discrimination are cognizable under Title VII.) Although district courts in this circuit have reached differing conclusions on the issue, the better-reasoned view is that such claims are actionable. This view is most consistent with Supreme Court precedent, agency guidance, Eleventh Circuit precedent, and the purpose of Title VII.
First, Supreme Court precedent makes plain that Title VII’ s prohibition against discrimination because of sex has become a robust source of protection for men and women workers alike without regard for hypertechnical distinctions. In City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) the Court stated: “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes” (emphasis added). See also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983) (“Proponents of the legislation stressed throughout the debates that Congress had always
WL 4344323, at *5 (S.D. Fla. Sept. 21, 2012) (“[n]either the Supreme Court nor the Eleventh Circuit has specifically addressed this issue” of whether Title VII “appl[ies] to discrimination claims based on sexual orientation.”); Polly v. Houston Lighting & Power Co., 825 F. Supp. 135, 137 n.2 (S.D. Tex. 1993) (citing only cases from other circuits declaring Title VII inapplicable). Moreover, the Seventh Circuit recently vacated its opinion in Hively v. Ivy Tech Comm. College, 830 F.3d 698 (7th Cir. 2016) (cited by Defendant in its brief) and granted rehearing en banc. (Copy of order attached as Ex. B.)

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intended to protect all individuals from sex discrimination in employment.”)
In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), a case addressing same-sex sexual harassment, the Court again reiterated this expansive interpretation of Title VII. The Court stated that “maleon-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils. . . .” Id. at 80. In rejecting the argument in Oncale that some mistreatment “because of . . . sex” might be outside Title VII’s reach, the Supreme Court thus repudiated the notion that the scope of the statute is limited. In Oncale, the Court adopted perhaps the simplest test for whether discrimination had occurred: whether the conduct at issue met Title VII’s “statutory requirements,” i.e., whether the harassment occurred because of the employee’s sex. Id. at 80.
The same test should apply to discrimination against gay and lesbian employees. Employers who take sexual orientation into account necessarily take sex into account, because sexual orientation turns on one’s sex in relation to the sex of people to whom one is attracted. See, e.g., Isaacs, 143 F. Supp. 3d at 119394. There is no principled reason to create an exception from Title VII for sex discrimination that involves sexual orientation.

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Second, the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing Title VII, has held that sexual orientation discrimination is necessarily sex discrimination. Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015) (“Indeed, we conclude that sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”). “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Id. This is because “ ‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.” Id.
As the EEOC correctly noted:
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action.

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2015 WL 4397641, at *4 (July 15, 2015). This interpretation is fully consistent with the Supreme Court’s holding in Oncale.2
Baldwin is especially persuasive because the EEOC relied upon Eleventh Circuit precedent as part of its analysis. Specifically, the EEOC noted that “Title VII . . . prohibits employers from treating an employee or applicant differently than other employees or applicants based on the fact that such individuals are in a same-sex marriage or because the employee has [or is interested in having] a personal association with someone of a particular sex. Adverse action on that basis is, ‘by definition,’ discrimination because of the employee or applicant’s sex.” In support, the EEOC cited to the Eleventh Circuit’s holding in Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir.1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated against because of his race [in violation of Title VII].”). See also Isaacs 143 F. Supp.3d at 1193 (“Particularly compelling is [Baldwin’s] reliance on Eleventh Circuit precedent.”)
2 While the EEOC’s interpretation of Title VII is not binding on this Court, it is entitled to respect to the extent that it is persuasive. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). The weight of deference afforded to agency interpretations under Skidmore depends upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Id. at 140. As noted above, Baldwin is particularly persuasive.

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In Isaacs, the District Court for the Middle District of Alabama held that claims of sexual orientationbased discrimination are cognizable under Title VII.3 The court first noted that the question of whether such claims were cognizable was an open one in the Eleventh Circuit. 143 F. Supp.3d at 1193. The plaintiff was a gay man who alleged that he suffered harassment based on his sexual orientation and also based on his failure to conform to gender stereotypes. The court endorsed the EEOC’s view that claims of sexual orientation-based discrimination are cognizable under Title VII. 143 F. Supp.3d. at 1193.
This Court should follow Isaac’s cogent analysis and careful attention to EEOC and Eleventh Circuit authority. In contrast, the district court cases cited by Defendant for its incorrect statement that “case law throughout the district courts within the Eleventh Circuit consistently holds that sexual orientation claims are not covered by Title VII” all pre-date Baldwin with the single exception of Evans v. Ga. Reg’l Hosp., 2015 WL 5316694 (S.D. Ga. Sept. 10, 2015), which did not even address Baldwin.4
3 The court also held in part that summary judgment was appropriate under the particular facts of that case because the former employee failed to identify an appropriate comparator female employee. The case was obviously in a different posture under summary judgment than this case which is before this Court on a motion to dismiss.
4 In one post-Baldwin decision not cited by Defendant, Winstead v. Lafayette Cty. Bd. of Cty. Commissioners, No. 1:16CV00054-MW-GRJ, 2016 WL 3440601 (N.D. Fla. June 20, 2016), the court declined to follow Baldwin on the issue of

56
The only result that is consistent with both Supreme Court and EEOC precedent is that sexual orientation claims are covered under Title VII. The Court should deny Defendant’s motion to dismiss Mr. Bostock’s sexual orientation discrimination claim.
C. Mr. Bostock Has Stated a Claim For Gender Stereotype Discrimination
Mr. Bostock has set forth sufficient factual allegations to state a claim for gender stereotype discrimination. In the employment discrimination context, neither Iqbal nor Twombly, nor the Federal Rules of Civil Procedure, require a complaint to allege facts establishing each element of a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive a motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002) (holding that a complaint need not contain “specific facts establishing a prima facie case of discrimination under the framework set forth by . . . McDonnell Douglas”); see also McCone, 582 Fed. Appx. at 801 n.4 (acknowledging that “Twombly effectively overruled Swierkiewicz when it rejected the old standard for dismissal” but that “this had no impact on Swierkiewicz’s statement that a plaintiff is not required to plead a prima facie case of
whether sexual orientation discrimination is discrimination “because of sex” under Title VII (although it held plaintiff’s claim for gender stereotype discrimination was actionable). Given Baldwin’s persuasive value, however, Mr. Bostock submits that Isaacs reached the correct result and that Winstead erred in declining to follow Baldwin on this specific point.

57
discrimination in order to survive dismissal”). Rather, as the Eleventh Circuit has recently reiterated, the purpose of Rule 8(a)(2)’s pleading requirements is to ensure that defendants receive fair notice of what the claim is and on what grounds it is made. See Palm Beach Golf Center Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1260-1261 (11th Cir. 2015).
In this case, Mr. Bostock’s Second Amended Complaint clearly meets this standard. The Second Amended Complaint details Mr. Bostock’s position with Defendant, his participation in the softball league, and the ensuing criticism and discriminatory treatment suffered by Mr. Bostock. These allegations are more than sufficient to state a claim that is plausible on its face.
Defendant argues, however, that the Second Amended Complaint “is void of any factual support for [the gender stereotyping] claim, aside from a single conclusory allegation” regarding the audit. [Doc. No 13 at 6-7.] A simple reading of the Second Amended Complaint belies this argument.
Mr. Bostock’s allegations, which must be taken as true, include: In the months after Mr. Bostock joined the softball league, his participation in the league and his sexual orientation and identity were openly criticized by one or more persons who had significant influence on the decision-making of Defendant (Sec. Am. Compl. ¶ 17). Similarly, Mr. Bostock alleged that during a meeting with the Friends of Clayton County CASA Advisory Board, at least one individual

58
made disparaging comments about Mr. Bostock’s sexual orientation and identity. (Id. ¶ 21). Mr. Bostock has further alleged that the internal audit and the stated reason for his termination were simply a pretext for discrimination based on his sex and/or sexual orientation. (Id. ¶ 23). Thus, Mr. Bostock has sufficiently pleaded a claim for gender stereotype discrimination.
Defendant cites Anderson v. Napolitano, 2010 WL 431898 (S.D. Fla. Feb. 8, 2010). But in that case, the court found that the plaintiff ’s complaint did not include instances of harassment based on gender stereotyping and consisted solely of instances of harassment based on sexual orientation. 2010 WL 431898 at *5. This is in contrast to Mr. Bostock, who has alleged that he was subject to comments and discrimination on both fronts. See Prowel v. Wise Bus. Forms, 579 F.3d 285, 292 (3rd. Cir. 2009) (finding that where evidence of harassment could plausibly be interpreted as being based on both sexual orientation and failure to conform to gender stereotypes, it was a question of fact for the jury).
Defendant also relies upon Evans, 2015 WL 5316694, at *2-3. But in Evans, the court appears to have misunderstood the distinction between gender stereotype discrimination and sexual orientation discrimination. In particular, the court noted that “to say that an employer has discriminated on the basis of gender non-conformity is just another way to claim discrimination based on sexual orientation.” 2015 WL 5316694, at *3. This is contrary to the Supreme Court’s precedent that gender stereotype discrimination is a

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cognizable claim. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Mr. Bostock has set forth sufficient factual allegations to state a claim for gender stereotype discrimination. The Court should deny Defendant’s motion.
D. Mr. Bostock Properly Exhausted His Administrative Remedies With Respect To His Gender Stereotyping Claim
Defendant alleges that Mr. Bostock somehow failed to exhaust his administrative remedies with respect to his gender stereotyping claim. This argument is meritless.
As an initial matter, courts are “extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII].” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970).5 Thus, “ ‘the scope of an EEOC complaint should not be strictly interpreted’ ” Id. at 465 (citation omitted).
In this case, Mr. Bostock’s EEOC charge, which was filed pro se, “checked” the only box he could applicable to both sexual orientation and gender stereotyping discrimination: Sex. (Ex. A.) Moreover, Mr. Bostock
5 As the Court is well aware, “the decisions of the United States Court of Appeals for the Fifth Circuit . . . as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.” Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).

60
stated in the charge that he believed he had been discriminated against on the basis of his sex. (Id.) Thus, he clearly exhausted this claim at the EEOC level. See Rhea v. Dollar Tree Stores, Inc., No. 04-2554MIV, 2004 WL 3313616, at *3 (W.D. Tenn. August 26, 2004) (holding in part that where plaintiff amended a complaint alleging sexual orientation discrimination to add gender stereotyping claims that “[t]he amendments do not fail on their face for failure to exhaust administrative remedies. Both plaintiffs alleged discrimination based on sex at the EEOC level by checking the appropriate box on the complaint form.”) Defendant’s arguments on this issue are without merit and its motion should be denied.
E. Mr. Bostock’s Gender Stereotyping Claim is Timely
Mr. Bostock’s gender stereotyping claim is timely because it relates back to the same conduct alleged in his Complaint and First Amended Complaint. Rule 15(c) provides that “[a]n amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed. R. Civ. P. 15(c)(2).
In this case, Mr. Bostock’s allegations concerning gender stereotype discrimination arise from the same conduct set forth in his original pleading. Specifically, the allegations relate to his sexual orientation and

61
identity being openly questioned and/or commented upon by individuals who had significant influence on the decision making of Defendant. Since the claim arises out of the same conduct as already set forth in the original complaint, it clearly relates back for purposes of the statute of limitations. See Rhea, 2004 WL 3313616 at *3 (holding in part that where plaintiff originally brought a sexual orientation discrimination claim and sought to amend to add claims of sexual stereotyping that “[t]o the extent a claim for sex-stereotyping arises out of the same conduct alleged in the original complaint, any amendment would relate back.”).
IV. CONCLUSION
For the foregoing reasons, Mr. Bostock requests that the Court deny Defendant’s Motion to Dismiss.
Respectfully submitted,
BUCKLEY BEAL LLP
By: s/ Thomas J. Mew IV Brian J. Sutherland bsutherland@buckleybeal.com Georgia Bar No. 105408 Thomas J. Mew IV tmew@buckleybeal.com Georgia Bar No. 503447 T. Brian Green bgreen@buckleybeal.com Georgia Bar No. 801098

62
Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101
[Certificate Of Compliance Omitted]

63

CHARGE OF DISCRIMINATION

Charge Presented To:

This form is affected by the Privacy Act of 1974. ☐ FEPA See enclosed Privacy Act Statement and other ☒ EEOC

information before completing this form.

Agency(ies) Charge No(s).: 410-2013-06136

State or local Agency, if any

and EEOC

Name (indicate Mr., Ms., Mrs.) Gerald L. Bostock

Home Phone (Incl. Area Code)

Date of Birth

Street Address

City, State and ZIP Code

XXXXXXXXXXXXXXX

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.)

Name

No. Employees, Members Phone No. (Include Area Code)

CLAYTON COUNTY BOARD OF COMMISSIONERS - JUVENILE COURT

500 or More

(770) 477-3208

Street Address 112 Smith Street, Jonesboro, GA 30236

City, State and ZIP Code

Name

No. Employees, Members Phone No. (Include Area Code)

Street Address

City, State and ZIP Code

DISCRIMINATION BASED ON (Check appropriate box(es).)
☐ RACE ☐ COLOR ☒ SEX ☐ RELIGION ☐ NATIONAL ORIGIN ☐ RETALIATION ☐ AGE ☐ DISABILITY ☐ GENETIC INFORMATION ☐ OTHER (Specify)

DATE(S) DISCRIMINATION TOOK PLACE

Earliest

Latest

06-03-2013

06-03-2013

☐ CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I was hired by the above named employer on January 13, 2003, as a Court Appointed Special Advocate Program Coordinator. Around October 2007, I was promoted to Child Welfare Services Coordinator. On June 3, 2013, I was notified by the Director of Juvenile Court Services and Chief of Staff of Juvenile Court Services that I was being discharged.

The reason given for my discharge was “Violation of Clayton County Civil Services Rules.”

I believe that I have been discriminated against because of my sex (male/sexual orientation), in violation of Title VII of the Civil Rights Act of 1964, as amended.

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.

NOTARY – When necessary for State and Local Agency Requirements

I declare under penalty of perjury that the above is true and correct.

I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.
SIGNATURE OF COMPLAINANT

Sep 05, 2013 Date

[Illegible] Charging Party Signature

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year)

64

65

United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604
October 11, 2016
By the Court:
No. 15-1720

KIMBERLY HIVELY, Plaintiff-Appellant,
v.
IVY TECH COMMUNITY COLLEGE, South Bend,
Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.
No. 3:14-cv-01791-RLCAN

Rudy Lozano, Judge.

ORDER
(Filed Oct. 11, 2016)
The Petition for Rehearing En Banc is GRANTED, and the panel’s opinion and judgment are VACATED.
The court will announce the date for oral argument in a separate order.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

Plaintiff, v.

) ) CIVIL ACTION ) NO: 1:16-cv-01460-

CLAYTON COUNTY, Defendant.

) ODE-WEJ ) )

DEFENDANT’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED COMPLAINT
(Filed Oct. 27, 2016)
I. INTRODUCTION
Grade school students watch Schoolhouse Rock to learn about our government. The classic song “Three Ring Government” taught students about the separation of powers, and that Congress in particular is tasked with writing and passing the laws. As the song states, “No one part can be more powerful than any other is. Each controls the other you see, and that’s what we call checks and balances.” In this case, however, Plaintiff asks this Court to ignore the separation of powers, disregard the founding tenants of our country, and to instead, judicially amend Title VII for some perceived public policy benefit. Although admittedly over-simplified, this analysis shows why Plaintiff ’s claims all fail and why this Court should dismiss Plaintiff ’s Second Amended Complaint.

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Plaintiff ’s Second Amended Complaint seeks redress for sexual orientation discrimination. When confronted with the daunting fact that sexual orientation discrimination is not covered by Title VII, Plaintiff urges this Court to judicially modify Title VII to include protection for sexual orientation claims, arguing this is the “better view” of the statute. [Doc. 14, p. 2]. Of course, it is without dispute that Title VII was not designed or written to include protections for sexual orientation. Instead, Plaintiff asks this Court to adopt the EEOC’s interpretation of the statute (which is contrary to nearly every single case that has ever interpreted Title VII) that discrimination due to an individual’s sex includes sexual orientation discrimination. Frankly, this misreading of the statute creates a palpable friction with the countless court decisions issued both before and after the EEOC’s politically motivated decision in Baldwin v. Foxx. Simply stated, if Congress wants Title VII to cover sexual orientation discrimination, then Title VII must be amended to include it. Accordingly, Plaintiff ’s sexual orientation claim must fail.
Furthermore, Plaintiff ’s gender stereotyping claim fails because he has not (and apparently cannot) identify a single characteristic that makes him different than the typical male, aside from his sexual orientation. Because sexual orientation alone cannot support a gender stereotyping claim, and because Plaintiff ’s Second Amended Complaint is devoid of any factual allegations to otherwise support a gender stereotyping claim (despite amending his pleadings

68
multiple times already), Plaintiff has failed to state a gender stereotyping claim.
Finally, contrary to Plaintiff ’s claims, he did not include a gender stereotyping claim in his EEOC charge, nor did he allege facts to support such a claim in his original Complaint. Therefore, his gender stereotyping claim is subject to dismissal because it was not administratively exhausted and is now time-barred.
For all of these reasons, Plaintiff ’s Second Amended Complaint should be dismissed in its entirety.
II. LEGAL ARGUMENT
A. Title VII Does Not Cover Sexual Orientation Discrimination
Plaintiff spends much of his brief asking this Court to adopt what he calls the “better view” that Title VII covers sexual orientation discrimination. The plain language of the statute, however, speaks for itself. Title VII protects individuals from discrimination due to race, color, religion, sex or national origin; not from discrimination due to their sexual orientation. 42 U.S.C. § 2000e-2(a)(1); Stevens v. State Dep’t of Corr., 2015 WL 1245355, at *7 (N.D. Ala. Mar. 18, 2015) (“Noticeably absent from the statue [sic] is any protection against discrimination on account of sexual orientation.”).
The legislative history of Title VII shows that sexual orientation was not intended to be protected by

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Title VII. When Congress passed Title VII as part of the Civil Rights Act of 1964, its legislative discussions focused on protecting against discrimination due to race, religion and national origin. Sex Discrimination, 84 Harv. L. Rev. 1166, 1166 (1971). At the last minute, without prior hearing or debate, sex was added as a protected characteristic. Id., at 1167. Nothing in the legislative history or plain language of the statute suggests that Congress intended to protect against discrimination due to one’s sexual orientation. In fact, since that time, Congress repeatedly has introduced ENDA, The Employment Non-Discrimination Act, explicitly designed to add sexual orientation to the protections under Title VII. This Act has never passed. Of course, ENDA would be superfluous if sexual orientation was already covered by Title VII.1 Plaintiff argues that there is no precedent on this issue in this Circuit. However, in Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), the Fifth Circuit recognized “discharge for homosexuality is not prohibited by Title VII.”2
1 See Thomas v. Keystone Real Estate Group, LP, 2015 WL 1471273, at *2 (M.D. Pa. Mar. 31, 2015) (Title VII does not protect against sexual orientation discrimination and Congress repeatedly has rejected legislation to amend Title VII to include it); Johnson v. Shinseki, 2013 WL 1987352, at *2 (E.D. Mo. May 13, 2013) (same); Mowery v. Escambia County Util. Auth., 2006 WL 327965, at *9, (N.D. Fla. Feb. 10, 2006) (Congress “specifically and repeatedly” rejected ENDA).
2 Fifth Circuit decisions issued prior to September 30, 1981 are binding on courts within the Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).

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Even if Blum was not binding on this Court, nearly every single court that has considered the question has ruled that Title VII does not include protection for discrimination due to sexual orientation. In his reply brief, Plaintiff claims that this plain language reading of Title VII is “hyper-technical” [Doc. 14, p. 6], and that Clayton County’s citations are primarily to cases issued prior to the EEOC’s Baldwin v. Foxx decision [Doc. 14, pp. 10-11], wherein the EEOC (apparently intent on re-writing provisions of Title VII) espoused its view that Title VII covers sexual orientation discrimination. Although the EEOC has taken the radical position that Title VII should be interpreted to cover characteristics that are not included within its plain language, a multitude of courts within the Eleventh Circuit and elsewhere disagree with the EEOC’s view and have refused to follow Baldwin. See, e.g., Dingle v. Bimbo Bakeries USA/Entenmann’s, 624 F. App’x 57 (2d Cir. 2015) (noting that discrimination based on perceived sexual orientation was not cognizable under Title VII); Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015) (“Title VII in plain terms does not cover ‘sexual orientation.”); Murray v. North Carolina Dept of Pub. Safety, 611 F. App’x 166, 166 (4th Cir. 2015) (affirming grant of motion to dismiss without need for oral argument, citing binding circuit precedent that “Title VII does not protect against sexual orientation discrimination”); Cargian v. Breitling USA, Inc., 2016 WL 5867445, at *4 (S.D.N.Y. Sept. 29, 2016) (“Despite significant changes in the broader legal landscape since the Second Circuit’s decision in Simonton, the prevailing law in this and every other Circuit to

71
consider the question is that, in the Title VII context, courts must distinguish between actionable genderstereotyping claims and non-actionable sexual orientation claims.”); Thompson v. CHI Health Good Samaritan Hosp., 2016 WL 5394691, at *2 (D. Neb. Sept. 27, 2016) (“[N]either Nebraska law nor Title VII encompass discrimination based upon sexual orientation,”); Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 618 (S.D.N.Y. 2016) (“[D]iscrimination based on sexual orientation will not support a claim under Title VII”); Ashford v. Danberry at Inverness, 2016 WL 4615782, at *11 (N.D. Ala. Sept. 6, 2016) (“[A]ny assertion of discrimination based upon sexual orientation does not state a claim under Title VII.”); Somers v. Express Scripts Holdings, 2016 WL 3541544, at *3 (S.D. Ind. June 29, 2016) (“Under binding precedent currently in effect, discrimination or harassment based on a person’s sexual orientation alone is not actionable under Title VII. In other words, Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation.” (citations omitted)); Magnusson v. Cty. of Suffolk, 2016 WL 2889002, at *8 (E.D.N.Y. May 17, 2016) (“Sexual orientation discrimination is not actionable under Title VII, and plaintiffs may not shoehorn what are truly claims of sexual orientation discrimination into Title VII by framing them as claims of discrimination based on gender stereotypes, as Plaintiff at times attempts to do here.”); Hinton v. Virginia Union Univ., ___ F. Supp. 3d ___, 2016 WL 2621967, at *5 (E.D. Va. May 5, 2016) (“More importantly, the reasons offered in decisions that have adopted the EEOC’s position are matters

72
that lie within the purview of the legislature, not the judiciary. Title VII is a creation of Congress and, if Congress is so inclined, it can either amend Title VII to provide a claim for sexual orientation discrimination or leave Title VII as presently written. It is not the province of unelected jurists to effect such an amendment. In sum, Title VII does not encompass sexual orientation discrimination claims, and cannot be supplanted by the merely-persuasive power of the EEOC’s decision.”), motion to certify appeal denied, 2016 WL 3922053 (E.D. Va. July 20, 2016); Burrows v. Coll. of Cent. Fla., 2015 WL 5257135, at *2 (MD. Fla. Sept. 9, 2015) (denying motion for reconsideration on grant of employer’s motion for summary judgment even though plaintiff cited to EEOC’s recent decision in Baldwin v. Foxx as intervening change in law). Given the plain language of the statute, the legislative history and the overwhelming authority cited above and in the County’s opening brief, Plaintiff ’s sexual orientation claim fails.
Undeterred, Plaintiff cites the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) to support his argument that this Court should judicially modify Title VII. Oncale, however, provides no such support. In Oncale, the Supreme Court ruled that Title VII’s protection against sexual harassment included protection against sexual harassment perpetrated by someone of the same sex, so long as the harassment was still “because of sex.” Essentially, the Oncale decision held that sexual harassment is unlawful, regardless of the gender of the

73
individual who engages in such conduct. It is an unfathomable leap to claim Oncale states or even implies that sexual orientation is protected by Title VII. Plaintiff ’s argument otherwise misses the point – “because of sex” is very different than “because of sexual orientation.” See King v. Super Serv., Inc., 68 Fed.Appx. 659, 664 (6th Cir. 2003) (“animosity directed towards the plaintiff because of his apparent sexual orientation is . . . different from discrimination on the basis of sex”); Bibby v. Phil. Coca-Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) (noting difference between “because of sex” and sexual orientation, the latter of which “Congress has not yet seen fit” to protect); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (same).
Similarly, the material flaw in the Baldwin v. Foxx EEOC decision relied upon by Plaintiff is that it, too, believes that “because of sex” includes sexual orientation. Sex, however, simply does not reference ones sexual orientation.3
3 Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) does not support Plaintiff ’s proposed amendment to Title VII. Parr concluded that racial discrimination prohibits discriminating against someone who is in an interracial marriage. In that context, the discrimination is “because of race, albeit the race of that individual’s spouse. That is a natural extension of the race discrimination analysis, and has no application or role in interpreting the difference between someone’s sex and sexual orientation, a wholly different analysis. See Partners Healthcare Sys. v. Sullivan, 349 F.Supp.2d 29, 39 (D. Mass. 2007).

74
B. Plaintiff Has Failed To State A Claim For Gender Stereotyping
Plaintiff ’s Second Amended Complaint is completely devoid of any factual allegations to support a gender stereotyping claim, aside from Plaintiff ’s allegation that he is a homosexual. Of course, this fact alone cannot support a gender stereotyping claim, as this would have the effect of re-writing Title VII to include sexual orientation discrimination.
Plaintiff alleges that he has stated a claim for gender stereotyping because his Second Amended Complaint claimed that he participated in a softball league primarily for homosexuals, and received criticism and different treatment.4 [Doc. 14, p. 12]. This demonstrates a fundamental misunderstanding of what a gender stereotyping claim is, and are mere conclusions, not facts.
4 Plaintiff argues that he does not need to plead facts to support every aspect of a prima facie case of gender stereotyping discrimination. Although a plaintiff is not required to plead facts establishing every element of a prima facie discrimination case, he still “must provide ‘enough factual matter (taken as true) to suggest’ intentional . . . discrimination.” See, e.g., Castillo v. Allegro Resort Marketing, 603 Fed.Appx. 913, 917 (11th Cir. 2015). See also Henderson v. JP Morgan Chase Bank, NA., 436 Fed.Appx. 935, 937 (11th Cir. 2011) (complaint needed sufficient factual detail “to support reasonable inference that Chase engaged in racial discrimination against Henderson in relation to her loan”); Norwood v. Costco Wholesale Corp., 2014 WL 988863, at *5 (N.D. Ga. 2014) (notwithstanding Swierkiewicz, plaintiff must allege facts sufficient to support reasonable inference that employer discriminated against him on account of protected characteristic).

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Specifically, the seminal Price Waterhouse decision found that a female employee could state a claim for sex discrimination based upon gender stereotyping when she alleged that she did not walk, talk or dress in the stereotypical feminine way, and instead exhibited more masculine characteristics. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Courts repeatedly have stated that such a gender stereotyping claim is not a piggyback for a sexual orientation claim under another name, but instead, that the individual must allege that they were discriminated against because they did not act like the typical male for a reason other than the mere fact that they are homosexual. See Simonton, 232 F.3d at 38 (noting that the gender stereotyping theory “would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine”); Gilbert v. Country Music Ass’n, 432 Fed.Appx. 516, 520 (6th Cir. 2011) (dismissing claim for gender stereotyping due to lack of allegations to support claim, and noting “for all we know, Gilbert fits every male ‘stereotype’ save one – sexual orientation – and that does not suffice to obtain relief under Title VII”); Dawson v. Bumble & Bumble, 398 F.3d 211, 219 (2d Cir. 2005) (noting that courts “have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006) (holding that “theory of sex stereotyping under Price Waterhouse is

76
not broad enough to encompass” a theory based solely on sexual orientation and that this did not conform to traditional masculine roles). As noted in Clayton County’s Motion to Dismiss, at least one court within this circuit has dismissed a gender stereotyping claim where the plaintiff failed to allege what traits or circumstances make him different than the stereotypical male (aside from their sexual preference). See Anderson v. Napolitano, 2010 WL 431898 (S.D. Fla. Feb. 8, 2010). Here, Plaintiff has not alleged any facts whatsoever to support a gender stereotyping claim. Plaintiff ’s attempt to claim that he was subjected to commentary based upon his sexual orientation and identity is simply nowhere near enough to state a gender stereotyping claim. First of all, his assertions are nothing more than legal conclusions and contain no factual detail. Furthermore, even if Plaintiff provided any factual detail, he has not alleged that he is in any way different than a typical male, aside from his sexual orientation. Under these facts, he has failed to allege anything near a gender stereotyping claim, and instead, is again asking this court to judicially modify Title VII. Respectfully, this Court should decline the invitation.
C. Plaintiff Failed To Allege Gender Stereotyping In His EEOC Charge
Even if Plaintiff ’s Complaint stated a claim for gender stereotyping, his claim still fails because he simply did not include any such claim in his EEOC charge. Plaintiffs only response to this argument is that he checked the box for “sex” discrimination, and

77
therefore, a gender stereotyping claim is within the scope of his EEOC charge.
This argument fails. In this regard, the “crucial element of a charge of discrimination is the factual statement contained therein.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). “The selection of the type of discrimination alleged, i.e., the selection of which box to check, is in reality nothing more than the attachment of a legal conclusion to the facts alleged.” Id.
The Eleventh Circuit has held that merely checking a particular box on an EEOC charge does not satisfy the exhaustion requirement where the plaintiff provides no supporting facts in connection with the claim at issue. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1224 (11th Cir. 2000). See also Jerome v. Marriott Residence Inn Barcelo Crestline/AIG, 211 Fed.Appx. 844, 846-847 (11th Cir. 2006) (circling “wages” on EEOC questionnaire without providing any supporting facts insufficient to exhaust wage discrimination claim); Houston v. Army Fleet Services, LLC, 509 F.Supp.2d 1033, 1043 (M.D. Ala. 2007) (“Indeed, checking the correct box alone is not sufficient to satisfy the filing requirement when no factual particulars relating to the claim are disclosed to the EEOC”).
Here, it is undisputed that Plaintiff checked the sex box on his EEOC charge, but did not include a single factual statement or allegation that indicated he was discriminated against due to gender stereotyping. For this reason, and because he alleged only that he

78
was subject to sexual orientation discrimination, any gender stereotyping claim is outside the scope of his charge and was never administratively exhausted. Norris v. Hiakin Drivetrain Components, 46 Fed.Appx. 344, 346 (6th Cir. 2002) (claim for same-sex sexual harassment cannot be reasonably expected to grow out of EEOC charge asserting discrimination based on sexual orientation); Lankford v. BorgWarner Diversified Transmission Products, Inc., 2004 WL 540983, at *3 (S.D. Indiana Mar. 12, 2004) (“a claim of discrimination based on sex is not reasonably related to, nor may it be expected to grow out of, a charge of discrimination based on sexual orientation.”)
D. Plaintiff ’s Gender Stereotyping Claim Is Untimely
Plaintiff alleges only that his claim is timely because it arises out of the same conduct as set forth in his original pleading. However, Plaintiff has not (whether in the original Complaint, the Amended Complaint or the Second Amended Complaint) alleged any facts or circumstances that may support a gender stereotyping claim, and certainly did not do so in his original Complaint, which included allegations related solely to Plaintiff ’s sexual orientation. Accordingly, Plaintiff ’s attempts to add a gender stereotyping claim are untimely and otherwise fail as a matter of law.

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III. CONCLUSION For the reasons stated herein, Clayton County respectfully requests that the Court DISMISS Plaintiff ’s Second Amended Complaint, with prejudice.
[Certificate Of Compliance Omitted]

80

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

Plaintiff, v.

) ) CIVIL ACTION ) File No: 1:16-CV-

CLAYTON COUNTY, Defendant.

) 01460-ODE-WEJ ) )

PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE JUDGE’S FINAL REPORT
AND RECOMMENDATION
(Filed Nov. 17, 2016)
Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), and LR 72.1.B, NDGa, Plaintiff Gerald Bostock files these Objections to the Magistrate Judge’s Final Report and Recommendation [Doc. 16].

I. INTRODUCTION
The Magistrate Judge erroneously ignored established legal principles and Supreme Court precedent in recommending the dismissal of Mr. Bostock’s claims of sexual orientation discrimination and gender stereotype discrimination. With respect to the sexual orientation discrimination claim, this type of discrimination is actionable under Title VII of the Civil Rights Act of 1964 (“Title VII). As to the gender stereotyping claim, Mr. Bostock has alleged sufficient factual allegations

81
concerning discriminatory treatment on the basis of gender non-conformity. Finally, as to the exhaustion issue, Mr. Bostock properly exhausted all available remedies at the EEOC by filing a charge for sex discrimination, which encompasses all the claims asserted in this lawsuit. As set forth in greater detail below, Mr. Bostock requests that the Court reject the Report and Recommendation and deny Defendant’s Motion to Dismiss.
II. PROCEDURAL HISTORY
On May 5, 2016, Mr. Bostock filed his initial Complaint, pro se. [Doc. 1.] After Mr. Bostock secured counsel, he filed his First Amended Complaint on August 2, 2016 and his Second Amended Complaint on September 12, 2016. [Docs. 4, 10.]
On September 26, 2016, Defendant filed a Motion to Dismiss the Second Amended Complaint. [Doc. 13.] On November 3, 2016, the Magistrate Judge issued his Final Report and Recommendation, recommending that Plaintiff ’s complaint be dismissed with prejudice. [Doc. 16.] Mr. Bostock objects to the Magistrate Judge’s erroneous legal determinations in their entirety, and seeks to proceed with discovery and preparation for trial of his claims.
III. OBJECTIONS TO SPECIFIC RULINGS
Mr. Bostock objects specifically to the erroneous rulings of the Magistrate Judge that:

82
(1) A sexual orientation claim may not be brought under Title VII;
(2) Plaintiff failed to state a gender stereotyping claim;
(3) Plaintiff failed to exhaust administrative remedies with regard to his gender stereotyping claim.
For the reasons set forth below, Mr. Bostock respectfully contends that the Magistrate Judge’s rulings on these three issues were erroneous.
IV. ARGUMENT AND CITATION OF AUTHORITY
A. Standard of Review
Under Fed. R. Civ. P. 72 and 28 U.S.C. § 636, this Court reviews the recommended order of a Magistrate Judge to determine if it is either “clearly erroneous” or “contrary to law.” Normally, factual determinations fall under the deferential “clearly erroneous” standard, while legal issues and dispositive matters fall under the “contrary to law” standard, which mandates de novo review. Mixed questions of fact and law are reviewed de novo. Wright, Miller & Marcus, Fed. Prac. & Proc. § 3070.2 (2008) (collecting and discussing numerous authorities).

83
B. The Magistrate Judge Erred in Determining that Sexual Orientation Discrimination Claims are not Cognizable Under Title VII
The Magistrate Judge determined that sexual orientation discrimination claims are not cognizable under Title VII. For the reasons set forth below, Mr. Bostock respectfully contends that the Magistrate Judge erred on this issue.
1. The Fifth Circuit’s Decision in Blum v. Gulf Oil Corp is not Dispositive
The Magistrate Judge relied in part upon Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), for the proposition that sexual orientation claims are not cognizable under Title VII. Mr. Bostock does not dispute that the Fifth Circuit in Blum stated that “[d]ischarge for homosexuality is not prohibited by Title VII[,]” 597 F.2d at 938, but in Blum, the primary issue on appeal was whether the defendant articulated a legitimate non-discriminatory reason for the plaintiff ’s discharge. The Fifth Circuit held that it did. 596 F.2d at 937. After reaching this decision, which effectively resolved the appeal, the Fifth Circuit went on, however, to “comment briefly” on other issues raised on appeal. It was in this section of the opinion in which the Fifth Circuit made its statement regarding discharge for homosexuality.1 In support of this proposition, the Fifth Circuit
1 See Black’s Law Dictionary (9th ed.2009) (defining “obiter dictum” as “[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case

84
did not recite any analysis and simply cited to its prior holding in Smith v. Liberty Ins. Co., 569 F.2d 325 (5th Cir. 1978).
Smith, however, did not specifically address the issue of whether sexual orientation claims are cognizable under Title VII. Rather, in Smith the court considered whether discrimination on the basis of gender stereotyping (the plaintiff was not hired because the defendant considered him “effeminate”) was a viable claim under Title VII.2 The Fifth Circuit held that it was not. 569 F.2d at 327. But Smith is no longer good law on this point since its holding “has clearly been abrogated by subsequent Supreme Court cases.” See Winstead v. Lafayette County Board of County Commissioners, No. 1:16-CV00054-MW-GIU, 2016 WL 3440601, at *6, n.4 (N.D. Fla. June 20, 2016); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The Winstead court also noted that “[o]f course the EEOC has changed course” also on this issue. Id. In sum, “[e]very pillar supporting the reasoning of the Smith court has been knocked down.” Id. Thus, “Smith is one of many examples of a parsimonious reading of Title VII failing to stand the test of time.” Id. Because the entire basis on which Blum based its statement regarding sexual orientation discrimination has been
and therefore not precedential (although it may be considered persuasive)”).
2 Smith noted in a footnote that “[t]he EEOC itself has ruled that adverse action against homosexuals is not cognizable under Title VII”, 569 F.2d at 327 n.1, (which is no longer the case).

85
abrogated, Mr. Bostock respectfully contends that Blum is not controlling on this issue.
2. The Eleventh Circuit’s Decision in Fredette v. BVP Mgmt. Assocs did not Decide the Issue of Sexual Orientation Discrimination Claims Under Title VII
The Magistrate Judge also stated that, even without Blum, “one could argue that the Eleventh Circuit is squarely in line with the weight of authority against application of Title VII to sexual orientation discrimination claims” [Doc. 16. n.4] and cited Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997). The Magistrate Judge “could argue” this, and essentially did in his Final Report and Recommendation, but this is not the law. Fredette deliberately left the issue of sexual orientation discrimination entirely open and is not indicative one way or the other of how the Eleventh Circuit would determine this issue.
Fredette held that “when a homosexual male supervisor solicits sexual favors from a male subordinate . . . the male subordinate can state a viable Title VII claim for gender discrimination.” 112 F.3d at 1510. The Eleventh Circuit specifically emphasized the “narrowness” of its holding and stated that “[w]e do not hold that discrimination because of sexual orientation is actionable.” Id. It thus did not hold that sexual orientation discrimination claims were not actionable as sex discrimination, it simply did not determine the issue one way or the other.

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Although various district courts have interpreted Fredette differently, the interpretation that Fredette left the issue open is most consistent with the Eleventh Circuit’s pronouncement regarding the “narrowness” of its holding. Compare Winstead, 2016 WL 3440601, at *5 (“this Court’s interpretation—that Fredette left the issue open—is hardly unique”); Mowery v. Escambia Cty. Utils. Auth., No. 3:04cv382, 2006 WL 327965, at *8 (N.D. Fla. Feb. 10, 2006) (characterizing Fredette as not “holding that discrimination because of sexual orientation is not actionable”); Rodriguez v. Alpha Inst. of S. Fla., Inc., No. 10-80714–CIV, 2011 WL 5103950, at *5 (S.D. Fla. Oct. 27, 2011) (same), with Stevens v. Ala. Dept of Corr., No. 1:12cv3782, 2015 WL 1245355, at *7 (N.D.Ala. Mar. 18, 2015) (suggesting that Fredette foreclosed claims of sexual orientation discrimination under Title VII); Fitzpatrick v. Winn–Dixie Montgomery, Inc., 153 F.Supp.2d 1303, 1306 (M.D. Ala.2001) (citing Fredette for the proposition that “[s]exual orientation is not a protected class under Title VII.”)
3. Congress’ Failure to Amend Title VII does not Provide a Basis to Find Sexual Orientation Discrimination Claims are not Cognizable
The Magistrate Judge also relied on the fact that “supporters of an extension have fought unsuccessfully in Congress to amend Title VII since the mid1970s.” [Doc. 16, p. 10.] The Supreme Court, however, has warned against relying on Congressional inaction as an interpretative tool. “[S]ubsequent legislative

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history is a hazardous basis for inferring the intent of an earlier Congress. It is a particularly dangerous ground on which to rest an interpretation of a prior statute when it concerns, as it does here, a proposal that does not become law.’ ” Pension Ben Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal citations and quotation marks omitted); accord Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969) (“It is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.”) (quoting Girouard v. United States, 328 U.S. 61, 69 (1946)); United States v. Price, 361 U.S. 304, 310-311 (1960) (“nonaction by Congress affords the most dubious foundation for drawing positive inferences.”). “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change.” Pension Ben Guar. Corp., 496 U.S. at 650 (internal quotations omitted). Moreover, “Congressional inaction frequently betokens unawareness, preoccupation, or paralysis.” Zuber, 396 U.S. at 185 n.21; see also id. (“Even less deference is due silence in the wake of unsuccessful attempts to eliminate an offending interpretation by amendment.”)
There is no need to amend Title VII to prohibit sexual orientation discrimination. Title VII already makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or

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privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Supreme Court precedent makes plain that Title VII’s prohibition against discrimination because of sex has become a robust source of protection for men and women workers alike without regard for hyper-technical distinctions. In City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) the Court stated: “[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes” (emphasis added). See also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 681 (1983) (“Proponents of the legislation stressed throughout the debates that Congress had always intended to protect all individuals from sex discrimination in employment.”)
In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), a case addressing same-sex sexual harassment, the Court again reiterated this expansive interpretation of Title VII. The Court stated that “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils. . . .” Id. at 80. In rejecting the argument in Oncale that some mistreatment “because of . . . sex” might be outside Title VII’s reach, the Supreme Court thus repudiated the notion that the scope of the statute is limited. In Oncale, the Court adopted perhaps the simplest test for whether

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discrimination had occurred: whether the conduct at issue met Title VII’s “statutory requirements,” i.e., whether the harassment occurred because of the employee’s sex. Id. at 80.
The same test should apply to discrimination against gay and lesbian employees. Employers who take sexual orientation into account necessarily take sex into account, because sexual orientation turns on one’s sex in relation to the sex of people to whom one is attracted. See, e.g., Isaacs, 143 F. Supp. 3d at 119394. There is no principled reason to create an exception from Title VII for sex discrimination that involves sexual orientation and no need to amend the statute to cover this type of discrimination.
4. The EEOC’s Interpretation of Title VII is Entitled to Deference
Mr. Bostock also respectfully submits that the Magistrate Judge failed to give proper deference to the position of the Equal Employment Opportunity Commission (“EEOC”) in Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015) that sexual orientation discrimination is necessarily sex discrimination. As the Magistrate Judge correctly noted, while the EEOC’s interpretation of Title VII is not binding on this Court, it is entitled to respect to the extent that it is persuasive. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). The weight of deference afforded to agency interpretations under Skidmore depends upon “the thoroughness evident in its

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consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” Id. at 140. Here, the Magistrate Judge made “no judgment about the thoroughness evident in Foxx’s consideration or the validity of its reasoning, but note[d] its inconsistency with the EEOC’s earlier pronouncement.” [Doc. 16 at 12.]3 Mr. Bostock respectfully contends that the Magistrate Judge erred in failing to consider the thoroughness and validity of Baldwin.
In Baldwin, the EEOC concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”). “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” Id. This is because “ ‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.” Id.
As the EEOC correctly noted:
When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not
3 The Magistrate Judge also stated that “Title VII is a creation of Congress and, if Congress is so inclined, it can amend the statute to provide a claim for sexual orientation discrimination. It is not the province of unelected jurists to effect such an amendment” [Doc. 16 at 13.1.] For the reasons stated in Part B.3., Mr. Bostock contends that no amendment of Title VII is necessary to provide for protection against sexual orientation discrimination.

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whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination – whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action.
2015 WL 4397641, at *4 (July 15, 2015). “[S]exual orientation is inseparable from and inescapably linked to sex and, therefore . . . allegations of sexual orientation discrimination involve sex-based considerations.” Id. at *5. This interpretation is fully consistent with the Supreme Court’s holding in Oncale.
Baldwin is also especially persuasive because the EEOC relied upon Eleventh Circuit precedent as part of its analysis. Specifically, the EEOC noted that “Title VII . . . prohibits employers from treating an employee or applicant differently than other employees or applicants based on the fact that such individuals are in a same-sex marriage or because the employee has [or is interested in having] a personal association with someone of a particular sex. Adverse action on that basis is, ‘by definition,’ discrimination because of the employee or applicant’s sex.” Id. at *7. In support, the EEOC cited to the Eleventh Circuit’s holding in Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (“Where a plaintiff claims discrimination based upon an interracial marriage or association, he alleges, by definition, that he has been discriminated

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against because of his race [in violation of Title VII].”). The EEOC noted that an “employment action based on an employee’s relationship with a person of another race necessarily involves considerations of the employee’s race, and thus constitutes discrimination because of the employee’s race” and that “[t]his analysis is not limited to the context of race discrimination” since “Title VII ‘on its face treats each of the enumerated categories’ – race, color, religion, sex, and national origin – ‘exactly the same.” Id. at *6-7 (citing Price Waterhouse, 490 U.S. at 243 n.9; See also Isaacs 143 F. Supp.3d at 1193 (“Particularly compelling is [Baldwin’s] reliance on Eleventh Circuit precedent.”)
In Isaacs, the District Court for the Middle District of Alabama held that claims of sexual orientationbased discrimination are cognizable under Title VII. The court endorsed the EEOC’s view that claims of sexual orientation-based discrimination are cognizable under Title VII. 143 F. Supp.3d. at 1193. The cogent analysis and careful attention to EEOC and Eleventh Circuit authority in Isaac is the only analysis that makes sense.4 It is the only result that is consistent with both Supreme Court and EEOC precedent is that sexual orientation claims are covered under Title VII.
4 In Winstead, the court declined to follow Baldwin on the issue of whether sexual orientation discrimination is discrimination “because of sex” under Title VII (although it held plaintiff ’s claim for gender stereotype discrimination was actionable). Given Baldwin’s persuasive value, however, Mr. Bostock submits that Isaacs reached the correct result and that Winstead erred in declining to follow Baldwin on this specific point.

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C. The Magistrate Judge Erred in Determining that Mr. Bostock Has Not Stated a Claim For Gender Stereotype Discrimination
Mr. Bostock contends that the Magistrate Judge erred in dismissing his complaint for gender stereotype discrimination. The Magistrate Judge correctly acknowledged that Mr. Bostock was not required to allege facts establishing each element of a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive a motion to dismiss, see Swierkiewicz v. Sorema NA., 534 U.S. 506, 508 (2002), but determined that the Second Amended Complaint “contains no allegations that plaintiff suffered discrimination based on his employer’s belief that he failed to conform to masculine stereotypes.” [Doc 16 at 16.]
The purpose of Rule 8(a)(2)’s pleading requirements is to ensure that defendants receive fair notice of what the claim is and on what grounds it is made. See Palm Beach Golf Center–Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1260-1261 (11th Cir. 2015). In this case, Mr. Bostock’s Second Amended Complaint meets this standard. Mr. Bostock’s allegations, which must be taken as true, include: in the months after Mr. Bostock joined the softball league, his participation in the league and his sexual orientation and identity were openly criticized by one or more persons who had significant influence on the decisionmaking of Defendant. (Sec. Am. Compl. ¶ 17). Similarly, Mr. Bostock alleged that during a meeting with the Friends of Clayton County CASA Advisory Board, at least one individual made disparaging comments

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about Mr. Bostock’s sexual orientation and identity. (Id. ¶ 21). Mr. Bostock has further alleged that the internal audit and the stated reason for his termination were simply a pretext for discrimination based on his sex and/or sexual orientation. (Id. ¶ 23). Thus, Mr. Bostock has sufficiently pleaded a claim for gender stereotype discrimination.
D. The Magistrate Judge Erred in Determining that Mr. Bostock Failed to Exhaust His Administrative Remedies With Respect To His Gender Stereotyping Claim
The Magistrate Judge determined that Mr. Bostock failed to exhaust his administrative remedies with respect to his gender stereotyping claim and that “[o]ne would not reasonably expect an EEOC investigation of gender stereotyping to grow out of the charge’s allegation of sexual orientation discrimination.” Mr. Bostock respectfully submits that the Magistrate Judge erred in this determination.
As an initial matter, courts are “extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII].” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970). Thus, “ ‘the scope of an EEOC complaint should not be strictly interpreted’ ” Id. at 465 (citation omitted).
In this case, Mr. Bostock’s EEOC charge, which was filed pro se, “checked” the only box he could applicable to both sexual orientation and gender stereotyping discrimination: Sex. (Redacted copy attached as

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Ex. A.) Moreover, Mr. Bostock stated in the charge that he believed he had been discriminated against on the basis of his sex. (Id.) Thus, he exhausted this claim at the EEOC level. See Rhea v. Dollar Tree Stores, Inc., No. 04-2554MIV, 2004 WL 3313616, at *3 (W.D. Tenn. August 26, 2004) (holding in part that where plaintiff amended a complaint alleging sexual orientation discrimination to add gender stereotyping claims that that the administrative remedies for the amendment were properly exhausted by an EEOC charge that checked the box marked “sex”).
The Magistrate Judge relied on two inapposite cases, Norris v. Diakin Drivetrain Components, 46 F. App’x 344, 346 (6th Cir. 2002) and Lankford v. BorgWarner Diversified Transmission Prods., Inc., No. 1:02CV1876-SEB-VSS, 2004 WL 540983, at *3 (S.D. Ind. Mar. 12, 2004) in support of his erroneous determination that “[o]ne would not reasonably expect an EEOC investigation of gender stereotyping to grow out of the charge’s allegation of sexual orientation discrimination.” [Doc. 16 at 20.] Neither of these cases dealt with gender stereotyping claims. See Norris, 46 Fed App’x 344 (holding that a charge alleging discrimination based on sexual orientation did not give district court subject matter jurisdiction over claim of samesex sexual harassment); Lankford, 2004 WL 540983, at *3 (noting that the amended complaint asserted harassment and discrimination on the basis of sex while the EEOC charge described harassment and discrimination on the basis of sexual orientation). These cases therefore do not support the Magistrate Judge’s

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erroneous conclusion that sex discrimination in the form of gender stereotyping was not properly exhausted by Mr. Bostock’s EEOC charge. Moreover, because the issue of gender stereotyping is analytically indistinct from the issue of sexual orientation discrimination, Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (“claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims”), his allegations of gender stereotyping are necessarily “ ‘like or related to, or grew out of ’ the allegations in the EEOC charge.” Green v. Elixir Indus., Inc., 407 F.3d 1163, 1168 (11th Cir. 2005). The simple fact is that there is no box denoting the “gender stereotyping” theory of sex discrimination on the EEOC’s form charge. Mr. Bostock properly exhausted his administrative remedies for any and all theories of sex discrimination by checking the box marked “sex” for the type of discrimination of which he complained.
E. Mr. Bostock’s Gender Stereotyping Claim is Timely
Based on his other recommendations, the Magistrate Judge did not address Defendant’s alternative argument that Mr. Bostock’s gender stereotyping claim is untimely. [Doc. 16 at p. 19, n.7.] Should the Court agree with Mr. Bostock’s objections to the Report and Recommendation, Mr. Bostock contends that this claim

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is timely because the claim relates back to the same conduct alleged in his Complaint and First Amended Complaint. Rule 15(c) provides that “[a]n amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed. R. Civ. P. 15(c)(2).
In this case, Mr. Bostock’s allegations concerning gender stereotype discrimination arise from the same conduct and occurrences set forth in his original pleading. Specifically, the allegations relate to his sexual orientation and identity being openly questioned and disparagingly commented upon by individuals who had significant influence on the decision making of Defendant, which led to the discriminatory termination of Mr. Bostock. Since the claim arises out of the same conduct as already set forth in the original complaint, it clearly relates back for purposes of the statute of limitations. See Rhea, 2004 WL 3313616 at *3 (holding in part that where plaintiff originally brought a sexual orientation discrimination claim and sought to amend to add claims of sexual stereotyping that “[t]o the extent a claim for sex-stereotyping arises out of the same conduct alleged in the original complaint, any amendment would relate back.”).
IV. CONCLUSION
There may not be a definitive recent ruling by the United States Supreme Court that Title VII prohibits

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sexual orientation discrimination, but the law is clear that it does. For all the reasons set forth above and in Mr. Bostock’s Response in Opposition to Defendant’s Motion to Dismiss [Doc. 14], Mr. Bostock requests that the Court reject the Magistrate Judge’s Report and Recommendation and deny Defendant’s Motion to Dismiss.
Respectfully submitted,
BUCKLEY BEAL LLP
By: s/ Thomas J. Mew IV Brian J. Sutherland bsutherland@ buckleybeal.com Georgia Bar No. 105408 Thomas J. Mew IV tmew@buckleybeal.com Georgia Bar No. 503447 T. Brian Green bgreen@buckleybeal.com Georgia Bar No. 801098
Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101
[Certificate Of Compliance Omitted]

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CHARGE OF DISCRIMINATION

Charge Presented To:

This form is affected by the Privacy Act of 1974. ☐ FEPA See enclosed Privacy Act Statement and other ☒ EEOC

information before completing this form.

Agency(ies) Charge No(s).: 410-2013-06136

State or local Agency, if any

and EEOC

Name (indicate Mr., Ms., Mrs.) Gerald L. Bostock

Home Phone (Incl. Area Code)

Date of Birth

Street Address

City, State and ZIP Code

XXXXXXXXXXXXXX

Named is the Employer, Labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (If more than two, list under PARTICULARS below.)

Name

No. Employees, Members Phone No. (Include Area Code)

CLAYTON COUNTY BOARD OF COMMISSIONERS - JUVENILE COURT

500 or More

(770) 477-3208

Street Address 112 Smith Street, Jonesboro, GA 30236

City, State and ZIP Code

Name

No. Employees, Members Phone No. (Include Area Code)

Street Address

City, State and ZIP Code

DISCRIMINATION BASED ON (Check appropriate box(es).)
☐ RACE ☐ COLOR ☒ SEX ☐ RELIGION ☐ NATIONAL ORIGIN ☐ RETALIATION ☐ AGE ☐ DISABILITY ☐ GENETIC INFORMATION ☐ OTHER (Specify)

DATE(S) DISCRIMINATION TOOK PLACE

Earliest

Latest

06-03-2013

06-03-2013

☐ CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I was hired by the above named employer on January 13, 2003, as a Court Appointed Special Advocate Program Coordinator. Around October 2007, I was promoted to Child Welfare Services Coordinator. On June 3, 2013, I was notified by the Director of Juvenile Court Services and Chief of Staff of Juvenile Court Services that I was being discharged.

The reason given for my discharge was “Violation of Clayton County Civil Services Rules.”

I believe that I have been discriminated against because of my sex (male/sexual orientation), in violation of Title VII of the Civil Rights Act of 1964, as amended.

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.

NOTARY – When necessary for State and Local Agency Requirements

I declare under penalty of perjury that the above is true and correct.

I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief.
SIGNATURE OF COMPLAINANT

Sep 05, 2013 Date

[Illegible] Charging Party Signature

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, day, year)

100

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

)

Plaintiff, v. CLAYTON COUNTY,

) CIVIL ACTION

) ) )

NO: 1:16-cv-01460ODE-WEJ

)

Defendant.

)

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
(Filed Dec. 1, 2016)
I. INTRODUCTION
Plaintiff ’s Objections to Judge Johnson’s Report and Recommendation (hereinafter, “R&R”) granting Defendant’s Motion to Dismiss [Doc. 18] ask this Court to ignore the separation of powers, disregard the founding tenants of our country, and to instead, judicially amend Title VII for some perceived public policy benefit. Specifically, Plaintiff argues that Title VII covers sexual orientation discrimination, and that his conclusory allegations (without any factual support) that he was subjected to discrimination due to his sexual orientation and his gender identity support a gender stereotyping claim. Because Title VII does not

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cover sexual orientation discrimination and because Plaintiff has not sufficiently pled a gender stereotyping claim (nor was it included in his EEOC charge), Defendant respectfully requests that this Court overrule Plaintiff ’s objections and adopt the R&R in its entirety and dismiss Plaintiff ’s claims with prejudice.
II. LEGAL ARGUMENT
A. Title VII Does Not Cover Sexual Orientation Discrimination
1. Blum v. Gulf Oil Corp. Constitutes Binding Precedent
As Judge Johnson correctly concluded, Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), is binding precedent in the Eleventh Circuit and held that Title VII does not protect against discrimination due to sexual orientation. In his Objections, Plaintiff argues that Blum should be ignored because, in Plaintiff ’s view, its holding that Title VII does not protect sexual orientation discrimination is merely dicta. This argument is untenable..
In Blum, a former employee sued Gulf Oil Corp alleging that he was terminated due to (amongst other things) his sexual orientation. Gulf Oil presented evidence that he was terminated for making personal phone calls related to his side business rather than due to his sexual orientation. Blum, 597 F.2d at 93637. After a bench trial, the trial court concluded that the plaintiff was terminated for legitimate, nondiscriminatory reasons, mainly, his use of a phone for

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personal reasons. Id. The plaintiff appealed to the Fifth Circuit, which affirmed the trial court’s judgment in favor of Gulf Oil on the plaintiff ’s sexual orientation claim. First, the Fifth Circuit found that the plaintiff could not establish pretext to support any of his claims, including his sexual orientation claim. Id. at 937-38. The Fifth Circuit also concluded that the district court properly rejected the plaintiff ’s sexual orientation claim because “discharge for homosexuality is not prohibited by Title VII or Section 1981.” Id. at 938.
This statement obviously was not dicta, but rather was an alternative ground for the Fifth Circuit’s decision to affirm the district court’s judgment in favor of Gulf Oil on the plaintiff ’s sexual orientation claim. In other words, the Fifth Circuit affirmed the judgment in favor of Gulf Oil on the plaintiff ’s sexual orientation claim because (1) he failed to prove that the legitimate, nondiscriminatory reasons given for his termination were a pretext for sexual orientation discrimiantion; and (2) even if he did, discrimination on the basis of sexual orientation is not prohibited by Title VII. Moreover, the Court explicitly stated that the issue of whether Title VII prohibited discrimination on the basis of sexual orientation was an issue briefed by the parties on appeal. Id. at 938.
While Blum’s conclusion that Title VII does not prohibit discharge because of sexual orientation may be a separate and distinct reason for its holding, it is a statement directly related to and an equally necessary basis for the decision to affirm the district court’s

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judgment in favor of Gulf Oil on the plaintiff ’s sexual orientation claim.
The United States Supreme Court and the Eleventh Circuit repeatedly have held that an alternative ground for a decision is binding precedent, not dicta. See, e.g., Massachusetts v. United States, 333 U.S. 611, 623 (1948) (where a case has “been decided on either of two independent grounds” and “rested as much upon the one determination as the other,” the “adjudication is effective for both”); Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.2008) (an “alternative holding counts because in this circuit additional or alternative holdings are not dicta, but instead are as binding as solitary holdings”); Johnson v. DeSoto Cnty. Bd. of Comm’rs, 72 F.3d 1556, 1562 (11th Cir.1996) (“[W]e are bound by alternative holdings”); McLellan v. Miss. Power & Light Co., 545 F.2d 919, 925 n. 21 (5th Cir.1977) (en banc) (“It has long been settled that all alternative rationales for a given result have precedential value.”).
Accordingly, the R&R correctly concluded that Blum’s holding that Title VII does not prohibit discrimination on the basis of sexual orientation is binding precedent in the Eleventh Circuit, and Plaintiff ’s sexual orientation claim should therefore be dismissed.

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2. The R&R Correctly Followed The Overwhelming Weight Of Authority Holding That Title VII Does Not Include Sexual Orientation As A Protected Class
Even if Blum’s conclusion that Title VII does not encompass sexual orientation was dicta as Plaintiff contends, Blum’s conclusion nonetheless is consistent with the overwhelming majority of cases that have held (both before and after the EEOC’s Baldwin v. Foxx decision) that sexual orientation is not a protected class under Title VII. See, e.g., Dingle v. Bimbo Bakeries USA/Entenmann’s, 624 F. App’x 57 (2d Cir. 2015) (holding that discrimination based on perceived sexual orientation was not cognizable under Title VII); Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015) (“Title VII in plain terms does not cover ‘sexual orientation.”); Murray v. North Carolina Dep’t of Pub. Safety, 611 F. App’x 166, 166 (4th Cir. 2015) (affirming grant of motion to dismiss without need for oral argument, citing binding circuit precedent that “Title VII does not protect against sexual orientation discrimination”); Cargian v. Breitling USA, Inc., 2016 WL 5867445, at *4 (S.D.N.Y. Sept. 29, 2016) (“Despite significant changes in the broader legal landscape since the Second Circuit’s decision in Simonton, the prevailing law in this and every other Circuit to consider the question is that, in the Title VII context, courts must distinguish between actionable gender-stereotyping claims and nonactionable sexual orientation claims.”); Thompson v. CHI Health Good Samaritan Hosp., 2016 WL 5394691,

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at *2 (D. Neb. Sept. 27, 2016) (“[N]either Nebraska law nor Title VII encompass discrimination based upon sexual orientation.”); Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 618 (S.D.N.Y. 2016) (“[D]iscrimination based on sexual orientation will not support a claim under Title VII”); Ashford v. Danberry at Inverness, 2016 WL 4615782, at *11 (ND. Ala. Sept. 6, 2016) (“[A]ny assertion of discrimination based upon sexual orientation does not state a claim under Title VII.”); Somers v. Express Scripts Holdings, 2016 WL 3541544, at *3 (S.D. Ind. June 29, 2016) (“Under binding precedent currently in effect, discrimination or harassment based on a person’s sexual orientation alone is not actionable under Title VII. In other words, Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation.” (citations omitted)); Magnusson v. Cty. of Suffolk, 2016 WL 2889002, at *8 (E.D.N.Y. May 17, 2016) (“Sexual orientation discrimination is not actionable under Title VII, and plaintiffs may not shoehorn what are truly claims of sexual orientation discrimination into Title VII by framing them as claims of discrimination based on gender stereotypes, as Plaintiff at times attempts to do here.”); Hinton v. Virginia Union Univ., ___ F. Supp. 3d ___, 2016 WL 2621967, at *5 (E.D. Va. May 5, 2016) (“More importantly, the reasons offered in decisions that have adopted the EEOC’s position are matters that lie within the purview of the legislature, not the judiciary. Title VII is a creation of Congress and if Congress is so inclined, it can either amend Title VII to provide a claim for sexual orientation discrimination or leave

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Title VII as presently written. It is not the province of unelected jurists to effect such an amendment. In sum, Title VII does not encompass sexual orientation discrimination claims, and cannot be supplanted by the merely-persuasive power of the EEOC’s decision.”), motion to certify appeal denied, 2016 WL 3922053 (E.D. Va. July 20, 2016); Burrows v. Coll. of Cent. Fla., 2015 WL 5257135, at *2 (M.D. Fla. Sept. 9, 2015) (denying motion for reconsideration on grant of employer’s motion for summary judgment even though plaintiff cited to EEOC’s recent decision in Baldwin v. Foxx as intervening change in law). See also Doc. 15, at pp. 5-8 (citing these cases).
Plaintiff ’s Objections fail to discuss or respond to these cases. Instead, Plaintiff ignores the overwhelming case law rejecting his position (only some of which is cited above), and instead focuses on the very few decisions he can find that incorrectly embrace the EEOC’s radical attempt to amend Title VII by executive fiat, rather than apply the plain text of Title VII and leave it to the legislative branch (Congress) to amend Title VII to include sexual orientation as a protected class if it so desires.
Plaintiff goes on to argue that Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997) is inapposite to his argument that sexual orientation discrimination should be protected by Title VII. While certainly Fredette is not as clear as Blum, the court’s statement that “[w]e do not hold that discrimination because of sexual orientation is actionable” strongly implies that the Eleventh Circuit does not construe

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Title VII as prohibiting sexual orientation discrimination. As Plaintiff properly concedes – this reading is consistent with many district courts’ interpretation of Fredette. See, e.g., Stevens v. Ala. Dep’t of Corr., 2015 WL 1245355, at *7 (N.D. Ala. Mar. 18, 2015); Fitzpatrick v. Winn-Dixie Montgomery, Inc., 153 F.Supp.2d 1303, 1306 (M.D. Ala. 2001); Ashford v. Danberry at Iverness [sic], 2016 WL 4615782, at *11 (Sept. 6, 2016); Rodriguez v. Alpha Inst. of S. Florida, Inc., 2011 WL 5103950, at *5 (S.D. Fla. Oct. 27, 2011); Luckey v. Martin, 2012 WL 665694, at *7 (D.N.J. Feb. 29, 2012).1
3. The R&R Correctly Cited Congressional Attempts To Pass ENDA As Further Confirmation That Title VII Does Not Encompass Sexual Orientation
Plaintiff next argues that Congress’s attempts to enact the Employment Non-Discrimination Act are not controlling as to whether Title VII protects against sexual orientation discrimination. In support of this contention, Plaintiff cites to various Supreme Court decisions cautioning against relying on congressional inaction as a basis for interpreting a statute. [Doc. 18, p. 8].
1 Plaintiff cites Winstead v. Lafayette County Board of Commisioners [sic], 2016 WL 3440601, at *6 (N.D. Fla. June 20, 2016) to support his interpretation of Blum and Fredette. Notably, however, Winstead reached the same conclusion that nearly every court that has reviewed this issue has reached: Title VII does not protect against sexual orientation discrimination.

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However, the Second Circuit, while acknowledging such concerns, concluded that “Congress’s refusal to expand the reach of Title VII is strong evidence of congressional intent in the face of consistent judicial decisions refusing to interpret ‘sex’ to include sexual orientation.” Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).2 Indeed, numerous courts have cited Congress’ refusal to enact ENDA as further confirmation that Title VII does not encompass sexual orientation. See, e.g., Thomas v. Keystone Real Estate Group, LP, 2015 WL 1471273, at *2 (M.D. Pa. Mar. 31, 2015) (Title VII does not protect against sexual orientation discrimination and Congress repeatedly has rejected legislation to amend Title VII to include it); Johnson v. Shinseki, 2013 WL 1987352, at *2 (E.D. Mo. May 13, 2013) (same); Mowery v. Escambia County Util. Auth., 2006 WL 327965, at *9, (N.D. Fla. Feb. 10, 2006) (Congress “specifically and repeatedly” rejected ENDA).
Moreover, Congress’ refusal to enact ENDA is only part of the overwhelming evidence to support the conclusion that Title VII does not cover sexual orientation discrimination. Plaintiff completely ignores the legislative history cited by Judge Johnson that supports the finding that discrimination “because of sex” under Title VII was intended to mean discrimination due to gender. [Doc. 16, at pp. 6-7]. When viewed in this context, the legislative history, combined with the
2 Plaintiff has failed to present any evidence or argument that Congress’ refusal to enact ENDA has been the result of unawareness, preoccupation or a belief that sexual orientation discrimination already is prohibited under Title VII.

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repeated attempts by Congress to enact ENDA (unsuccessfully), and of course the plain language of the statute, conclusively demonstrate that Title VII simply does not protect against sexual orientation discrimination.
4. Oncale And Foxx Do Not Provide A Basis To Support The Plaintiff ’s Claims
Plaintiff falls back on reliance upon Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) to argue that Title VII already protects sexual orientation discrimination. Oncale, however, provides no such support. In Oncale, the Supreme Court ruled that Title VII’s protection against sexual harassment included protection against sexual harassment perpetrated by someone of the same sex, so long as the harassment was still “because of sex.” Essentially, the Oncale decision held that sexual harassment is unlawful, regardless of the gender of the individual who engages in such conduct. It is an unfathomable leap to claim Oncale states or even implies that sexual orientation discrimination is protected by Title VII. Plaintiff ’s argument otherwise misses the point – “because of sex” is very different than “because of sexual orientation.” See King v. Super Serv., Inc., 68 Fed.Appx. 659, 664 (6th Cir. 2003) (“animosity directed towards the plaintiff because of his apparent sexual orientation is . . . different from discrimination on the basis of sex”); Bibby v. Phil. Coca-Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2001) (noting difference between “because of

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sex” and sexual orientation, the latter of which “Congress has not yet seen fit” to protect); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (same).
Similarly, the material flaw in the EEOC’s Baldwin v. Foxx decision relied upon by Plaintiff is that it, too, believes that “because of sex” includes sexual orientation. Sex, however, simply does not reference ones [sic] sexual orientation.3 Plaintiff ’s claim that Baldwin v. Foxx should be entitled to some deference (and apparently that all courts should reevaluate their previous interpretations of the statute because of a single radical decision by the EEOC that reverses its own previous interpretation ofTitle VII) simply is inconceivable given the EEOC’s own previous contradictory interpretations, and the fact that its new position is contrary to controlling law in nearly every single Circuit in the country.4
3 Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) does not support Plaintiff ’s proposed amendment to Title VII. Parr concluded that racial discrimination prohibits discriminating against someone who is in an interracial marriage. In that context, the discrimination is “because of” race, albeit the race of that individual’s spouse. That is a natural extension of the race discrimination analysis, and has no application or role in interpreting the difference between someone’s sex and sexual orientation, a wholly different analysis. See Partners Healthcare Sys. v. Sullivan, 349 F.Supp.2d 29, 39 (D. Mass. 2007).
4 Judge Johnson correctly noted that the EEOC’s position is not entitled to any deference, as it attempts to change something that is within the purview of the legislative branch, and “if Congress is so inclined, it can amend the statute to provide a claim for sexual orientation discrimination.” [Doc. 16, p. 13]. Moreover, Plaintiff ironically argues that Baldwin v. Foxx is entitled to

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Thus, distilled to its essence, Plaintiff is asking this Court to ignore Blum and all of the circuit and district courts that have ruled that Title VII does not protect against sexual orientation discrimination. Because this is contrary to the binding precedent in this Circuit, the reasoning of nearly every single court to ever consider this issue, the legislative history of Title VII, and the plain language of the statute, Defendant respectfully submits that this Court should decline Plaintiff ’s invitation to amend Title VII. Instead, the Court should follow the overwhelming case law holding that Title VII does not cover sexual orientation, and that it is up to Congress to amend Title VII to add sexual orientation as a protected class if it so desires.
Accordingly, the Court should adopt the R&R and dismiss Plaintiff ’s sexual orientation claim with prejudice.
B. Plaintiff Has Failed To State A Claim For Gender Stereotyping
Plaintiff ’s objection attempts to bootstrap his gender stereotyping claim to his sexual orientation claim without any factual support.5 Sexual orientation alone,
deference because of its supposed reliance on Eleventh Circuit precedent. [Doc. 18, p. 12]. Yet, significant portions of Plaintiff ’s Objections are devoted to a futile attempt to explain away Eleventh Circuit precedent holding, or at the very least strongly suggesting or implying, that Title VII does not encompass sexual orientation.
5 Plaintiff ’s bootstrapping attempt is made abundantly clear when he argues later in his brief that “the issue of gender

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however, cannot support a gender stereotyping claim, as this would have the effect of re-writing Title VII to include sexual orientation discrimination.
Plaintiff claims that his allegations in the Second Amended Complaint that his sexual orientation and identity were criticized by one or more individuals, and that someone made disparaging comments about his sexual orientation and identity, is sufficient to state a gender stereotyping claim. This argument fails. As Judge Johnson noted, a gender stereotyping claim is based upon allegations that “he suffered discrimination based on his employer’s belief that he failed ‘to conform to masculine stereotypes.’ ” (Doc. 16, p. 14)(citing EEOC v. Family Dollar Stores, Inc., 2008 WL 4098723, at * 14 (N.D. Ga. Aug. 28, 2008)).
Courts repeatedly have stated that such a gender stereotyping claim cannot masquerade as a sexual orientation claim under another name, but instead, that the plaintiff must allege that he was discriminated against because he did not act like the typical male for a reason other than the mere fact that he is homosexual, such as his appearance or mannerisms on the job. See Simonton, 232 F.3d at 38 (noting that the gender stereotyping theory “would not bootstrap protection for sexual orientation into Title VII because not all homosexual men are stereotypically feminine, and not all heterosexual men are stereotypically masculine”);
stereotyping is analytically indistinct from the issue of sexual orientation discrimination,” citing a California case. [Doc. 18, p. 17]. Of course, this is not the law in the Eleventh Circuit.

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Gilbert v. Country Music Ass’n, 432 Fed.Appx. 516, 520 (6th Cir. 2011) (dismissing claim for gender stereotyping due to lack of allegations to support claim, such as non-stereotypical appearance or mannerisms, and stating “for all we know, Gilbert fits every male ‘stereotype’ save one – sexual orientation – and that does not suffice to obtain relief under Title VII”); Dawson v. Bumble & Bumble, 398 F.3d 211, 219 (2d Cir. 2005) (noting that courts “have repeatedly rejected attempts by homosexual plaintiffs to assert employment discrimination claims based upon allegations involving sexual orientation by crafting the claim as arising from discrimination based upon gender stereotypes”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763 (6th Cir. 2006) (holding that “theory of sex stereotyping under Price Waterhouse is not broad enough to encompass” a theory based solely on sexual orientation and that this did not conform to traditional masculine roles).
At least one court within this circuit has dismissed a gender stereotyping claim where the plaintiff failed to allege what traits or circumstances made him different than the stereotypical male (aside from his sexual preference). See Anderson v. Napolitano, 2010 WL 431898 (S.D. Fla. Feb. 8, 2010). Here, as Judge Johnson correctly found, “the Second Amended Complaint contains no allegations that plaintiff suffered discrimination based on his employer’s belief that he failed to conform to masculine stereotypes.” [Doc. 16, p. 16]. Accordingly, because Plaintiff has not and cannot plead any facts that support that he fails to meet or conform to masculine stereotypes, his claim fails. Accordingly,

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Defendant respectfully requests that this Court dismiss Plaintiff ’s claim with prejudice.
C. The R&R Correctly Concluded That Plaintiff Failed To Allege Gender Stereotyping In His EEOC Charge
Plaintiff ’s final objection argues that Judge Johnson erred in concluding that Plaintiff ’s EEOC charge did not include a claim for gender stereotyping, and thus, Plaintiff failed to exhaust his administrative remedies with respect to this claim. Plaintiff ’s argument is based entirely upon the fact that he “checked the box” for sex discrimination in his EEOC charge. This argument conveniently ignores, however, that the narrative (not the box he checked) in Plaintiff ’s EEOC charge controls whether he exhausted his administrative remedies, and his gender stereotyping claim fails because he simply did not include any gender stereotyping allegations or factual support in the narrative of his EEOC charge.
In this regard, the “crucial element of a charge of discrimination is the factual statement contained therein.” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). “The selection of the type of discrimination alleged, i.e., the selection of which box to check, is in reality nothing more than the attachment of a legal conclusion to the facts alleged.” Id. The Eleventh Circuit has held that merely checking a particular box on an EEOC charge does not satisfy the exhaustion requirement where the plaintiff provides no

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supporting facts in connection with the claim at issue. Chanda v. Engelhard/ICC, 234 F.3d 1219, 1224 (11th Cir. 2000). See also Jerome v. Marriott Residence Inn Barcelo Crestline/AIG, 211 Fed.Appx. 844, 846-847 (11th Cir. 2006) (circling “wages” on EEOC questionnaire without providing any supporting facts insufficient to exhaust wage discrimination claim); Houston v. Army Fleet Services, LLC, 509 F.Supp.2d 1033, 1043 (M.D. Ala. 2007) (“Indeed, checking the correct box alone is not sufficient to satisfy the filing requirement when no factual particulars relating to the claim are disclosed to the EEOC”).
Here, it is undisputed that Plaintiff did not include a single factual statement or allegation that indicated he was discriminated against due to gender stereotyping in his charge of discrimination. As a result, Judge Johnson reached the proper conclusion that “[o]ne would not reasonably expect an EEOC investigation of gender stereotyping to grow out of the charge’s allegation of sexual orientation discrimination.” [Doc. 16, p. 20].
Contrary to Plaintiff ’s assertions, the two decisions cited by Defendant and by Judge Johnson support this conclusion, and stand for the proposition that a charge alleging “sexual orientation” discrimination and nothing else simply does not exhaust a claim for some other type of sex discrimination, such as gender stereotyping. Norris v. Hiakin Drivetrain Components, 46 Fed.Appx. 344, 346 (6th Cir. 2002) (claim for samesex sexual harassment cannot be reasonably expected to grow out of EEOC charge asserting discrimination

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based on sexual orientation); Lankford v. BorgWarner Diversified Transmission Products, Inc., 2004 WL 540983, at *3 (S.D. Indiana Mar. 12, 2004) (“a claim of discrimination based on sex is not reasonably related to, nor may it be expected to grow out of, a charge of discrimination based on sexual orientation.”)
Because Plaintiff does not dispute that his EEOC charge does not mention or describe any gender stereotyping allegation, and because merely “checking the box” for sex discrimination does not mean that Plaintiff has exhausted a claim of gender stereotyping, Defendant respectfully requests that this Court overrule Plaintiff ’s Objections and dismiss Plaintiff ’s gender stereotyping claim with prejudice.
D. Plaintiff ’s Gender Stereotyping Claim Is Untimely
Although Magistrate Judge Johnson did not address this argument because he already properly concluded that Plaintiff ’s Second Amended Complaint should be dismissed, for the reasons identified in Defendant’s Motion to Dismiss and reply brief in support thereof, Plaintiff ’s attempt to add a gender stereotyping claim is untimely and otherwise fails as a matter of law. [Doc. 13, pp. 12-14 and Doc. 15, p.14].
III. CONCLUSION
For the reasons stated herein, Clayton County respectfully requests that the Court overrule Plaintiff ’s

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objections and DISMISS Plaintiff ’s Second Amended Complaint with prejudice.
This 1st day of December, 2016.
/s/Martin B. Heller Jack Hancock Georgia Bar No. 322450 Martin B. Heller Georgia Bar No. 360538 William H. Buechner Georgia Bar No. 086392
Attorneys for Clayton County
FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway, Suite 1600 Atlanta, Georgia 30339 Telephone: (770) 818-0000 Facsimile: (770) 937-9960 jhancock@fmglaw.com mheller@fmglaw.com bbuechner@fmglaw.com
[Certificate Of Compliance Omitted]

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

)

Plaintiff, v. CLAYTON COUNTY,

) CIVIL ACTION

) ) )

File No: 1:16-CV01460-ODE-WEJ

)

Defendant.

)

PLAINTIFF’S REPLY IN SUPPORT OF OBJECTIONS TO THE MAGISTRATE JUDGE’S
FINAL REPORT AND RECOMMENDATION
(Filed Dec. 15, 2016)
Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), and LR 72.1.B, NDGa, Plaintiff Gerald Bostock files this Reply in Support of Objections to the Magistrate Judge’s Final Report and Recommendation.

I. INTRODUCTION
In his opening brief in support of his Objections, Mr. Bostock established that the Magistrate Judge erred in recommending dismissal of Mr. Bostock’s claims of sexual orientation discrimination and gender stereotype discrimination. Defendant raises a number of meritless arguments in opposition. As set forth in greater detail below, and in his initial brief and his opposition to Defendant’s Motion to Dismiss, Mr. Bostock

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requests that the Court reject the Report and Recommendation and deny Defendant’s Motion to Dismiss.
II. ARGUMENT AND CITATION OF AUTHORITY
A. Blum v. Gulf Oil Corp. is Not Controlling Authority
In his initial brief in support of his objections, Mr. Bostock established that the “comment” in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) that sexual orientation claims are not cognizable under Title VII in [sic] not controlling on this issue. Defendant attempts to characterize this dicta in Blum as an alternative holding. This is not the case.
In the first place, nowhere in the opinion does it state that the footnote “comment” that “discharge for homosexuality is not prohibited by Title VII” is in any way an alternative holding. The court simply stated that it would “comment briefly” on other issues raised in the appeal. 596 F.2d at 938. The language in the footnote, moreover, could not resolve the case in full, because the plaintiff also had claims for other forms of discrimination. The primary issue on appeal, and the basis for the court’s decision, was whether the defendant articulated a legitimate nondiscriminatory reason for the plaintiff ’s discharge. Id. at 937. The court determined that it did which resolved the appeal. Id.
Moreover, as set forth in detail in Plaintiff ’s initial brief, in Blum, the Fifth Circuit did not recite any analysis for its comment regarding sexual orientation

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discrimination and simply cited to its prior holding in Smith v. Liberty Ins. Co., 569 F.2d 325 (5th Cir. 1978), a case which did not even address the issue of whether sexual orientation claims are cognizable under Title VII and whose holding “has clearly been abrogated by subsequent Supreme Court cases.” Winstead v. Lafayette County Board of County Commissioners, No. 1:16CV00054-MW-GRJ, 2016 WL 3440601, at *6, n.4 (N.D. Fla. June 20, 2016); see also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Thus, the entire basis on which Blum based its dicta regarding sexual orientation claims has been abrogated. Blum is not controlling on this issue.
B. Fredette V. BVP Mgmt. Assocs. did not Address the Issue of Sexual Orientation Discrimination Either Way
Defendant also argues that Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir. 1997), “strongly implies that the Eleventh Circuit does not construe Title VII as prohibiting sexual orientation discrimination.” (Doc. 19 at 8.) In fact, as set forth in detail in Plaintiff ’s initial brief, the only conclusion that can reasonably be drawn from Fredette is that the Eleventh Circuit deliberately left open the issue of sexual orientation discrimination. The Eleventh Circuit specifically emphasized the “narrowness” of its holding and merely stated it was not holding that sexual orientation discrimination was actionable. Thus, it did not hold that sexual orientation discrimination claims were actionable or not actionable. It deliberately and

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carefully left the issue open. While courts have reached differing conclusions on this point (see Pl.’s Initial Br. at 7 (Doc. 18)), the better reasoned cases have properly read Fredette as leaving the issue open. Winstead, 2016 WL 3440601, at *5 (“this Court’s interpretation—that Fredette left the issue open—is hardly unique”); Mowery v. Escambia Cty. Utils. Auth., No. 3:04cv382, 2006 WL 327965, at *8 (N.D. Fla. Feb. 10, 2006) (characterizing Fredette as not “holding that discrimination because of sexual orientation is not actionable”); Rodriguez v. Alpha Inst. of S. Fla., Inc., No. 10–80714– CIV. 2011 WL 5103950, at *5 (S.D. Fla. Oct. 27, 2011) (same).
C. Congress’ Failure to Amend Title VII Does not Provide a Basis to Find Sexual Orientation Discrimination Claims are not Cognizable
Defendant maintains that Congress failure to amend Title VII to specifically include a claim for sexual orientation discrimination somehow means that there is no such claim. As set forth in detail in Mr. Bostock’s initial brief in support of his Objections, courts have continually cautioned against relying on Congressional inactivity as any type of interpretive tool. (Doc.18 at 7-8.) Indeed, Congressional inactivity could just as easily establish that amendment of Title VII is unnecessary because sexual orientation discrimination already is covered by the prohibition against discrimination “because of sex” (which it is).

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Moreover, subsequent legislative inaction or speculation concerning Congressional intent has no bearing on the plain language of Title VII. “[I]t is what Congress says, not what Congress means to say, that becomes the law of the land.” Bernstein v. Bankert, 733 F.3d 190, 211 (7th Cir. 2013). The Supreme Court in Oncale specifically rejected the notion that sex discrimination is limited by some type of unwritten exceptions to Title VII. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (“[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils. . . .”) Oncale makes clear that with limited exceptions not relevant here, an employer violates Title VII when an employee suffers discrimination that would not have occurred had the employee been of the other sex.
That is what Mr. Bostock alleges here: that Defendant took adverse employment actions against him because he is a man who is attracted to men that it would not have taken had he been a man who is attracted to women. In other words, but for Mr. Bostock’s sex, Defendant would not have taken the action it did. Contrary to Defendant’s assertion, there is no need to “amend” Title VII or “redefine” the term “sex” under Title VII for sexual orientation claims to be

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cognizable.1 The plain language of the statute is more than sufficient.
D. The EEOC’s Position on This Issue is Persuasive as are the Court Decisions That Have Reached the Same Conclusion
Defendant has offered no compelling reason to depart from the EEOC’s cogent guidance on this issue in Baldwin v. Foxx, Appeal No. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015) or the cases that have held that sexual orientation discrimination is actionable. Isaacs v. Felder Servs., LLC, 143 F. Supp.3d 1190 (M.D. Ala. 2016); Videckis v. Pepperdine Univ., 150 F. Supp.3d 1151(C.D. Cal. 2015). Mr. Bostock’s initial brief in support of his Objections discussed this issue in detail and he will not belabor the point here. The bottom line is that these authorities are most consistent with both the plain language of Title VII and Supreme Court precedent.
Defendant cites cases that have held that sexual orientation discrimination is not actionable under Title VII. Certainly, courts have reached different conclusions on this issue. But the fact that other circuits may have resolved the issue differently (or that district courts did so) does not compel the same result in this
1 Defendant argues that Mr. Bostock is attempting to amend Title VII through “executive fiat,” but this is not so. By contending that the plain language of Title VII does not protect Mr. Bostock, Defendant is essentially arguing for a judicially-created exception to Title VII.

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case, where the issue remains open in the Eleventh Circuit.
Defendant also attempts to distinguish Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986) addressing racial discrimination against someone in an interracial marriage from discrimination based on sexual orientation. Although Defendant argues that this is “a wholly different analysis” it is, in fact, the same analysis. In both instances it is the employee’s race or sex (relative to the race or sex of the person with whom the employee is in a relationship or to whom the employee is attracted) that is causing the differential treatment. Title VII “on its face treats each of the enumerated categories exactly the same.” Price Waterhouse v. Hopkins, 490 U.S. 228, 244 n.9 (1989) (justifying reliance on statements of legislative intent regarding the treatment of race in the workplace as authoritative regarding the appropriate treatment of sex). Thus, the EEOC properly cited Parr in support of its position that sexual orientation claims are actionable under Title VII. Its careful attention to Eleventh Circuit precedent provides compelling reason to defer to the EEOC’s guidance on this issue.
The only result that is consistent with both Supreme Court and EEOC precedent is that sexual orientation claims are covered under Title VII. The Magistrate Judge erred on this issue.

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E. Mr. Bostock Has Stated a Timely Claim for Gender Stereotype Discrimination
Mr. Bostock’s opening brief established that he timely and adequately pleaded his gender stereotype claim and that he properly exhausted his administrative remedies before bringing this claim. Mr. Bostock relies on his initial brief and his opposition brief to Defendant’s Motion to Dismiss for these points and addresses here only the points in Defendant’s response brief that merit further discussion.
With respect to the exhaustion issue, Defendant argues that it is “undisputed” that Mr. Bostock did not include in his EEOC charge any factual allegation or statement that he was discriminated against due to gender stereotyping. (Doc. 19 at 17.) In the first place, “ ‘the scope of an EEOC complaint should not be strictly interpreted’ ” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970). In his charge, Mr. Bostock, who was pro se at the time, recited the circumstances of his employment and termination and then stated “I believe that I have been discriminated against because of my sex (male/sexual orientation).” (Doc. 18, Ex. A.) Nothing further is required. It is wellestablished that gender stereotyping discrimination is a form of sex discrimination. Price Waterhouse, 490 U.S. 228.
Moreover, the issue of gender stereotyping is analytically close to the issue of sexual orientation discrimination so that Mr. Bostock’s allegations of gender stereotyping in his Second Amended Complaint are

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“ ‘like or related to, or grew out of ’ the allegations in the EEOC charge.” Green v. Elixir Indus., Inc., 407 F.3d 1163, 1168 (11th Cir. 2005). See also Videckis, 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (concluding that this distinction between sexual orientation discrimination claims and gender stereotype claims is “illusory and artificial” and that “sexual orientation discrimination is not a category distinct from sex or gender discrimination.”)2 Thus, Mr. Bostock properly raised and exhausted his gender stereotype discrimination claim.
III. CONCLUSION For the foregoing reasons, and for the reasons raised in his initial brief in support of his Objections and his opposition to Defendant’s Motion to Dismiss, Mr. Bostock requests that the Court reject the Magistrate Judge’s Report and Recommendation and deny Defendant’s Motion to Dismiss.
2 Defendant argues that this citation somehow shows “bootstrapping” on Mr. Bostock’s part. (Doc. 19 at 13, n.5.) What is [sic] really shows is that the two claims are so analytically overlapping that there is no rational basis for prohibiting one form of sex discrimination (gender stereotype) while permitting another (sexual orientation) based on an illusory distinction. Both claims are forms of actionable sex discrimination.

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Respectfully submitted,
BUCKLEY BEAL LLP
By: s/ Thomas J. Mew IV Brian J. Sutherland bsutherland@ buckleybeal.com Georgia Bar No. 105408 Thomas J. Mew IV tmew@buckleybeal.com Georgia Bar No. 503447 T. Brian Green bgreen@buckleybeal.com Georgia Bar No. 801098
Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101
[Certificate Of Compliance Omitted]

129

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

GERALD LYNN BOSTOCK, )

)

Plaintiff, v. CLAYTON COUNTY,

) CIVIL ACTION

) ) )

File No. 1:16-CV01460-ODE-WEJ

)

Defendant.

)

PLAINTIFF’S NOTICE OF APPEAL
(Filed Aug. 21, 2017)
Notice is hereby given that Plaintiff, Gerald Bostock, appeals to the United States Court of Appeals for the Eleventh Circuit from this Court’s Order granting Defendant’s Motion to Dismiss [Doc 24], and the Clerk’s Judgment [Doc 25], both entered on July 21, 2017.
LET THIS NOTICE BE SERVED ON THE DEFENDANT.
Respectfully submitted,
BUCKLEY BEAL, LLP
s/ Thomas J. Mew Thomas J. Mew tmew@buckleybeal.com Georgia Bar No. 503447 Brian J. Sutherland

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bsutherland@buckleybeal.com Georgia Bar No. 105408 T. Brian Green bgreen@buckleybeal.com
Promenade, Suite 900 1230 Peachtree Street, NE Atlanta, GA 30309 Telephone: (404) 781-1100 Facsimile: (404) 781-1101
Counsel for Plaintiff
[Certificate Of Compliance Omitted]

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No. 17-13801-BB IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
GERALD BOSTOCK,
Plaintiff-Appellant,
v.
CLAYTON COUNTY, GEORGIA,
Defendant-Appellee.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA CASE NO. 1:16-CV-01460
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
BRIEF OF APPELLEE
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(Filed Dec. 22, 2017) SUBMITTED BY: Jack R. Hancock William H. Buechner, Jr. FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway Suite 1600 Atlanta, Georgia 30339-5948
(770) 818-0000 Attorneys for Appellee

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[C1 of 1] CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
In compliance with Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules 26.1-1, 26.1-2, and 26.1-3, counsel for Appellee shows that the following trial judge(s), attorneys, persons, associations of persons, firms, partnerships, and corporations have an interest in the outcome of this appeal:
1. Bostock, Gerald (Plaintiff-Appellant)
2. Buckley Beal, LLP (Attorneys for PlaintiffAppellant)
3. Buechner, Jr., William H. (Attorney for DefendantAppellee)
4. Clayton County, Georgia (Defendant-Appellee)
5. Evans, Orinda D. (Senior United States District Judge for the Northern District of Georgia)
6. Freeman Mathis & Gary, LLP (Attorneys for Defendant-Appellee)
7. Green, T. Brian (Attorney for Plaintiff-Appellant)
8. Hancock, Jack R. (Attorney for DefendantAppellee)
9. Indian Harbor Insurance Company (Insurer for Defendant-Appellee)
10. Johnson, Walter E. (United States Magistrate Judge for the Northern District of Georgia)
11. Mew, Thomas (Attorney for Plaintiff-Appellant)

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12. Sutherland, Brian (Attorney for PlaintiffAppellant)
[i] STATEMENT REGARDING ORAL ARGUMENT Defendant-Appellee respectfully submits that oral
argument is not necessary to address the issues raised in this appeal.
[ii] TABLE OF CONTENTS CERTIFICATE OF INTERESTED PER-
SONS AND CORPORATE DISCLOSURE STATEMENT ............................................ C-1 of 1 STATEMENT REGARDING ORAL ARGUMENT ............................................................... i TABLE OF AUTHORITIES ................................. iv JURISDICTIONAL STATEMENT ...................... 1 I. District Court Jurisdiction ........................ 1 II. Court of Appeals Jurisdiction .................... 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW................................................... 2 STATEMENT OF THE CASE.............................. 3 I. Course of Proceedings ............................... 3 II. Statement of the Facts .............................. 5 III. Standard of Review ................................... 6 SUMMARY OF THE ARGUMENT ..................... 7 ARGUMENT AND CITATION OF AUTHORITY .... 10

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I. Under Binding Eleventh Circuit Precedent, The District Court Correctly Held That Plaintiff Cannot Assert A Viable Claim For Sex Discrimination Based On His Sexual Orientation.............................. 10
A. This Court Held In Blum v. Gulf Oil Corp. That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation .................................... 10
B. This Court Recently Reaffirmed That Blum Remains Binding Precedent And That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation In Evans v. Ga. Reg’l Hosp. ...... 11
[iii] C. Both The Eleventh Circuit And The United States Supreme Court Have Declined Further Review Of Evans ....................................................... 14
II. The Court Should Reject Plaintiff’s Invitation To Disregard And Overrule Evans ....... 15
A. Plaintiff Has Failed To Identify Any Intervening Or Subsequent Supreme Court Or En Banc Eleventh Circuit Decision That Is Clearly And Directly On Point And That Overrules Or Abrogates Evans ......................................... 17
B. Evans Does Not Clearly And Directly Conflict With The Supreme Court Or Eleventh Circuit Decisions Cited By Plaintiff................................................ 18
1. Price Waterhouse Is Not Clearly And Directly On Point And Does Not Overrule Or Abrogate Evans ... 18

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2. Evans Is Wholly Consistent With Glenn v. Brumby and In Fact Applied Glenn ....................................... 24
III. Plaintiff ’s Contention That Title VII Already Protects Employees Against Discrimination On The Basis Of Sexual Orientation Ignores Evans And Blum And Is Circular.................................................. 25
CONCLUSION..................................................... 28
[iv] TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)...................6
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) .........................................................................6
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261, 263-65 (3d Cir. 2001), cert. denied, 534 U.S. 1155 (2002)..........................................21, 27
* Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) ................................................................ passim
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en Banc) .......................................10
Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015)..........................................................21
Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998)........................................................15
Christiansen v. Harris Cty., 529 U.S. 576, 587 (2000) .......................................................................26

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Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.), cert. denied, 531 U.S. 957 (2000)..........17
Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) ...........................................................20
EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1031 (11th Cir. 2016) .....................................26
* Evans v. Ga. Reg’l Hosp., 850 F.3d, 1248 (11th Cir.), cert. denied, 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017) .................................................. passim
Evans v. Ga. Reg’l Hosp., Appeal No. 15-15234BB (11th Cir.) (Order of July 6, 2017) .......... 9, 14, 25
Evans v. Ga. Reg’l Hosp., 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017)............................................14, 24
Fla. League of Professional Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir. 1998) ............................24
Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003)..............15
[v] Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) ....................................................... 8, 13, 24
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) .............................20, 27
Hively v. Ivy Tech. Cmty Coil. of Indiana, 853 F.3d 339, 340-41 (7th Cir. 2017) (en banc)..............21
Hopkins v. Baltimore Gas & Elect. Co., 77 F.3d 745, 751-52 (4th Cir. 1996)......................................21
Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).................................................6
In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000) ........................................................................15

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Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009) ........................6
Main Drug, Inc. v. AETNA U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007) ......................15
Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005).........................................21, 27
N.L.R.B. v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. 1981)..........................................................13
Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) .............................12
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) .......................................... 9, 13, 26, 27
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ....................................................... 7, 13, 18, 19
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290-292 (3d Cir. 2009) .............................................20
Randall v. Scott, 610 F.3d 701, 707 (11th Cir. 2010) ..................................................................13, 16
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (en banc), cert. denied, 538 U.S. 922 (2003) .................................................21
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) .......26
[vi] Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)........................................................15
Smith v. Liberty Ins. Co., 569 F.2d 325 (5th Cir. 1978) ........................................................................22
United States v. Chafin, 808 F.3d 1263, 1274 (11th Cir. 2015), cert denied, 136 S. Ct. 1391 (2016) .................................................................16, 23

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United States v. Chubbuck, 252 F.3d 1300, 1305 n.7 (11th Cir. 2001) ..................................... 15, 17, 23
* United States v. Kaley, 579 F.3d 1246, 1255-56 (11th Cir. 2009)..................................................16, 23
United States v. Washington, 2017 U.S. App. LEXIS 16723, at *5, 2017 WL 3822039 (11th Cir. Aug. 31, 2017) ...................................................23
Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 76366 (6th Cir. 2006), cert. denied, 551 U.S. 1104 (2007) .................................................................21, 27
Warner v. City of Marathon, 2017 U.S. App. LEXIS 24790, at *7, 2017 WL 6209600 (11th Cir. 12/8/17) ...............................................................6
Wood v. Comer of Soc. Sec., 861 F.3d 1197 (11th Cir. 2017) .................................................................17
Zarda v. Altitude Express, Inc., 2017 U.S. App. LEXIS 13127 (2d Cir. May 25, 2017) ......................20
Statutes 28 U.S.C. § 1331 ............................................................1 28 U.S.C.§ 1291 .......................................................1, 10 42 U.S.C. §§ 2000e, et seq. ............................................1 Fed.R.Civ.P. 12(b)(6)......................................................6
[1] JURISDICTIONAL STATEMENT I. District Court Jurisdiction
The United States District Court for the Northern District of Georgia had subject matter jurisdiction over

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this case pursuant to 28 U.S.C. § 1331, as PlaintiffAppellant brought claims pursuant to Title WI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.
II. Court of Appeals Jurisdiction
The Eleventh Circuit Court of Appeals has jurisdiction to review the district court’s dismissal of the Second Amended Complaint pursuant to 28 U.S.C.§ 1291.
[2] STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
1. Whether the district court correctly followed and applied binding Eleventh Circuit precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d, 1248 (11th Cir.), cert. denied, 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017) and held that Plaintiff ’s claim that he was terminated because of his sexual orientation fails to state a claim for relief under Title VII?
[3] STATEMENT OF THE CASE I. Course of Proceedings
Plaintiff filed this action pro se on May 5, 2016 asserting claims against the Clayton County Board of Commissioner (“the Board”). (Doc. 1). Plaintiff retained counsel and filed his First Amended Complaint on August 2, 2016. (Doc. 2). In response to the Board’s Motion to Dismiss and with the consent of the Board and Clayton County (“the County”), Plaintiff filed his Second

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Amended Complaint (“SAC”) on September 12, 2016, which dropped the Board as a Defendant and named the County as the Defendant. (Doc. 7-10). In his SAC, Plaintiff asserted that he was terminated in violation of Title VII because of his sexual orientation and because he did not conform with gender stereotypes. (Doc. 10).
The County filed a Motion to Dismiss the SAC, arguing that Plaintiff ’s claim that he was terminated because he is gay should be dismissed because Title VII does not prohibit discrimination on the basis of sexual orientation. (Doc. 10, at pp. 4-6). The County also argued that Plaintiff ’s claim that he was terminated because he did not conform with gender stereotypes should be dismissed because (among other reasons) the SAC did not sufficiently allege a gender stereotyping claim. (Id. at pp. 6-8).
After briefing by the parties, the magistrate judge issued a Report and Recommendation on November 3, 2016 recommending dismissal of the SAC. (Doc. [4] 16). With respect to Plaintiff ’s claim that he was terminated because of his sexual orientation, the R&R concluded that Title VII does not encompass claims of discrimination on the basis of sexual orientation. (Id. at pp. 8-9). The R&R determined that Plaintiff ’s contention to the contrary was precluded by Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) (per curiam), which held that Title VII does not prohibit discrimination on the basis of sexual orientation. (Id. at pp. 8-9). The R&R recognized that the EEOC changed its position in 2015 and interpreted Title VII as encompassing

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sexual orientation, but the R&R declined to defer to the EEOC’s position in light of the binding precedent set forth in Blum. (Id. at pp. 11-13). The R&R also recommended dismissal of Plaintiff ’s gender stereotyping claim. (Id. at pp. 14-18).
Plaintiff filed Objections to the R&R on November 17, 2016, asserting that Title VII encompasses discrimination on the basis of sexual orientation and that the SAC adequately pled a gender stereotyping claim. (Doc. 18). After briefing by the parties, the district court issued an Order on February 2, 2017 deferring consideration of the R&R. (Doc. 21). The 2/2/17 Order noted that the Eleventh Circuit had recently heard oral argument in the Evans v. Ga. Reg’l Hosp. case and was considering whether Blum was binding precedent. (Id. at pp. 4-5). The 2/2/17 Order decided to defer a ruling on the R&R until after the Eleventh Circuit issued its decision in Evans. (Id. at p. 5).
[5] On March 10, 2017, the Eleventh Circuit issued its decision in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), which holds that Blum remained binding precedent and that Title VII therefore does not prohibit discrimination on the basis of sexual orientation. Relying on Evans, the district court entered an Order on July 21, 2017 adopting the R&R and dismissing Plaintiff ’s Title VII claim that he was terminated because of his sexual orientation. (Doc. 24, at p. 5). The district court also adopted the R&R and dismissed

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Plaintiff ’s gender stereotyping claim. (Id. at p. 6). This appeal followed.1
II. Statement of the Facts In the SAC, Plaintiff alleges that he is a gay male
and that he worked for Clayton County as the Child Welfare Services Coordinator. (Doc. 10, ¶¶ 11-13). Plaintiff claims that, beginning in January 2013, he began playing in a gay recreational softball league. (Id. at ¶ 15). Plaintiff alleges that his participation in the league and his sexual orientation and “identity” were criticized by one or more (unnamed) persons, and that the County subjected him to an internal audit of the funds he managed. (Id. at ¶¶ 17-18). Plaintiff claims that the audit was a pretext for discrimination against him based upon his sexual orientation and his failure to conform to a gender stereotype, and that his subsequent termination was actually due [6] to his sexual orientation and gender non-conformity, rather than due to the findings of the audit. (Id. at ¶¶ 18-23). Based solely upon these allegations, Plaintiff alleges that he was discriminated against due to his “sex” in violation of Title VII of the Civil Rights Act of 1964. (Id. at ¶¶ 2433).
1 Plaintiff does not appeal the district court’s dismissal of his gender stereotyping claim.

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III. Standard of Review
This Court reviews de novo a district court’s dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted. Warner v. City of Marathon, 2017 U.S. App. LEXIS 24790, at *7, 2017 WL 6209600 (11th Cir. Dec. 8, 2017); Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016); Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, accepted as true, states a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible on its face if there is a “reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although a court is required to accept the allegations in a complaint as true, “[f ]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
[7] SUMMARY OF THE ARGUMENT
The district court correctly followed the Eleventh Circuit’s binding precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255-57 (11th Cir. 2017), cert. denied, 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017) and dismissed Plaintiff ’s claim that he was terminated because of his sexual orientation in violation of Title VII. In Evans, the Eleventh Circuit held that Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), which held that

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Title VII does not prohibit termination because of sexual orientation, remains good law and is binding Circuit precedent.
In this appeal, Plaintiff improperly urges this Court to “overrule” Evans because it was “wrongly decided.” (Brief of Appellant, pp. 2, 7, 20). However, under the prior panel rule, the Court must follow a prior panel decision unless it has been clearly and directly overruled or abrogated by an intervening or subsequent decision by the Supreme Court or the Eleventh Circuit sitting en banc. Plaintiff has not identified any such decision, but rather contends that Evans incorrectly construed or applied prior Supreme Court and Eleventh Circuit decisions.
Regardless, Plaintiff ’s contention that Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) directly conflicts with Evans and Blum is meritless and was properly rejected by Evans. Under the prior panel rule, Plaintiff cannot re-litigate Evans’ holding that Price Waterhouse is not clearly on point or contrary to Blum, and that Price Waterhouse did not squarely address whether discrimination on the basis of [8] sexual orientation is prohibited under Title VII, Evans’ conclusion also was correct because Price Waterhouse simply held that an employer may not make employment decisions based on stereotypes concerning how a female should appear, dress and behave in the workplace. Moreover, the fact that most circuit courts have decided after Price Waterhouse that Title VII does not encompass discrimination on the basis of sexual orientation demonstrates, at a bare minimum, that

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Price Waterhouse did not clearly and directly overrule or abrogate Blum or hold that Title VII prohibits discrimination on the basis of sexual orientation. The fact that the Supreme Court recently denied the plaintiff ’s petition for a writ of certiorari in Evans suggests that the Supreme Court also does not discern any conflict between Price Waterhouse and Evans.
Contrary to Plaintiff ’s assertions, Evans does not clearly and directly conflict with Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). Glenn is not directly on point and does not squarely address whether sexual orientation discrimination is prohibited by Title VII. Instead, Glenn addressed the separate and distinct issue of whether discrimination against a transgendered individual because of her gender non-conformity is actionable sex discrimination. Indeed, Evans applied Glenn by reversing the dismissal of the plaintiff ’s gender non-conformity claim. Even if Glenn held that sexual orientation discrimination is prohibited by Title VII (which it did not), then Glenn – not Evans – would need to be disregarded under the prior [9] panel rule because any such holding in Glenn would be contrary to this Court’s prior decision in Blum. In any event, the Eleventh Circuit evidently concluded that Evans does not conflict with Glenn because it denied the plaintiff ’s petition for rehearing en bans in Evans. (Evans v. Ga. Reg’l Hosp., Appeal No. 15-15234-BB) (11th Cir.) (Order of July 6, 2017).
Based on the foregoing, Plaintiff ’s contention that Title VII already prohibits discrimination on the basis of sexual orientation is circular and contrary to Evans

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and Blum. Moreover, the EEOC’s position that Title VII prohibits discrimination on the basis of sexual orientation is not binding on this Court and is contrary to Evans and Blum.
Finally, Plaintiff ’s reliance on Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), which held that same-sex sexual harassment is actionable under Title VII, is inapposite. Evans concluded that Oncale is not clearly on point or contrary to Blum, and did not squarely address whether sexual orientation discrimination is prohibited by Title VII. Plaintiff may not re-litigate the correctness of Evans’ holding on this point in this appeal. In any event, other circuits have had little difficulty distinguishing between same-sex sexual harassment that is actionable under Title VII pursuant to Oncale, and harassment based on sexual orientation, which is not actionable under Title VII. The fact that the Supreme Court recently [10] denied the plaintiff ’s petition for a writ of certiorari in Evans suggests that the Supreme Court also does not discern any conflict between Oncale and Evans.
ARGUMENT AND CITATION OF AUTHORITY
I. Under Binding Eleventh Circuit Precedent, The District Court Correctly Held That Plaintiff Cannot Assert A Viable Claim For Sex Discrimination Based On His Sexual Orientation
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”)

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prohibits discrimination on the basis of an individual’s “race, color, religion, sex, or national origin.” Sexual orientation is not an enumerated protected class within the statute. Undeterred, Plaintiff alleges a Title VII sex discrimination claim based upon his claim that he was terminated because of his sexual orientation. However, as the district court correctly held, Plaintiff ’s claim is foreclosed by binding Eleventh Circuit precedent.
A. This Court Held In Blum v. Gulf Oil Corp. That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation
In Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979),2 a former employee sued Gulf Oil Corp alleging that he was terminated due to (among other things) his sexual orientation. Gulf Oil presented evidence that the plaintiff was terminated for making personal phone calls related to his side business rather than due to his sexual orientation. Id. at 936-37. After a bench trial, the trial court concluded that the [11] plaintiff was terminated for legitimate, non-discriminatory reasons, mainly, his use of a phone for personal reasons. Id.
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit issued on or before September 30, 1981.

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The plaintiff appealed to the former Fifth Circuit, which affirmed the trial court’s judgment in favor of Gulf Oil on the plaintiff ’s sexual orientation claim. First, the former Fifth Circuit found that the plaintiff could not establish pretext to support any of his claims, including his sexual orientation claim. Id. at 937-38. The former Fifth Circuit also concluded that the district court properly rejected the plaintiff ’s sexual orientation claim because “discharge for homosexuality is not prohibited by Title VII or Section 1981.” Id. at 938.
B. This Court Recently Reaffirmed That Blum Remains Binding Precedent And That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation In Evans v. Ga. Reg’l Hosp.
In Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 125557 (11th Cir. 2017), cert. denied, 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017), this Court recently reaffirmed that Blum remains binding precedent and that Title VII does not prohibit discrimination on the basis of sexual orientation.
In Evans, the plaintiff was employed with the hospital as a security officer. The plaintiff asserted that she was subjected to a hostile work environment and terminated because of her sexual orientation and because of her gender non-conformity. Evans, 850 F.3d at 1250-52. The plaintiff asserted that these claims were actionable under Title VII as discrimination because of her sex. Id. at 1252. [12] The district court dismissed

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the plaintiff ’s sexual orientation claim on the ground that Title VII was not intended to cover discrimination against homosexuals. Id. at 1252-53. The district court also dismissed the plaintiff ’s gender non-conformity claim on the ground that it was “just another way to claim discrimination based on sexual orientation.” Id.
On appeal, the Eleventh Circuit affirmed the district court’s dismissal of the plaintiff ’s sexual orientation claim. The Eleventh Circuit stated as follows:
Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. She has not. Our binding precedent forecloses such as action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII. . . .”) “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en Banc, or by the Supreme Court.” Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) (internal quotations omitted).
Evans, 850 F.3d at 1255.
The Eleventh Circuit in Evans then rejected various arguments as to why the Court should not follow Blum. First, the Eleventh Circuit rejected the plaintiff ’s argument that the above statement in Blum was mere dicta, concluding that it was a holding that directly addressed an issue raised on appeal. Id. The Eleventh Circuit also held that, at the very least, the

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statement in Blum that discharge for homosexuality is not prohibited by Title VII was an alternative ground for its [13] decision affirming the judgment of the district court, and that, as such, it was binding precedent. Id. at 1255-56.
In addition, the Eleventh Circuit in Evans rejected the plaintiff ’s contention that Blum was overruled or abrogated by the Supreme Court’s subsequent decisions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). In this regard, the Eleventh Circuit in Evans stated as follows:
The fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit us to depart from Blum. See Randall v. Scott, 610 F.3d 701, 707 (11th Cir. 2010) (“While an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point.”) (citation omitted); N.L.R.B. v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. 1981) (“Without a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court . . . ”). Price Waterhouse and Oncale are neither clearly on point nor contrary to Blum. These Supreme Court decisions do not squarely address whether sexual orientation discrimination is prohibited by Title VII.
Evans, 850 F.3d at 1256.

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The Eleventh Circuit, however, reversed the district court’s dismissal of the plaintiff ’s gender nonconformity claim. Id. at 1254. The Eleventh Circuit explained that “[d]iscrimination based on failure to conform to a gender stereotype is sex-based discrimination.” Id. (citing Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011)). [14] The Eleventh Circuit in Evans reiterated Glenn’s holding that discrimination against a transgender individual because of gender non-conformity constitutes a viable sex discrimination claim under Title VII. Id. at 1254-55.3
C. Both The Eleventh Circuit And The United States Supreme Court Have Declined Further Review Of Evans
The Eleventh Circuit denied the plaintiff ’s petition for panel rehearing and for rehearing en banc in Evans on July 6, 2017. (Evans v. Ga. Reg’l Hosp., Appeal No. 15-15234-BB) (11th Cir.) (Order of July 6, 2017). The plaintiff then filed a petition for certiorari with the United States Supreme Court, which the Supreme Court recently denied on December 11, 2017.
3 Circuit Judge William Pryor issued a concurring opinion agreeing in full with the majority opinion but emphasizing that claims of discrimination based on sexual orientation are distinct from claims of discrimination based on gender stereotypes. Evans, 850 F.3d at 1258-1261 (Pryor, J., concurring). Circuit Judge Rosenbaum wrote a separate opinion concurring in the reversal and remand of the plaintiff’s gender non-conformity claim, but dissenting from the Court’s holding that Title VII does not prohibit discrimination on the basis of sexual orientation. Id. at 12611273 (Rosenbaum, J., concurring in part and dissenting in part).

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Evans v. Ga. Reg’l Hosp., 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017).
Based on the foregoing, Evans and Blum preclude Plaintiff from asserting that he was terminated because of his sexual orientation in violation of Title VII. Accordingly, the district court’s dismissal of Plaintiff ’s Title VII sexual orientation claim should be summarily affirmed.
[15] II. The Court Should Reject Plaintiff ’s Invitation To Disregard And Overrule Evans
Plaintiff urges the Court to disregard and “overrule” Evans because it was “wrongly decided.” (Brief of Appellant, pp. 2, 7, 20). Under the prior panel rule, however, this Court
may disregard the holding of a prior opinion only where that “holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). To constitute an “overruling” for the purposes of this prior panel precedent rule, the Supreme Court decision “must be clearly on point.” Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir. 2003); see also Main Drug., Inc. v. AETNA U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007) (“Of course, we will not follow prior panel precedent that has been overruled by a Supreme Court decision, but without a clearly contrary opinion of the Supreme Court or of this court

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sitting en banc, we cannot overrule a decision of a prior panel of this court.”) (quotation marks and citations omitted); United States v. Chubbuck, 252 F.3d 1300, 1305 n.7 (11th Cir. 2001) (“[T]he prior precedent rule would not apply if intervening on-point case law from either this Court en banc, the United States Supreme Court, or the Florida Supreme Court existed.”). In addition to being squarely on point, the doctrine of adherence to prior precedent also mandates that this intervening Supreme Court case actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel. See In re Provenzano, 215 F.3d 1233, 1235 (11th Cir. 2000) (“We would, of course, not only be authorized but also required to depart from [our prior decision] if an intervening Supreme Court decision actually overruled or conflicted with it.”); Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998) (“We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to [16] the point of abrogation by a subsequent en banc or Supreme Court decision.”).
United States v. Kaley, 579 F.3d 1246, 1255-56 (11th Cir. 2009) (emphasis added).
Thus, a Supreme Court or Eleventh Circuit en banc decision cannot be relied upon to disregard a prior panel decision unless it is an intervening decision issued subsequent to the prior panel decision at issue. Kaley, 579 F.3d at 1255-56 (citing cases); United States

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v. Chafin, 808 F.3d 1263, 1274 (11th Cir. 2015) (“For a Supreme Court decision to ‘overrule’ a prior panel precedent, the intervening Supreme Court case [must] actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel”) (citation and punctuation omitted) (emphasis added), cert denied, 136 S. Ct. 1391 (2016); Randall, 610 F.3d at 707 (“While an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point.”) (citation and punctuation omitted) (emphasis added).
In this case, as discussed below, Plaintiff has failed to cite any intervening or subsequent Supreme Court or Eleventh Circuit en banc decision that is clearly and directly on point and which overrules or abrogates Evans. Moreover, the preexisting cases relied on by Plaintiff do not clearly and directly conflict with Evans or address whether Title VII encompasses claims of discrimination on the basis of sexual orientation.
[17] A. Plaintiff Has Failed To Identify Any Intervening Or Subsequent Supreme Court Or En Banc Eleventh Circuit Decision That Is Clearly And Directly On Point And That Overrules Or Abrogates Evans
Plaintiff has not identified any intervening or subsequent Supreme Court or en banc Eleventh Circuit decision that is clearly and directly on point and that

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has overruled or abrogated Evans. Instead, Plaintiff improperly attempts to re-litigate Evans and argue that Evans incorrectly construed or distinguished preexisting Supreme Court (Price Waterhouse) and Eleventh Circuit (Glenn) precedent. Plaintiff, however, cannot do so under the clearly established prior panel rule. See, e.g., Wood v. Comm’r of Soc. Sec., 861 F.3d 1197 (11th Cir. 2017) (“To the extent Mr. Culbertson points to other circuits to argue [the prior panel decision] was wrongly decided, this does not empower us to ignore it”); Chubbuck, 252 F.3d at 1305 n.7 (“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong”); Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.) (“[T]he prior panel precedent rule is not dependent on a subsequent panel’s appraisal of the initial decision’s correctness. Nor is the application of the rule dependent on . . . wisdom of the judges involved in the prior decision”), cert. denied, 531 U.S. 957 (2000).
The district court’s dismissal of Plaintiff ’s sexual orientation claim therefore should be summarily affirmed.
[18] B. Evans Does Not Clearly And Directly Conflict With The Supreme Court Or Eleventh Circuit Decisions Cited By Plaintiff
Leaving aside Plaintiff ’s failure to cite any intervening or subsequent Supreme Court or en banc Eleventh Circuit decision clearly or directly on point that

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overrules or abrogates Evans, Plaintiff has not cited any Supreme Court or en banc Eleventh Circuit decision that is clearly and directly on point and which directly conflicts with Evans.
1. Price Waterhouse Is Not Clearly And Directly On Point And Does Not Overrule Or Abrogate Evans
Plaintiff asserts that the Court should disregard and overrule Evans because it conflicts with Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Plaintiff ’s contentions are meritless and were properly rejected by Evans.
In Price Waterhouse, a female senior manager was not invited to become a partner with an accounting firm. The plaintiff introduced evidence that various male partners made stereotypical comments about her when considering her candidacy. These comments included that the plaintiff was “macho,” that she “overcompensated for being a woman,” that she should take “a course at charm school,” that certain partners objected to her swearing only “because it’s a lady using foul language” and similar comments. Id. at 235. The partner who informed the plaintiff of the decision to place her candidacy on hold told her that, if she wanted to improve her chances for partnership in the future, she should “walk more femininely, talk more [19] femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.” Id. at 235.

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A plurality of four justices, joined by two concurring justices, held that such evidence that an employer took adverse action against an employee for failure to conform to a stereotype associated with the employee’s protected class was sufficient to establish a violation under Title VII. Price Waterhouse, 490 U.S. at 251; Id. at 258-261 (White, J., concurring); Id. at 302 (O’Connor, J., concurring). For example, “[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not.” Id. at 251.
Contrary to Plaintiff ’s assertions (and the assertions of the dissenting judge in Evans), Price Waterhouse’s holding that an employer violates Title VII by making employment decisions because of gender stereotypes such as how a female should dress or wear her hair, what personality traits (such as “aggressiveness”) a female should have, or how a female should talk, is not clearly and directly on point nor contrary to Evans’ holding that Title VII does not prohibit discrimination on the basis of sexual orientation. See Evans, 850 F.3d at 1256 (concluding that Price Waterhouse is ‘neither clearly on point nor contrary to Blum” and that Price [20] Waterhouse “do[es] not squarely address whether sexual orientation discrimination is prohibited by Title VII”).
Simply put, Price Waterhouse does not clearly and directly address whether sexual orientation discrimination is prohibited by Title VII, but rather merely addresses gender stereotypes relating to how one

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appears or behaves in the workplace. This conclusion is underscored by the fact that most circuit courts have held – notwithstanding Price Waterhouse – that Title VII does not encompass discrimination on the basis of sexual orientation. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (citing and discussing Price Waterhouse, but holding that “Title VII does not proscribe harassment simply because of sexual orientation”); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (“Like other courts, we have therefore recognized that a gender stereotyping claim should not be used to ‘bootstrap protection for sexual orientation into Title VII”) (citing cases);4 Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290-292 (3d Cir. 2009) (discussing Price Waterhouse and distinguishing between harassment claims based on sexual orientation for which plaintiff may not recover, and harassment claims based on gender stereotyping (high voice and walking effeminately) for which plaintiff may recover); Bibby v. Phila. Coca Cola Bottling [21] Co., 260 F.3d 257, 261, 263-65 (3d Cir. 2001) (citing and discussing Price Waterhouse, but holding that “Title VII does not prohibit discrimination based on sexual orientation”), cert. denied, 534 U.S. 1155 (2002); Hopkins v. Baltimore Gas & Elect. Co., 77 F.3d 745, 751-52 (4th Cir. 1996) (discussing Price Waterhouse, but concluding that “Title VII does not prohibit conduct based on the employee’s sexual orientation” as
4 In Zarda v. Altitude Express, Inc., 2017 U.S. App. LEXIS 13127 (2d Cir. May 25, 2017), the Second Circuit agreed to consider this issue en banc. That case is still pending.

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opposed to “the fact that the employee is a man or a woman”), cert. denied, 519 U.S. 818 (1996); Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015) (“Title VII in plain terms does not cover ‘sexual orientation’ ”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763-66 (6th Cir. 2006) (rejecting argument that Price Waterhouse supports conclusion that Title VII encompasses sexual orientation), cert. denied, 551 U.S. 1104 (2007); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (en banc) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual orientation”), cert. denied, 538 U.S. 922 (2003); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (discussing Price Waterhouse, but holding that “Title VII’s protections do not extend to harassment due to a person’s sexuality”); but see Hively v. Ivy Tech. Cmty Coll. of Indiana, 853 F.3d 339, 340-41 (7th Cir. 2017) (en banc) (holding that discrimination on basis of sexual orientation is a form of sex discrimination under Title VII).
[22] In a similar vein, Plaintiff contends that Evans incorrectly held that Blum remains good law because Price Waterhouse abrogated the case cited by Blum in support of its holding that discharge for homosexuality is not prohibited by Title VII. (Brief of Appellant, pp. 11-13). More specifically, Plaintiff points out that Blum cited to Smith v. Liberty Ins. Co., 569 F.2d 325 (5th Cir. 1978), which held that discrimination based on “effeminate” behavior was not prohibited by Title VII and stated in a footnote that the EEOC

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had ruled that adverse action against homosexuals is not cognizable under Title VII. Id. at 327 & n.1. (Id. at p. 12). Plaintiff points out that Smith’s holding regarding gender stereotyping has been abrogated by Price Waterhouse and that the EEOC now takes the position that Title VII encompasses sexual orientation. (Id. at pp. 12-13).
However, as previously discussed, Evans held that Blum is binding precedent in this Circuit, that Price Waterhouse is not clearly on point or contrary to Blum, and that Price Waterhouse did not squarely address whether sexual orientation discrimination is prohibited by Title VII. Evans, 850 F.3d at 1256. Plaintiff may not re-litigate in this appeal the correctness of Evans’ holding that Blum is binding Circuit precedent.
In any event, Smith also rejected the plaintiff ’s claim that Title VII prohibits an employer from rejecting a job applicant based on his or her sexual preference. Smith, 569 F.2d at 326-27 & n. 1. In doing so, Smith noted that the EEOC had taken [23] the position that Title VII does not prohibit adverse action against homosexuals. Id at 327 n. 1. Thus, contrary to Plaintiff ’s contentions, Price Waterhouse did not impact Smith’s holding that Title VII does not prohibit an employer from making an employment decision based on the employee’s or applicant’s sexual orientation.
Nevertheless, even if Price Waterhouse somehow weakened or undermined the analysis employed in Blum as Plaintiff contends, it did not clearly and directly overrule or abrogate Blum’s holding that Title

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VII does not prohibit discrimination on the basis of sexual orientation. In this regard, the Eleventh Circuit has held that a prior panel decision may not be disregarded simply because an intervening Supreme Court decision has merely weakened the prior panel decision. See, e.g., United States v. Washington, 2017 U.S. App. LEXIS 16723, at *5, 2017 WL 3822039 (11th Cir. Aug. 31, 2017) (“To conclude that we are not bound by a prior holding in light of a Supreme Court case, we must find that case is clearly on point and that it actually abrogate[s] or directly conflict[s] with, as opposed to merely weaken[s], the holding of the prior panel.”) (punctuation and citation omitted); Chafin, 808 F.3d at 1274 (“For a Supreme Court decision to overrule a prior panel precedent, the intervening Supreme Court case [must] actually abrogate or directly conflict with, as opposed to merely weaken, the holding of the prior panel.”) (punctuation and citations omitted); Kaley, 579 F.3d at 1255 (same) (citation omitted); Chubbuck, 252 F.3d at 1305 n.7 (“We are not at liberty to disregard [24] binding case law that is so closely on point and has been only weakened, rather than directly overruled, by the Supreme Court”) (quoting Fla. League of Professional Lobbyists v. Meggs, 87 F.3d 457, 462 (11th Cir. 1998)).
In any event, the Supreme Court evidently concluded that Evans does not conflict with Price Waterhouse because it very recently denied the plaintiff ’s petition for a writ of certiorari in Evans. Evans v. Ga. Reg’l Hosp., 2017 U.S. LEXIS 7377 (U.S. Dec. 11, 2017). Based on the foregoing, Price Waterhouse does not

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provide any basis for the Court to disregard Evans. The district court’s dismissal of Plaintiff ’s sexual orientation claim therefore should be affirmed.
2. Evans Is Wholly Consistent With Glenn v. Brumby and In Fact Applied Glenn
Plaintiff also contends that Evans conflicts with Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (Brief of Appellant, pp. 13-15). However, Glenn is not directly on point and does not squarely address whether sexual orientation discrimination is prohibited by Title VII. Indeed, Glenn does not cite, much less discuss, Blum. Instead, Glenn addressed the separate and distinct issue of whether discrimination against a transgendered individual because of her gender non-conformity is actionable sex discrimination under the Equal Protection Clause, and held that it does. Id. at 1317-1320. As Evans correctly observed, a gender non-conformity claim “constitutes a separate, distinct avenue for relief under Title VII.” Evans, 850 F.3d at 1254-55. Thus, Evans does not conflict with Glenn, but rather properly [25] applied it by reversing the dismissal of the plaintiff ’s gender non-conformity claim. Id.5
To the extent that Plaintiff contends that Glenn somehow held that sexual orientation discrimination is prohibited by Title VII, then Glenn – not Evans – would need to be disregarded under the prior panel
5 The County notes that Circuit Judge William Pryor was on the panel in both Glenn and Evans.

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rule because any such holding in Glenn would be contrary to this Court’s prior decision in Blum. In any event, the Eleventh Circuit evidently concluded that Evans does not conflict with Glenn because it denied the plaintiff ’s petition for rehearing en banc in Evans. (Evans v. Ga. Reg’l Hosp., Appeal No. 15-15234-BB) (11th Cir.) (Order of July 6, 2017). According [sic], Glenn does not provide any support for Plaintiff ’s contention that the Court should disregard and overrule Evans.
III. Plaintiff’s Contention That Title VII Already Protects Employees Against Discrimination On The Basis Of Sexual Orientation Ignores Evans And Blum And Is Circular
Finally, Plaintiff summarily declares that Evans “was wrongly decided because Title VII already prohibits discrimination on the basis of sexual orientation – because it is discrimination on the basis of sex. . . .”). (Brief of Appellant, p. 19) (emphasis in original). Of course, this contention is comically circular. Evans and Blum held that Title VII does not prohibit discrimination on the basis of sexual [26] orientation, and Plaintiff has failed to demonstrate that the Court may overrule or disregard this binding Circuit precedent.
Plaintiff contends that Title VII already prohibits discrimination on the basis of sexual orientation because the EEOC changed course in 2015 and has now taken the position that Title VII encompasses sexual orientation. (Brief of Appellant, pp. 17-18). However, EEOC interpretations of Title VII are not binding on

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this Court and are entitled to deference “only to the extent that [they have] the power to persuade.” EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1031 (11th Cir. 2016) (quoting Christiansen v. Harris Cty., 529 U.S. 576, 587 (2000). See also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Therefore, the Court may not disregard Evans and Blum based on the EEOC’s new nonbinding and unpersuasive interpretation.
Plaintiff next contends that Title VII already prohibits discrimination on the basis of sexual orientation because the Supreme Court held in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) that same-sex sexual harassment is actionable under Title VII. (Brief of Appellant, p. 16). However, Oncale simply extended the Supreme Court’s previous rejection of any conclusive presumption that an employer will not discriminate against members of the same protected class. Id. at 78-79. The Court in Oncale also emphasized that a claim for same-sex [27] harassment did not require a showing that the harassing conduct was motivated by sexual desire. Id. at 80.
Therefore, contrary to Plaintiff ’s assertions, Oncale does not squarely address whether Title VII protects against discrimination on the basis of sexual orientation. Indeed, Evans concluded that Oncale did not squarely address whether sexual orientation discrimination is prohibited by Title VII. Evans, 850 F.3d at 1256. For the reasons previously discussed, Plaintiff may not re-litigate the correctness of Evans’ holding on this point in this appeal.

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In any event, other circuits have had little difficulty distinguishing between same-sex sexual harassment that is actionable under Title VII pursuant to Oncale, and harassment based on sexual orientation, which is not actionable under Title VII. See, e.g., Higgins, 194 F.3d 252, 258-260 (citing and discussing Oncale, but holding that “Title VII does not proscribe harassment simply because of sexual orientation”); Bibby, 260 F.3d at 261, 263-65 (citing and discussing Oncale, but holding that plaintiff ’s harassment claim was not actionable because “[h]is claim was, pure and simple, that he was discriminated against because of his sexual orientation”); Vickers, 453 F.3d at 762-66 (citing and discussing Oncale, but holding that plaintiff ’s harassment claim was not actionable because alleged harassment was based on his sexual orientation, not his sex); Medina, 413 F.3d at 1134-35 (citing and discussing Oncale, but holding that plaintiff could not assert hostile work [28] environment claim based on her heterosexuality). Accordingly, Oncale does not even remotely support Plaintiff ’s contention that Title VII already prohibits discrimination on the basis of sexual orientation.
Finally, Plaintiff argues that Congress’s failed attempts to enact the Employment Non-Discrimination Act to prohibit employment discrimination on the basis of sexual orientation are not controlling as to whether Title VII protects against sexual orientation discrimination. In support of this contention, Plaintiff cites to various Supreme Court decisions cautioning against relying on congressional inaction as a basis for

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interpreting a statute. (Brief of Appellant, pp. 18-19). This contention is irrelevant because the majority opinion in Evans did not mention, much less rely on, the fact that Congress repeatedly has failed to enact ENDA. However, as Judge Pryor cogently stated in his concurring opinion, this “illustrates that Congress is the appropriate branch in which to raise the arguments raised” by Plaintiff in this appeal. Evans, 850 F.3d at 1261 (Pryor, J., concurring).
Based on the foregoing, Title VII does not prohibit discrimination on the basis of sexual orientation, and the district court’s dismissal of Plaintiff ’s sexual orientation claim therefor should be affirmed.
CONCLUSION
For all the reasons set forth herein, the Court is bound under the prior panel rule to follow Evans and Blum and hold that Title VII does not encompass claims of [29] discrimination on the basis of sexual orientation. Accordingly, the district court’s dismissal of Plaintiff ’s sexual orientation claim should be affirmed.
Respectfully Submitted
FREEMAN MATHIS & GARY, LLP
/s/ Jack R. Hancock Jack Hancock Georgia Bar No. 322450 William H. Buechner, Jr. Georgia Bar No. 086392
Attorneys for Appellee Clayton County

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FREEMAN MATHIS & GARY, LLP 100 Galleria Parkway, Suite 1600 Atlanta, Georgia 30339 Telephone: (770) 818-0000 Facsimile: (770) 937-9960 jhancock@fmglaw.com bbuechner@fmglaw.com
[30] [Certificate Of Compliance Omitted]

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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
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No. 17-13801
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D.C. Docket No. 1:16-cv-01460-ODE GERALD LYNN BOSTOCK,
Plaintiff - Appellant, versus CLAYTON COUNTY BOARD OF COMMISSIONERS,
Defendant, CLAYTON COUNTY,
Defendant - Appellee.
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Appeal from the United States District Court for the Northern District of Georgia
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(Filed Jul. 18, 2018) Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.
BY THE COURT:
A member of this Court in active service having requested a poll on whether this case should be

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reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.
ROSENBAUM, Circuit Judge, joined by JILL PRYOR, Circuit Judge, dissenting from the denial of rehearing en banc:
The issue this case raises—whether Title VII protects gay and lesbian individuals from discrimination because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love—is indisputably en-bancworthy. Indeed, within the last fifteen months, two of our sister Circuits have found the issue of such extraordinary importance that they have each addressed it en banc. See Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).1
1 And that’s really saying something: in the past five years, the Second Circuit appears to have decided only two cases en banc—including Zarda—of the more than 24,000 appeals it terminated during that same period. See Westlaw search in CTA2 database: “adv:DA(aft 2008) & PR,PA,JU(en/2 banc)” (last visited July 10, 2018); Administrative Office of the United States Courts, Federal Court Management Statistics of the Courts of Appeals, http://www.uscourts.gov/sites/default/files/fcms_na_appprofile1231. 2017.pdf; http://www.uscourts.gov/sites/default/files/data_tables/ fcms_na_appsumary1231.2016.pdf; http://www.uscourts.gov/ sites/default/files/data_tables/fcsm_appeals_summary_pages_ december_2015.pdf; http://www.uscourts.gov/sites/default/files/ statistics_import_dir/appeals-fcms-summary-pages-december-2014. pdf; http://www.uscourts.gov/sites/default/files/statistics_import_ dir/appeals-fcms-summary-pages-december-2013.pdf. In fact,

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No wonder. In 2011, about 8 million Americans identified as lesbian, gay, or bisexual.2 See Gary J. Gates, How Many People are Lesbian, Gay, Bisexual, and Transgender?, The Williams Inst., 1, 3, 6 (Apr. 2011), https://williamsinstitute.lawucla.edu/wp-content/ uploads/Gates-How-Many-People-LGBT-Apr-2011.pdf (last visited July 10, 2018). Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match
Chief Judge Katzmann has characterized the Second Circuit as having a “longstanding tradition of general deference to panel adjudication.” Ricci v. DeStafano, 530 F.3d 88, 89 (2d Cir. 2008) (Katzmann, J., concurring in the denial of rehearing en banc); see also id. (“Throughout our history we have proceeded to a full hearing en banc only in rare and exceptional circumstances.”). Similarly, in the past five years, the Seventh Circuit appears to have decided only sixteen cases en banc, including Hiveley, of the more than 15,000 appeals that Circuit has terminated during that time. See Westlaw search in CTA7 database: “adv:PR,PA,JU(en/2 banc) & DA(after 2012)% (den!/1 “en banc”)” (last visited July 10, 2018); Federal Court Management Statistics of the Courts of Appeals, United States Courts, supra. Yet both Circuits found the question at issue here to be of such significance to warrant adding the respective cases to their very exclusive lists of en banc cases.
2 Most statistics since that time include the number of individuals who identify as transgender. We have already held that Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)), requires the conclusion that Title VII precludes discrimination against transgender individuals because they fail to conform to their employers’ stereotypes of how a member of the individual’s birth-assigned gender should act or feel. See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

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their employers’ expectations.3 That’s a whole lot of people potentially affected by this issue.4
Yet rather than address this objectively en-bancworthy issue, we instead cling to a 39-year-old precedent, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), that was decided ten years before Price
3 See, e.g., 2017 Workplace Equality Fact Sheet, Out & Equal Workplace Advocates, http://outandequal.org/2017-workplaceequality-fact-sheet/ (last visited July 10, 2018) (“One in four LGBT employees report experiencing employment discrimination in the last five years.”); LGBT People in Georgia, The Williams Inst., https://williamsinstitute.law.ucla.edu/wp-content/uploads/ Georgia-fact-sheet.pdf (last visited July 10, 2018) (finding 25% of LGBT Georgians reported workplace discrimination). I have been unable to find current statistics providing the percentage of only lesbian, gay, and bisexual individuals (without the inclusion of transgender individuals) who report discrimination in the workplace. Nevertheless, according to Professor Gary Gates’s report for the Williams Institute, see supra at 1, “[a]n estimated 3.5% of adults in the United States identify as lesbian, gay, or bisexual and an estimated 0.3% of adults are transgender.”
4 Studies show that this discrimination takes a myriad of forms: LGBT individuals are not interviewed and hired at the same rate as their heterosexual peers, and they face pay and promotional disparities. See Brad Spears, Christy Mallory, Documented Evidence of Employment Discrimination & Its Effects on LGBT People, The Williams Inst., 14 (July 2011), https:// williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-MalloryDiscrimination-July-20111.pdf (last visited July 10, 2018). Studies also show that employment discrimination against LGBT individuals correlates with effects beyond the employment sphere. For example, LGBT employees who experienced employment discrimination reported higher levels of psychological distress and health-related problems. See Craig R. Waldo, Working in a Majority Context: A Structural Model of Heterosexism as Minority Stress in the Workplace, 46 J. of Counseling Psych. 218, 224-28 (1999).

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Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion of Blum. Worse still, Blum’s “analysis” of the issue is as conclusory as it gets, consisting of a single sentence that, as relevant to Title VII, states in its entirety, “Discharge for homosexuality is not prohibited by Title VII.” Blum, 597 F.2d at 938.5 And if that’s not bad enough, to support this proposition, Blum relies solely on Smith v. Liberty Mutual Insurance Co., 569 F.2d 325 (5th Cir. 1978)—a case that itself has been necessarily abrogated not only by Price Waterhouse but also by our own precedent in the form of Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).6 I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.7
5 For comparison’s sake, this issue spawned 163 pages of analysis from the Second Circuit in Zarda and 69 pages of analysis from the Seventh Circuit in Hively.
6 Smith concluded that Title VII does not prohibit discrimination against male employees who present as “effeminate.” Smith v. Liberty Mut. Ins., 569 F.2d 325, 328 (5th Cir. 1978). In Price Waterhouse, however, the Supreme Court concluded that Title VII did protect from discrimination a woman who acted “macho,” 490 U.S. at 235—the same genre of problem that arose in Smith. And in Glenn, we found that Price Waterhouse requires the understanding that Title VII protects “[a]ll persons . . . from discrimination on the basis of gender stereotype,” Id. at 1318.
7 The pernicious effects of this discrimination are not just limited to those on people, they also drag down the economy by, among other things, reducing worker productivity and increasing turnover. See M.V. Lee Badgett, The Economic Case for Supporting LGBT Rights, The Atlantic, Nov. 29, 2014, https://www.

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I have previously explained why Price Waterhouse abrogates Blum and requires the conclusion that Title VII prohibits discrimination against gay and lesbian individuals because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1261-73 (11th Cir.) (Rosenbaum, J., dissenting), cert. denied, 138 S. Ct. 557 (2017). Both the Second and Seventh Circuits have likewise concluded that their respective pre-Price Waterhouse precedents reaching the same conclusion as Blum cannot stand. See Zarda, 883 F.3d at 113 (observing that attempts to distinguish Price Waterhouse amount to “semantic sleight[s] of hand . . . not a defense . . . a distraction”); Hively, 853 F.3d at 350-51 (“It would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation’ . . . The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”). I continue to firmly believe that Title VII prohibits discrimination against
theatlantic.com/business/archive/2014/11/the-economic-case-forsupporting-lgbt-rights/383131/ (last visited July 10, 2018) (comparing the impact of employment discrimination against LGBT individuals on countries’ gross domestic products); M.V. Lee Badgett et al., The Business Impact of LGBT-Supportive Workplace Policies, The Williams Inst. (May 2013), http://williams institute.law.ucla.edu/wp-content/uploads/Business-Impact-LGBTPolicies-Full-Report-May-2013.pdf (last visited July 10, 2018).

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gay and lesbian individuals because they fail to conform to their employers’ views when it comes to whom they should love.
But I dissent today for an even more basic reason: regardless of whatever a majority of this Court’s views may turn out to be on the substantive issue that Bostock raises, we have an obligation to, as a Court, at least subject the issue to the “crucial” “crucible of adversarial testing,”8 and after that trial “yield[s] insights or reveal[s] pitfalls we cannot muster guided only by our own lights,”9 to give a reasoned and
8 I am, of course, aware that petitions for certiorari in Bostock and Zarda are currently pending before the Supreme Court. But as of the date we as a Circuit voted against granting en banc rehearing in this case and I distributed this dissent to my colleagues—July 10, 2018—nearly three months remain before the Supreme Court is even again in session. And who knows whether the Court will grant either petition? See Supreme Court, The Justice’s Caseload, https://www.supremecourt.gov/about/justicecase load.aspx (last visited July 10, 2018) (stating that the Supreme Court usually grants review in only 80 cases of the 8,000 certiorari petitions filed each year). We have been unhindered by similar impediments in the past. See, e.g., In re Anthony Johnson, 815 F.3d 733 (11th Cir. 2016) (vacating panel order and ordering en banc rehearing where panel had held in abeyance petitioner’s application to file second or successive § 2255 motion pending the Supreme Court’s impending determination in Welch v. United States, 136 S. Ct. 790 (2016), of whether the new rule announced by the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), was retroactively applicable). Even if the Supreme Court grants one or both of these petitions eventually, we could simply hold our en banc proceedings in Bostock in abeyance pending the Supreme Court’s resolution of the issue.
9 Sessions v. Dimaya, 138 S. Ct. 1204, 1232 (Gorsuch, J., concurring in part and concurring in the judgment) (citation and internal quotation marks omitted).

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principled explanation for our position on this issue— something we have never done.10
Particularly considering the amount of the public affected by this issue, the legitimacy of the law demands we explain ourselves. See Harvie Wilkinson III, The Role of Reason in the Rule of Law, 56 U. Chi. L. Rev. 779, 798 (1989) (“Reason . . . defines the federal judicial system. Nothing in the Constitution requires the written justification of judicial decisions, but a judiciary accountable to reason cannot resort to arbitrary acts. It requires candor from judges in addressing the strongest arguments against their own views.”); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 472 (1981) (Stevens, J., dissenting) (“[Common law judges’] explanations of why they decided cases as they did provided guideposts for future decisions. . . . Many of us believe that those statements of reasons provided a better guarantee of justice than . . . a code written in sufficient detail to be fit for Napoleon.”); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19-20 (1959) (“The virtue or demerit of a judgment turns, therefore, entirely on the reasons that support it.”); 1 Blackstone, Commentaries 71 (1803) (observing that written court decisions have long been “held in the highest regard” because the
10 In Evans, 850 F.3d 1248, the panel majority declined to address (or even consider) the substantive Title VII issue and instead dispensed with the case by relying solely on Blum and the prior-precedent rule. And Bostock simply invoked Evans and Blum. Bostock v. Clayton Cty. Bd. of Commissioners, 723 F. App’x 964, 964-65 (11th Cir. 2018).

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public can examine and understand “the reasons the court gave for [its] judgment.”).
Despite never offering a reasoned explanation tested by the adversarial process, a majority of this Court apparently believes that Blunt somehow prophesized the correct post-Price Waterhouse legal conclusion in its one-sentence “analysis” that relies solely on authority itself abrogated by Price Waterhouse. If the majority truly believes that, it should grant en banc rehearing and perform the “considerable calisthenics” to explain why gender nonconformity claims are cognizable except for when a person fails to conform to the “ultimate” gender stereotype by being attracted to the “wrong” gender. Hively, 853 F.3d at 346, 350. And if it doesn’t or if it believes—as I and others do—that these “calisthenics” are simply “impossible,” Hively, 853 F.3d at 350-51, it should not sit idly by and leave victims of discrimination remediless by allowing Blum to continue to stand.

 
 No. 17-1618 ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
GERALD LYNN BOSTOCK,
Petitioner, v.
CLAYTON COUNTY, GEORGIA,
Respondent.
---------------------------------  ---------------------------------
On Petition For Writ Of Certiorari To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------  ---------------------------------
RESPONDENT’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI
---------------------------------  ---------------------------------
JACK R. HANCOCK Counsel of Record
WILLIAM H. BUECHNER, JR. FREEMAN MATHIS & GARY, LLP 661 Forest Parkway Suite E Forest Park, Georgia 30297-2256 (404) 366-1000 jhancock@fmglaw.com
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ...................................... i
TABLE OF AUTHORITIES ................................. iv
INTRODUCTION ................................................ 1
STATEMENT OF THE CASE.............................. 2
Statement of the Facts ..................................... 2
Course of Proceedings ...................................... 3
REASONS WHY THE PETITION FOR WRIT OF CERTIORARI SHOULD BE DENIED ....... 7
I. THE COURT SHOULD DENY CERTIORARI AND AWAIT FURTHER DEVELOPMENT IN THE CIRCUIT COURTS CONCERNING A RECENT CIRCUIT SPLIT AS TO WHETHER OR NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION ......... 9
A. The Circuit Courts Have Held For Decades That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation .............................. 9
B. A very Recent Circuit Split Does Not Warrant Granting Certiorari In This Case ..................................................... 11

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TABLE OF CONTENTS – Continued
Page
II. THE COURT SHOULD DENY CERTIORARI BECAUSE PETITIONER HAS FAILED TO DEMONSTRATE THAT THE ELEVENTH CIRCUIT ERRED IN RULING THAT TITLE VII DOES NOT PROHIBIT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION.................... 16
A. Petitioner’s Contention That Discrimination Because Of “Sex” Includes Discrimination Because Of “Sexual Orientation” Is Meritless........................................... 16
B. Price Waterhouse Did Not Abrogate Circuit Case Law Holding That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation .......... 25
C. Oncale Did Not Abrogate Circuit Case Law Holding That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation ......................... 28
III. PETITIONER’S ADDITIONAL REASONS AS TO WHY CERTIORARI SHOULD BE GRANTED ARE IRRELEVANT TO THIS CASE.......................................................... 30
IV. THIS COURT SHOULD DECLINE PETITIONER’S INVITATION TO GRANT CERTIORARI, SEIZE LEGISLATIVE POWER FROM CONGRESS AND REWRITE TITLE VII ..................................... 33

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TABLE OF CONTENTS – Continued Page
V. THIS CASE IS NOT THE APPROPRIATE VEHICLE TO RESOLVE WHETHER OR NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION ......................................... 34
CONCLUSION..................................................... 36

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TABLE OF AUTHORITIES
Page
CASES
AT&T, Inc. v. U.S. ex rel. Heath, 136 S. Ct. 2505 (2016) .......................................................................12
Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (July 15, 2015) ................ 4, 15, 18
Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001), cert. denied, 534 U.S. 1155 (2002) .........................................................................9
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) ............................................................ 4, 5, 6, 10
Bostock v. Clayton Cty. Bd. of Comm’rs, 723 F. App’x 964 (11th Cir. 2018) ........................................6
Bostock v. Clayton Cty., 2017 U.S. Dist. LEXIS 217815 (N.D. Ga. July 21, 2017) ...............................5
Bostock v. Clayton Cty. Bd. of Comm’rs, 2018 U.S. App. LEXIS 19835, 2018 WL 3455013 (11th Cir. July 18, 2018) ...................................................35
Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015) ........................................................................10
Christiansen v. Harris Cty., 529 U.S. 576 (2000) .......15
City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978) .................................28
Clemons v. City of Memphis, Tn., 2016 U.S. Dist. LEXIS 179037, 2016 WL 7471412 (W.D. Tenn. Dec. 28, 2016) ..........................................................16

v
TABLE OF AUTHORITIES – Continued Page
Cooper v. U.S. Postal Service, 471 U.S. 1022 (1985) .......................................................................12
Crawford v. LVNV Funding, LLC, 135 S. Ct. 1844 (2015) ..............................................................12
E.I. Dupont de Nemours & Co. v. Smiley, 138 S. Ct. 2563 (2018) ....................................................12
Evans v. Ga. Reg’l Hosp., 138 S. Ct. 557 (2017) .....8, 13 Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th
Cir. 2017), cert. denied, 138 S. Ct. 557 (2017) ..................................................... 5, 6, 7, 10, 15 Girouard v. United States, 328 U.S. 61 (1946) ...........23 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) ......... 5
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .......................................................................29
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) .............................................9
Hinton v. Virginia Union Univ., 185 F.Supp.3d 807 (E.D. Va. 2016) ..................................................16
Hively v. Ivy Tech. Comm. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017)................................... passim
Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir.), cert. denied, 519 U.S. 818 (1996) ........... 9, 20
Lackey v. Texas, 514 U.S. 1046 (1995) ........................14 Lawrence v. Texas, 539 U.S. 558 (2003) ......................19
McCarthan v. Collins, 138 S. Ct. 502 (2017)..............12 McCray v. New York, 461 U.S. 961 (1983) ..................14

vi
TABLE OF AUTHORITIES – Continued Page
McKethen v. United States, 439 U.S. 936 (1978) ........13 Medina v. Income Support Div., 413 F.3d 1131
(10th Cir. 2005)..................................................10, 27 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
(1986) .......................................................................34 Metheny v. Hamby, 488 U.S. 913 (1988).....................12 Newport News Shipbuilding and Dry Dock Co. v.
E.E.O.C., 462 U.S. 669 (1983)..................................28 Obergefell v. Hodges, 135 S. Ct. 2584 (2015)........19, 33 Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75 (1998) .................................................. passim Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S.
633 (1990) ................................................................23 Perrin v. United States, 444 U.S. 37 (1979) ................18 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)... passim Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d
Cir. 2009) .................................................................27 Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061
(9th Cir. 2002), cert. denied, 538 U.S. 922 (2003) .......................................................................10 Romer v. Evans, 517 U.S. 620 (1996)..........................19 Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014) .......18 Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............15 Stuckett v. U.S. Postal Service, 469 U.S. 898 (1984) .......................................................................13

vii
TABLE OF AUTHORITIES – Continued Page
U.S. Dep’t of Hous. & Urban Dev., Washington, D.C. v. Fed. Labor Relations Auth., 964 F.2d 1 (D.C. Cir. 1992) ........................................................11
United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009) ..........................................................................7
United States v. Price, 361 U.S. 304 (1960) ................23 United States v. Steele, 147 F.3d 1316 (11th Cir.
1998) ..........................................................................7 Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th
Cir. 2006), cert. denied, 551 U.S. 1104 (2007) ....10, 27 Williams v. Dist. of Columbia, 2018 U.S. Dist.
LEXIS 109515, 2018 WL 3213319 (D.D.C. June 30, 2018) .........................................................10 Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989).............................................10 Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F.Supp.3d 1334 (N.D. Fla. 2016) ......................15 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), cert. petition filed, Case No. 171623 (May 29, 2018) ........................................ passim Zuber v. Allen, 396 U.S. 168 (1969).......................23, 24
STATUTES 18 U.S.C. § 249(a)(2)(A) ........................................17, 24 20 U.S.C. § 1092(f )(1)(F)(ii) ..................................17, 24 34 U.S.C. § 12291(b)(13)(A) ..................................17, 24

viii
TABLE OF AUTHORITIES – Continued Page
34 U.S.C. § 30503(a)(1)(C) ....................................17, 24
42 U.S.C. § 2000e-2(a).............................................6, 17
42 U.S.C. § 2000e-16(c) ...............................................13
OTHER AUTHORITIES
Brief for the United States as Amicus Curiae filed in Zarda v. Altitude Express, Inc., 2017 U.S. 2nd Cir. Briefs LEXIS 5, 2017 WL 3277292 ...................................................................15
Daniel J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the U.S. Court of Appeals, 56 U. Chi. L. Rev. 603 (1989) .......................................................................14
Dictionary.com ............................................................19
EEOC Dec. No. 76-75 (Dec. 4, 1975), 1975 WL 342769 .....................................................................23
http://www.atlantic.com/politics/archive/2018/04/ chai-feldblum/558593/Why-Is-A-Liberal-LGBTActivist-One-of-Trump’s-Nominees? (The Atlantic, April 24, 2018)..............................................15
Oxford English Dictionary (2009 ed.) ........................19
Samuel Estreicher & John E. Sexon, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681 (1984) ................................................................14

1
INTRODUCTION
This case is not about whether Congress should enact a statute prohibiting employment discrimination on the basis of sexual orientation as a matter of desirable public policy. Instead, the issue presented in this Petition is whether Congress did so more than 50 years ago when it enacted Title VII of the Civil Rights Act of 1964 that prohibited employment discrimination on the basis of “sex” and other protected classes, including race, color, religion and national origin. The United States Court of Appeals for the Eleventh Circuit, following established circuit precedent, correctly answered “no” to this question.
The inconvenient reality for Petitioner is that the text of Title VII does not include sexual orientation as a protected class. Undeterred, Petitioner advances various novel legal theories in hopes of persuading the Court to grant certiorari to extend discrimination on the basis of “sex” under Title VII to also prohibit discrimination on the basis of sexual orientation. The novel legal theories advanced by Petitioner, however, are solely intended to entice the Court to seize legislative power from Congress and do what Congress has declined to do for more than 50 years: amend Title VII by adding sexual orientation as a protected class.
The Court should decline Petitioner’s invitation and deny certiorari in this case.
---------------------------------  ---------------------------------

2
STATEMENT OF THE CASE
Statement of the Facts
Petitioner alleges that he is a gay male who worked for Clayton County as the Child Welfare Services Coordinator assigned to the Juvenile Court of Clayton County. App. 6-7. Petitioner asserts that he was responsible for the Clayton County Court Appointed Special Advocate. Id. at 7.
Petitioner claims that, beginning in January 2013, he began playing in a gay recreational softball league. App. 7. Petitioner alleges “on information and belief ” that his participation in the league and his sexual orientation were criticized by one or more (unnamed) persons who had significant influence on the County’s decision making, and that the County subjected him to an internal audit of the funds he managed. Id. Petitioner claims that the audit was a pretext for discrimination against him based on his sexual orientation and his failure to conform to a gender stereotype. Id. at 7-8. On or about June 3, 2013, the County terminated Petitioner’s employment. Id. at 8. The stated reason for Petitioner’s termination was conduct unbecoming of a County employee. Id. Petitioner contends that the real reason for his termination was discrimination on the basis of his sexual orientation and gender nonconformity, rather than due to the findings of the audit. Id. Based solely upon these allegations, Petitioner alleges that he was discriminated against due to his “sex” in violation of Title VII of the Civil Rights Act of 1964. Id. at 8-9.

3
The County denies that Petitioner’s sexual orientation was a motivating factor in its decision to conduct an audit of the program he managed or its decision to terminate his employment after the audit was completed. App. 7-8. The County contends that it terminated Petitioner for legitimate, non-discriminatory reasons based on the results of the audit. Id. at 8.
Course of Proceedings
After filing a charge with the Equal Employment Opportunity Commission (“EEOC”) and receiving a right to sue letter from the EEOC, Petitioner filed this action pro se on May 5, 2016 in the United States District Court for the Northern District of Georgia. App. 28. After retaining counsel and filing a First Amended Complaint, Petitioner filed his Second Amended Complaint (“SAC”) on September 12, 2016. Id. In his SAC, Petitioner asserted that he was terminated in violation of Title VII because of his sexual orientation and because he did not conform with gender stereotypes. Id.
Clayton County (“the County”) filed a Motion to Dismiss the SAC on September 26, 2016, arguing that Petitioner’s claim that he was terminated because he is gay should be dismissed because Title VII does not prohibit discrimination on the basis of sexual orientation. App. 9-17. The County also argued that Petitioner’s claim that he was terminated because he did not conform with gender stereotypes should be dismissed because (among other reasons) the SAC did not

4
sufficiently allege a gender stereotyping claim. Id. at 17-22.
After receiving briefs from the parties, the magistrate judge issued a Report and Recommendation (“R&R”) on November 3, 2016 recommending dismissal of the SAC. App. 5-25. With respect to Petitioner’s claim that he was terminated because of his sexual orientation, the magistrate judge wrote that Title VII does not encompass claims of discrimination on the basis of sexual orientation. Id. at 9-17. The R&R determined that Petitioner’s contention to the contrary was precluded by binding circuit precedent in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) (per curiam), which held that Title VII does not prohibit discrimination on the basis of sexual orientation. App. 12-13. The R&R recognized that the EEOC changed its position in 2015 in Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (July 15, 2015) and interpreted Title VII as encompassing sexual orientation, but the magistrate judge explained that the district court should not defer to the EEOC’s new position in light of the binding precedent set forth in Blum. Id. at 15-17. The R&R also recommended dismissal of Petitioner’s gender stereotyping claim. Id. at 17-24.
Petitioner filed Objections to the R&R on November 17, 2016, asserting that Title VII encompasses discrimination on the basis of sexual orientation and that the SAC adequately pled a gender stereotyping claim. App. 26. After considering briefs by the parties, the district court issued an Order on February 2, 2017

5
deferring consideration of the R&R until after the Eleventh Circuit issued its decision in Evans v. Ga. Reg’l Hosp. Id. at 29.
On March 10, 2017, the Eleventh Circuit issued its decision in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), which held that Blum remained binding precedent in the Eleventh Circuit and that Title VII therefore does not prohibit discrimination on the basis of sexual orientation. Relying on Evans, the district court entered an Order on July 21, 2017 adopting the R&R and dismissing Petitioner’s Title VII claim that he was terminated because of his sexual orientation. App. at 31. Bostock v. Clayton Cty., 2017 U.S. Dist. LEXIS 217815, at *6-7 (N.D. Ga. July 21, 2017). The district court also adopted the R&R and dismissed Petitioner’s gender stereotyping claim on the ground that the SAC did not plead any facts supporting this claim. App. 32. Accordingly, the district court entered judgment in favor of the County on July 21, 2017. Id. at 3435.
Petitioner appealed the district court’s judgment in favor of the County to the Eleventh Circuit. Petitioner, however, did not appeal the district court’s dismissal of his gender stereotyping claim. App. 41 n.1. Instead, Petitioner argued that Title VII encompasses sexual orientation and that the Eleventh Circuit’s rulings to the contrary in Evans and Blum conflicted with this Court’s decisions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), as well as the Eleventh Circuit’s decision in Glenn v. Brumby, 663 F.3d 1312

6
(11th Cir. 2011). App. 36-59. Petitioner also filed a preliminary petition for rehearing en banc on November 13, 2017 asserting similar arguments. Id. at 60-77. The Eleventh Circuit denied Petitioner’s preliminary petition for rehearing en banc on May 3, 2018. Id. at 4.
On May 10, 2018, the Eleventh Circuit issued an opinion affirming the district court’s dismissal of Petitioner’s Title VII claim on the ground that, under binding Eleventh Circuit precedent, Title VII does not prohibit discrimination on the basis of sexual orientation. App. 1-3; Bostock v. Clayton Cty. Bd. of Comm’rs, 723 F. App’x 964 (11th Cir. 2018).
The Eleventh Circuit stated as follows:
Title VII prohibits employers from discriminating against employees on the basis of their sex. 42 U.S.C. § 2000e-2(a). This circuit has previously held that “[d]ischarge for homosexuality is not prohibited by Title VII.” Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (per curiam) (emphasis added). And we recently confirmed that Blum remains binding precedent in this circuit. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017). In Evans, we specifically rejected the argument that Supreme Court precedent in Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998), and Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989), supported a cause of action for sexual orientation discrimination under Title VII.

7
App. 2-3 (footnote omitted). Accordingly, the Eleventh Circuit held as follows:
[T]he district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans forecloses Bostock’s claim. And under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued. United States v. Kaley, 579 F.3d 1246, 1255-56 (11th Cir. 2009); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc).
App. 3.
Petitioner filed his Petition for Writ of Certiorari on June 1, 2018.
---------------------------------  ---------------------------------
REASONS WHY THE PETITION FOR WRIT OF CERTIORARI SHOULD BE DENIED
As discussed in more detail below, Petitioner contends that certiorari should be granted because the United States Courts of Appeals for the Second Circuit and Seventh Circuit recently have held that Title VII prohibits discrimination on the basis of sexual orientation, thereby creating a split from the nine other circuits that have held for decades that Title VII does not prohibit discrimination on the basis of sexual orientation. However, the Court has declined certiorari on

8
many occasions despite a circuit split, and the Court should do so in this instance as well in order to give the circuit courts an opportunity to address the arguments made in the recent Second Circuit and Seventh Circuit decisions. Moreover, the Court recently denied certiorari in Evans v. Ga. Reg’l Hosp., 138 S. Ct. 557 (2017), which presented the identical issue that Petitioner seeks to present to the Court in this case.
In addition, the legal theories asserted by Petitioner in support of his contention that Title VII prohibits discrimination on the basis of sexual orientation, even though sexual orientation is not included as a protected class in the text of Title VII, are meritless and thus do not warrant granting certiorari. Contrary to Petitioner’s assertions, discrimination on the basis of “sexual orientation” is not equivalent to or a subset of discrimination on the basis of “sex.” Furthermore, neither Price Waterhouse, 490 U.S. 228 (1989) nor Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) hold or suggest that Title VII prohibits discrimination on the basis of sexual orientation.
In an attempt to buttress his Petition, Petitioner also asserts additional grounds for granting certiorari that have nothing to do with the claims asserted in this case or the arguments raised by Petitioner in his appeal to the Eleventh Circuit. These additional grounds therefore do not provide any basis for granting certiorari.
Finally, this is not an appropriate case in any event for the Court to address whether or not Title VII

9
applies to discrimination because of sexual orientation. The County denies that sexual orientation was a motivating factor in its decision to conduct the audit or its decision to terminate Petitioner, and the County contends that it terminated him because of the results of the audit. App. 8. For these and additional reasons discussed below, certiorari should be denied in this case.
I. THE COURT SHOULD DENY CERTIORARI AND AWAIT FURTHER DEVELOPMENT IN THE CIRCUIT COURTS CONCERNING A RECENT CIRCUIT SPLIT AS TO WHETHER OR NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
A. The Circuit Courts Have Held For Decades That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation
As Petitioner acknowledges (Pet. 13), most of the circuit courts have held that Title VII does not prohibit discrimination on the basis of sexual orientation, and this has been the consensus of the circuit courts for decades. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261, 263-65 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”), cert. denied, 534 U.S. 1155 (2002); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 751-52 (4th

10
Cir.) (“Title VII does not prohibit conduct based on the employee’s sexual orientation” as opposed to “the fact that the employee is a man or a woman.”), cert. denied, 519 U.S. 818 (1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII or Section 1981.”); Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th Cir. 2015) (“Title VII in plain terms does not cover ‘sexual orientation.’ ”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 763-66 (6th Cir. 2006), cert. denied, 551 U.S. 1104 (2007); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam) (“Title VII does not prohibit discrimination against homosexuals.”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 106364 (9th Cir. 2002) (en banc) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual orientation.”), cert. denied, 538 U.S. 922 (2003); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (holding that “Title VII’s protections . . . do not extend to harassment due to a person’s sexuality”); Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir.) (re-affirming Blum as binding circuit precedent and holding that allegations of discrimination on the basis of sexual orientation do not state a claim under Title VII), cert. denied, 138 S. Ct. 557 (2017). See also Williams v. Dist. of Columbia, 2018 U.S. Dist. LEXIS 109515, at *8 n.1, 2018 WL 3213319 (D.D.C.

11
June 30, 2018) (noting that D.C. Circuit “has not yet confronted this question”).1
B. A very Recent Circuit Split Does Not Warrant Granting Certiorari In This Case
Petitioner points out that the Second Circuit and the Seventh Circuit recently have reversed their own circuit precedents and have held that Title VII prohibits discrimination on the basis of sexual orientation. (Pet. 4) (citing Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc), cert. petition filed, Case No. 17-1623 (May 29, 2018) and Hively v. Ivy Tech. Comm. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc)). Petitioner contends that Zarda and Hively create a circuit split as to whether Title VII prohibits discrimination on the basis of sexual orientation, and that this Court should grant his Petition to resolve this circuit split. (Pet. 12-13).
However, the existence of a split among the circuits – especially a recent split involving only two circuits – is not itself a reason to grant petitions for certiorari. Indeed, just a few months ago, the Court declined to grant certiorari as to whether an agency may
1 U.S. Dep’t of Hous. & Urban Dev., Washington, D.C. v. Fed. Labor Relations Auth., 964 F.2d 1, 2 (D.C. Cir. 1992), cited by Petitioner (Pet. 13) did not address this issue. The passage cited by Petitioner simply recited the arguments made before an agency by the Department of Housing and Urban Development (“HUD”) before it filed a petition for review with the D.C. Circuit. The court declined to consider new arguments raised by HUD in the petition for review and denied the petition on that basis. Id. at 3-5.

12
“advance an interpretation of a statute for the first time in litigation and then demand deference for its view” even though “[t]here is a well-defined circuit split on the question” and “[t]he issue surely qualifies as an important one.” E.I. Dupont de Nemours & Co. v. Smiley, 138 S. Ct. 2563, 2564 (2018) (Gorsuch, J., Roberts, C.J., and Thomas, J., concurring in denial of certiorari).
Smiley is just one of countless examples of cases where the Court has declined to grant certiorari in spite of a circuit split on an important question. See, e.g., McCarthan v. Collins, 138 S. Ct. 502 (2017) (denying certiorari as to whether prisoner may file otherwise unauthorized habeas petition challenging his sentence when case law changes, in spite of circuit split); AT&T, Inc. v. U.S. ex rel. Heath, 136 S. Ct. 2505 (2016) (denying certiorari in spite of circuit split as to whether False Claim Act’s first-to-file bar is jurisdictional); Crawford v. LVNV Funding, LLC, 135 S. Ct. 1844 (2015) (denying certiorari in spite of circuit split as to whether filing proof of claim in bankruptcy court for time-barred debt violates Fair Debt Collection Practices Act); Metheny v. Hamby, 488 U.S. 913, 913-14 (1988) (White, J., dissenting from denial of certiorari and urging that circuit split be resolved as to whether violations of Interstate Agreement on Detainers warrants relief in federal habeas corpus proceedings); Cooper v. U.S. Postal Service, 471 U.S. 1022, 1024 (1985) (White, J., dissenting from denial of certiorari and urging that circuit split be resolved as to whether

13
30-day filing deadline set forth in 42 U.S.C. § 2000e16(c) is a jurisdictional deadline); Stuckett v. U.S. Postal Service, 469 U.S. 898, 899 (1984) (same); McKethen v. United States, 439 U.S. 936 (1978) (Stewart, J., and Marshall, J., dissenting from denial of certiorari and urging that circuit split be resolved as to interpretation of “specifically covered” language in catch-all hearsay rule).
In addition, this Court denied certiorari on December 11, 2017 on the same question Petitioner presents here: whether Title VII prohibits discrimination on the basis of sexual orientation, even though a circuit split existed at the time by virtue of the Hively decision. Evans v. Ga. Reg’l Hosp., 138 S. Ct. 557 (2017). Although the Second Circuit subsequently issued its decision in Zarda, Petitioner otherwise has not demonstrated that circumstances have materially changed during the approximately eight months that have elapsed since the Court denied certiorari in Evans.
Moreover, as set forth above, there has been a strong and unanimous consensus among all of the circuit courts (except for the D.C. Circuit, which has not considered the issue) for decades that Title VII does not encompass sexual orientation. No circuit court deviated from this long-standing and unanimous consensus until the Seventh Circuit issued its decision in Hively last year. Accordingly, the Court should await further development as to whether other circuit courts adopt or reject Hively and Zarda and the novel legal theories articulated in those cases as to why Title VII prohibits discrimination on the basis of sexual

14
orientation even though “sexual orientation” is not included among the protected classes contained in the text of Title VII. See Lackey v. Texas, 514 U.S. 1046, 1047 (1995) (Stephens, J., noting with respect to denial of certiorari on an otherwise important and novel issue, that “[o]ften, a denial of certiorari on a novel issue will permit the state and federal courts to ‘serve as laboratories in which the issue receives further study before it is addressed by the Court’ ”) (quoting McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens, J., respecting denial of certiorari)). See also Samuel Estreicher & John E. Sexon, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 716 (1984) (suggesting that Supreme Court sometimes will allow a circuit split to continue because “independent evaluation of a legal issue by different courts . . . allows a period of exploratory consideration and experimentation by lower courts before the Supreme Court ends the process with a nationally binding rule”); Daniel J. Meador, A Challenge to Judicial Architecture: Modifying the Regional Design of the U.S. Court of Appeals, 56 U. Chi. L. Rev. 603, 633 (1989) (“It is important that the Supreme Court have the benefit of as much thinking on the question as is feasible before it makes this final resolution.”).
Accordingly, the very recent development of a circuit split as to whether or not Title VII prohibits discrimination on the basis of sexual orientation2 does not
2 Petitioner also points out (Pet. 14) that the EEOC has concluded that Title VII prohibits discrimination on the basis of sexual orientation, whereas the Department of Justice took the

15
in and of itself warrant certiorari review. Instead, the Court should allow further development of this issue in the circuit courts in light of Hively and Zarda.3
contrary position as amicus curiae in Zarda. Compare Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 EEOPUB LEXIS 1905, 2015 WL 4397641 (July 15, 2015) with Brief for the United States as Amicus Curiae filed in Zarda v. Altitude Express, Inc., 2017 U.S. 2nd Cir. Briefs LEXIS 5, 2017 WL 3277292. The County notes that the EEOC (correctly) took the position that Title VII does not encompass sexual orientation for decades, until it reversed course and took the opposite position in 2015 during the Obama administration; the DOJ took the position that it took in Zarda after President Trump took office. In any event, the EEOC’s interpretations of Title VII are not binding on this Court and are entitled to deference “only to the extent that [they have] the power to persuade.” Christiansen v. Harris Cty., 529 U.S. 576, 587 (2000). See also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Moreover, the EEOC remains under the control of President Obama’s appointees because of a political impasse concerning the slate of nominees submitted by President Trump to the U.S. Senate for confirmation that would give Republicans a 3-2 majority on the EEOC. See http://www.atlantic.com/politics/ archive/2018/04/chai-feldblum/558593/Why-Is-A-Liberal-LGBTActivist-One-of-Trump’s-Nominees? (The Atlantic, April 24, 2018) (last viewed on July 28, 2018). If and when this political impasse is resolved, control of the EEOC will shift from President Obama’s appointees to President Trump’s appointees, which could result in another change in the EEOC’s position. Thus, the conflicting positions of the EEOC and the DOJ, while irrelevant to this case, may ultimately be resolved by the normal political processes.
3 In a similar vein, Petitioner argues that the existence of conflicting district court decisions on this issue support his request for certiorari. (Pet. 14-15). However, any such conflicts may be resolved by the relevant circuit courts in the same manner as any other issue. For example, Petitioner’s citation (Pet. 14) to Winstead v. Lafayette Cty. Bd. of Cty. Comm’rs, 197 F.Supp.3d 1334, 1346-47 (N.D. Fla. 2016) is inapposite because Winstead is no longer good law after the Eleventh Circuit re-affirmed in Evans

16
II. THE COURT SHOULD DENY CERTIORARI BECAUSE PETITIONER HAS FAILED TO DEMONSTRATE THAT THE ELEVENTH CIRCUIT ERRED IN RULING THAT TITLE VII DOES NOT PROHIBIT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
A. Petitioner’s Contention That Discrimination Because Of “Sex” Includes Discrimination Because Of “Sexual Orientation” Is Meritless
The provision of Title VII at issue states as follows:
Employer practices. It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any
(and again in this case) that, under binding circuit precedent, Title VII does not prohibit discrimination on the basis of sexual orientation. Additional district court decisions cited by Petitioner (Pet. 15) such as Hinton v. Virginia Union Univ., 185 F.Supp.3d 807, 816 (E.D. Va. 2016), and Clemons v. City of Memphis, Tn., 2016 U.S. Dist. LEXIS 179037, at *7, 2016 WL 7471412, at *3 (W.D. Tenn. Dec. 28, 2016) likewise are inapposite because they properly followed circuit precedent and held that Title VII does not prohibit discrimination on the basis of sexual orientation.

17
way which would tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a).
The text of Title VII does not include sexual orientation as a protected class. The fact that Title VII does not include sexual orientation as a protected class is particularly glaring in light of the fact that Congress repeatedly has included sexual orientation as a protected class in numerous other statutes. See, e.g., 34 U.S.C. § 12291(b)(13)(A) (prohibiting funded programs and activities from discriminating on numerous grounds, including sexual orientation, under Violence Against Women Act); 18 U.S.C. § 249(a)(2)(A) (imposing heightened punishment for causing or attempting to cause bodily injury to any person because of (among other traits) the person’s sexual orientation); 34 U.S.C. § 30503(a)(1)(C) (providing federal assistance to local law enforcement for investigation of certain crimes motivated by (among other traits) sexual orientation); 20 U.S.C. § 1092(f )(1)(F)(ii) (requiring colleges and universities to collect and report information regarding crimes on campus, including crimes where victim is selected because of (among other traits) sexual orientation).
These deliberate decisions by Congress are hardly “hypertechnical distinctions” as Petitioner dismissively suggests (Pet. 32), in order to argue that, by

18
prohibiting discrimination against an employee because of “sex,” Title VII also prohibits discrimination against an employee because of “sexual orientation” as follows:
In discriminating against an employee on the basis of his sexual orientation, the employer has “taken gender into account,” because “ ‘[s]exual orientation’ as a concept cannot be defined or understood without reference to sex.” Id. That is, “sexual orientation is inseparable from and inescapably linked to sex and, therefore . . . allegations of sexual orientation discrimination [necessarily] involve sex-based considerations.” Id. at *5.
(Pet. 29-30) (quoting Baldwin, 2015 WL 4397641, at *4, 5 and citing Zarda). Petitioner’s assertions are meritless.
As this Court has recognized, “[i]t is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). The term “contemporary” refers to the time frame when the statute at issue was enacted, not when a court is interpreting it years later in litigation. Id. (identifying and applying relevant dictionary definitions in use at time statute at issue was enacted).
The term “sex” as commonly understood in 1964 when Title VII was enacted and today “means biologically male or female; it does not also refer to sexual

19
orientation.” Hively, 853 F.3d at 362-63 (Sykes, J., dissenting) (surveying various dictionary definitions). The term “sexual orientation” on the other hand, means, “Originally: (the process of ) orientation with respect to a sexual goal, potential mate, partner, etc. Later chiefly: a person’s sexual identity in relation to the gender to who he or she is usually attracted; (broadly) the fact of being heterosexual, bisexual, or homosexual.” Oxford English Dictionary (2009 ed.). Accord Dictionary.com (defining “sexual orientation” as “one’s natural preference in sexual partners; predilection for homosexuality, heterosexuality, or bisexuality”) (last viewed August 4, 2018).
Thus, Petitioner’s assertion that an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination is incorrect. Indeed, this Court has not treated sexual orientation discrimination as synonymous with or a subset of sex discrimination, and thereby subject to intermediate scrutiny. Romer v. Evans, 517 U.S. 620, 632-34 (1996) (invalidating state constitutional amendment targeting local laws prohibiting sexual orientation discrimination, on ground that amendment did not survive rational basis review); Lawrence v. Texas, 539 U.S. 558, 564-78 (2003) (invalidating state statute criminalizing same-sex sexual intimacy as violation of liberty and privacy interest in due process clause); id. at 579-85 (concluding that statute did not survive rational basis review under equal protection clause) (O’Connor, J., concurring). See also Obergefell v. Hodges, 135 S. Ct.

20
2584, 2597-2605 (2015) (holding that excluding samesex couples from marriage violates fundamental right to marry in due process clause and equal protection clause).
Moreover, in the context of Title VII, sexual orientation discrimination is separate and distinct from sex discrimination. Hopkins, 77 F.3d at 751-52 (“Title VII does not prohibit conduct based on the employee’s sexual orientation, whether homosexual, bisexual or heterosexual. Such conduct is aimed at the employee’s sexual orientation and not at the fact that the employee is a man or a woman.”); Hively, 853 F.3d at 363 (“Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such.”) (Sykes, J., dissenting). Accordingly, the fact that Title VII prohibits discrimination because of “sex” does not establish that Title VII also prohibits discrimination on the basis of sexual orientation.
Simply put, the novel legal theory presented by Petitioner is nothing more than a thinly-veiled invitation for the Court to re-write Title VII to add a protected class that Congress did not include and did not intend to include. This inescapable reality is further demonstrated by the fact that numerous members of Congress have introduced legislation to amend Title VII to add sexual orientation as a protected class almost every year since 1974.4 These legislative efforts
4 See, e.g., Equality Act of 1974, H.R. 14752, 93d Cong. (1974), Civil Rights Amendments Act of 1975, H.R. 166, 94th Cong.

21
(1975), A Bill to Prohibit Discrimination on the Basis of Sex, Marital Status, Affectional or Sexual Preference, H.R. 2667, 94th Cong. (1975), Civil Rights Amendments of 1975, H.R. 5452, 94th Cong. (1975), Civil Rights Amendments of 1975, H.R. 10389, 94th Cong. (1975), Civil Rights Amendments of 1976, H.R. 13019, 94th Cong. (1976), Civil Rights Amendments of 1975, H.R. 451, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 2998, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 4794, 95th Cong. (1977), Civil Rights Amendments of 1977, H.R. 5239, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 7775, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 8268, 95th Cong. (1977), Civil Rights Amendments Act of 1977, H.R. 8269, 95th Cong. (1977), Civil Rights Amendments Act of 1979, H.R. 2074, 95th Cong. (1979), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 2081, 96th Cong. (1979), Civil Rights Amendments Act of 1981, H.R. 1454, 97th Cong. (1981), Civil Rights Amendments Act of 1981, H.R. 3371, 97th Cong. (1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 1708, 97th Cong. (1981), A Bill to Prohibit Employment Discrimination on the Basis of Sexual Orientation, S. 430, 98th Cong. (1983), Civil Rights Amendments Act of 1983, H.R. 427, 98th Cong. (1983), Civil Rights Amendments Act of 1983, H.R. 2624, 98th Cong. (1983), Civil Rights Amendments Act of 1985, H.R. 230, 99th Cong. (1985), Civil Rights Amendments Act of 1985, S. 1432, Amendments Act of 1987, S. 464, 100th Cong. (1987), Civil Rights Amendments Act of 1991, S. 574, 102d Cong. (1991), Civil Rights Amendments Act of 1991, H.R. 1430, 102d Cong. (1991), Civil Rights Amendments Act of 1993, H.R. 423, 103d Cong. (1993), Civil Rights Act of 1993, H.R. 431, 103d Cong.(1993), Employment Non-Discrimination Act of 1994, H.R. 4636, 103d Cong. (1994), Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong. (1994), Civil Rights Amendments Act of 1995, H.R. 382, 104th Cong. (1995), Employment Non-Discrimination Act of 1995, H.R. 1863, 104th Cong. (1995), Employment Non-Discrimination Act of 1995, S. 932, 104th Cong. (1995), Employment Non-Discrimination Act of 1996, S. 2056, 105th Cong. (1996), Employment NonDiscrimination Act of 1997, H.R. 1858, 105th Cong. (1997), Employment Non-Discrimination Act of 1997, S. 869, 105th Cong. (1997), Civil Rights Amendments Act of 1998, H.R. 365, 105th

22
have not succeeded, as Congress has not passed any legislation amending Title VII to add sexual orientation as a protected class. Distilled to its essence, therefore, Petitioner is asking this Court to grant certiorari and amend Title VII to add sexual orientation as a protected class because Congress thus far has not seen fit to do so.
Petitioner nevertheless contends that Congress’s repeated decisions not to amend Title VII to add sexual orientation as a protected class does not undermine his position that the current version of Title VII already
Cong. (1998), Civil Rights Amendments Act of 1999, H.R. 311, 106th Cong. (1999), Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong. (1999), Employment NonDiscrimination Ad of 1999, S. 1276, 106th Cong. (1999), Civil Rights Amendments Act of 2001, H.R. 217, 107th Cong. (2001), Employment Non-Discrimination Act of 2001, H.R. 2692, 107th Cong. (2001), Employment Non-Discrimination Act of 2002, S. 1284, 107th Cong. (2001), Civil Rights Amendments Act of 2003, H.R. 214, 108th Cong. (2003), Employment Non-Discrimination Act of 2003, S. 1705, 108th Cong. (2003), Employment NonDiscrimination Act of 2003, H.R. 3285, 108th Cong. (2003), Civil Rights Amendments Act of 2005, H.R. 288, 109th Cong. (2005), Employment Non-Discrimination Act of 2007, H.R. 2015, 110th Cong. (2007), Employment Non-Discrimination Act of 2007, H.R. 3685, 110th Cong. (2007), Employment Non-Discrimination Act of 2009, H.R. 3017, 111th Cong. (2009), Employment Non-Discrimination Act of 2009, S. 1584, 111th Cong. (2009), Employment NonDiscrimination Act of 2011, H.R. 1397, 112th Cong. (2011), Employment Non-Discrimination Act of 2011, S. 811, 112th Cong. (2011), Employment Non-Discrimination Act of 2013, S. 815 113th Cong. (2013), Employment Non-Discrimination Act of 2013, H.R. 1755, 113th Cong. (2013), Equality Act, H.R. 3185, 114th Cong. (2015), Equality Act, S. 1858, 114th Cong. (2015), Equality Act, H.R. 2282, 115th Cong. (2017), Equality Act, S. 1006, 115th Cong. (2017).

23
prohibits discrimination on the basis of sexual orientation. In support, Petitioner cites various Supreme Court decisions for the proposition that courts should not read too much into a legislature’s failure to act or failure to amend previous legislation. (Pet. 30-31) (citing Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990); Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969); Girouard v. United States, 328 U.S. 61, 69 (1946); and United States v. Price, 361 U.S. 304, 310-11 (1960)). Petitioner argues that this is so because “Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporates the offered change. (Pension Ben. Guar. Corp., 496 U.S. at 650 (internal quotations omitted) (emphasis supplied).” (Pet. 31).
Petitioner’s suggestion that Congress has not amended Title VII at any point during the last 50 years to add sexual orientation as a protected class because Congress thought that Title VII in its existing form already includes sexual orientation as a protected class is utter nonsense. As discussed in Section I above, the circuit courts unanimously held for decades that Title VII does not encompass sexual orientation, and the EEOC’s position for decades likewise was that Title VII does not encompass sexual orientation. App. 11-12 (citing EEOC Dec. No. 76-75 (Dec. 4, 1975), 1975 WL 342769, at *2). The absence of an amendment by Congress in light of this unanimity of rulings confirms that it did not intend Title VII to include sexual orientation

24
discrimination. Stated otherwise, had Congress intended it to so include, it would have amended the statute to legislate its intent.5 Notably, even after the EEOC took the position that Title VII encompasses sexual orientation in 2015, no circuit court read the statute in that manner until the Seventh Circuit issued its en banc decision in Hively in 2017.
Thus, Petitioner has not and cannot demonstrate that Congress’s failure to amend Title VII to add sexual orientation as a protected class was because Congress thought that sexual orientation already was included as a protected class. Nor can Petitioner demonstrate that Congress’s failure to amend Title VII to add sexual orientation as a protected class during the past 50 years was the result of “unawareness, preoccupation, or paralysis.” (Pet. 31 n.7) (quoting Zuber, 396 U.S. at 185 n.21). The sheer number of acts of legislation introduced over the course of more than 50 years seeking to amend Title VII to add sexual orientation as a protected class alone demonstrates that Congress has not been unaware of this issue or preoccupied with other issues. The simple reality is that “[t]here may be many reasons why each proposal ultimately failed, but it cannot reasonably be claimed that the basic reason that Congress did not pass such an amendment year in and year out was anything other
5 Indeed, Congress repeatedly and expressly included sexual orientation as a protected class in numerous other statutes when it has intended to do so. See, e.g., 18 U.S.C. § 249(a)(2)(A); 20 U.S.C. § 1092(f )(1)(F)(ii); 34 U.S.C. §§ 12291(b)(13)(A), 30503(a)(1)(C).

25
than that there was not yet the political will to do so.” Zarda, 883 F.3d at 152 (Lynch, J., dissenting).
The Court therefore should deny certiorari because sexual orientation discrimination is not a subset of sex discrimination. Moreover, Petitioner has not and cannot demonstrate that Congress declined to amend Title VII to include sexual orientation as a protected class because it thought that sexual orientation already was included as a protected class.
B. Price Waterhouse Did Not Abrogate Circuit Case Law Holding That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation
Petitioner also argues that Price Waterhouse, 490 U.S. 228 (1989), “sounded the death knell for [the] myopic interpretation” that Title VII does not prohibit sexual orientation discrimination. (Pet. 3). Petitioner contends that Price Waterhouse “forbid[s] discrimination against a gay person for failing to conform to a stereotype about how he should act in terms of who he should be attracted to or romantically involved with.” (Pet. 27-28). Price Waterhouse, however, does no such thing.
In Price Waterhouse, a female senior manager, was not invited to become a partner with an accounting firm. The plaintiff introduced evidence that various male partners made stereotypical comments about her when considering her candidacy. These comments included that the plaintiff was “macho,” that she

26
“overcompensated for being a woman,” that she should take “a course at charm school,” that certain partners objected to her swearing only “because it’s a lady using foul language” and similar comments. Id. at 235. The partner who informed the plaintiff of the decision to place her candidacy on hold told her that, if she wanted to improve her chances for partnership in the future, she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled and wear jewelry.” Id. at 235.
A plurality of four justices, joined by two concurring justices, held that such evidence that an employer took adverse action against an employee for failure to conform to a stereotype associated with the employee’s protected class was sufficient to establish a violation under Title VII. Price Waterhouse, 490 U.S. at 251; id. at 258-61 (White, J., concurring); id. at 302 (O’Connor, J., concurring). The Court explained that “[a]n employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.” Id. at 251.
Contrary to Petitioner’s assertions, Price Waterhouse’s holding that an employer violates Title VII by making employment decisions because of gender stereotypes such as how a female should dress or wear her hair, what personality traits (such as “aggressiveness”) a female should have, or how a female should talk, does not remotely suggest that Title VII prohibits discrimination on the basis of sexual orientation. See,

27
e.g., Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009) (observing that Price Waterhouse prohibits discrimination against women “for failing to conform to a traditionally feminine demeanor and appearance” and observing that employer “argues persuasively that every case of sexual orientation cannot translate into a triable case of gender stereotyping discrimination, which would contradict Congress’s decision not to make sexual orientation discrimination cognizable under Title VII”); Vickers, 453 F.3d at 763 (rejecting plaintiff ’s claim that his sexual practices as a homosexual did not conform to gender stereotype because “the theory of sex stereotyping in Price Waterhouse is not broad enough to encompass such a theory” and limiting Price Waterhouse to the plaintiff ’s appearance or behavior in the workplace); Medina, 413 F.3d at 1135 (rejecting plaintiff ’s claim that she was harassed for failing to conform with gender stereotypes and holding that plaintiff alleged harassment because of her sexual orientation, which is not actionable under Title VII). Accord Hively, 853 F.3d at 370 (gender stereotyping theory does not apply to sexual orientation claim because sexual orientation is not a sex-specific stereotype) (Sykes, J., dissenting); Zarda, 883 F.3d at 158 (sexual orientation discrimination does not rest on a belief “about what men or women ought to be or do; it is a belief about what all people ought to be or do”) (Lynch, J., dissenting) (emphasis in original).
Accordingly, Price Waterhouse does not provide any basis for Petitioner’s contention that Title VII

28
prohibits discrimination on the basis of sexual orientation. The instant Petition therefore should be denied.6
C. Oncale Did Not Abrogate Circuit Case Law Holding That Title VII Does Not Prohibit Discrimination On The Basis Of Sexual Orientation
Petitioner also contends that Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), was “[t]he nail in the coffin” demonstrating that Title VII prohibits discrimination on the basis of sexual orientation. (Pet. 3, 28). This contention is incorrect, as Oncale simply held that same-sex sexual harassment is actionable under Title VII and extended the Court’s previous rejection of any conclusive presumption that an
6 Petitioner also argues that the Court has held that an employer engages in prohibited sex discrimination when it takes adverse action “simply on the basis of that employee being one gender or another.” (Pet. 30 n.6) (emphasis in original) (citing Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 683-85 (1983) (exclusion of pregnant spouses from employer’s health insurance plan constituted unlawful sex discrimination) and City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 710-11 (1978) (requiring female employees to contribute more than male employees to pension fund based on longer life expectancy of women constituted unlawful sex discrimination under Title VII)). These decisions, however, are inapposite because, unlike pregnancy or life expectancy, sexual orientation is not a “proxy” for either being male or female. In other words, same-sex attraction is not a trait that is present solely or primarily in one sex or the other. See Zarda, 883 F.3d at 152 (“[S]amesex attraction is not ‘a function of sex’ or ‘associated with sex’ in the sense that life expectancy or childbearing capacity are.”) (Lynch, J., dissenting).

29
employer will not discriminate against members of the same protected class. Oncale, 523 U.S. at 78-79.
As the Court explained in Oncale, “ ‘[t]he critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). In the male-female harassment context, the inference of discrimination is easy to draw because “the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex.” Id. Thus, if the harasser is a heterosexual male, it is safe to assume that women, but not men, are exposed to disadvantageous terms and conditions of employment.
As the Court explained in Oncale, essentially the same analysis may apply if the alleged harasser is a homosexual male. Oncale, 523 U.S. at 80. In that circumstance, it is reasonable to assume that proposals for sexual activity would be made to someone of the same sex, and thus that men, but not women, are exposed to disadvantageous terms and conditions of employment. Id. The Court in Oncale also emphasized that a claim for same-sex harassment does not require a showing that the harassing conduct was motivated by sexual desire, but also may be established by proving (for example), that a female employee is harassed by another woman because of her “general hostility to the presence of women in the workplace.” Id.

30
In other words, if the alleged harasser is a heterosexual male, women are subjected to disadvantageous terms and conditions of employment and men are not. If the alleged harasser is a homosexual male, men are subjected to disadvantageous terms and conditions of employment and women are not. In both situations, the target of the harassment is selected because of the employee’s biological sex and thus easily falls within Title VII’s prohibition of discrimination because of “sex.”
Thus, “[n]othing in Oncale eroded the distinction between sex discrimination and sexual-orientation discrimination or opened the door to a new interpretation of Title VII.” Hively, 853 F.3d at 372 (Sykes, J., dissenting). Accordingly, Petitioner’s request for certiorari on this ground should be denied.
III. PETITIONER’S ADDITIONAL REASONS AS TO WHY CERTIORARI SHOULD BE GRANTED ARE IRRELEVANT TO THIS CASE
Petitioner advances a number of additional reasons why certiorari should be granted in this case. None of them have any bearing on this case, the claims he has asserted in this case or the Eleventh Circuit’s ruling in this case.
For example, Petitioner argues that certiorari should be granted in this case because the scope of Title VII’s anti-retaliation provisions (more specifically, the opposition clause thereto) may be unclear to the

31
extent that it is unclear whether Title VII prohibits sexual orientation discrimination. (Pet. 16). Petitioner, however, has not asserted a retaliation claim in this case. Moreover, Petitioner cites to one published district court decision and two unpublished district court decisions in support of his contention that the alleged lack of clarity as to the scope of Title VII’s prohibition against retaliation for opposing an employment practice made unlawful by Title VII is a critical issue that requires resolution by this Court. (Pet. 16-17 n.3). Therefore, the Court should decline Petitioner’s invitation to grant certiorari in this case to rectify any alleged lack of clarity with respect to the scope of Title VII’s opposition clause.
Petitioner also contends that the Court should grant certiorari in this case to clarify whether an employee may be subjected to employment discrimination under Title VII because of his or her “association” with gay or lesbian individuals as “friends, family, or even members of the same church.” (Pet. 17-18). Petitioner, however, did not assert any such “association” argument on appeal to the Eleventh Circuit. App. 36-59. Therefore, the Court should not grant certiorari on the basis of a legal theory that Petitioner did not deem to have sufficient potential merit to include in his legal arguments in the Eleventh Circuit.
Petitioner next asserts that the Court should grant certiorari because of exhaustion issues that may arise when a plaintiff seeks to assert a gender stereotyping claim. (Pet. 18 n.4). As Petitioner acknowledges, however, Petitioner abandoned his gender stereotyping

32
claim on appeal to the Eleventh Circuit. Id. Thus, there is no exhaustion issue presented by this case. In any event, a charging party who intends to assert a gender stereotyping claim may properly be required to include sufficient facts and/or allegations in the particulars section of the charge to inform the EEOC that he seeks to assert a gender stereotyping claim, and Petitioner has failed to cite any authority to the contrary. Accordingly, the Court should not grant certiorari on this ground.
In addition, Petitioner contends that the Court should grant certiorari in this case because of alleged confusion in the lower courts as to whether a hostile work environment claim is based on sexual orientation (and thus not unlawful under Title VII) or based on a gender stereotype or same-sex harassment (and thus unlawful under Title VII). (Pet. 19-23). Petitioner, however, has not asserted a claim in this case that he was subjected to a hostile work environment. Moreover, as previously stated, Petitioner did not appeal the district court’s dismissal of his claim that he was terminated because of his failure to conform to a gender stereotype. Thus, Petitioner once again seeks to invoke issues that have nothing to do with this case.
Petitioner also asserts that certiorari should be granted because certain lower court decisions have erroneously dismissed cases where an employer’s decision may have been motivated by both lawful reason (sexual orientation) and an unlawful reason (failure to conform to a sex-based stereotype). (Pet. 25-26). Petitioner, however, did not assert any such “mixed motive”

33
claim in his pleadings in the district court and did not present any “mixed motive” arguments either in the district court or on appeal in the Eleventh Circuit. App. 5-33, 36-59. Moreover, because Petitioner has abandoned his gender stereotyping claim (Pet. 10 n.2; App. 41 n.1), the “mixed motive” issue Petitioner contends needs to be addressed by this Court is not present in this case. Petitioner’s request for certiorari on this basis thus should be denied.
IV. THIS COURT SHOULD DECLINE PETITIONER’S INVITATION TO GRANT CERTIORARI, SEIZE LEGISLATIVE POWER FROM CONGRESS AND RE-WRITE TITLE VII
Petitioner also contends that the Court should grant certiorari because “justice demands” that the Court rule that sexual orientation discrimination is prohibited under Title VII. (Pet. 27). Petitioner then contends as follows:
Because a person’s sexual orientation is immutable, Obergefell, 135 S. Ct. at 2596, discrimination against an employee on that basis is at least as “reasonably comparable [an] evil” as discrimination on the basis of biological sex alone, Oncale, 523 U.S. at 79. Accordingly, this Court must act to fulfill the congressional intent behind Title VII “to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Oncale, 523 U.S. at 78

34
(emphasis supplied) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).
(Pet. 27).7
This argument vividly illustrates the stark reality that Petitioner is urging the Court to grant certiorari, seize legislative power from Congress and re-write Title VII to prohibit discrimination on the basis of sexual orientation – because, in Petitioner’s view, discriminating on the basis of sexual orientation is “at least as reasonably comparable an evil” as discrimination on the basis of sex. This Court should decline Petitioner’s invitation.
V. THIS CASE IS NOT THE APPROPRIATE VEHICLE TO RESOLVE WHETHER OR NOT TITLE VII PROHIBITS DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
Lastly, this would not be the appropriate case to evaluate whether or not Title VII prohibits discrimination because of sexual orientation. The County denies that Petitioner’s sexual orientation was a motivating factor in its decision to conduct an audit of the program he managed or its decision to terminate his employment after the audit was completed. App. 7-8. The
7 This passage misquotes Oncale, which actually states that Title VII “ ‘evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.’ ” Oncale, 523 U.S. at 78 (emphasis added) (quoting Meritor, 477 U.S. at 64)).

35
County contends that it terminated Petitioner for legitimate, non-discriminatory reasons based on the results of the audit. Id. at 8. In this regard, the SAC does not include any allegation that the audit did not conclude that Petitioner engaged in misconduct with respect to the program he managed. Id. at 7-8.
Thus, at the very least, the reasons for Petitioner’s termination are disputed by the parties. In other words, this is not a case where the record is undisputed that the employee was terminated because of his sexual orientation, and the only issue to be resolved is whether termination on the basis of sexual orientation violates Title VII. Moreover, neither the district court nor the Eleventh Circuit addressed the legal theories Petitioner advances in support of his contention that Title VII prohibits discrimination on the basis of sexual orientation. App. 1-3, 26-31.
Accordingly, this case is not the appropriate or desirable vehicle for the Court to address whether or not Title VII prohibits discrimination on the basis of sexual orientation. The instant Petition therefore should be denied.8
---------------------------------  ---------------------------------
8 On August 2, 2018, Petitioner filed a Supplemental Petition for Writ of Certiorari. In his Supplemental Petition, Petitioner contends that the dissent from the Eleventh Circuit’s decision not to rehear this case en banc, Bostock v. Clayton Cty. Bd. of Comm’rs, 2018 U.S. App. LEXIS 19835, at *2-7, 2018 WL 3455013 (11th Cir. July 18, 2018) (Rosenbaum, J., dissenting from the denial of rehearing en banc), provides further support for his Petition. The

36
CONCLUSION For the reasons discussed herein, the Court should reject Petitioner’s request that the Court grant certiorari, assume the role of a super-legislature and rewrite Title VII to prohibit discrimination on the basis of sexual orientation. Instead, Petitioner and likeminded individuals should mobilize political support for Congress to amend Title VII or enact other legislation prohibiting employment discrimination on the basis of sexual orientation.
Respectfully submitted, JACK R. HANCOCK
Counsel of Record WILLIAM H. BUECHNER, JR. FREEMAN MATHIS & GARY, LLP 661 Forest Parkway Suite E Forest Park, Georgia 30297-2256 (404) 366-1000 jhancock@fmglaw.com
County notes that nine of Judge Rosenbaum’s colleagues on the Eleventh Circuit bench disagreed with her position that the case should be re-heard en banc and/or her conclusion that Title VII prohibits discrimination on the basis of sexual orientation.

 
 No. 17-1618 ================================================================
In The
Supreme Court of the United States
---------------------------------  ---------------------------------
GERALD LYNN BOSTOCK,
Petitioner, v.
CLAYTON COUNTY, GEORGIA,
Respondent.
---------------------------------  ---------------------------------
On Writ Of Certiorari To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------  ---------------------------------
BRIEF FOR PETITIONER
---------------------------------  ---------------------------------
BRIAN J. SUTHERLAND Counsel of Record
THOMAS J. MEW IV BUCKLEY BEAL, LLP 600 Peachtree St., N.E. Suite 3900 Atlanta, Georgia 30308 (404) 781-1100 bsutherland@buckleybeal.com tmew@buckleybeal.com Counsel for Petitioner
Gerald Lynn Bostock
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i
QUESTION PRESENTED
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

ii
PARTIES TO THE PROCEEDING
Petitioner is Mr. Gerald Lynn Bostock, the Plaintiff in the United States District Court for the Northern District of Georgia and the Appellant in the United States Court of Appeals for the Eleventh Circuit.
Respondent is the government of Clayton County, Georgia, the Defendant in the United States District Court for the Northern District of Georgia and the Appellee in the United States Court of Appeals for the Eleventh Circuit.

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TABLE OF CONTENTS Page
Question Presented ................................................ i Parties to the Proceeding ....................................... ii Table of Contents .................................................... iii
Table of Authorities ................................................ vi Opinions Below ....................................................... 1 Statement of Jurisdiction ....................................... 1
Constitutional and Statutory Provisions Involved .... 2 Statement of the Case ............................................ 3
A. Factual Background..................................... 4 B. The District Court’s Dismissal of Mr. Bostock’s
Case .............................................................. 6 C. The Eleventh Circuit’s Affirmance of the Dis-
missal............................................................ 8 Summary of Argument ........................................... 10 Argument ................................................................ 12
I. The Plain Language of Title VII Forbids Sexual Orientation Discrimination Because it is a Form of Sex Discrimination .............. 12 A. Sexual Orientation Discrimination is Sex Discrimination Because Sexual Orientation is a Sex-Based Classification ..... 13 B. Sexual Orientation Discrimination is Associational Sex Discrimination ......... 18 C. Sexual Orientation Discrimination is Sex Stereotype Discrimination Under Price Waterhouse v. Hopkins ................. 23

iv
TABLE OF CONTENTS – Continued
Page
D. The Court Clearly Held in Oncale that Title VII Prohibits “Any Kind” of SexBased Discrimination ............................ 29
II. The Statutory History of Title VII Confirms that it Forbids Sexual Orientation Discrimination as a Form of Sex Discrimination .... 32
A. Congress Rejected Limitations on the Sex Discrimination Prohibition in Title VII and Confirmed the ClassificationBased Approach with the 1978 Pregnancy Discrimination Act...................... 34
B. Congress Incorporated into Title VII an Expansive Definition of Sex-Based Discrimination from Newport News, Meritor, and Price Waterhouse with the Civil Rights Act of 1991 ................................. 37
C. The Court Unanimously Recognized in Oncale that Title VII Must be Read to Prohibit Forms of Sex Discrimination not Contemplated by Congress in 1964 ........ 44
III. Title VII Must be Interpreted to Prohibit Sexual Orientation Discrimination Because the Contrary Interpretation Would Place Different Parts of the Statute in Conflict and is Profoundly Unworkable.................... 47
A. Title VII Must Be Interpreted to Prohibit Sexual Orientation Discrimination to Give Effect to all the Anti-Discrimination Provisions of the Statute ........................ 48

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TABLE OF CONTENTS – Continued Page
B. The Attempt to Distinguish Between Sex Stereotype Discrimination Based on Gay or Lesbian “Traits” and Sexual Orientation Discrimination is Profoundly Unworkable ................................................. 51
Conclusion............................................................... 57

vi
TABLE OF AUTHORITIES Page
CASES:
Abramski v. United States, 573 U.S. 169 (2014) ........32
Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265 (1995) ..........................................46
Bellaver v. Quanex Corp., 200 F.3d 485 (7th Cir. 2000) ........................................................................26
Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) .....................................26
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) .............................................................. 3, 6, 7, 9
BNSF Ry. Co. v. Loos, 139 S. Ct. 893 (2019)...............43
Bob Jones Univ. v. United States, 461 U.S. 574 (1983) .......................................................................18
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ...................................................................6
Bostock v. Clayton County, Ga., 723 F. App’x 964 (11th Cir. 2018)..........................................................1
Bostock v. Clayton County, Ga., 894 F.3d 1335 (11th Cir. 2018)..........................................................1
Bostock v. Clayton County, Ga., 139 S. Ct. 1599 (2019) .........................................................................2
Brannum v. Mo. Dep’t of Corr., 518 F.3d 542 (8th Cir. 2008) .................................................................56
Cannon v. Univ. of Chicago, 441 U.S. 677 (1979).......40
Carter v. United States, 530 U.S. 255 (2000)..............34

vii
TABLE OF AUTHORITIES – Continued Page
CBOCS West, Inc. v. Humphries, 553 U.S. 442 (2008) .......................................................................47
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) ........................................................................27
Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009) ........................................................................26
Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017) ..............................................26, 54
City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702 (1978) ......................... passim
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346 (11th Cir. 1999)........................................................56
Connecticut v. Teal, 457 U.S. 440 (1982)...............16, 17
Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262 (3d Cir. 1995).....................35
Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tn., 555 U.S. 271 (2009) ....................56
Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) .................................................................51
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir. 1998)....................................19
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)..........13
E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013) ..........................................31
E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 689 F.3d 444 (5th Cir. 2012) ..........................................26

viii
TABLE OF AUTHORITIES – Continued Page
E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 768 F. Supp. 2d 883 (E.D. La. 2011) ..............................52
E.E.O.C. v. Family Dollar Stores, Inc., No. CIV.A. 1:06-CV-2569-TWT, 2008 WL 4098723 (N.D. Ga. Aug. 28, 2008) ...................................................53
E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263 (11th Cir. 2000)........................................................26
Evans v. Ga. Reg’l Hospital, 850 F.3d 1248 (11th Cir. 2017) ..................................................... 7, 8, 9, 26
Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .........................50
Food Mktg. Inst. v. Argus Leader Media, 588 U.S. ___ (2019), No. 18-481, 2019 WL 2570624 (June 24, 2019) ........................................................43
Forest Grove Sch. Dist. v. T.A., 557 U.S. 239 (2009) .................................................................39, 42
Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641 (1990) ...........................................43, 45
Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018) .................................................................26
Gen. Elec. Co. v. Gilbert, 425 U.S. 125 (1976) .......34, 36
Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277 (11th Cir. 2004).........................................56, 57
Gutierrez v. Ada, 528 U.S. 250 (2000).........................43
Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058 (7th Cir. 2003)............................... 52, 53, 54, 55

ix
TABLE OF AUTHORITIES – Continued Page
Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017)................................... passim
Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)...........................16, 41
Jam v. Int’l Fin. Corp., 139 S. Ct. 759 (2019) .............46
Kay v. Independence Blue Cross, 142 F. App’x 48 (3d Cir. 2005) .....................................................49, 52
Kimble v. Marvel Entm’t, L.L.C., 135 S. Ct. 2401 (2015) .................................................................40, 46
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) .......41
Lawrence v. Texas, 539 U.S. 558 (2003) ......................46
Lewis v. City of Chicago, Ill., 560 U.S. 205 (2010) ......... 44
Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033 (8th Cir. 2010).................................................26
Loving v. Virginia, 388 U.S. 1 (1967) .................. passim
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .......................................................................21
McLaughlin v. Florida, 379 U.S. 184 (1964) ........18, 20
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) ............................................................... passim
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983).......................... passim
Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721 (2003) .......................................................................22

x
TABLE OF AUTHORITIES – Continued Page
Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864 (9th Cir. 2001)....................................................26, 53
Norris v. Diakin Drivetrain Components, 46 F. App’x 344 (6th Cir. 2002) ........................................57
North Star Steel Co. v. Thomas, 515 U.S. 29 (1995) .......................................................................40
Obergefell v. Hodges, 135 S. Ct. 2584 (2015)..............46 Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75 (1998) .................................................. passim
Parker v. Reema Consulting Servs., Inc., 915 F.3d 297 (4th Cir. 2019)...................................................26
Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986)...................................19, 20
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990) ................................................................42
Perrin v. United States, 444 U.S. 37 (1979) ................32 Petition of Pub. Nat. Bank of New York, 278 U.S.
101 (1928) ................................................................51
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) .......................................................................16
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... passim
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) ...........................................................26, 51
Ricci v. DeStefano, 557 U.S. 557 (2009) .......... 19, 21, 46
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)...........13 Romer v. Evans, 517 U.S. 620 (1996)..........................46

xi
TABLE OF AUTHORITIES – Continued Page
Schmedding v. Tnemec Co., Inc., 187 F.3d 862 (8th Cir. 1999)..........................................................52
Shapiro v. United States, 335 U.S. 1 (1948) ...............40
Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) .................................................................26
Sutton v. United Air Lines, 527 U.S. 471 (1999) ........36
Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483 (E.D.N.Y. 2011)..............................49
Swift & Co. v. Wickham, 382 U.S. 111 (1965).............57
Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick & GMC Trucks, Inc., 173 F.3d 998 (6th Cir. 1999) ..................................................................19, 20
Texas Dep’t of Hous. and Comm. Affairs v. Inclusive Cmty’s Project, Inc., 135 S. Ct. 2507 (2015) .................................................................40, 41
Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431 (1973)..........................................18
United States v. Kaley, 579 F.3d 1246 (11th Cir. 2009) ..........................................................................9
United States v. Powell, 469 U.S. 57 (1984)................57
United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) ..........................................................................9
Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) .................................................................25, 49
Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973) ...........................................48, 51

xii
TABLE OF AUTHORITIES – Continued Page
West v. Gibson, 527 U.S. 212 (1999)......................33, 46 Williams v. Wal-Mart Stores, Inc., 182 F.3d 333
(5th Cir. 1999)..........................................................19 Wisconsin Central Ltd. v. United States, 138
S. Ct. 2067 (2018) ....................................................33 Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d
Cir. 2018) ......................................................... passim Zuber v. Allen, 396 U.S. 168 (1969).............................43
FEDERAL STATUTES: 28 U.S.C. § 1254(1)........................................................2 42 U.S.C. § 2000e et seq. ..................................... passim 42 U.S.C. § 2000e(k) ....................................................35 42 U.S.C. § 2000e-2 ............................................. passim 42 U.S.C. § 2000e-2(k).................................................35 42 U.S.C. § 2000e-2(m)........................................passim Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 ................................................. passim Pregnancy Discrimination Act of 1978, Pub. L.
No. 95-555, 92 Stat. 2076 ................................ passim
STATE STATUTES: O.C.G.A. § 15-11-104(d) ................................................4

xiii
TABLE OF AUTHORITIES – Continued Page
LEGISLATIVE HISTORY: S. Rep. No. 92-415 (Oct. 28, 1971) ..............................34 S. Rep. No. 95-331 .................................................35, 36 H.R. Rep. No. 95-948...................................................35 H.R. Rep. No. 102-40...................................................41 1991 U.S.C.C.A.N. 549 ................................................41
OTHER AUTHORITIES: Brief of Anti-Discrimination Scholars as Amicus
Curiae in Support of the Employees ......................23 Brief for GLBTQ Advocates and Defenders and
the National Center for Lesbian Rights as Amici Curiae in Support of the Petitioner in Case 17-1618 and Respondents in Cases 171623 and 18-107 ......................................................53 Brief for the United States as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. July 26, 2017), 2017 WL 3277292.....................20, 40 Brief of Resp. in Opp. to Cert., Bostock v. Clayton County, Ga. (No. 17-1618) .......................................43 Dec. No. 71-969, 1973 EEOC Dec. (CCH) ¶ 6193 (Dec. 24, 1970) .........................................................19 Dec. No. 71-1902, 1973 EEOC Dec. (CCH) ¶ 6281 (April 28, 1971)............................................19 Dec. No. 76-23, 1983 EEOC Dec. (CCH) ¶ 6615 (Aug. 25, 1975).........................................................19

xiv
TABLE OF AUTHORITIES – Continued
Page
Dec. No. 79-03, 1983 EEOC Dec. (CCH) ¶ 6734 (Oct. 6, 1978) ...........................................................19
I. Bennett Capers, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158 (1991).................23
CNN Newsroom, Transcript of Nov. 14, 2013 Broadcast, available at http://transcripts.cnn.com/ TRANSCRIPTS/1311/14/cnr.06.html (last visited June 22, 2019) ..................................................42
William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322 (2017) .................................................... 22, 34, 55
Ed O’Keefe, Senate passes job-bias bill for gays, WASH. POST, Nov. 8, 2013 ........................................42
Oxford Dictionary of Current English (5th ed. 1964) ........................................................................13
Oxford English Dictionary (2d ed. 1989) ...................27
Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715 (2014) .......................................................................55
Joel Hall, Clayton CASA Welcomes New Volunteers, CLAYTON NEWS DAILY, Mar. 10, 2010, available at http://www.news-daily.com/news/ clayton-casa-welcomes-new-volunteers/article_ 331a8350-5ab2-5307-9130-2c3b15d08666.html (last visited June 22, 2019).......................................5
Zachary R. Herz, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396 (2014) .................................55

xv
TABLE OF AUTHORITIES – Continued Page
Anthony E. Varona, Jeffrey M. Monks, En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 94-98 (2000)...............................................55
Webster’s New International Dictionary (3d ed. 1961) ........................................................................13
Webster’s New International Dictionary of the English Language (2d unabridged ed. 1961) .........33
COURT RULES: Fed. R. App. Proc. 35(b)-(c)............................................8 Fed. R. Civ. P. 12(b)(6) ...................................................6 Fed. R. Civ. P. 72(b) .......................................................7

1
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Eleventh Circuit was issued on May 10, 2018, and is reproduced in the appendix to the petition at App. 1. On July 18, 2018, the Court of Appeals sua sponte issued an order denying rehearing en banc, and Judge Rosenbaum issued an opinion dissenting from that order in which Judge Jill Pryor joined. That order and opinion are reported at 894 F.3d 1335 (11th Cir. 2018), and reproduced in the appendix to Petitioner’s Supplemental Brief filed in this Court on August 2, 2018, Supp. App. 1, as well as in the Joint Appendix at J.A. 168.
The Eleventh Circuit’s panel decision affirmed the order of the United States District Court for the Northern District of Georgia dated July 21, 2017, entered as document number 24 in the District Court’s docketed case number 1:16-CV-01460-ODE, and reproduced in the appendix to the petition at App. 26. The District Court’s order adopted in its entirety the Final Report and Recommendation of the United States Magistrate Judge entered on November 3, 2016 and reproduced in the appendix to the petition at App. 5.
---------------------------------  ---------------------------------
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Eleventh Circuit entered judgment on May 10, 2018. 723 F. App’x 964. The Petition for Writ of Certiorari was timely filed on May 25, 2018, and granted on April 22,

2
2019, 139 S. Ct. 1599 (2019). The jurisdiction of this Honorable Court is invoked pursuant to 28 U.S.C. § 1254(1).
---------------------------------  ---------------------------------
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2, including:
(a) EMPLOYER PRACTICES It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin, or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. . . .

3
(m) IMPERMISSIBLE CONSIDERATION OF RACE, COLOR, RELIGION, SEX, OR NATIONAL
ORIGIN IN EMPLOYMENT PRACTICES
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
---------------------------------  ---------------------------------
STATEMENT OF THE CASE
Petitioner Gerald Lynn Bostock seeks the judgment of this Honorable Court that workplace discrimination against an employee on the basis of sexual orientation falls within the statutory prohibition of discrimination “because of sex” set forth in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 (“Title VII”).1 In holding that it does not, the United States Court of Appeals for the Eleventh Circuit below erroneously relied on Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), which predates this Court’s expansive interpretation of the statutory language in several cases, including Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as well as Congress’s ratification of those decisions and the interpretative principles upon which they relied with the Civil Rights Act
1 For ease of reference throughout this brief, ellipses are omitted from quotations of the statutory language prohibiting discrimination “because of . . . sex.”

4
of 1991, Pub. L. No. 102-166, 105 Stat. 1071. That the Eleventh Circuit was wrong in refusing to conclude that Blum was undermined to the point of abrogation by these developments in the law is confirmed by the en banc decisions to the contrary in both the Second and Seventh Circuits. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339 (7th Cir. 2017). The plain language of Title VII, its statutory history, and this Court’s precedents concerning the interpretation of the statute all compel the conclusion that sexual orientation discrimination constitutes unlawful discrimination “because of sex” within the meaning of Title VII.
A. Factual Background
For over ten years beginning in 2003, Petitioner Bostock advocated ardently for the interests of at risk children in the juvenile court system of Respondent Clayton County, Georgia. App. 27. During that time, he received favorable performance reviews as the County’s Child Welfare Services Coordinator, and was given primary responsibility for the Court Appointed Special Advocates program (“CASA”). Id. CASA volunteers, also known as guardians ad litem in some jurisdictions, are advocates sworn by the judge of the juvenile court in which they serve to “advocate for the best interests of the child” during juvenile court dependency proceedings in Georgia. O.C.G.A. § 15-11104(d).
Clayton County’s CASA program flourished under Mr. Bostock’s leadership. In 2007, it received the

5
Program of Excellence Award from Georgia CASA. App. 27. In 2010, it was the first county in the metropolitan Atlanta, Georgia area to provide a volunteer for every neglected or abused child in the juvenile court system. See Joel Hall, Clayton CASA Welcomes New Volunteers, CLAYTON NEWS DAILY, Mar. 10, 2010, available at http://www.news-daily.com/news/claytoncasa-welcomes-newvolunteers/article_331a8350-5ab25307-9130-2c3b15d08666.html (last visited June 22, 2019). In 2011 and 2012, Mr. Bostock was asked to serve on the National CASA Standards and Policy Committee. App. 27. He is a dedicated social services professional who has for many years been committed to ensuring that abused and neglected children have safe homes in which to live, grow, and thrive.
Mr. Bostock is also gay. Id. In January 2013, he began participating in a gay recreational softball league called the Hotlanta Softball League. Id. He also actively promoted the Clayton County CASA program as a volunteer opportunity for league members. Id. But in the months that followed, his participation in the league and his sexual orientation were openly criticized by one or more individuals with significant influence in the County’s decisionmaking. Id. In April of 2013, Clayton County initiated an unwarranted “audit” of the CASA program funds managed by Mr. Bostock. Id. In May, his sexual orientation and participation in the softball league were the subject of disparaging comments at a meeting of the Friends of Clayton County CASA Advisory Board. Id. One month later, on June 3, 2013, he was fired. Id. at 28. Clayton

6
County falsely claimed that he mismanaged the CASA program funds, but stated that the reason for his termination was “conduct unbecoming of a county employee.” Id. Mr. Bostock maintains that he never engaged in any misconduct or mismanagement of funds, and that Clayton County’s “audit” and its representations to the contrary are mere pretext for discrimination against him on the basis of his sexual orientation.
B. The District Court’s Dismissal of Mr. Bostock’s Case
Mr. Bostock filed this lawsuit pro se on May 5, 2016, alleging that he was fired because of his sexual orientation in violation of Title VII. Id. at 8. After securing counsel, he amended his complaint to include a claim for sex discrimination based on his failure to conform to a sex stereotype. Id. at 8-9. Clayton County moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing, among other things, that Mr. Bostock could not “state a viable claim for relief under established law because Title VII does not protect [Mr. Bostock] (or anyone else) from discrimination due to his sexual orientation.” Id. at 28, 31. The Magistrate Judge agreed, relying on Blum v. Gulf Oil Corp., which had held that “discharge for homosexuality is not prohibited by Title VII,” 597 F.2d 936, 938 (5th Cir. 1979).2 Id. at 9-17. The
2 Decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981 remain binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

7
Magistrate Judge also rejected Mr. Bostock’s sex stereotype claim on the ground that he was “bootstrapping a conclusory gender stereotyping allegation to his sexual orientation discrimination claim.” Id. at 9-20. Accordingly, the Magistrate Judge recommended dismissal of Mr. Bostock’s claims for sex discrimination based on sexual orientation and failure to conform to a sex stereotype. Id. at 17-22.3
Pursuant to Fed. R. Civ. P. 72(b), Mr. Bostock timely filed Objections to the Magistrate Judge’s Report and Recommendation on November 17, 2016. App. 29. The District Judge deferred ruling on Mr. Bostock’s objections pending the decision of the Eleventh Circuit in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017), because that case also presented the question of whether discrimination on the basis of sexual orientation is actionable under Title VII. App. 29. On March 10, 2017, a divided panel of the Eleventh Circuit issued its decision in Evans, answering that question in the negative. 850 F.3d at 1255-57. The Evans majority rested its erroneous conclusion on the determination that it was bound to follow the former Fifth Circuit’s decision in Blum under the prior panel precedent rule, which requires Eleventh Circuit panels to follow a prior panel’s decision unless a later en banc or Supreme Court decision overrules or undermines the
3 The Magistrate Judge also recommended dismissal of Mr. Bostock’s claim for sex stereotype discrimination because he did not reference the claim as such in the charge of discrimination he filed with the United States Equal Employment Opportunity Commission, and therefore did not properly exhaust his administrative remedies. App. 22-24.

8
prior panel decision to the point of abrogation. Id. at 1255 (citations omitted). The Evans panel rejected the argument that Blum was undermined to the point of abrogation by this Court’s decisions in Price Waterhouse, 490 U.S. 228 (1989), superseded on other grounds by statute, Pub. L. No. 102-166, 105 Stat. 1071 (1991) and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). 850 F.3d at 1255-56. On July 7, 2017, after the Eleventh Circuit denied a petition for rehearing en banc in Evans, the District Court in this case followed the Evans panel opinion and dismissed Mr. Bostock’s second amended complaint with prejudice, holding in part that, “[a]s a matter of law, the Eleventh Circuit has . . . foreclosed the possibility of a Title VII action alleging discrimination on the basis of sexual orientation as a form of sex discrimination[.]” Id. at 31.
C. The Eleventh Circuit’s Affirmance of the Dismissal
Because of the prior panel precedent rule, Mr. Bostock presented his appeal of the District Court’s dismissal of his sexual orientation discrimination claim to the Eleventh Circuit along with a petition for initial hearing en banc pursuant to Fed. R. App. P. 35(b)-(c). App. 46 n.3, 60.4 On May 3, 2018, the Eleventh Circuit
4 On appeal, Mr. Bostock abandoned his separately pleaded claim for sex discrimination based on a sex stereotype, App. 3, although as explained below, a claim for sexual orientation discrimination is a claim for discrimination based on the failure to conform to a gender stereotype – the failure to conform to the

9
again refused to consider en banc the question of whether discrimination on the basis of sexual orientation is discrimination “because of sex” within the meaning of Title VII. Id. at 1. The Eleventh Circuit held that:
[T]he district court did not err in dismissing Bostock’s complaint for sexual orientation discrimination under Title VII because our holding in Evans forecloses Bostock’s claim. And under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued. United States v. Kaley, 579 F.3d 1246, 1255-56 (11th Cir. 2009); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc).
App. 3. Having already unsuccessfully petitioned the Eleventh Circuit for initial hearing en banc, id. at 46 n.3, Mr. Bostock timely filed his Petition for Writ of Certiorari in this Court on May 25, 2018. However, on July 18, 2018, the Eleventh Circuit sua sponte issued an order yet again denying rehearing en banc. Circuit Judge Rosenbaum issued an opinion dissenting from that denial in which Circuit Judge Jill Pryor joined. J.A. 168. As explained in Petitioner’s Supplemental Brief filed on August 2, 2018, the dissent explained succinctly how the Eleventh Circuit’s continued adherence to Blum despite the changes brought about by this Court’s post-Blum decisions constituted reliance
sex-based stereotype that men should be attracted only to women, see infra, pp. 23-29.

10
on the “precedential equivalent of an Edsel with a missing engine[.]” Supp. Br. 3 (quotation omitted).
---------------------------------  ---------------------------------
SUMMARY OF ARGUMENT
The plain language of Title VII itself establishes that sexual orientation discrimination is prohibited discrimination “because of sex.” Sexual orientation discrimination is discrimination “because of sex” because sexual orientation is a sex-based classification within the meaning of Title VII, and it is disparate treatment of an employee that would not occur “but for” his sex. Sexual orientation discrimination is also impermissible associational discrimination, and discrimination on the basis of a failure to conform to a sex-based stereotype under Price Waterhouse. This Court explicitly held in Oncale that Title VII prohibits “any kind” of sexbased discrimination if it meets the statutory requirements, 523 U.S. at 80, and for all these reasons, sexual orientation discrimination does.
The statutory history strongly supports Mr. Bostock’s position and fatally undermines Respondent’s primary argument that Congress did not intend to forbid sexual orientation discrimination when it enacted Title VII. Congress specifically and unequivocally mandated a broad classification-based application of the ban on sex discrimination with the Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076. It went even further in passing the Civil Rights Act of 1991, which ratified and incorporated this

11
Court’s expansive interpretations of what constitutes discrimination “because of sex” under Title VII in Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C., 462 U.S. 669 (1983) (“Newport News”), Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (“Meritor”), and Price Waterhouse, 490 U.S. 228. Not surprisingly, in holding that same-sex sexual harassment is actionable under Title VII, the Court in Oncale confirmed that the statute prohibits forms of sex discrimination that Congress may not have envisioned in 1964, and instead goes beyond what was contemplated to cover “reasonably comparable evils.” 523 U.S. at 75. Sexual orientation discrimination is clearly such a “reasonably comparable evil,” and is therefore also prohibited.
The interpretation of Title VII advanced by Mr. Bostock is also necessary to harmonize and give effect to different parts of the statute. In passing the Civil Rights Act of 1991, Congress also chose to codify a lessened causation standard for claims of workplace discrimination, providing that unlawful sex discrimination can be established by proof that sex was one motivating factor for a challenged employment practice, even if another legitimate factor also motivated the practice. Pub. L. No. 102-166, § 107(a) (codified at 42 U.S.C. § 2000e-2(m)). Because sexual orientation is defined in part by a person’s sex, the statutory prohibition of discrimination “because of sex” must be interpreted to include sexual orientation discrimination, or it will conflict with 42 U.S.C. § 2000e-2(m). Finally, Title VII must be read to prohibit sexual orientation discrimination because the contrary interpretation is

12
profoundly unworkable. The raft of conflicting lower court decisions in cases with similar facts but markedly different outcomes threatens the consistency and predictability necessary for the rule of law.
The question before the Court is a simple one – whether “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79. Both Congress and the Court have clearly determined that the prohibition of discrimination “because of sex” in Title VII must be interpreted broadly, and discrimination against an employee on the basis of sexual orientation – whether gay or straight – is fundamentally a form of discrimination based on sex. Old cases decided before Newport News, Meritor, Price Waterhouse, Oncale, and the passage of the Civil Rights Act of 1991 have been undermined to the point of abrogation by these developments in the law, and the judgment of the Eleventh Circuit to the contrary is in error. Mr. Bostock prays that the Court reverse that judgment and permit him the opportunity to prove that the termination of his employment because of his sexual orientation was discrimination “because of sex” in violation of Title VII.
---------------------------------  ---------------------------------
ARGUMENT
I. The Plain Language of Title VII Forbids Sexual Orientation Discrimination Because it is a Form of Sex Discrimination
This Court’s “precedents make clear that the starting point for [its] analysis is the statutory text” of

13
Title VII. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003); see also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The plain language of Title VII requires the conclusion that sexual orientation discrimination is discrimination “because of sex” because (1) sexual orientation is necessarily a sex-based classification; (2) sexual orientation discrimination is associational sex discrimination; (3) sexual orientation discrimination is discrimination because of a failure to conform to a sex stereotype under Price Waterhouse, 490 U.S. 228; and (4) the Court explicitly held in Oncale, 523 U.S. 75 (1998), that the statutory language prohibits “any kind” of sex discrimination, even forms not contemplated by Congress when Title VII was first enacted.
A. Sexual Orientation Discrimination is Sex Discrimination Because Sexual Orientation is a Sex-Based Classification
Sexual orientation discrimination constitutes sex discrimination under the plain language of Title VII because one simply cannot consider an individual’s sexual orientation without first considering his sex. A “homosexual” person is one “[h]aving a sexual propensity for one’s own sex,” Homosexual, Oxford Dictionary of Current English (5th ed. 1964) (emphasis supplied), or “of, relating to, or characterized by a tendency to direct sexual desire toward another of the same sex,” Homosexual, Webster’s New International Dictionary (3d ed. 1961) (emphasis supplied). Because a person’s sex is a necessary element of his sexual orientation, it

14
follows without question that one cannot define a person’s sexual orientation without first taking his sex into account. See Zarda, 883 F.3d 100, 113 (2d Cir. 2018); Hively, 853 F.3d 339, 350 (7th Cir. 2017) (noting that “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation’ ”); Hively, 853 F.3d at 358 (Flaum, J., concurring) (“[o]ne cannot consider a person’s homosexuality without also accounting for their sex: doing so would render ‘same’ and ‘own’ [in the dictionary definition of ‘homosexuality’] meaningless”). But the prohibition of discrimination “because of sex” in Title VII forbids employers from relying on sex-based considerations in making employment decisions. See, e.g., Price Waterhouse, 490 U.S. at 241-42, 250-51 (plurality) (holding that an employer that makes decisions in reliance on sex-based stereotypes “has acted on the basis of gender” in violation of Title VII); id. at 258-61 (White, J., concurring); id. at 261 (O’Connor, J., concurring); City of Los Angeles, Dep’t of Water and Power v. Manhart, 435 U.S. 702, 71112 (1978). Accordingly, Title VII prohibits sexual orientation discrimination because it necessarily rests on a sex-based consideration.
The Court has adhered to this common sense interpretation of Title VII for decades. In Manhart, the Court struck down a rule that required female employees to make higher pension fund contributions than male employees because actuarial tables showed that women usually live longer than men. 435 U.S. at 71113. The employer argued that the rule was justified in part because it was based on the expected longevity of

15
the employees, not their sex. Id. But the Court was not fooled. It held that the City’s rule was “in direct conflict with both the language and the policy” of Title VII because it did 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.’ ” Id. at 711 (citations omitted). The Court reaffirmed this “simple test” five years later when it held that an employer’s insurance policy discriminated against male employees in violation of Title VII because it provided more limited benefits to their pregnant wives than it did to the male husbands of female employees. Newport News, 462 U.S. at 681-85.
Discrimination on the basis of sexual orientation fails the “simple test.” When an employer fires a female employee because she is a lesbian – i.e., because she is a woman who is sexually attracted to other women – the employer has treated that female employee differently than it would treat a male employee who was sexually attracted to women. The employer has acted “in a manner which but for that person’s sex would be different,” and has therefore violated Title VII. Manhart, 435 U.S. at 711. Respondent and others may argue that the “simple test” does not apply to sexual orientation because it is limited to cases like Manhart where the disparate treatment was based on a trait that is inextricably linked with sex. See Zarda, 883 F.3d at 151-52 (Lynch, J., dissenting). According to this argument, only traits that are truly sex-dependent like longevity or childbearing capacity are subject to the “simple test,” and because men and women can be gay or

16
lesbian, same-sex attraction is not linked with sex and the “simple test” does not apply. Id. But the difficulty with this argument – that only truly class-based disparate treatment is actionable under Title VII – is that it has no basis in the text of Title VII or the Court’s decisions. Rather, the Court has consistently upheld a classification-based, rather than a class-based, approach in applying the statute. As the Manhart Court explained, Title VII requires “a focus on fairness to individuals rather than classes” and that focus is “unambiguous.” 435 U.S. at 708-09 (emphasis supplied); see also, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (per curiam); Manhart, 435 U.S. 702; Connecticut v. Teal, 457 U.S. 440, 455 (1982); Price Waterhouse, 490 U.S. 228; Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 192, 197 (1991) (“Johnson Controls”); Oncale, 523 U.S. 75.
Indeed, the Court in Phillips was not concerned that the employer refused to hire only that subset of women with pre-school aged children while its policy did not evince “bias against women as such,” and instead readily concluded that the policy violated Title VII. 400 U.S. at 543. In Manhart, Newport News, and Johnson Controls, too, the Court found violations of Title VII where only certain subgroups of each gender were adversely affected by the policies at issue. Manhart, 435 U.S. at 709-10; Newport News, 462 U.S. at 681-85; Johnson Controls, 499 U.S. at 192, 197-200 (holding that the exclusion of only those women with childbearing capacity from jobs which exposed them to

17
lead violated Title VII); see also Teal, 457 U.S. at 455 (noting that “[i]t is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group”). The Price Waterhouse Court likewise never asked whether all women always avoid profanity and wear jewelry, but instead held that the employer’s belief that Ann Hopkins should do so was impermissibly sex-based. 490 U.S. at 241-42, 250-51 (plurality); id. at 258-61 (White, J.); id. at 261 (O’Connor, J.). And in Oncale, the fact that other men working on the offshore oil platform with the plaintiff were not also sexually harassed did not undercut the inescapable conclusion that he was discriminated against “because of sex.” 523 U.S. at 80-82.
The Court has refused time and again to narrow Title VII to prohibit only discrimination against men or women based on biological traits linked exclusively to them as such. The argument that sexual orientation discrimination is not sex discrimination because it targets only gay men and not all men, or because both men and women can be gay or lesbian, is therefore meritless. This Court “need not leave [its] common sense at the doorstep when [it] interprets a statute.” Price Waterhouse, 490 U.S. at 241. Discrimination against a gay or lesbian employee on the basis of sexual orientation is plainly discrimination “because of sex” under Title VII because an employer must consider the employee’s sex in order to consider his or her sexual orientation, and because the employer

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necessarily treats the employee differently than it would if she or he were a member of the opposite sex.
B. Sexual Orientation Discrimination is Associational Sex Discrimination
Sexual orientation discrimination is also discrimination “because of sex” because it is discrimination on the basis of an employee’s association with another person of the same sex. The Court has recognized since at least 1964 that discrimination against a person because of his or her racial association is a form of unconstitutional race discrimination. See McLaughlin v. Florida, 379 U.S. 184, 192-95 (1964) (striking down a statute that criminalized unmarried interracial cohabitation). And it has upheld that basic logic in various constitutional and statutory contexts ever since. See, e.g., Loving v. Virginia, 388 U.S. 1, 11 (1967) (holding that a statute prohibiting interracial marriage amounted to unconstitutional discrimination on the basis of race); Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 440 (1973) (rejecting the argument that a white couple could not maintain a race discrimination claim under 42 U.S.C. § 1981 against a swimming pool association that denied admission to the couple’s black guest); Bob Jones Univ. v. United States, 461 U.S. 574, 605 (1983) (upholding the determination of the Internal Revenue Service that a private university’s policy of denying admission to individuals who were married to persons of a different race was racially discriminatory and the university was therefore not a

19
“charitable” organization entitled to tax-exempt status under 26 U.S.C. § 501(c)(3)).
All five Circuits to consider the issue have held that the Loving rationale is equally applicable in the Title VII context. See Zarda, 883 F.3d at 124 (holding that “the prohibition on associational discrimination applies with equal force to all the classes protected by Title VII, including sex”); Hively, 853 F.3d at 349 (same); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998) (holding that Title VII prohibits employment discrimination based upon an interracial relationship), vacated in part on other grounds by Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC Trucks, Inc., 173 F.3d 988, 994-95 (6th Cir. 1999) (holding that Title VII prohibits discrimination against a person because of his association with his child of a different race); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (holding that Title VII prohibits discrimination against a person because of his marriage to or association with a person of a different race).5
Because Constitutional cases like Loving “can provide helpful guidance in this statutory context,” Ricci
5 The EEOC has likewise held that an adverse employment action taken on the basis of an interracial association constitutes unlawful race discrimination under Title VII. See, e.g., Dec. No. 71-969, 1973 EEOC Dec. (CCH) ¶ 6193 (Dec. 24, 1970); Dec. No. 71-1902, 1973 EEOC Dec. (CCH) ¶ 6281 (April 28, 1971); Dec. No. 76-23, 1983 EEOC Dec. (CCH) ¶ 6615 (Aug. 25, 1975); Dec. No. 79-03, 1983 EEOC Dec. (CCH) ¶ 6734 (Oct. 6, 1978).

20
v. DeStefano, 557 U.S. 557, 582 (2009), and because the principles of non-discrimination embodied in Title VII “apply with equal force” to all of the protected classes enumerated in the statute, Price Waterhouse, 490 U.S. at 243 n.9, there is no principled reason why the associational theory of discrimination should not also apply to sex discrimination under Title VII, cf. Meritor, 477 U.S. at 66 (holding that “[n]othing in Title VII” suggests that sex-based harassment should not be prohibited to the same extent as harassment based on race, religion, and national origin). To discriminate against a person because of the sex of another person with whom he is associated is, ipso facto, to discriminate against him because of his sex. See Newport News, 462 U.S. at 684; cf. Tetro, 173 F.3d at 994-95; Parr, 791 F.2d at 892.
Respondent and others may resist the associational theory of discrimination by arguing, as the United States did before the Second Circuit in Zarda, that an employer who discriminates on the basis of sexual orientation is not discriminating against a man or woman on the basis of his or her sex, “but rather is engaged in sex-neutral treatment of homosexual men and women alike.” Br. for the U.S. as Amicus Curiae Supporting Defendants-Appellees, Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. July 26, 2017), 2017 WL 3277292, *6, 22. But “mere equal application” to members of both races could not save the statutory prohibition on interracial marriage in Loving, because even an equally applicable classification must have a legitimate basis. 388 U.S. at 8; see also McLaughlin,

21
379 U.S. at 190-91 (citing cases). Employment discrimination against a person because of his association with another person of the same sex decidedly does not.6
The dissenting judges in Zarda and Hively also suggested that the Loving rationale cannot apply to discrimination based on sexual orientation because prohibitions of interracial marriage were based on animus toward the associated black Americans and founded on the odious doctrine of white supremacy, while discrimination against gay and lesbian people is not premised on sex-based animus toward the associated persons or an infamous ideology of hate and oppression. Zarda, 883 F.3d at 159-60 (Lynch, J.); Hively, 853 F.3d at 367-69 (Sykes, J.). But this argument lacks merit for at least three reasons. First, it begs the question of whether the animus is “sex-based” or not. See supra, pp. 13-18. Second, there is no requirement of animus to show a violation of Title VII. Ricci, 557 U.S. at 579-80 (noting that even “well intentioned” or “benevolent” motivations cannot justify disparate treatment under Title VII). See also Loving, 388 U.S. at 11 n.11 (noting that interracial marriage bans constituted
6 Indeed, there is no conceivable reason why an individual’s sexual orientation could ever be relevant to her ability to perform her job. Given that Title VII was meant to “assure equality of employment opportunities,” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973), and “drive employers to focus on qualifications rather than on . . . sex,” Price Waterhouse, 490 U.S. at 243, an interpretation of Title VII that permits sexual orientation discrimination would flatly contradict the very purpose of the statute.

22
unlawful racial classifications “even assuming an even-handed state purpose to protect the ‘integrity’ of all races” rather than the invidious purpose of promoting white supremacy).
The third reason why this argument lacks merit is that, while Title VII was obviously aimed at eradicating the scourge of race discrimination in American employment, it was equally intended to “strike at the entire spectrum of disparate treatment of men and women in employment.” Oncale, 523 U.S. at 78 (citing Meritor, 477 U.S. at 64). The ambitious goal of Title VII was to destroy not only the barriers to merit-based equal employment opportunity posed by racism, but also those posed by sexism and insistence on traditional gender roles. See William N. Eskridge, Jr., Title VII’s Statutory History and the Sex Discrimination Argument for LGBT Workplace Protections, 127 Yale L.J. 322, 347-57 (2017) (“LGBT Workplace Protections”) (setting forth how the legislative history of the 1972 amendments to Title VII and the Pregnancy Discrimination Act of 1978 demonstrate congressional focus on attacking sexism). Sexism is undeniably reinforced by insistence on sex-based familial and social roles for men and women. See Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 736 (2003) (explaining that stereotypes about the roles of men and women are “mutually reinforcing” and have created a “selffulfilling cycle of discrimination” against women in the workplace). Gay and lesbian people, by the simple fact of their intimate association with a member of the same sex, necessarily defy these stereotypical roles.

23
See I. Bennett Capers, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158, 1159-70 (1991); Br. of AntiDiscrimination Scholars as Amicus Curiae in Support of the Employees, pp. 8-12. The recognition of sexual orientation discrimination as associational sex discrimination thus enjoys not only the logic but also the laudable policy justification of Loving: to confront and dismantle a long-established obstacle to social freedom and equal protection of the law.
C. Sexual Orientation Discrimination is Sex Stereotype Discrimination Under Price Waterhouse v. Hopkins
Title VII also forbids sexual orientation discrimination because it constitutes discrimination on the basis of a failure to conform to a sex-based stereotype. In Price Waterhouse, the Court explained the scope of the sex discrimination prohibition through its review of the case of Ann Hopkins, a woman who was denied partnership at the Price Waterhouse accounting firm. Id. at 231-34. The evidence showed that some of the partners who voted to pass Ms. Hopkins up for partnership did so because she was too aggressive, “macho,” and needed to “take a course at charm school.” Id. at 235. The man who informed Ms. Hopkins of the decision specifically told her that, to advance, she should “walk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. Six members of this Court agreed that these facts proved Ms. Hopkins’s sex was a motivating factor in the decision to deny her partnership in violation of

24
Title VII. Id. at 241-42, 250-51 (plurality); id. at 25861 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment).
The Price Waterhouse Court clearly held that sex stereotyping constitutes sex discrimination under Title VII. Indeed, it was unequivocal in rejecting the argument that sex stereotyping lacks “legal relevance,” explaining that:
[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’
490 U.S. at 250-51 (quoting Manhart, 435 U.S. at 707 n.13). Four members of the Court joined this description in the plurality opinion, id. at 228-58, and Justices White and O’Connor joined the judgment with concurring language that leaves no doubt that acting on the basis of a sex stereotype constitutes discrimination “because of sex” in violation of Title VII. See id. at 25960 (White, J.) (agreeing that the record supported the finding that gender was shown to be a substantial factor in the denial of partnership to Hopkins); id. at 261, 275 (O’Connor, J.) (concurring in the judgment and stating that the case was one “where [the] employee [had] demonstrated by direct evidence that

25
[sex] played a substantial role in a particular employment decision”).7
Almost every Circuit has since recognized that, under Price Waterhouse, discrimination against an employee for his or her failure to conform to a sex
7 Even the dissenting Justices did not appear to dispute that sex stereotyping can constitute sex discrimination, agreeing that “Hopkins plainly presented a strong case both of her own professional qualifications and of the presence of discrimination in Price Waterhouse’s partnership process,” and doubting that it would have been reversible error if the “District Court found on this record that sex discrimination caused the adverse decision.” Id. at 294-95. Notably, the dissenting Justices also reaffirmed the “simple test” of Manhart. Id. at 282 (citing Newport News, 462 U.S. at 683). Instead, the disagreement in Price Waterhouse had to do with the burdens of proof for the employee’s claim and the employer’s defense. The plurality and concurring Justices agreed that an employee need only show that her protected class status was one motivating or substantial factor in the employment decision (and that Ms. Hopkins had done so), and that the lower court erroneously required the employer to satisfy a clear and convincing evidence standard to establish its affirmative defense that it would have made the same employment decision in the absence of the unlawful motive. 490 U.S. 254-55, 260, 261. The dissenting Justices disagreed that a violation was shown because the District Court did not find intentional discrimination was a “but for” cause of the denial of partnership. Id. at 295.
Two years after Price Waterhouse, Congress passed the Civil Rights Act of 1991, in part to codify the lessened causation standard upon which the plurality and concurrence agreed, but it also went further to remove the employer’s ability to completely defeat liability with the affirmative defense. See Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348-50 (2013) (citing and discussing 490 U.S. 228 and Pub. L. No. 102-166). As explained in more detail below, the 1991 amendments strongly support Petitioner’s position that sexual orientation discrimination is prohibited sex discrimination under Title VII. Infra, pp. 23-26.

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stereotype is discrimination “because of sex” that violates Title VII. See, e.g., Christiansen v. Omnicom Group, Inc., 852 F.3d 195, 200-01 (2d Cir. 2017); E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 689 F.3d 444, 453-56 (5th Cir. 2012); Lewis v. Heartland Inns of Am., L.L.C., 591 F.3d 1033, 1037-42 (8th Cir. 2010); Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 (1st Cir. 2009); Smith v. City of Salem, Ohio, 378 F.3d 566, 574 (6th Cir. 2004); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874 (9th Cir. 2001); E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1284 n.20 (11th Cir. 2000); Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th Cir. 2000). See also Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 303 (4th Cir. 2019) (holding that an employee could state a claim under Price Waterhouse for discrimination on the basis of conformity to a negative gender stereotype).8
8 Some courts have even expressly recognized that gay and lesbian employees may avail themselves of the sex stereotype theory of sex discrimination, so long as they observe what Petitioner contends is a legal fiction that the discrimination they allege is based strictly on the failure to conform to masculine or feminine stereotypes rather than sexual orientation. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1254 (11th Cir. 2017) (remanding with instruction to grant a lesbian plaintiff leave to amend her complaint to include a Price Waterhouse sex stereotype claim); Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 290-93 (3d Cir. 2009) (remanding to the district court for trial on the question of whether discrimination against the gay male employee was harassed because of his effeminacy or his sexual orientation). But see Franchina v. City of Providence, 881 F.3d 32, 54 (1st Cir. 2018) (upholding a verdict for the lesbian plaintiff under Price Waterhouse and rejecting the argument that the jury should have been

27
Though the Court had already held in Manhart that Title VII forbids employment decisions “predicated on mere ‘stereotyped’ impressions about the characteristics of males or females,” 435 U.S. at 707 n.13 (citation omitted), Price Waterhouse was an evolution in the legal understanding of sex as gender, or “ . . . the social or cultural, as opposed to the biological, distinctions between the sexes.” Gender, 3.b., Oxford English Dictionary (2d ed. 1989). Thus, “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender” in violation of Title VII. Price Waterhouse, 490 U.S. at 250. This understanding of sex as gender, including a person’s conformity or non-conformity with social roles typically associated with one sex or the other, must necessarily protect gay and lesbian employees from discrimination under Title VII, because “an employer who acts on the basis of a belief that a woman cannot be [attracted to other women] or that that she must not be, has acted on the basis of gender.” Zarda, 883 F.3d at 120-21 (citation omitted); Hively, 853 F.3d at 346; Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“the gender stereotype at work here is that ‘real’ men should date women, and not other men”).
Respondent and others may argue that sexual orientation discrimination is not sex stereotype discrimination
instructed that it could not find for the plaintiff if the harassment was based on her sexual orientation because it could be based on her sexual orientation and her sex). As explained below, this is an untenable and unworkable distinction. Infra, pp. 51-57.

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because “heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all.” Hively, 853 F.3d at 370 (Sykes, J., dissenting). But this implies a requirement for the sex stereotype theory of discrimination that does not exist – that the stereotype must be sex-specific to men or women as such, rather than sex-based as to the individual employee. As explained above, the Court has adhered to a classification-based approach under Title VII which is “unambiguous” and “focuses on fairness to individuals rather than classes.” See supra, p. 16 (citing Manhart, 435 U.S. at 708-09). “Mere equal application,” Loving, 388 U.S. at 8, of a sex stereotype against members of both sexes – that people of one sex should be attracted to members of the opposite sex – cannot prevent it from constituting an impermissible sexbased stereotype when applied to an individual of either sex.
One need only examine the array of opinions in Price Waterhouse, including the dissent, to understand why the classification-based approach obtains in the sex stereotype context as well. Every member of this Court agreed that it would not have been a violation of Title VII if Price Waterhouse could prove it denied Ms. Hopkins partnership because she was aggressive and curt. 490 U.S. at 258 (plurality); id. at 259-60 (White, J., concurring); id. at 279-80 (O’Connor, J., concurring); id. at 295 (Kennedy, J., dissenting). The problem arose because Price Waterhouse held those traits – which can be exhibited by men or women – against Ms. Hopkins because she was a woman. Id. at 258 (plurality)

29
(“[w]e sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman”). Sex stereotype discrimination against a male employee is actionable sex discrimination not because he lacks traits that are “specific” or “exclusive” to men, but because the employer is dissatisfied with him lacking those traits, whatever they are, because he is a man. Cf. Oncale, 523 U.S. at 80-81. It follows that sexual orientation discrimination against a man is sex stereotype discrimination because it is discrimination against him for failing to have the trait of being attracted to women because he is a man. The employer has acted “on the basis of a belief that [the man] cannot be [attracted to other men] or that [he] must not be,” because he is a man, and so has acted on the basis of his gender in violation of Title VII. Price Waterhouse, 490 U.S. at 250.
D. The Court Clearly Held in Oncale that Title VII Prohibits “Any Kind” of SexBased Discrimination
The Court’s decision in Oncale also requires the conclusion that Title VII prohibits sexual orientation discrimination. In Oncale, the Court addressed egregious sexual harassment perpetrated against a male employee on an offshore oil platform by several of the men with whom he worked. 523 U.S. at 76-77. The harassment included being “forcibly subjected to sexrelated, humiliating actions,” physically assaulted, and threatened with rape. Id. The Fifth Circuit upheld

30
dismissal of Mr. Oncale’s claim for sex discrimination in violation of Title VII, holding that the statute did not prohibit same-sex sexual harassment. Id. But this Court reversed in a unanimous decision explaining the broad scope of the ban on sex discrimination in Title VII.
The Court specifically rejected any “categorical rule excluding same-sex harassment claims from the coverage of Title VII,” because there was “no justification in the statutory language” or the Court’s precedents for such a rule. Id. at 79. Critically, the Court went further to explicitly hold that the statutory language “because of sex” encompasses forms of discrimination that Congress might not have contemplated when it passed Title VII. Id. at 79-80. Noting that same-sex sexual harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII,” the Court nevertheless held that the statutory language goes beyond the forms of discrimination expressly contemplated to cover “reasonably comparable evils,” and “any kind” of sex-based discrimination that meets the statutory requirements. Id. This holding, faithful to the plain language of Title VII, should be dispositive in this case. It confirms yet again that the ban on sex discrimination in the statute is broad enough to cover not only sex discrimination against women, but “reasonably comparable evils” of “any kind” too, of which sexual orientation discrimination is surely one.

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The Oncale Court’s discussion about how samesex harassment can be proved under Title VII bolsters the conclusion that sexual orientation discrimination is a covered form of sex discrimination. The Court specifically rejected any requirement for the particular motive or reasoning behind the intent to discriminate against a person because of sex. Id. at 80-81. Rather, the Court explained that discrimination “because of sex” can be shown with credible evidence that the harasser is gay or lesbian, “but harassing conduct need not be motivated by sexual desire” to support a claim for sex discrimination. Id. at 80. It might just as easily be shown by evidence that a female harasser harbored hostility toward other women in the workplace because they are women, or the plaintiff can “offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Id. The last approach is, of course, the Manhart “simple test.” 435 U.S. at 711. But all six Circuits to consider the issue have held that the categories in Oncale are illustrative, not exhaustive. See E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444, 455-56 n.6 (5th Cir. 2013). It is clear after Oncale, if not before, that any discrimination “because of sex,” whether based on animus, sexual desire, a comparative analysis, or any other reason – such as sexual orientation – violates Title VII.

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II. The Statutory History of Title VII Confirms that it Forbids Sexual Orientation Discrimination as a Form of Sex Discrimination
While it is clear from the text of Title VII that it prohibits sexual orientation discrimination as a form of discrimination “because of sex,” the Court should “interpret the relevant words not in a vacuum, but with reference to the statutory context, structure, history, and purpose.” Abramski v. United States, 573 U.S. 169, 179 (2014) (quotation omitted). That context, including the amendments in 1978 and 1991 and this Court’s interpretations in Manhart, Newport News, Meritor, Price Waterhouse, and Oncale, further compels the conclusion that Title VII must be understood to prohibit sexual orientation discrimination.
Indeed, the statutory history fatally undermines Respondent’s primary argument that recognizing sexual orientation discrimination to be within the scope of Title VII does violence to the “original public meaning” of the statute, Hively, 853 F.3d at 362-63 (Sykes, J., dissenting), and betrays a failure to interpret the words “as taking their ordinary, contemporary, and common meaning . . . at the time Congress enacted the statute,” Zarda, 883 F.3d at 167 (Livingston, J., dissenting) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). This argument fails at the outset because it ignores the fact that a broad definition of “sex” was already understood in 1964 to include “[t]he sphere of behavior dominated by the relations between male and female,” and “[t]he whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate

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and pleasure-seeking conduct.” Sex, 2., 3., Webster’s New International Dictionary of the English Language 2296 (2d unabridged ed. 1961). But just as importantly, it ignores the evolution of Title VII that has been taking place in Congress and this Court’s decisions for over fifty years.
The Court has expressly recognized that “[w]ords in statutes can enlarge or contract their scope as other changes, in law or in the world, require their application to new instances or make old applications anachronistic.” West v. Gibson, 527 U.S. 212, 218 (1999) (citing cases); see also Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018) (“[w]hile every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world”) (emphasis in original). The conclusion that Title VII must be interpreted broadly to prohibit sexual orientation discrimination follows inexorably from such changes, including (1) the expansion of Title VII in 1978 to reject limitations on the sex discrimination prohibition and codify the classification-based approach to sex discrimination; (2) the Court’s expansive interpretations of the statutory language in Manhart, Newport News, Meritor and Price Waterhouse and the fact Congress ratified and incorporated these in Title VII with the Civil Rights Act of 1991; and (3) the Court’s holding in Oncale that the prohibition of sex discrimination in Title VII “go[es] beyond the principal evils” contemplated by Congress in 1964 to forbid “reasonably comparable evils” and “any kind” of sex-based discrimination, 523 U.S. at 79.

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A. Congress Rejected Limitations on the Sex Discrimination Prohibition in Title VII and Confirmed the ClassificationBased Approach with the 1978 Pregnancy Discrimination Act
The Court has previously noted the “somewhat bizarre path” by which “sex” came to be included in the enumeration of protected groups in Title VII – it may have been included as an attempt to thwart passage of the bill. Price Waterhouse, 490 U.S. at 243 n.9 (citation omitted). But see Eskridge, LGBT Workplace Protections, 127 Yale L.J. at 347. Because it was a last minute addition, “we are left with little legislative history to guide us in interpreting the Act’s prohibition against discrimination based on ‘sex.’ ” Meritor, 477 U.S. at 63-64. This is undoubtedly why “[i]n analyzing a statute, [the Court must] begin by examining the text . . . , not by psychoanalyzing those who enacted it,” Carter v. United States, 530 U.S. 255, 270-71 (2000) (citation omitted), though we do know that during the hearings on the 1972 amendments, congressional reports reflect the view that sex discrimination was “no less serious than other prohibited forms of discrimination, and that it is to be accorded the same degree of concern given to any type of similarly unlawful conduct.” S. Rep. No. 92-415, p. 7 (Oct. 28, 1971).
And we also know that, after the Court narrowly interpreted Title VII to permit discrimination on the basis of pregnancy even though only women can become pregnant, Gen. Elec. Co. v. Gilbert, 425 U.S. 125, 136-40 (1976), Congress responded by passing the

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Pregnancy Discrimination Act of 1978, Pub. L. No. 95555, 92 Stat. 2076. The Act amended Title VII to provide that:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title, 42 U.S.C. 2000e-2, shall be interpreted to permit otherwise.
Id. (codified at 42 U.S.C. § 2000e-2(k)). The House and Senate Reports made clear that the purpose of the Pregnancy Discrimination Act was a broader understanding of the definition of sex discrimination in the statute, and to ensure that Title VII protected “against all forms of employment discrimination based on sex,” including pregnancy and related medical conditions. S. Rep. No. 95-331, pp. 2-3; H.R. Rep. No. 95-948, pp. 34.9
9 In defining discrimination “because of sex” to “include, but not be limited to,” discrimination because of “pregnancy, childbirth, or related medical conditions,” the language of § 2000e(k) reflects the intent to expand the definition of “sex” discrimination even beyond these enumerated types of sex-based discrimination. See Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 63 F.3d 262, 280 (3d Cir. 1995) (Alito, J.) (explaining that the rule of

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As Justice Stevens, who dissented in Gilbert, 429 U.S. at 160-62, later explained, Gilbert had been the “one notable exception” to the Court’s usual textualist approach to analyzing the sometimes broaderthan-expected scope of statutory prohibitions, Sutton v. United Air Lines, 527 U.S. 471, 506 (1999) (Stevens, J., dissenting). And Congress definitely saw it that way. The Senate specifically endorsed the classificationbased approach to sex discrimination with the Pregnancy Discrimination Act, quoting with approval as “correctly express[ing] both the principle and the meaning of Title VII” the words of Justice Brennan in Gilbert that “[s]urely it offends commonsense to suggest . . . that a classification revolving around pregnancy is not, at the minimum, strongly ‘sex related.’ ” S. Rep. No. 95-331, p. 3; see also Newport News, 462 U.S. at 681 (noting that “[p]roponents of the legislation stressed throughout the debates that Congress had always intended to protect all individuals from sex discrimination in employment – including but not limited to pregnant women workers.”) (emphasis supplied). The Pregnancy Discrimination Act of 1978, along with Manhart, thus confirms that the statutory ban on sex discrimination in Title VII must be read broadly to prohibit discrimination on account of any sex-based classifications, even those not enumerated in the statute.
ejusdem generis does not apply to limit the scope of a statute when the language expresses a contrary intent by using the phrase “including, but not limited to”).

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B. Congress Incorporated into Title VII an Expansive Definition of Sex-Based Discrimination from Newport News, Meritor, and Price Waterhouse with the Civil Rights Act of 1991
After the 1978 amendment, the Court began to interpret the sex discrimination prohibition in Title VII more broadly. In 1983, the Court held that male employees were discriminated against “because of sex” in violation of Title VII when their employer denied insurance coverage for pregnancy to their wives while providing full coverage to the husbands of female employees. Newport News, 462 U.S. at 685. The Court rejected the argument that the male employees could not maintain claims for sex discrimination because Congress was focused on protecting women, not men, when it passed Title VII. Id. at 679. This, the Court said, did not “create a ‘negative inference’ limiting the scope of the act to the specific problem that motivated its enactment.” 462 U.S. at 679-80. Instead, the Court applied the “simple test” of Manhart and found that the pregnancy limitation in the case discriminated against male employees. Id. at 683, 685.10
The Court again interpreted the sex discrimination prohibition expansively in Meritor, 477 U.S. 57 (1986). The employee in that case alleged that she was
10 In finding that sex-based discrimination against only male employees with pregnant spouses violated the statute, the Court also confirmed again the classification-based approach to Title VII that recognizes unlawful sex-based discrimination even when the target is only a subgroup of men or women.

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discriminated against because of her sex when her supervisor subjected her to unwanted touching and sexual advances in the workplace over a period of years. Id. at 59-60. In attempting to determine whether sexual harassment fell within the statutory language, the Court noted first that there was little legislative history from 1964 to guide the inquiry as to what constitutes “discrimination based on ‘sex,’ ” but concluded that, “[w]ithout question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminates’ on the basis of sex.” Id. at 64-65. The Court also rejected the employer’s argument that only “economic” or “tangible” discrimination was actionable under Title VII. Id. at 66-67. Instead, the Court noted that the EEOC Guidelines took the position that “sexual harassment” was a form of sex discrimination and lower courts agreed. Id. Accordingly, the Court held that a “hostile or abusive work environment” based on sex falls within the statutory prohibition. Id. at 66-67.
The Court further expounded the meaning of the statutory language in Price Waterhouse as discussed above, explaining that because Title VII “even forbids employers to make gender an indirect stumbling block to employment opportunities,” discrimination against an employee for failing to conform to a gender stereotype constitutes unlawful sex discrimination. See supra, pp. 23-29 (citations omitted). The Court also recognized the possibility of other forms of sex discrimination arising from a combination of sex-based considerations and other legitimate considerations. Specifically, the

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Court held that “Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations,” so that the statute is violated when an employer considers “both gender and legitimate factors at the time of making a decision.” 490 U.S. at 241 (emphasis supplied). Congress confirmed and codified this lessened causation standard for Title VII discrimination claims with § 107(a) of the Civil Rights Act of 1991, providing that a violation of the Act is shown by proof that sex or another protected characteristic “was also a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).
These holdings – that the language of Title VII is not limited to forms of sex discrimination “that motivated its enactment,” Newport News, 462 U.S. at 679-80, includes “sexual harassment” without economic impact, Meritor, 477 U.S. at 64-67, and encompasses “sex stereotype” discrimination and reliance on sex-based considerations alongside legitimate considerations despite the statutory silence on these points, Price Waterhouse, 490 U.S. at 240-42 – were all effectively incorporated into Title VII by the Civil Rights Act of 1991. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 239-40 (2009) (noting that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change” and concluding that Congress approved of the Court’s prior interpretations of the Individuals with Disabilities in Education Act because it did not abrogate them or repeal those parts

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of the statute in a subsequent amendment of another part); see also North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (“it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [the Court’s] precedents . . . and that it expect[s] its enactment[s] to be interpreted in conformity with them”) (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 699 (1979)); Shapiro v. United States, 335 U.S. 1, 16 (1948) (“[i]n adopting the language used in the earlier act, Congress ‘must’ be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment”). As a result, while the holdings of Newport News, Meritor, and Price Waterhouse already carried “enhanced force” because they are precedents interpreting a statute, Kimble v. Marvel Entm’t, L.L.C., 135 S. Ct. 2401, 2409 (2015), they by now form the foundation of a congressional mandate that the statutory language of Title VII be interpreted broadly to prohibit forms of sex discrimination not explicitly set forth in the statute.
Respondent and others may argue to the contrary that when Congress passed the Civil Rights Act of 1991, it implicitly ratified the interpretation of a handful of lower courts that Title VII does not prohibit sexual orientation discrimination. See Br. for the U.S. as Amicus Curiae, Zarda, 2017 WL 3277292, *8-10. But while Congress can express its intent by reference to the decisions of lower courts, the record must be clear that it did. Cf. Texas Dep’t of Hous. and Comm. Affairs v. Inclusive Cmty’s Project, Inc., 135 S. Ct. 2507, 2520 (2015) (holding that Congress adopted the scope of

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disparate impact liability for the Fair Housing Act set forth in unanimous holdings of the Circuit Courts where several committee reports and congressional testimony explicitly addressed them). There is no evidence that Congress had any “background understanding,” id. at 2520, of lower court rulings on sexual orientation discrimination under Title VII in 1991, see Zarda, 883 F.3d at 129. Rather, the congressional remarks concern this Court’s interpretations of Title VII. See H.R. Rep. No. 102-40, 45, 1991 U.S.C.C.A.N. 549, 583 n.39 (noting that the holding in Price Waterhouse that “evidence of sex stereotyping is sufficient to prove gender discrimination” would not be affected by the Act), 638 (discussing Manhart, Newport News, and Johnson Controls with approval). There is no basis to assume Congress adopted the rulings of a few lower courts that Title VII did not prohibit sexual orientation discrimination. Zarda, 883 F.3d at 129. Instead, it must be presumed that Congress ratified this Court’s decisions in Manhart, Newport News, Meritor, and Price Waterhouse.11 It is these decisions, including the guidance they provide about how to interpret Title VII – that there is no “negative inference” that limits the language, Newport News, 462 U.S. at 679-80, and that it covers discrimination built on sex-based assumptions about behavior, Price Waterhouse, 490 U.S. at 240-42 – that Congress
11 As well as some others. See Landgraf v. USI Film Prods., 511 U.S. 244, 250-51 (1994) (noting that “[o]ther sections of the [Civil Rights] Act [of 1991] were obviously drafted with ‘recent decisions of the Supreme Court’ in mind” and citing other cases and provisions).

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incorporated in Title VII in 1991. Cf. Forest Grove Sch. Dist., 557 U.S. at 239-40.
Respondent also argues that Title VII cannot be understood to cover sexual orientation discrimination because legislation that would have amended the statute to specifically include it has failed to pass Congress many times. Br. of Resp. in Opp. to Cert., p. 21 n.4. Respondent concedes that “[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction,” id. at p. 23 (citing Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990)), yet maintains no one could have thought that Title VII prohibited sexual orientation discrimination because lower courts held that it did not, id. at pp. 23-24. But that is exactly what the then-Speaker of the House of Representatives John Boehner said about one such bill in 2013. See Ed O’Keefe, Senate passes job-bias bill for gays, WASH. POST, Nov. 8, 2013; CNN Newsroom, Transcript of Nov. 14, 2013 Broadcast, available at http://transcripts. cnn.com/TRANSCRIPTS/1311/14/cnr.06.html (reporting Mr. Boehner’s statement in response to a question concerning the Employment Discrimination Act, which would have prohibited sexual orientation discrimination in employment, that “as someone who has worked in this employment law area for all of my years in the state house and all of my years here, I see no basis or no need for this” because “people are already protected”) (last visited June 22, 2019). Regardless, “the verdict of quiescent years cannot be invoked to baptize a statutory gloss that is otherwise impermissible.”

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Zuber v. Allen, 396 U.S. 168, 185 n.21 (1969). The Court simply cannot read as much from what Congress did not do over the years as it can from what Congress did do with the Civil Rights Act of 1991. See BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting) (noting that the “statutory history” of “enacted changes Congress made to the relevant statutory text over time” is “the sort of textual evidence everyone agrees can sometimes shed light on meaning” as opposed to the “sort of unenacted legislative history that often is neither truly legislative . . . nor historical”).12
12 Similarly, Respondent argues that the prohibition of sexual orientation discrimination in other statutes means that “sex” as used in Title VII cannot include sexual orientation. Br. of Resp. in Opp. to Cert., pp. 17-18 (citations omitted). To begin with, these statutes cannot be read in pari materia with Title VII because they deal with sex discrimination “in entirely different” fields, and there is no indication that Title VII was intended to be read with them. Fort Stewart Sch. v. Fed. Labor Relations Auth., 495 U.S. 641, 647-48 (1990). Moreover, all of these statutes were enacted after Title VII, and “Congress’s use of similar language in other statutes . . . tells us nothing about Congress’s understanding of the language it enacted” in Title VII. Food Mktg. Inst. v. Argus Leader Media, 588 U.S. ___ (2019), No. 18-481, 2019 WL 2570624, *6 (June 24, 2019); see also Gutierrez v. Ada, 528 U.S. 250, 25758 (2000) (“later laws that do not seek to clarify an earlier enacted general term and do not depend for their effectiveness upon clarification, or a change in the meaning of an earlier statute, are beside the point in reading the first enactment”) (quotations and citation omitted).

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C. The Court Unanimously Recognized in Oncale that Title VII Must be Read to Prohibit Forms of Sex Discrimination not Contemplated by Congress in 1964
Just as Newport News verified that Congress confirmed a broad application of the sex discrimination prohibition with the Pregnancy Discrimination Act, Oncale reflected that Congress codified expansive interpretation of the statutory language with the Civil Rights Act of 1991. Accordingly, the unanimous Oncale Court squarely held that the statutory language reaches further than the particular types of discrimination Congress was concerned with in 1964:
As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory 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.
523 U.S. at 79; see also Lewis v. City of Chicago, Ill., 560 U.S. 205, 215 (2010) (Scalia, J.) (“[i]t is not for us to rewrite [Title VII] so that it covers only what we think is necessary to achieve what we think Congress really intended”).13
13 No doubt this is because any indications in the legislative history which are contrary to the plain language of the statute “may reflect nothing more than the speakers’ incomplete

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The Court has thus already rejected the argument that the scope of the ban on sex discrimination in Title VII is limited by the “ordinary, contemporary, common” meaning of “sex” at the time the statute was passed. See Zarda, 883 F.3d at 137 (Lohier, J., concurring and explaining that “[t]ime and time again, the Supreme Court has told us that the cart of legislative history is pulled by the plain text, not the other way around”). And for good reason: the statutory history makes clear that the prohibition must “extend to . . . [discrimination] of any kind that meets the statutory requirements,” which are simply that the discrimination be “because of sex,” Oncale, 523 U.S. at 75 (emphasis supplied). It extends to sex-based discrimination of “any kind” regardless of whether all members of one sex are targeted, Newport News, 462 U.S. at 679-80, whether the precise form of discrimination appears in the statute, Meritor, 477 U.S. at 65, whether the sex-related consideration is based on biology or behavior, Price Waterhouse, 490 U.S. at 240-42, or whether Congress contemplated it in 1964, Oncale, 523 U.S. at 75. Accordingly, Title VII extends to sexual orientation discrimination because it meets the statutory requirements, see supra, pp. 12-31, and there is no difficulty in interpreting the statute to reach more broadly than Congress may have expected in 1964.
Indeed, the Court has often interpreted statutory language more broadly than it might have been interpreted at the time the statute was passed. See, e.g.,
understanding of the world upon which the statute will operate.” Fort Stewart Sch., 495 U.S. at 650 (Scalia, J.) (citation omitted).

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West, 527 U.S. at 218 (interpreting the original language of Title VII permitting “appropriate” relief against the federal government to allow the award of compensatory damages even though such damages were not available until the 1991 amendments); Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 768-70 (2019) (interpreting the International Organizations Immunities Act of 1945 to provide immunity consistent with the restrictive theory of foreign sovereign immunity adopted by the Foreign Sovereign Immunities Act of 1976); Kimble, 135 S. Ct. at 2412-14 (2015) (noting that the Sherman Act has been interpreted dynamically); Oncale, 523 U.S. at 79-80; Allied-Bruce Terminix Co.’s, Inc. v. Dobson, 513 U.S. 265, 273-76 (1995) (interpreting the Federal Arbitration Act to incorporate the definition of commerce as expanded by the Court’s decisions since the Act was passed in 1925);14 Meritor, 477 U.S.
14 Because constitutional cases “can provide helpful guidance in this statutory context,” Ricci, 557 U.S. at 582, the Court’s decisions concerning the constitutional rights of gay and lesbian people decided since Title VII was enacted should also be understood as changes “in law or in the world,” West, 527 U.S. at 218, which require a broader reading of Title VII. These include Romer v. Evans, 517 U.S. 620, 631-35 (1996) (holding that a state constitutional prohibition of governmental action to protect gay and lesbian people was a violation of the Equal Protection Clause of the Fourteenth Amendment), Lawrence v. Texas, 539 U.S. 558, 578-79 (2003) (holding that a statute prohibiting same-sex sexual intercourse was an unconstitutional deprivation of substantive due process), and Obergefell v. Hodges, 135 S. Ct. 2584, 2603-05 (2015) (holding that the Equal Protection Clause protects the right of gay and lesbian persons to marry a member of the same sex). It would be anachronistic, to say the least, to read Title VII to permit a form of discrimination that the Court has held to violate the Constitution.

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at 63-67. There is no difficulty in doing so where, as here, the proposed interpretation is completely consistent with the statutory text and there are exceedingly strong indications in the statutory history and the Court’s decisions that the statutory language should be read broadly in conformity with certain subsequent developments in the law. Indeed, in this context – where Congress has ratified and incorporated the Court’s expansive interpretations of the language into the statute, considerations of stare decisis impose a “considerable burden upon those who would seek a different interpretation that would necessarily unsettle many Court precedents.” CBOCS West, Inc. v. Humphries, 553 U.S. 442, 451-52 (2008).
III. Title VII Must be Interpreted to Prohibit Sexual Orientation Discrimination Because the Contrary Interpretation Would Place Different Parts of the Statute in Conflict and is Profoundly Unworkable
There are at least two other reasons why the Court must conclude that Title VII prohibits sexual orientation discrimination as a form of sex discrimination. First, refusal to recognize that Title VII prohibits sexual orientation discrimination would place 42 U.S.C. § 2000e-2(m) at odds with the other antidiscrimination provisions of § 2000e-2 and render it meaningless. Second, it is profoundly unworkable as demonstrated by contradictory lower court decisions which have tried unsuccessfully to distinguish

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between sex-based stereotype discrimination and sexual orientation discrimination.
A. Title VII Must Be Interpreted to Prohibit Sexual Orientation Discrimination to Give Effect to all the Anti-Discrimination Provisions of the Statute
Interpreting Title VII to prohibit sexual orientation discrimination is necessary to harmonize and give effect to all the anti-discrimination provisions of 42 U.S.C. § 2000e-2. It is well established that the Court’s task “in interpreting [these] separate provisions of a single Act is to give the Act ‘the most harmonious, comprehensive meaning possible’ in light of the legislative policy and purpose.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-32 (1973) (quotation omitted). Reading Title VII to prohibit sexual orientation discrimination is necessary to avoid placing the anti-discrimination provisions of § 2000e-2 in conflict with the ban on employment practices motivated even in part by sex, § 2000e-2(m), and rendering the latter meaningless.
The Court explained in Price Waterhouse that “[t]he critical inquiry, the one commanded by the words of 42 U.S.C. § 2000e-2(a)(1),” is whether:
gender was a factor in the employment decision at the moment it was made. Moreover, since we know that the words “because of ” do not mean “solely because of,” we also know that Title VII meant to condemn even

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those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was “because of ” sex and the other, legitimate considerations – even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account.
490 U.S. at 241 (emphasis supplied). As discussed above, Congress explicitly approved this lessened “motivating factor” causation standard for Title VII discrimination claims and codified it at 42 U.S.C. § 2000e-2(m) with § 107(a) of the Civil Rights Act of 1991. See Nassar, 570 U.S. at 347-49 (citing and discussing Price Waterhouse and Pub. L. No. 102-166). The Court must interpret Title VII to prohibit sexual orientation discrimination for consistency between § 2000e-2(m) and the other anti-discrimination provisions of § 2000e-2 in the first place because, in their misguided efforts to determine whether discrimination is motivated by an employee’s failure to conform to a sex-based stereotype or her sexual orientation, the lower courts are erroneously throwing out cases where it is motivated by both. See, e.g., Kay v. Independence Blue Cross, 142 F. App’x 48, 50-51 (3d Cir. 2005) (noting that the harassment included referring to “real men” as opposed to the “fem” plaintiff and assuming that this was evidence of sex stereotyping but nevertheless affirming the district court’s dismissal because other evidence indicated sexual orientation bias); Swift v.

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Countrywide Home Loans, Inc., 770 F. Supp. 2d 483, 488 (E.D.N.Y. 2011) (determining that the plaintiff ’s claim for sex discrimination was really one for sexual orientation discrimination even though the court acknowledged that he was disparaged with terms referring to the “non-conformism of his behavior”).
But the Court must also interpret Title VII to prohibit sexual orientation for consistency between 42 U.S.C. § 2000e-2(m) and the other anti-discrimination provisions for a more fundamental reason. As explained above, a person’s sex is a necessary element of his sexual orientation because a gay or lesbian sexual orientation is defined as experiencing sexual desire for a person of one’s “own” or same sex. Supra, pp. 13-14. This means that sexual orientation is a sex-based classification under Title VII. Id. But it also means that sexual orientation is discrimination “because of sex” under Price Waterhouse and § 2000e-2(m). Specifically, even if sexual orientation was a “legitimate consideration” for an employment decision (which it is not), an employment decision on that basis would still be “ ‘because of ’ sex and the other, legitimate consideration[,]” Price Waterhouse, 490 U.S. at 241, because sexual orientation is dependent on the sex of the employee. As a result, such an employment decision would still violate Title VII under 42 U.S.C. § 2000e-2(m). The Court must therefore conclude that sexual orientation discrimination is discrimination “because of sex” to harmonize the anti-discrimination provisions of § 2000e-2 with § 2000e-2(m) and avoid rendering the latter meaningless. See, e.g., Food and Drug Admin. v. Brown &

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Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (holding that, where possible, the Court must interpret a statute “as a symmetrical and coherent regulatory scheme,” fitting “all parts into an harmonious whole”); Weinberger, 412 U.S. at 631-32; Petition of Pub. Nat. Bank of New York, 278 U.S. 101, 104 (1928) (noting that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant”) (quotation omitted).
B. The Attempt to Distinguish Between Sex Stereotype Discrimination Based on Gay or Lesbian “Traits” and Sexual Orientation Discrimination is Profoundly Unworkable
The Court must also recognize that Title VII prohibits sexual orientation discrimination because a refusal to do so would perpetuate the puzzling morass of conflicting lower court decisions. Even the courts have admitted the difficulty of properly applying Price Waterhouse and Oncale to claims brought by gay and lesbian employees. See, e.g., Prowel, 579 F.3d at 291 (noting that “the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw”); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (explaining that sex stereotype claims can present problems because “ ‘stereotypical notices about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality’ ”) (citations omitted),

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overruled by Zarda, 883 F.3d 100; Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1065 n.5 (7th Cir. 2003) (conceding that “distinguishing between failure to adhere to sex stereotypes . . . and discrimination based on sexual orientation . . . may be difficult”) overruled by Hively, 853 F.3d 339, 350 (en banc) (noting that “the effort to [remove the ‘sex’ from ‘sexual orientation’] has led to confusing and contradictory results”).
For example, some courts dismiss claims for sex discrimination where the plaintiff alleges verbal harassment reflecting a perception that he or she is gay, while others do not. Compare, e.g., Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8th Cir. 1999) (permitting a claim for same-sex sexual harassment to proceed where a male plaintiff alleged he was harassed because of his “perceived sexual preference,” because the fact that “some of the harassment alleged . . . includes taunts of being homosexual . . . ” did not make the complaint one for sexual orientation discrimination) and E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 768 F. Supp. 2d 883, 893 (E.D. La. 2011) (denying summary judgment on a sex stereotyping discrimination claim where the alleged harasser said he thought the employee’s use of wet wipes instead of toilet paper was “feminine” or “kind of homo” and the supervisor made jokes about the employee being gay) with Kay, 142 F. App’x at 50-51 (affirming the dismissal of a complaint because the epithets directed toward the plaintiff, including “faggot,” “fem,” and suggesting he was not a

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“real man” indicated sexual orientation discrimination and not sex stereotype discrimination).
Other courts seek to divine whether the employer is motivated to discriminate because of the employee’s sexual orientation or his failure to conform to a sex stereotype by tabulating and comparing the “relative frequency” of comments reflecting either type of bias. See Zarda, 883 F.3d at 121 (citing and discussing cases). As might be expected, these efforts are inconsistent in their outcomes. Compare, e.g., Hamm, 332 F.3d at 1062-65 n.4 (upholding summary judgment against a plaintiff who was called “girl scout” and mocked for having a “high-pitched” voice because the evidence pointed to the conclusion that he was being discriminated against because of sexual orientation) and E.E.O.C. v. Family Dollar Stores, Inc., No. CIV.A. 1:06CV-2569-TWT, 2008 WL 4098723, at *1, *16-20 (N.D. Ga. Aug. 28, 2008) (granting summary judgment on a sex stereotype claim even though the alleged harasser said the employee was “half-female,” and told him “now you using tampons,” because the record “clearly reflect[ed] that the harassment at issue was based primarily” on the plaintiff ’s perceived sexual orientation) (emphasis supplied) with Nichols, 256 F.3d at 870, 87475 (holding that an employee proved a sex-based hostile work environment even though the harasser called him a “faggot” because “the most vulgar name-calling directed at [the plaintiff ] was cast in female terms”). Cases are all over the map with varying analytical approaches. See generally Br. for GLBTQ Advocates and Defenders and the National Center for Lesbian Rights

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as Amici Curiae in Support of the Petitioner in Case 17-1618 and Respondents in Cases 17-1623 and 18107, pp. 4-12.
Some judges have actually admitted that attempting to apply Price Waterhouse and Oncale while precluding sexual orientation discrimination claims is simply “unworkable.” Christiansen, 852 F.3d at 205 (Katzman, C.J., concurring). Judge Posner of the Seventh Circuit wrote a concurrence in Hamm specially for the purpose of “recording [his] conviction that the case law has gone off the tracks in the matter of ‘sex stereotyping[.]’ ” 332 F.3d at 1066. In that opinion, written fifteen years ago, he explained how the lower courts had distorted this Court’s decision in Price Waterhouse by trying to avoid recognizing discrimination based on sexual orientation as actionable:
Hostility to effeminate men and to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter, especially the former. Effeminate men often are disliked by other men because they are suspected of being homosexual (though the opposite is also true – effeminate homosexual men may be disliked by heterosexual men because they are effeminate rather than because they are homosexual), while mannish women are disliked by some men because they are suspected of being lesbians and by other men merely because they are not attractive to those men; a further complication is that men are more hostile to male homosexuality than they are to lesbianism.

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To suppose courts capable of disentangling the motives for disliking the nonstereotypical man or woman is a fantasy.
Id. at 1067 (emphasis supplied). Moreover, the ill-conceived attempt to determine whether the motive for discrimination is a failure to conform to sex stereotypes or sexual orientation necessarily promotes an investigation of the plaintiff ’s sexual orientation, which was assuredly not the policy of Title VII. Id.
Numerous commentators have also rightly criticized this course of jurisprudence for causing more problems than it purported to solve. See, e.g., Eskridge, LGBT Workplace Protections, 127 Yale L.J. at 343 (arguing that “[a]s administrators, judges, and legislators have responded to our evolving understanding of the workplace, they have crafted a series of legal rules and precedents that render the exclusion of LGBT employees from Title VII increasingly anomalous and profoundly unworkable”); Zachary R. Herz, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396, 425 (2014); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U. L. Rev. 715, 754 (2014) (surveying cases); Anthony E. Varona, Jeffrey M. Monks, En/gendering Equality: Seeking Relief Under Title VII Against Employment Discrimination Based on Sexual Orientation, 7 Wm. & Mary J. Women & L. 67, 94-98 (2000). Importantly, the fact that discrimination based on a person’s failure to conform to a sex stereotype is so often indistinguishable from discrimination on the basis of sexual orientation further reinforces the

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common sense conclusion that a heterosexual orientation is a sex-based stereotype.
Ultimately, a refusal to recognize that Title VII prohibits sexual orientation discrimination invites judicial speculation into whether and to what extent sexbased discrimination is based on sex stereotypes rather than sexual orientation, and leads to confusing and contradictory results.15 The Court must therefore
15 This infects other areas of Title VII jurisprudence as well. For example, the “opposition clause” of Title VII protects employees from retaliation based on their opposition to practices made unlawful under Title VII, Crawford v. Metro. Gov’t of Nashville and Davidson Cnty., Tn., 555 U.S. 271, 276 (2009), but many lower courts require employees alleging retaliation for protected opposition activity must demonstrate that their belief that they were opposing conduct made unlawful under Title VII was reasonable, which is often measured by the substantive law, see, e.g., Brannum v. Mo. Dep’t of Corr., 518 F.3d 542, 549 (8th Cir. 2008); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999). To the extent that it is unclear whether Title VII prohibits sexual orientation discrimination, and whether an employee is being lawfully discriminated against because of sexual orientation or unlawfully on the basis of a sex stereotype, the scope of the opposition clause of Title VII also remains unclear, and the remedial policy of the statute is undermined.
Another example is the question of whether a plaintiff has exhausted his administrative remedies before the Equal Employment Opportunity Commission as required before bringing a lawsuit in court. See Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004). Generally speaking, “a plaintiff ’s judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination,” which depends on whether the court determines that the charge alleged sufficient facts to put the Commission and the employer on notice of the allegations. See id. (citations omitted). If the court decides that the employee did not provide enough factual information in the charge, then she will

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recognize that Title VII prohibits sexual orientation discrimination because the alternative is a continuation of the confusing mess that threatens the consistency and predictability required for the rule of law in this area. See, e.g., United States v. Powell, 469 U.S. 57, 66 (1984) (rejecting as “imprudent and unworkable” a rule that invited judicial speculation or inquiries into the jury’s deliberations in criminal cases); Swift & Co. v. Wickham, 382 U.S. 111, 124-25 (1965) (rejecting a rule for determining the scope of the three-judge court statute because it was “in practice unworkable,” uniformly criticized by commentators, and lower courts avoided dealing with it or interpreted it with uncertainty).
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CONCLUSION
For all the reasons set forth above, Petitioner prays that this Honorable Court reverse the erroneous
be barred from pursuing that claim in the lawsuit. Id. Indeed, the Magistrate Judge below decided that Mr. Bostock could not assert his claim for sex discrimination because he did not reference it as such in the charge of discrimination he filed with the Commission, despite the fact that he checked the only box on the charge applicable to both sexual orientation and sex stereotype discrimination: “sex.” App. 8, 22-24. Mr. Bostock has since abandoned this articulation of his sex discrimination claim, id. at 41 n.1, but the issue highlights the continuing confusion caused by the unsettled law of how to “properly” allege the various forms of sex discrimination. See also Norris v. Diakin Drivetrain Components, 46 F. App’x 344 (6th Cir. 2002) (holding that the plaintiff did not exhaust his same-sex sexual harassment claim by alleging sexual orientation discrimination in his charge and dismissing the case).

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judgment of the Eleventh Circuit Court of Appeals that he cannot state a claim for relief under Title VII on the theory that he was subjected to discrimination “because of sex” when he was fired for being gay. That Title VII so protects him and every other employee, whether gay or straight, is the best reading of the statute and the one that comports with the congressional intent to “strike at the entire spectrum of disparate treatment of men and women in employment.” Oncale, 523 U.S. at 78 (citing Meritor, 477 U.S. at 64).
Respectfully submitted,
BRIAN J. SUTHERLAND Counsel of Record
THOMAS J. MEW IV BUCKLEY BEAL, LLP 600 Peachtree St., N.E. Suite 3900 Atlanta, Georgia 30308 (404) 781-1100 bsutherland@buckleybeal.com tmew@buckleybeal.com Counsel for Petitioner
Gerald Lynn Bostock