Thread by @marty_lederman

1/ ICYMI, I've written and co-written a couple of things I hope some readers will find interesting about central questions in each of the Title VII cases being argued in the #SCOTUS today.

#TitleVII #LGBTQ #stephens #zarda #bostock @SCOTUSblog #appellatetwitter

2/ First, in this blogpost I address the argument that T7 doesn't prohibit an employer from adhering to a policy or practice of disfavoring gay men and lesbians alike, e.g., a "heterosexuals only need apply" policy.
(cont.)

balkin.blogspot.com/2019/09/though…...

3/ I explain that that doesn't describe the employers in the two cases the Court is hearing today--nor virtually any other employers one finds in T7 cases--but that, in any event, the Court's doctrines involving other forms of discrimination ...

4/ ... based upon "relational" characteristics of an employee demonstrate that such a policy or practice would result in T7 violations w/r/t *both* the gay men and lesbians who are disadvantaged--and, perhaps most importantly (see Part V), ...

5/ ... that such a policy is *not* typically predicated upon a "single stereotype" about what all people, men and women alike, should do, but instead is almost invariably based upon a religious or moral view ...

6/ ... that men and women should have complementary, and very different, roles in the bedroom and in the family. (cont.)

7/ Second, in this amicus brief in the transgender case, which I wrote with @sbagen, @dorf, @LeahLitman and @mjschlanger, and with the assistance of the excellent folks at Goldstein & Russell, ...

supremecourt.gov/DocketPDF/18/1…

8/ ... we address the argument that because T7 generally permits employers to insist upon certain express, sex-based dress, grooming, presentment and restroom rules, it shouldn't prohibit such an employer from insisting ...

9/ ... that a transgender woman abide by those such rules that apply to "male" employees. We explain first that such rules obviously are imposed "because of" the employees' sex and, in the case of Aimee Stephens, because of the reproductive physiology with which she was born, ...

10/ ... which *everyone* in the case agrees is a sex-based criterion. Second, we explain that sex-based dress, presentment, grooming & restroom policies generally survive Title VII scrutiny not because they aren’t imposed because of employees’ sex—of course they are— ...

11/ ... and not because they impose harms equally on male and female employees, but instead because they don’t impose appreciable harm on most or all employees in the first place. As the Court has held in cases such as Burlington Northern and Oncale, ...

12/ ... even where an employer takes an action because of employees’ sex, that doesn’t violate Title VII as applied to an employee who suffers no more than “innocuous” (Oncale) or "trivial" (Burlington Northern) harm. Most such rules and policies are therefore facially lawful ...

13/ ... (i.e., permissible with respect to the vast majority of employees in a workplace), and an employer may retain them. *However,* it might not be permissible for the employer to apply some of those sex-based rules to some or all transgender employees. (cont.)

14/ "Context matters." (Burlington Northern.) Whether an otherwise permissible workplace norm can be applied to a particular employee thus depends upon that employee's particular circumstances. For example, as the Court wrote in Burlington Northern, ...

15/ ... "[a] schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." So, too, a sex-based dress, grooming, or presentment rule could impose profoundly greater harms ...

16/ ... upon a transgender employee than it does upon other employees born w/the same reproductive physiology, as we explain in greater detail in our brief. And where it does so, T7 prohibits an employer from applying that facially valid sex-based rule to that employee. (cont.)

17/ That would *not* mean, however, that the employer has to abandon all such workplace norms altogether, or in the mine run of cases.